FAQ: Questions and Answers

[back to notice text] Question: Isn't my ISP required by law to tell me if someone asks for my Internet-usage records and identity? Answer: Unfortunately, in practice CyberSLAPP subpenas are rarely challenged becaue ISPs often fail to notify the individual who's personal information is sought. Even when they do, the short deadline (often as little as 7 days) does not provide enough time for the speaker to find and hire an attorney and the attorney to prepare the Constitutional arguments necessary to defend against the subpena. [back to notice text] Question: Don't judges review subpoenas before they are sent to ISPs? Answer: No. The issuing of civil subpoenas is not monitored by the court handling the case. Under the normal rules of discovery in civil lawsuits, parties to a suit can simply send a subpoena to anyone they believe has information that could be useful. That information doesn't even have to be relevant to the lawsuit, as long as it could possibly lead to the discovery of relevant information. The only way that a court will evaluate an identity-seeking subpena is if either the ISP or the target of the subpoena files a motion asking the judge to block the subpoena. Unfortunately, in practice that rarely happens. That is because these subpoenas usually have a short, roughly 7-day deadline, and because many people never even find out that their Internet data has been subpoenaed. [back to notice text] Question: What is a subpoena (also spelled "subpena")? Answer: A subpoena is a formal demand that a person or company produce evidence in or for a civil or criminal lawsuit. A subpoena duces tecum (the kind most commonly used in John Doe cases) requires only the production of identified documents or categories of documents. [back to notice text] Question: What is a subpoena (also spelled "subpena")? Answer: A subpoena is a formal demand that a person or company produce evidence in or for a civil or criminal lawsuit. A subpoena duces tecum (the kind most commonly used in John Doe cases) requires only the production of identified documents or categories of documents. [back to notice text] Question: Where can I find more information about the RIAA's "John Doe" lawsuits? Answer: The Electronic Frontier Foundation (EFF) maintains an archive of papers and court filings at http://www.eff.org/IP/P2P/riaa-v-thepeople.php. [back to notice text] Question: My ISP tells me it's been asked to turn over my name as part of a lawsuit against hundreds of "John Does" in a faraway state. What can I do? Answer: You should probably contact a lawyer, and suggest that the lawyer take a look at arguments raised by the EFF, ACLU, and Public Citizen in one of these suits (e.g., http://www.eff.org/IP/P2P/RIAA_v_ThePeople/JohnDoe/20040202_UMG_Amicus_Memo.pdf) [back to notice text] Question: What is copyright protection? Answer: A copyright protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permision of the copyright owner. 17 U.S.C. ?102. The copyright in a work vests originally in the author(s) of the work. The author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. 17 U.S.C. ?201. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. 17 U.S.C. ?106. This right lasts for the life of the author plus seventy years; or in the case of a copyright authored by an entity (a work-for-hire), for ninety-five years. 17 U.S.C. ?302. [back to notice text] Question: Does the fair use doctrine permit individuals to upload and download digital audio files containing copyrighted music through a file-sharing service that facilitates transmission and retention of the files by its users? Answer: The courts that have considered this issue to date have held that this type of "peer to peer file sharing" violates the copyright owner's exclusive right to reproduce their copyrighted material and does not constitute a fair use. The Ninth Circuit Court of Appeals applied the four factor fair use analysis to address this issue. First, the court found that the purpose and character of such a use was not transformative, since the work was merely retransmitted in a different medium. Also, such use was found to be commercial in nature and resulted in the exploitation of copyrighted works since it saved the users the expense of purchasing the authorized copies. The court also focussed on the fourth factor, the effect of the use on the market. The court concluded that the internet service harmed the market for the plaintiff's copyrighted material by reducing CD sales and by interfereing with the copyright holder's attempts to charge for the same internet downloads. A&M Records v. Napster, 239 F.3d 1004; see also MGM v. Grokster [back to notice text] Question: I use file sharing software. What can I do to make sure I'm not sued by the RIAA? Answer: The best way to protect yourself against an RIAA lawsuit is to avoid copyright infringement. First, ensure that you are not engaging in copyright infringement by removing any files from your shared directory that you do not have permission to distribute. Second, change any potentially misleading file names that might be confused with the name of an RIAA artist or song (e.g., "Madonna"). For a more detailed explanation of this process and other ideas to avoid being treated like a criminal, visit the EFF's page on the subject at http://www.eff.org/IP/P2P/howto-notgetsued.php.

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