Frequently Asked Questions for Subpoena Targets
If your Internet service provider (ISP) has notified you that your personal information (e.g., your name and address) is being sought in connection with a copyright infringement lawsuit, this page addresses questions you may have about your circumstances, rights, and options.
PLEASE NOTE: This page is not intended to provide you with legal advice. We strongly urge that you talk to a lawyer about your specific legal rights and options. This page includes contact information for attorneys who have offered to consult with you.
Table of Questions
Q: What is the notice I received from my ISP about?
A lawsuit has been filed against you (and possibly other anonymous Internet users) alleging that you shared or downloaded a movie online, in violation of copyright law. The person who filed the lawsuit is seeking information about you and has sent a legal document to your Internet Service Provider, called a "subpoena," which orders your Internet Service Provider to disclose information about you.
Q: Can I just ignore the notice?
You can, but then your ISP will be required to respond to the subpoena and release your personal information. If you do not take action the court could ultimately enter a "default judgment" against you, which means a ruling that you owe money to the company that sued you. A default judgment may be legally enforceable, and could be turned over to a debt collection agency or otherwise be used to collect money from you. It can also harm your credit rating.
Q: Who is suing me and seeking information about me?
The owner of a copyright in an independent film or pornographic film, represented by a lawyer. This lawsuit does not mean you are being sued or investigated by the government, and does not mean you have been charged with any crime.
Q: Why am I named "John Doe" in the lawsuit?
The plaintiff does not necessarily know your real name, so it has sued you as "John Doe." That is a term used in lawsuits for individuals whose actual names are not yet known.
Q: What may be illegal about sharing or downloading a movie file without permission?
United States copyright law prohibits copying of a copyrighted work unless permitted by the copyright owner or otherwise allowed by law. The lawsuit argues that you made or shared a copy of a movie without either permission from the copyright owner or another legal justification.
Q: My identity has not yet been disclosed by my Internet Service Provider (that is, I'm still a John Doe). What can I do to prevent my Internet Service Provider from disclosing my identity?
If you want to keep from being identified, you can ask the court to block (or "quash") the subpoena or to dismiss the case against you, but you should do so promptly and without revealing your identity yourself in the process. You can do this by filing a legal document called a "motion." You must file your motion within the time limit given on the notice from your ISP and you must send a copy of the motion to the law firm representing the plaintiffs, the Dunlap firm. You must also notify your ISP that you have filed a motion, such as by sending it a copy, otherwise it may be required to comply with the subpoena. If you need more time than is indicated on the notice to file such a motion or find a lawyer to assist you, you can file a motion asking for an extension of time. You should notify your ISP if you file a motion asking for more time and send them a copy. The notice from your ISP should tell you how best to contact them. If you do contact your ISP, you should know that they cannot give you any legal advice or file documents for you and that they do have to provide the information required by the subpoena unless the subpoena is blocked.
If you wish to protect your anonymity, you need to file your motion anonymously, as a "John Doe," and not reveal your true identity. This can be complicated to accomplish. We strongly advise that you consult with a lawyer regarding how to do so.
Q: If my identity has already been disclosed, what do I do now?
To maintain a lawsuit against you in a federal court, the plaintiff must establish that the court has "personal jurisdiction" over you. Courts cannot exercise their power over everyone in the country, only those people who have sufficient contacts with the physical place where the court is located - a state, portion of a state, or territory. Thus, if you do not live or work or own real estate in the state or region where the lawsuit was filed, or visit there regularly, you may be able to argue that the plaintiff has brought its case in the wrong court. Note that if your challenge is successful the plaintiff can still file suit against you in a court that does have personal jurisdiction over you, such as a court in the state where you live.
You may also consider challenging the lawsuit on other grounds, including that it was improper to lump you into one lawsuit with other people who are also accused of illegally copying a movie (this is a legal concept called "joinder"). A "friend of the court" brief that explains those issues further, and provides some legal basis for them was filed by the Electronic Frontier Foundation, the American Civil Liberties Union, and Public Citizen. It is available here and may be helpful to you and your lawyer as you consider your options:
Q: Where can I find a lawyer?
The Electronic Frontier Foundation has created a website to assist people in locating attorneys who can help them with these cases:
The site lists attorneys who have offered to consult with you. Note that the EFF has not screened or evaluated the attorneys on the list and cannot vouch for them. They are simply attorneys who have told us that they may be willing to help people in your situation. Please do your own investigation and carefully consider any attorney before engaging him or her to represent you.
