And the Legal Trail Plaintiffs Can Follow Through the Internet to You

In my last blog entry, I said I wanted to discuss this opinion, issued out of West Coast Productions Inc. v. Does, in which some independent filmmakers sued 5829 anonymous defendants for allegedly downloading their films using BitTorrent, in violation of copyright law.  This opinion is the culmination of the filmmakers’ (more or less* successful) attempt to identify the anonymous defendants, some of whom resisted pretty strenuously, so they could be named and served with process. I explained the general contours of the First Amendment right to speak anonymously, and the interests that had to be balanced.  Now I want to put these rights into some real-world context by discussing the steps the filmmakers took to learn the identities of the defendants.

The filmmakers won the right to learn the defendants’ identities, but they still have a few procedural hurdles, which are proving troublesome.

The filmmakers in this case found themselves with a pretty typical problem:  they knew the IP addresses that were used in carrying out the allegedly wrongful act, but that they weren’t enough to identify the actual person.  It’s usually fairly easy to figure out what IP address was being used at a certain time in connection with a certain activity.  There are lots of IP address trackers available for free, and sometimes all you need to do is look it up on an access log.

An IP address is, indeed, a unique identifier–of sorts.  It looks something like  At any given time you’re connected to the internet (in a “session”), you have a unique IP address (well, your computer or router does).  With IP address lookup available for free, you’d think that’d be enough to identify at least the subscriber associated with that number, and with large companies with constant “always-on” internet service, that’d be true.  They have stable (“static”), assigned IP addresses.  But with ordinary consumers, that’s not the case.  Consumers typically have “dynamic” IP addresses.  Consumers’ ISPs own large blocks of IP addresses, but not enough for each one of their customers, who aren’t going to be all logged in at the same time.  When one of their customers starts an internet session, the ISP assigns one of its IP addresses to the customer for that session.  When the customer logs in again the next day, chances are he or she will be assigned a different IP address.

This is where the ISP comes into our discussion about anonymous speech.  The ISP keeps a log of which customer was assigned which IP address at what time.  With this information, it’s just a matter of cross-indexing the IP address and the time to determine the subscriber.  So if you’re a plaintiff in one of these online anonymity cases, the trick is to make the ISP give you this information.  At a minimum, this means filing a lawsuit because ISPs aren’t going to hand the information over without legal compulsion–i.e., a civil subpoena–and you normally can’t issue a subpoena without filing a lawsuit

Filing a lawsuit, however, raises something of a paradox because you don’t know who your defendants are.  Naming the defendant isn’t the problem–you can always temporarily name them as “John Doe.”  The problem is that you don’t know where they live.  Not all courts have the power to hale a defendant into court and issue an enforceable judgment against the defendant (a concept known as personal jurisdiction). Indeed, when it comes to ordinary consumers, very few courts have such power:  usually just the courts in the consumer’s home state and perhaps one or two others where the alleged acts took place.**  But if you don’t know who the defendant is, you probably don’t know where the defendant lives, which means that you really don’t know where to sue the defendant.

**  This is, in fact, a Constitutional right.  You might think of it as the right not to be dragged into arbitrary courts.

ISPs, for their part, display a wide range of attitudes when they receive a civil subpoena seeking their customers’ identities.  I won’t name names, but some will comply unquestioningly, even with facially defective subpoenas, perhaps fussing over timing and cost, but doing almost nothing to protect their customers.  Others will hold the plaintiffs’ feet to the fire, sometimes going so far as to try to “quash” (block) the subpoena.***  If you have to deal with the less pliable sort of ISP, you might have a bit of a fight on your hands–and that’s just so you can name your defendant.

***  As it happens, there was an order in the Blue Coast case that required the ISPs to notify their customers of the subpoena, so it’s hard to tell which ISPs would have done that voluntarily.

As these things go, this is very straightforward.  The defendants usually don’t do much affirmatively to hide their identities (which can increase the difficulty by a magnitude or more).  And yet, lots can still go wrong.  For one thing, where there are thousands of IP addresses at issue, some of those addresses are bound to be simply wrong.  Numbers get transposed, the IP address tracking program isn’t 100% accurate, and the IP address might have been spoofed, and so forth.****  Even if all that goes perfectly, the subscriber isn’t necessarily the guilty party.  Other members of the household or building could have done the deed.  (It’s pretty common for the children to be blamed.)  If the subscriber uses an unsecured local network (more about that in another blog entry!), it may be impossible to know who might have been using the network at a particular time.

****  This example, from the RIAA’s 2003 fight against music downloading, is an oldie-but-goodie.

But what about that First Amendment right to speak anonymously–where does that come in?  It comes in at the subpoena stage.  The ISP itself might oppose the subpoena, asserting its customers’ rights (and its own rights).  If the ISP lets the customer know about the subpoena, the customer can try to intervene anonymously and “quash” the supboena. In either event, the First Amendment will be playing a prominent role.  How that worked out in the Blue Coast case will be the subject of my next entry.  I will also be expressing something of a policy opinion (which I won’t make a habit of, I promise!)  Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.