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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

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Wednesday, November 10, 2004

Commentary: Privacy, Piracy and Due Process in Peer-to-Peer File Swapping Suits (Findlaw)

Findlaw's commentary section contains an interesting article by Professor Ramasastry of the University of Washington School of Law about the privacy protections for alleged file-swappers in John Doe suits by the RIAA and others:

Ramasastry: Privacy, Piracy and Due Process in Peer-to-Peer File Swapping Suits:
"....Here's how the RIAA typically proceeds. It files a 'John Doe' lawsuit based on an Internet Protocol (IP) address connected to P2P trading via Kazaa, Grokster, Limewire, or another, similar system. The suit is often filed in the jurisdiction where the relevant Internet Service Provider (ISP) is located.
Once the suit is filed, the RIAA subpoenas the ISP to force it to disclose the real name of the 'John Doe' associated with the IP address. That person, however, is not necessarily the file trader - it may instead be a relative, college roommate, or landlord. And neither that person - nor the file trader, if he or she is a different person - is given prior notice and a chance to fight the subpoena.... Fortunately, however, that may change."

Labels: information breaches, ip address

11/10/2004 10:08:00 PM :: (1 comments) :: Backlinks

Comments:

actually, this isn't accurate.
the riaa and others file a John Doe lawsuit. they then seek expedited discovery from the judge to serve teh ISP with a subpoena to learn the identity of the subscriber using the Ip address at teh relevant time.
The ISP then typically notifies the subscriber that a subpoena has been served and has, typically, ten days to seek an order quashing the subpoena or allows it to go through.
Once the subscriber is identified, the complaint is amended to name them directly.
then a lawsuit still has to proceed. Proofs have ot be made and conclusive evidence (preponderance of the evidence threshhold) must be met before anyone is liable.
That's when proofs that the person was out of town, working late, on a cell phone form somewhere else are submitted to disprove the claims. Also, war driving defenses are often made...
this procedure is far better than the former 512(h) subpoena process that we joined in the lawsuits ot stop.

just thought I would add my 2 cents.

Parry

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