When is a bittorrent user “named and served”?
QUESTIONS ASKED ON BEING NAMED AND SERVED:
- At what point is an accused torrent user ‘named and served’ in a lawsuit? Is it once the ISP turns over his information to the attorneys?
- What do I do if I am ‘named and served’ in such a lawsuit?
- Can your firm still represent me if I am ‘named and served’ in a lawsuit?
- What if I am named and served in a jurisdiction in which you are not licensed?
ANSWER:
All of the proceedings that have been taking place with these copyright infringement cases have been in the pretrial stages while the defendant is still a John Doe represented merely by his accused IP address. Even after the internet service provider hands over the defendant’s identifying information, he or she remains a John Doe Defendant until the plaintiff attorney decides whether to name and serve the defendant or dismiss him or her.
2017 UPDATE: I am including this article as part of the TorrentLawyer University set of fundamental topics which are relevant to bittorrent-based copyright infringement lawsuits.
Am I ‘Named and Served’ when the ISP complies with the subpoena asking for my information?
No. The ISP was under a duty signed by a federal judge to hand over your information. If your attorney did not file a motion to quash the subpoena, then your ISP likely complied with the judge’s order. This means that they forwarded over your account information, along with the account information of the other “John Doe” Defendants in your case. It is easiest to think about this as if the ISP sent over a spreadsheet with a bunch of lines on it — your account information was included in one of those lines.
You are not named and served when your ISP complies with the subpoena. You remain a “John Doe” defendant — anonymous to the world, but only known to you, the ISP, and now, your plaintiff attorney (and his copyright troll client).
Being ‘Named and Served’ Happens When the Complaint is Amended
Amending the Complaint (“Named”)
A plaintiff attorney ‘names’ a bittorrent defendant when he amends the copyright infringement complaint, replacing the John Doe placeholder with the real defendant’s name. In a bittorrent-based copyright infringement case, the plaintiff attorney names a defendant when he changes the name of the accused defendants from “John Does 1-200” (or however many “John Doe” putative defendants there are) to “John Does 1-199, and Jim Smith” (Jim Smith being the named defendant).
Service of Process (“Served”)
Upon naming a defendant, the plaintiff attorney then must ‘serve’ a defendant with a copy of the complaint. The Federal Rules of Civil Procedure (FRCP) gives him a few ways to do this. The easiest (and costliest method) is to hire a process server to stop at the defendant’s house and serve him with a copy of the complaint. Other methods include using the U.S. mail (asking the defendant to waive service of process in return for receiving a longer time period to file an answer with the court), etc. The complaint must conform to both the Federal Rules of Civil Procedure and the court’s local rules (more on this in a future post).
Status of the former “John Doe” Defendant upon being Named and Served
If the plaintiff attorney names and serves the defendant, the named defendant ceases to be a John Doe and must immediately file any motions (e.g., motions to quash if still relevant, motions to dismiss, etc.) with the court. The defendant is advised if he has not already done so to hire local counsel (or if he is already represented by an attorney, to have his attorney hire local counsel to file motions on his behalf) to defend the case.
In short, upon being named and served, the defendant’s attorney (or local counsel) must file an answer to the complaint with the court, send a copy to the plaintiff, and must start evidentiary proceedings (e.g., discovery) if he is to properly defend his client.
Can your firm still represent me if I am ‘named and served’ in a lawsuit?
Absolutely. A bittorrent lawsuit is simply a copyright infringement lawsuit. It is filed in one of the many federal courts spread across the country, and any attorney who knows how to navigate the federal courts can represent you in your case. Our Cashman Law Firm, PLLC practice focuses in federal court practice, so we can represent you in any federal court, even if we are not licensed to practice in that state.
What if I am named and served in a jurisdiction in which you are not licensed?
Not a problem. Copyright law is exclusively federal law. Thus, copyright infringement lawsuits belong exclusively in the federal courts. Now obviously some courts will require that we hire local counsel in that state, but we already know which courts require this and are prepared to defend you in your case.
Where the cases are (as of writing this article).
Our firm has been gearing up for full-fledged copyright infringement lawsuits since September of 2010, but as of writing this article (Feb., 2011), so far the cases have not moved past the John Doe stages of the lawsuits. It just seems to me as if the plaintiffs are nervous that if they start suing, then we will start defending the cases diligently and we will start creating bad case law for them (which is exactly what they have been trying to avoid). If they move the case down this road of naming and serving defendants and we start winning on the merits of the case rather than having them dismissed based on procedural defects (as has been the case in most of the dismissals to date), we will shut down their operations and will make it almost impossible for them to continue their cash machine of suing John Doe Defendants without naming and serving the underlying defendants and scaring them into settling, only to dismiss and repeat with a whole new set of defendants.
Warm regards,
Rob Cashman, Owner
Cashman Law Firm, PLLC
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THIS HAS BEEN A LAWSUIT-NEUTRAL ARTICLE WRITTEN FOR THE TORRENTLAWYER UNIVERSITY.
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