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The Stages of the RIAA Legal Initiative

 
Subpoena

When the RIAA Initiative first began, the RIAA apparently issued more than one thousand subpoenas to various Internet Service Providers (ISPs) under the Digital Millennium Copyright Act. These ISPs include commercial, academic, and private providers of Internet service. For example, the RIAA would send a subpoena to Earthlink for any individual who the RIAA determined shares files and subscribes to Earthlink's DSL service. However, the D.C. Circuit Court of Appeals ruled that the RIAA misused the DMCA for this purpose. The RIAA continues to issue subpoenas but does so now under specific "John Doe" lawsuits.

So, the RIAA can't use subpoenas any more, right?

Wrong. Since the D.C. Circuit ruled that the RIAA improperly sought the issuance of subpoenas under the Digital Millennium Copyright Act, the RIAA has chosen to file "John Doe" lawsuits and issue subpoenas under the traditional rules of evidentiary procedure in federal courts. Although the Court must grant the RIAA permission to issue subpoenas in an "expedited discovery" fashion, most courts have granted the RIAA this permission. Thus, the RIAA can still and does still use subpoenas.
 

Are the subpoenas issued to me?

No, not the subpoenas described here. The subpoenas are issued and directed to the ISPs associated with specific IP addresses (this could be a cable company like Comcast, an academic institution like Purdue University, or a traditional ISP like Earthlink). Should you be the individual associated with an IP address at a particular time, the subpoena may seek information about you from the ISP. However, the subpoenas is issued and directed to the ISPs.
 

How did the RIAA find me?

Based on information we have obtained, the RIAA used automatic software and/or manual searches to search for individuals that shared large numbers of songs. In so doing, the RIAA also saved digital images of the songs offered for sharing on these individuals' computers. The RIAA would also record the username (the username at kazaa.com, for example) and the IP address (xxx.xxx.xxx.xxx) associated with the individual computer that contained the files.

With the IP address, the RIAA can easily determine through ARIN which entity or individual "owns" the IP address. For example, when you send an email, the email header typically contains the IP address for your computer. Using the site www.arin.net, I can determine who "owns" the IP address your computer has been assigned, often this will be your ISP.

The RIAA would then send a subpoena to the ISP seeking the identity of the individual who has licensed the IP address from the ISP.

We also suspect that the RIAA may have established dummy sites or tagged certain files released onto the file-sharing networks. Thus, like the use of tagged money, these files can be traced.
 

How do I know whether my ISP received a subpoena?

In most cases, the ISP will provide you notice soon after receiving the subpoena. When the RIAA Legal Initiative first began in 2003, various web sites recorded the IP addresses and usernames that have been the subject of subpoenas by the RIAA. These typically were obtained from the DMCA subpoenas no longer used.

If you don't know your computer's IP address, you usually can check it in your TCP/IP settings or the complete header in the email you send from your computer (ie send yourself an email). If you still cannot determine your IP address, contact your ISP. Dial-up customers will be assigned a new IP address each time one connects to the Internet.

Please also understand that if your computer is on a network, you will have an internal network IP address. Usually, these IP addresses begin 192.168.xxx.xxx. This is not the IP address for which you should be looking.

IP addresses in the form 10.x.x.x and 172.16.x.x thru 172.31.x.x have also been reserved for private networks. [Thank you to James Ford for this technical clarification.] Consequently, you should not be looking for IP addresses falling within these blocks as well.

Whether you will hear from your ISP depends on your particular ISP. Some ISPs (such as Earthlink) will notify the customer and provide a small window of time in which to file an objection to the subpoena. Your ISP will be able to tell you its practices in response to subpoenas (whether or not from the RIAA).

Should you receive notice from your ISP that it has received a subpoena, you should contact an attorney immediately. The ISPs often provide a limited amount of time to see evidence of an objection before releasing information.
 

Will my ISP reveal my identity to the RIAA?

The answer to this question depends on your ISP. Contact your ISP's legal department for more information on their specific policy.

Many ISPs will provide the customer with an opportunity to object prior to disclosure of your identity. Consequently, should you receive notice from your ISP through email or snail mail, contact an attorney immediately.

You once indicated that the D.C. Circuit ruled subpoenas to be improper for use by the RIAA. Is this not the case any more?

This is not the case any more. Soon after the initiative began, the D.C. Court of Appeals issued an opinion holding that 512(h) of the DMCA does not authorize the issuance of subpoenas to ISPs where the ISP is merely a conduit for the communications of others. At the time, we recommend that "If you learn that your ISP has received a subpoena, contact it immediately, object to the subpoena, and cite the D.C. Circuit opinion. Please note that file-sharing copyrighted material remains illegal. The D.C. opinion does not change this." This warning is no longer applicable. You still may object to a subpoena, but not on the grounds of the D.C. Circuit opinion as the RIAA changed its strategy. You should still contact an attorney immediately.


