We’ve discussed the basics of pre-suit strategy, defenses both procedural and on the merits. Now let’s follow these cases through their usual trajectory to try and answer a common question: “What if I don’t settle AND the troll obtains my identity from my ISP?” We know that the IP address often leads to a rabbit hole of defenses, so where will they go next? Surely they don’t expect a defendant to personally admit to infringement — in fact, the defendant may assert his or her Fifth Amendment right not to incriminate him or herself, since there are potential criminal penalties for copyright infringement. But there are other ways to discover what’s lurking in a defendant’s closet, so to speak.
I will rule out depositions, requests for admissions, and interrogatories, since the Fifth Amendment may be asserted in most of these cases. (But note that in civil cases, there is no Constitutional prohibition on inferring a reasonable adverse inference from a party’s invocation of the privilege. This is the subject of many a law review article, the telling of which I will mercifully spare you. See Baxter v. Palmigiano, 96 S. Ct. 1551 (1976).). The trolls will serve requests for production of documents, inspections of defendants’ computers and other digital devices, and subpoenas to produce documents and other things. It’s asking a lot from a judge to inspect all connected devices in a home after already having asked for the identities of defendants based solely upon an IP address and the name of the ISP account holder (the “subscriber”). It’s not that it’s unusual to inspect hard drives the like, but to do all this without even knowing who did it is pushing the limits of most judges willingness to exercise their sound discretion. Even if such discovery is ordered on an expedited basis, it only takes a few minutes to destroy a computer, as one alleged doe defendant reportedly said he’d do. Without inspecting the connecting devices, the troll will probably find it very difficult to prove the infringer’s identity.
This begs the question: Why do the demand letters demands thousands of dollars from YOU (the subscriber) pay thousands of dollars for the infringement that YOU, if the troll, even with the identity of the subscriber, is still unable to determine who is responsible?
Early discovery, that is, generally, before a Rule 26(f) conference, discovery is only granted in limited circumstances. “As a general rule, the use of “John Doe” to identify a defendant is not favored. However, situations arise . . . where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” See Gillespie v. Civiletti, 629 F. 2d 637 (9th Circ. 1980). The truth is, judges could go either way on this.
For reasons already discussed, if you get a subpoena from your ISP, call a lawyer! (unless you don’t mind being forever attached to a copyright infringement lawsuit related to porn).