One of the most basic questions for any party considering litigation is “Who is my defendant?” While the answer to that question has typically been straightforward, the Internet adds its own wrinkles. In a simple copyright case, for example, defendant is generally the infringer (leaving aside any contributory infringers). But if the infringement takes place over the Internet, the copyright owner may not know much about who the infringer is. Even in the best case, a plaintiff is unlikely to start with much more than an IP addressa number that identifies a computer or group of computers that may have been used to download or share all or part of an infringing file.
Legal procedures exist to identify the user associated with an IP address, and until recently those procedures were fairly routine. IP addresses are assigned to users by their Internet service providers (ISPs), and it is possible to determine what ISP “owns” a given IP address. So, once a plaintiff has determined the IP address of a suspected infringer, a subpoena can be served on the ISP asking for details about the subscriber associated with that address. Under New York state law, there is even a procedure (pursuant to CPLR §3102(c)) for doing this before the commencement of an action.
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