Q: What if I can't afford a lawyer?
You can represent yourself, although we do not advise that. As noted above, it can be very difficult to represent yourself and maintain your anonymity. Note that some lawyers defend clients in this type of suit at a reduced fee.
If you file papers with the court, be sure to include include the case number on any paper you send to the court. It can be found on the notice you received.
Q: How was I identified in this lawsuit?
The lawsuits accuse individuals of sharing and downloading movies using BitTorrent, a standardized peer to peer, or P2P, means of swapping files online. When you are doing things online, including using BitTorrent, you are assigned an "internet address," also called an "internet protocol" or IP address. The plaintiff's lawyer used various means to record the Internet addresses used by individuals to share movies using the BitTorrent software. They then provided the Internet Address to your ISP with a legal document called a subpoena that demanded that Internet Service Providers, including your ISP, turn over the information about the customers assigned each Internet address. Your ISP has connected you to the internet address and time that the plaintiff's lawyer provided to it.
Q: How did my Internet Service Provider (ISP) identify me?
Your ISP keeps records that link your computer or modem to a specific address on the Internet, called an internet address, Internet Protocol address or IP address at any given time. They need to do that in order to make the Internet work for you. After using the means described above to capture your IP address, the plaintiffs then provided your ISP with an IP address and a time that they believe a movie was copied. In most cases, an ISP can match the identity of the customer account assigned the IP address on the date and time given to them by the plaintiffs. Your account was identified in that process.
Q: What is BitTorrent? How does it work?
BitTorrent is a computer program that enables Internet users to download specific files by swapping pieces of the files with other computers all attached to the Internet. By collecting pieces of a file that you want from other BitTorrent users, your computer eventually builds a complete copy of the file, and then can share bits of that file with other Internet users using the same program.
Q: I don't use BitTorrent or don't recognize this film download. How could I have been identified as a BitTorrent user in this lawsuit?
While we cannot say what happened in your case, defendants in similar lawsuits in the past have claimed to have been misidentified in a variety of circumstances, and other situations are foreseeable:
- The plaintiff's collection of data about alleged unlawful file-sharing was inaccurate
- A friend, family member, nanny, or houseguest used the defendant's computer to copy a movie
- The defendant's ISP had incorrect records, and therefore misidentified the defendant when they received the subpoena from the plaintiff
- A clerical error by the plaintiff or defendant's ISP, such as transposing digits, resulted in a misidentification
- A third party borrowed, bought, or stole the defendant's modem or computer such that their modem or computer was used for illegal file sharing, but the defendant themselves did not do anything unlawful
- The defendant's modem or computer was previously owned by a third party who used it for illegal file sharing
- The defendant operated a publicly accessible wireless network which a third party used for illegal file sharing
Q: I believe I was misidentified. What can I do to figure out how?
Several things may help you figure out what happened:
1. Your ISP identified your account by looking up a unique number built into your modem, called a Media Access Control (MAC) address. A MAC address is usually represented as twelve characters or six pairs of characters, such as 01-23-45-67-89-AB. If your ISP has told you what it believes your MAC address to be (it may have provided this information in the notice it sent you), you can check your cable modem for a label indicating its MAC address, and match it against the modem MAC address your ISP has for you. If they differ, your ISP may have incorrectly associated a different modem with your account.
2. You can search your computer for the movie file the plaintiff alleges you downloaded or shared. If your computer does not contain the movie file, it is possible another computer was used to download the movie.
3. You may also search your computer for BitTorrent software. Popular programs include Vuze, Azureus, µTorrent, Transmission, and the official BitTorrent application. If BitTorrent software is not installed on your computer, it is possible another computer was used to download the movie.
4. If you operate a wireless network, check whether it requires a password or keycode for access. If it does not, someone may have downloaded the film using your wireless network without your knowledge. Even if it does, you may wish to check with the other individuals who have the password or keycode to see if they have been engaging in filesharing.
To win a lawsuit against you, the plaintiff has to prove that you unlawfully downloaded or shared its movie.
Q: Should I contact the plaintiffs?
We stongly suggest that you consult with an attorney before contacting the plaintiffs directly to avoid making statements or otherwise giving information that may disadvantage you in the lawsuit. Anything you say to the plaintiff or its representative will be used against you. We also note that if your name has not yet been identified, calling the plaintiffs may give them the ability to identify you from your phone number, so you should consider carefully before contacting them at that stage. Note that EFF has created a website to assist people in locating attorneys who can help them with these cases.