Mass copyright lawsuits began with "The Hurt Locker," but quickly became exclusively the province of pornography distributors, most of which seem to include remarkably crass and embarrassing titles. In the first wave of lawsuits, a defendant would be sued in a court on the other side of the country, and the lawsuit could be safely ignored because that court completely lacked jurisdiction. The new tactic is for the plaintiffs to file a lawsuit in the state where the defendant lives, and the odds are, if you are reading this, that is what has happened to you.
Note, if the plaintiffs have followed the subpoena process correctly, the subpoena will issue from a foreign court, such as a court in Texas (where Verizon is headquartered) or New Jersey (where Comcast is headquartered). This is because the subpoena must be issued from a court within 100 miles of the subpoena target's (the ISP's) headquarters, but it will still indicate that the case is pending in the District Court for your state.
Here is how the process works: First, the plaintiffs hire a company to investigate peer-to-peer trading of a particular work for which they own the copyright. The investigation company reports back with the time, date, and internet address (IP Address) of computers they believe were sharing the copyrighted work. At this point, of course, all they have is the IP address, no names or addresses. Next, the plaintiffs file a lawsuit against the owners of those IP address, listing each as a "John Doe." They do this in order to get the judge presiding over the case to grant them the authority to issue subpoenas - formal requests for records. Next, they subpoena the identifying information from the internet service providers for the owners of the IP addresses in question. It is at this point that the owner of the IP address first receives a notice that his/her IP address is the subject of a subpoena. Once the plaintiffs have the defendant's identifying information, they may chose to either send a demand for settlement prior to filing a lawsuit, or file a lawsuit against the person identified as the owner of the IP address at the time of infringement. If this is a case which was begun outside of the state where the Defendant resides, the John Doe lawsuit is (most likely) dismissed.
Recently, in Massachusetts, the primary plaintiff has been Three Strikes. The particular tactic of the Three Strikes plaintiff's counsel appars to be filing suit against individual people rather than large groups of people, as was done in the past. That means that they have to pay the filing fee separately for each, and handle each case separately. That increases costs for them, which means they have to find ways to make it worth doing. It appears that Three Strikes is doing two things to increase the value of each case. First, they are targeting IP addresses with a history of multiple infringements, rather than ones with only single instances. Second -- and this is speculation on my part -- I believe that they are using publicly available information about the location of IP addresses to target individuals in single familiy residences as opposed to college students. This accomplishes two things. For one, it targets people with the financial ability to respond to the case. Second, it minimizes the potential defense that the infringement was caused by an unknown third party (more on that later).
In the later sections of this article, I will try to describe the process of defending these cases, from beginning to end.
|Table of Contents
|2. Defending Subpoena for Identifying Information