The Lawsuit Begins

The RIAA sues "John Doe" in state court. They can't sue in the state court of the person who is paying for Internet access (and therefore, the IP address), because at this point they aren't even sure in what state that IP address might be. Instead they sue John Doe in the state where the Internet Service Provider's main offices are located. In most cases, this isn't the state where the IP address (or John Doe) lives.

This is a legal gray area. In most cases the RIAA lawyers know that the IP address (and therefore John Doe) isn't in the state in which they are filing suit. That means John Doe isn't actually subject to the laws of the state in which they've been sued (after all, I can't sue you in New Jersey for something you did in Florida when I'm in California.. it just doesn't work that way). That being the case, John Doe has no real way to argue that he isn't subject to the laws of the state in which he's been sued (John Doe doesn't even know he's been sued yet.. in fact, no one knows who John is yet)

The RIAA doesn't just sue one "John Doe" at a time. They instead sue hundreds of John Does at a time, all at the same ISP. This is another legal gray area, because under the "Federal Rules of Civil Procedure", there is no reason to sue all these separate people in the same lawsuit. If the courts required the RIAA to adhere to the letter of the law, they would be forced to sue each John Doe individually, which would greatly increase the amount of effort and paperwork required. Unfortunately, most ISP's can't waste the time and resources that it would require to argue against the way the RIAA is suing their customers. Since the ISP can't argue on behalf of "John Doe", the RIAA wins this stage.

John Doe gets a letter from his ISP, along with paperwork from the court case against him. The paperwork tells him (in legal speak, and -- in many cases -- in a way he does not understand) that a legal order has already been granted against him. So, instead of getting a letter telling John Doe that he needs to do something to protect himself in the courts, John Doe is sent a letter stating he is no longer protected.

At this point, John Doe isn't even given documents that brought this whole process to bare. These documents include:

* the summons and complaint
* the order that was filed without John's knowledge
* the court rules needed to defend himself

So, John Doe now knows he's being sued, or at least that something is rotten in Denmark. What john doesn't know is what the case is about, what the RIAA is basing the case on, or why the court has already ruled against him.

Regardless, John is given days to file a motion to stop the subpoena of his account information. John's not a lawyer, but he needs one, fast! Unfortunately he won't be able to tell the lawyer what he needs to do. Lawyers are smart, but they aren't magic. A lawyer can't make an informed decision about a clients' case unless he has all the facts. Because the ISP has only informed John that he's lost some sort of motion to discover who he is, John's lawyer doesn't have the information about why he's lost the motion, or what they told the court John did.

John's lawyer is at a disadvantage. In many cases, the time John has to defend against the court order is lost in trying to figure out what any of this mess is about. Unless John's lawyer is aware of the tactics the RIAA uses to keep the defendant's lawyer on his toes, John's lawyer is really unable to tell John what is the smartest thing to do. Lawyers went to law school; when they give advice, they don't give it half-assed. TA lawyer will either tell you what they are sure of, or they tell you they aren't sure. In this case, John's lawyer isn't sure, so he can't tell John what to do.

What's maybe even worse is, if John's lawyer could figure out what has already happened, he'd need to file a motion to dismiss the order. John's lawyer would be happy to do that, and it's likely that his motion would win, and the whole thing would stop right here because, let's face it, the evidence the RIAA has against John is really, really flimsy. Unfortunately John's lawyer probably can't. Lawyers are given the ability to practice law state by state. To practice law in all US states, John's lawyer would have to take 50 bar exams and keep up with 50 states worth of ongoing requirements to practice law. Most lawyers are only admitted to practice in a handful of states, and in the case of really expensive lawyers, in federal jurisdictions and maybe in front of the Supreme Court. John's lawyer would have to refer John to a lawyer that can practice in the state his ISP's main offices are in, and that takes time.

If you can't defend yourself in court, you lose. Remember that time that your friend decided to show up in court to contest that speeding ticket? The Police Officer who wrote your friend the ticket didn't show and, your friend walked away victorious. Tthe judge threw that ticket right out the window. The same thing happens to the RIAA when John doesn't show up for court. The judge does the only thing he can do under the law, he rules against John because John didn't show up to defend himself.

Homer Simpson once said "The two sweetest words in the English language.. De Fault". John probably doesn't agree with Homer Simpson on that one, but the RIAA lawyers do.

The RIAA asks the court for "immediate discovery" but, John still isn't in court. Typically in the US justice system if one party in a trial asks the court for something the other party has to be made aware that they've asked. That gives both sides an equal opportunity to argue in front of a judge over whether the motion should or should not be granted. Once upon a time it was rare that the court would grant a motion without the defendant present (or "ex parte"), now it seems to be regular practice to grant "ex parte" discovery orders, which puts John (once again) at a big disadvantage.

For what it's worth, courts in both Canada and the Netherlands have routinely balked at this stage in similar cases. They've refused to grant the motion that would allow the RIAA to find out who John Doe is, stopping the RIAA (or the IFPI) dead in its tracks. In both countries the courts claimed that the information presented to them is way too flimsy to warrant extreme action like making the private account information of John Doe a public matter.

John probably wishes he was in one of those two countries right about now. The judge grants the RIAA's motion for "immediate discovery", which, in English, means that the RIAA can subpoena the ISP for John's account information. The subpoena is legally binding, and unless the ISP wants to fight each subpoena individually (which is crazy.. and would cost millions when dealing with hundreds at a time) the ISP has to give the RIAA all the information they have on John Doe.

What the RIAA does isn't illegal, but it does exploit the law to its edges to take advantage of the courts and the ISP. Nevertheless, the RIAA now has the information it needs.

The RIAA, now having our John Doe's real name and address, drops its suit against John Doe.