Subpoena Defense

   Defending The Constitutional Rights of Internet Users and ISPs


This site is a resource for individuals seeking information on how to defend themselves if their identity has been subpoenaed by a private third party seeking to enforce their copyrights on the Internet.  It includes resources for those who have been sued or have received threat letters from the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA) and other copyright holders.

The piracy of copyrighted material is illegal and should not be condoned.  But the desire to protect copyrighted works must be balanced with the need to protect the constitutional rights of consumers, both in terms of protecting their privacy and personal safety and by invoking due process under the law. 

 A federal appeals court has overturned a lower court ruling that required Verizon Online to reveal the identities of subscribers suspected of illegally exchanging copyrighted songs over the Internet. The RIAA appealed that decision to the US Supreme Court, which elected to let the lower court ruling stand.

The appeals court ruling, made Dec. 19 of 2003, means that instead of serving “form” subpoenas on Internet service providers (ISPs), the recording industry must now seek identities by filing civil lawsuits against “John Doe” defendants, based on their Internet addresses, then work under the supervision of a court to learn their names.

The recording industry had been using an unusual subpoena to force ISPs to identify subscribers: a one-page form filed with a court clerk with no judicial oversight. The recording industry claimed the form subpoena was allowed under the federal Digital Millennium Copyright Act.

The U.S. Court of Appeals for the District of Columbia said under provisions of the copyright law, only materialshosted by an ISP (such as information stored on Verizon Online’s servers) can be subpoenaed using the form subpoena process. The court said the provision does not apply to instances in which the ISP merely acts as a conduit for peer-to-peer exchanges, such as e-mail and instant messages.

The appeals court said its decision did not reflect disregard for the rights of copyright holders, but that “it is not the province of the courts . . . to rewrite [copyright law] in order to make it fit a new and unforeseen Internet architecture.”

The court’s ruling did not address the legality of hundreds of lawsuits already filed by RIAA against individuals accused of exchanging copyrighted songs over the Internet.

The RIAA appealed that decision to the US Supreme Court in 2004, but the high court elected to let the lower court ruling stand.

In October of 2004, the RIAA asked a Pennsylvania district court to issue subpoenas to ISPs for the names and addresses of people they suspect of infringement.  The court ruled that the ISPs must first send their customers detailed notices about the subpoenas, including information about how the accused suspects can contest the subpoenas.

The process by which the customers can contest the subpoenas is called a “motion to quash,” and the Electronic Frontier Foundation has created a special web page for attorneys in these cases with information on how to file a motion to quash.

Report any abuse or misuse!

If someone is seeking your name without a reasonable claim of copyright infringement, that’s an abuse: For example, if someone is using the subpoena to harass or defraud; if they’ve matched filenames, but not their content; if you weren’t using the IP address listed (because of a typo or other error, such as because someone else was using a wireless network). Even if you did have copyrighted material on your computer, you might have a lawful right of fair use.

the abuse now to

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