Identity Revealed by ISP

What happens when my identity has been revealed to the RIAA by my ISP?

When the ISP reveals an identity to the RIAA's attorneys, the ISP will reveal the identity of the customer in whose name the Internet account is registered.

For example, if you use your brother's computer to use the Internet or use your brother's Internet connection, the ISP will reveal your brother's identity. Consequently, should a lawsuit be filed, it will probably be your brother's name in the suit and not yours. This obviously poses several unique problems that will need to be addressed.

You should understand that a lawsuit will have already been filed against one or more John Does. The identity revealed by the ISP will be associated with a particular IP address related to one of the John Doe defendants in the litigation. Consequently, the "individual" has already been sued.

The RIAA will use the identifying information to contact the individual so identified by the RIAA and provide a limited (VERY LIMITED) window in which to settle on the RIAA's terms.

If one does not settle, the RIAA may name you in the lawsuit or file a separate suit with you named individually (eg from John Doe to Charles Mudd). The consequences become more severe in terms of settlement when this occurs.

Will I be sued if the RIAA obtains my identity?

Now, you will have likely been sued as a "John Doe" by the time the RIAA receives your identity. As for the number of files, the RIAA has filed suit against individuals for less than 600 files allegedly shared.

What do I do if my ISP has revealed my identity to the RIAA?

Call an attorney immediately. Beyond this, each individual will be faced with individual circumstances that warrant individual responses and legal representation.

 

 

Litigation Initiated

Has the RIAA actually sued anyone?

Yes. Upon our best information, the total number of unique individuals (as opposed to IP addresses which often have been duplicated or where multiple IP addresses relate to the same individual) sued by the RIAA exceed fifteen thousand (15,000). In the beginning, nearly all individuals that actually had a suit filed against them were personally named. Now, the RIAA typically personally names an individual when the RIAA states it did not receive communication from the individual. The bulk of the 15,000 represent individuals sued as a John Doe.

How will I learn that I have been sued?

Most recently, the John Doe suits usually mean that you will learn from your Internet Service Provider that the RIAA or MPAA has targeted your IP address. As such, this means that you have been sued as a John Doe associated with your particular IP address. While it may appear that you have not actually been sued yet, this represents a significant misunderstanding. Sometimes, a party may proceed against a John Doe. Moreover, unless one intervenes, the Plaintiff (here the RIAA) usually obtains the identity of the John Doe. In such a case, the Plaintiff can replace John Doe #XX with your personal name. Here, this will occur should the individual fail to respond to the letters sent by the RIAA and MPAA demanding settlement.

Previously, when this RIAA Legal Initiative began, individuals may have learned through a phone call from the media. Should this still occur (when one is personally named in the suit), it is always wise to consult with an attorney before communicating with the media (if ever). Simply state "No Comment" should you be contacted. Your statements to the media may be used against you. The media can be a great tool and resource. However, proceed with caution and consult an attorney before communicating with the media.

You may also be served by a sheriff, special process server, or United States Marshal.

Internet 2 Update: As the Internet2 users targeted by the RIAA have been associated with academic institutions, you may learn from your academic institution that you have been targeted. You should be cautious. Some academic institutions have been reported to instigate disciplinary proceedings. Should disciplinary proceedings be a possibility, we recommend that you consult with an attorney. However, we also encourage prompt attention to all requests by the academic institution. They may offer resources to assist you. YOU SHOULD BE AWARE THAT ILLEGAL FILE-SHARING MAY LIKELY VIOLATE COMPUTER USE POLICIES AT ACADEMIC INSTITUTIONS, and FOR GOOD REASON.

What do I do after I learn I have been sued by the RIAA?

Consult an attorney immediately. See the top of this page for information on how to contact attorneys handling these matters or simply email or telephone Charles Mudd at 773.588-5410 or cmudd@muddlawoffices.com.

Is it true the RIAA sued a twelve (12) year old?

The RIAA sued an individual whose name had been revealed to it. This individual happened to be a 12 year old. This case has been settled.

Is it true the RIAA sued a deceased individual?

It appears to be true.

I have been sued, but its no where near where I live. Did they make a mistake?

While possible, it's unlikely. The most recent suits have been initiated near or in the jurisdiction in which the ISP intended to be subpoenaed happens to be located. The location or court in which the particular case has been filed should not be construed as a mistaken identity or mistake by the RIAA or the MPAA.

What about defenses?

Intent

The United States Copyright Act does not include a mental state (mens rea) requirement. So, an individual's intent becomes irrelevant for purposes of litigating a defense. It may have some relevance depending on the circumstances for purposes of settlement.

Motion to Quash

We know of no successful motion to quash a subpoena issued in a John Doe suit by the RIAA and/or MPAA.

Summary Judgment

A court in the United States District Court for the Northern District of Illinois granted summary judgment brought against a defendant by the RIAA based on the evidence it had collected and submitted to the Court.

