Over the last several years, the number of lawsuits filed against anonymous Internet users has exploded. In these cases, alleged victims of online defamation and copyright infringement attempt to strip away Internet users’ anonymity by seeking a court subpoena. Most notably, copyright trolls have filed lawsuits for infringement, naming thousands of anonymous Internet users as defendants. These plaintiffs, often large music recording or movie production companies, will issue a subpoena to a user's Internet Service Provider (ISP) to compel the ISP to reveal the identity of that user. If you have received a letter from your ISP notifying you of a pending subpoena seeking your offline identity, or if you are an ISP that received a subpoena seeking information on one of your customers, here’s what you need to know.

1. GAMABrief:
So, You Got a Subpoena: An FAQ for Internet Users & ISPs
Over the last several years, the number of lawsuits filed against anonymous Internet users has exploded. In these cases, alleged
victims of online defamation and copyright infringement attempt to strip away Internet users’ anonymity by seeking a court
subpoena. Most notably, copyright trolls have filed lawsuits for infringement, naming thousands of anonymous Internet users as
defendants. These plaintiffs, often large music recording or movie production companies, will issue a subpoena to a user's Internet
Service Provider (ISP) to compel the ISP to reveal the identity of that user.
If you have received a letter from your ISP notifying you of a pending subpoena seeking your offline identity, or if you are an ISP
that received a subpoena seeking information on one of your customers, here’s what you need to know:
Info
For
File
Sharers,
Bloggers
&
Other
Internet
Users
What's
a
subpoena
and
why
did
I
receive
it?
A subpoena is an official document from a court requiring you to produce documents or records or to attend a trial or
deposition as a witness.
If you have recently downloaded files via a file sharing client or protocol (such as BitTorrent), or if you have recently posted a
comment on a public message board or blog, a plaintiff may be claiming that you have either infringed their copyright or defamed
them. Generally, when you engage in online activity, the only identifier tying you to that activity is either an Internet Protocol
address (“IP address”) or a username. A plaintiff may, therefore, have sent a subpoena to the ISP that assigned you your IP
Address in order to discover your real name and address.
Why
am
I
referred
to
as
“Doe”?
When a plaintiff brings a lawsuit against an anonymous defendant, the court will assign the pseudonym of “Doe” or “John Doe”
until the defendant’s true identity is discovered. When more than one anonymous defendant is named in the lawsuit, the plaintiff
will often refer to the defendants by number, i.e., Doe 1, Doe 2, Doe 3, etc.
If
I
ignore
it,
will
it
just
go
away?
NO! Ignoring a subpoena is a surefire way to sacrifice your legal rights or end up in some big trouble.
If your ISP informs you that it has received a subpoena seeking your information, you may be able to fight the subpoena in court.
If you do nothing, however, the ISP will likely fulfill the terms of the subpoena and provide the plaintiff with your name and
address. Once the plaintiff has this information, you will be served with a complaint and, subsequently, have to defend yourself
against the lawsuit in the courtroom.
If you received a subpoena directly, ignoring it can be a basis for a court to hold you in contempt. Contempt of court can be
accompanied by fines and even jail time.
Can
I
fight
a
subpoena?
Yes. When a plaintiff tries to discover your identity by sending a subpoena to your ISP, they may violate your First Amendment
right to speak anonymously. In 1960, the Supreme Court decided Talley v. California, in which it was found that part of the right to
free speech and expression is the right to speak anonymously. Courts have subsequently found that this right also applies to
expressive activities on the Internet.
A GAMA White Paper produced by Brandon Wiebe © 2013. Gagnier Margossian LLP. All rights reserved.

2. Relying on the First Amendment, an attorney can help you prepare a motion to prohibit the plaintiff from discovering your
identity (called a “motion to quash”). You can also attack a subpoena if it is unlikely to lead to relevant evidence in the case or if it
is too burdensome. An attorney can help you research these legal arguments and present them persuasively before the court.
Is
copyright
infringement
really
a
big
deal?
Yes. If you are found liable for copyright infringement, the plaintiff may be entitled to statutory damages equal to as much as
$150,000 per infringement.
I
also
received
a
seHlement
leHer
—
do
I
really
need
to
pay?
Not necessarily. You are not obligated to settle a claim brought against you by a copyright troll or other plaintiff. After discovering
an online file sharer’s identity, many copyright trolls will send settlement demand letters, asking that a defendant pay hundreds or
thousands of dollars to settle the case. Whether you want to settle a case is ultimately your decision, but you are not obligated to
settle a case and have the right to have your case heard by a jury.
Info
for
Online
OrganizaKons
&
Service
Providers
Why
did
I
receive
a
subpoena
seeking
informaKon
about
one
of
my
customers?
Since many providers of online services keep a database of customer names, addresses, usernames and IP addresses, a plaintiff in
a lawsuit may try to get you to unmask the identity of one of your customers in order to serve him or her with a complaint. The
plaintiff may only know the customer by his or her IP address or username, and may want you to disclose the customer’s real
name and address.
Should
I
contact
the
customer?
Maybe. Notifying a customer of the subpoena will give that customer a chance to fight the subpoena. While this may simply be a
smart move in order to maintain consumer trust, you might also be legally obligated to provide customer notification.
The first thing to check is your privacy policy. If your privacy policy states that you will notify customers of subpoenas seeking
their personal information, you must provide such notification in order to comply with fair business practice laws and Federal
Trade Commission regulations.
There are other laws that may also compel you to notify your customers. If the case is based on alleged copyright infringement,
you may be required to notify your customer in order to maintain safe harbor protection under the Digital Millennium Copyright
Act. If you are also a provider of cable television services, you will likely be required to notify a customer under the Cable
Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 551(c)(2).
Can
I
fight
the
subpoena?
An attorney can help you determine whether you should fight a subpoena seeking information about one of your customers. In
some circumstances, the information sought by the subpoena may be protected as a trade secret or other legal privileges.
If
you
have
received
a
subpoena
seeking
either
your
idenKty
or
the
idenKty
of
a
customer,
contact
an
aHorney
at
Gagnier
Margossian
LLP
to
explore
your
opKons.
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