Parental Liability

This certainly remains a theoretical argument. We know of no successful application of the argument.

It's June 2006, are the MPAA and RIAA still pursuing people?

Yes, suits against individuals using the Internet continue by both the RIAA and MPAA.


John Doe Lawsuits - Part I

In response to the D.C. Circuit's December 9, 2003 opinion, the RIAA stated that it would file John Doe lawsuits. It did so. Although the D.C. Circuit opinion has binding authority only in the D.C. Circuit and only persuasive authority elsewhere, the RIAA proceeded to file the John Doe lawsuits against all perceived and/or alleged infringers with whom it has not yet settled. Thus, the RIAA has ceased using the DMCA as a vehicle to obtain the identifies of any perceived and/or alleged infringers prior to filing a lawsuit.

Under the DMCA, the RIAA would issue a subpoena to your ISP without filing a lawsuit or providing you with notice (it would likely not know your identity), as described above. Now, the RIAA will file a lawsuit with the defendant named "John Doe." It will then seek the court's leave to issue a subpoena to your ISP. While a John Doe suit imposes judicial discretion and oversight on the RIAA, the courts will very likely grant RIAA and the Record Companies the authority to send the subpoenas to your ISP.

If you receive notice of a subpoena from your ISP in connection with a John Doe suit, you should contact legal counsel immediately. Your legal counsel need not identify you and may proceed defending you as a John or Jane Doe. By having representation, you will ensure that your rights and arguments will be represented and the RIAA's motions and actions will not proceed without objection.

By filing a lawsuit first and avoiding DMCA concerns, the RIAA has eliminated some of the arguments used by the ISPs to refuse disclosing any identities. Consequently, some of the ISPs who fought the RIAA previously may be more reluctant to do so now. Therefore, your ISP may very well disclose your identity (see above).

Once the RIAA and the Record Companies learn of an individual's identity, they will very likely amend the Complaint to reflect the individual's true name rather than "John Doe." The RIAA will then have this individual served with a summons and copy of the Complaint.

At the same time, individuals should be forewarned that a party may proceed against a John Doe (or Jane Doe) and the failure to intervene in some manner may adversely affect one's rights.


John Doe Lawsuits - Part II - Questions and Answers

Can the RIAA or Record Companies file suit against a "John Doe"?

Yes. The RIAA can pursue a defendant as a John Doe until that defendant has been identified. In some cases, a plaintiff may obtain a judgment against a John Doe. The failure to intervene either as a named individual or a John Doe (or Jane Doe) may seriously adversely affect one's rights. Should you know that you are the subject of a John Doe suit, you should contact an attorney immediately (contact Charles Mudd or go to subpoenadefense.org).

Are there specific time limits in which to respond to receiving a summons and Complaint?

Yes. The summons should inform you how many days you have to respond to the Complaint. These typically include weekends and holidays (unless the actual deadline falls on one of these days). As we cannot know without seeing your summons, any information provided here should be treated as general information and not relied upon in acting on your particular situation. You should contact an attorney immediately upon being served a summons and Complaint (contact Charles Mudd or go to subpoenadefense.org).

Will I be able to settle without a public record?

This is a very good question. If you are the subject of a John Doe suit, you will more than likely eventually be the subject of the lawsuit and be required as part of the settlement to sign a stipulated judgment. A lot depends on the timing and how soon after the RIAA learns your identity you or your attorney contact the RIAA. Should you act quickly, the RIAA will settle without naming you personally n the lawsuit.

Additional questions and answers will be provided as these issues continue.


Amnesty Initiative "Clean Slate"

The Recording Industry offered the "Clean Slate" program to provide existing file-sharers who had not yet been notified of a lawsuit or subpoena to voluntarily identify themselves, enter into an agreement with the Recording Industry, and obtain "amnesty" for the individual's prior conduct. There exist concerns with the "Clean Slate" program. For example, the RIAA and/or Recording Industry do not represent ALL recording companies to which copyrighted songs belong. Thus, the agreement would not apply to non-RIAA record companies. Nonetheless, one would be identifying themselves as a file-sharer. Consequently, if the non-RIAA record companies obtained the list of file-sharers, nothing in the Amnesty agreement would prevent these companies from pursuing the individual. Again, significant concerns exist with the Amnesty or "Clean Slate" program. It is always wise to consult an attorney before doing anything.


This page and its contents (except where quoted and otherwise indicated herein) are 2004-2006 Law Offices of Charles Lee Mudd Jr. Anyone may link to this site. As stated above, this page and its contents have been provided for informational purposes only and SHOULD NOT BE CONSIDERED LEGAL ADVICE or LEGAL REPRESENTATION. While anyone may quote portions of this page, Law Offices of Charles Lee Mudd Jr. requests notification of such use.
 
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