Motions to Quash Subpoenas in Copyright Infringement Cases for Movie Download Partially Successful

Several U.S. law firms are conducting large-scale litigation campaigns against persons who download movies from the internet without permission. The Copyright Law Group of Fairfax, Virginia, has prepared an overview of court decisions in this area.
 
Aug. 14, 2011 - PRLog -- Several U.S. law firms are conducting large-scale litigation campaigns against persons who download movies from the internet without permission. The usual procedure is that the law firms file so-called “John Doe” lawsuits and then seek the identity of the alleged copyright infringers from the internet service providers (ISPs). This is done through “subpoenas,” which are court orders requiring the ISP service providers to divulge the names and mailing addresses of the connection users. The Copyright Law Group of Fairfax, Virginia, has prepared an overview of court decisions in this area.

Some of the internet service providers and affected individuals have filed motions to quash such subpoenas. Not all such challenges have been successful, but there is an emerging pattern in this relatively new area of the law. Here is an overview prepared by The Copyright Law Group. See www.copyrightdefenselawyer.com.

This is a relatively new area of the law and court decisions as to motions to quash are inconsistent. Here is a sampling.

Motions to Quash have been partially successful:

In a major case in the District of Columbia involving the movie “Far Cry” where EFF filed a Memorandum in support of a motion to quash subpoenas, the Plaintiffs voluntarily dismissed numerous alleged Defendants. The Court ordered that all those unknown defendants (“Does”) not specifically named or identified by IP address are dismissed without prejudice. This, however, does permit the Plaintiffs to try again. Achte/Neunte Boll Kino Beteiligungs GmbH & Co. KG v. Neal, No. 10-453 (RMC) (U.S. District Court for the District of Columbia).

In the same case, the Court also modified the subpoena issued to the ISP (here: Time Warner Cable) for Time Warner to provide 28 IP addresses per month, and that Plaintiff must pay Time Warner’s costs for looking up the required information. Achte/Neunte Boll Kino Beteiligungs GmbH & Co. KG v. Neal, No. 10-453 (RMC) (U.S. District Court for the District of Columbia). [Order of July 2, 2010].

In another case in the District of Columbia, the Court quashed a subpoena against an alleged infringer “Jane Doe.” “Jane Doe” was successful because she was able to show the Court that her IP address does not match any of the IP addresses listed in the lawsuit. The Court contacted the ISP (here: Comcast) and was informed that Jane Doe’s information had not been provided. Therefore, the Court concluded that the subpoena at issue requests more information than authorized by the Court. The Court also granted Jane Doe’s motion to proceed under the pseudonym Jane Doe (meaning that she does not have to reveal her name to the Plaintiffs, only to the Court). G2 Productions, LLC, v. John Does 1-83, No. 10-041 (CKK) (U.S. District Court for the District of Columbia Circuit) [Order of April 12, 2010].

However, in the above-mentioned Achte/Neunte case, the Court denied the individuals who were challenging the subpoena the possibility of proceeding anonymously. The Court noted that a person’s privacy concerns must be weighed against the presumption openness of judicial proceedings. In these cases, individuals have no cognizable claim of privacy to their internet subscriber information. Achte/Neunte Boll Kino Beteiligungs GmbH & Co. KG v. Neal, No. 10-453 (RMC) (U.S. District Court for the District of Columbia). [Order of September 16, 2010].

Motions to Quash have been unsuccessful:

In the above-mentioned Achte/Neunte Case in the District of Columbia, the Court denied the multiple motions to quash: One of the alleged infringers unsuccessfully filed the motion to quash by himself (called “pro se”) as “John Doe” and without the assistance of the attorney (even though he seems to have some legal experience). He claims that he would be subject to being sued in the District of Columbia even though he does not have any relationship there. That would be an undue hardship. The Court denied the motion. Achte/Neunte Boll Kino Beteiligungs GmbH & Co. KG v. Neal, No. 10-453 (RMC) (U.S. District Court for the District of Columbia). [Motion to Quash of September 7, 2010, Document #43].

In another case in the District of Columbia involving the movie “The Gray Man,” seven alleged infringers sought to quash a subpoena, the Court denied the motion. In essence, the alleged infringers claimed that the subpoena is “procedurally defective” and that they lack any knowledge of the alleged illegal activity. The Court noted that there was no proper explanation why the subpoena was defective. Moreover, denying any knowledge of the matter cannot be evaluated in the context of a subpoena motion. The Court will not consider factual and technical arguments in the context of a motion to quash. John Doe 4 v. Verizon Online, No. 10-00171 (HHK/DAR) (U.S. District Court for the District of Columbia) [Memorandum Opinion and Order of May 21, 2010].

In a Pennsylvania case, the Court noted that if the individual to be identified through the subpoena believes that he/she has been improperly identified by the ISP may raise any and all defenses “at the appropriate time” and may seek discovery. Fonovisa, Inc. v. Does 1-19, No. 07-1515 (U.S. District Court for the Western District of Pennsylvania) [April 3, 2008].

In a case involving alleged illegal downloads of music through the internet service at George Washington University in Washington, DC, the Court denied the motion to quash the subpoena. The affected parties challenged the subpoena for the university to disclose the identities of the users, based on the Federal Rules of Civil Procedure (FRCP). FRCP 26(d) permits discovery only after a FRCP 26(f) conference. Here, however, good cause existed for expedited discovery because the defendants must be identified for the lawsuit to progress. Also, Plaintiffs made the requisite showing that copyright infringement was committed by the connection users. The Court denied the motion to dismiss in the same opinion. The Plaintiffs’ allegations that the connection users (identified by their IP addresses) are sufficient under the Bell Atlantic v. Twombly standard. However, the Court agrees that the defendants may have been improperly joined, but the remedy for improper joinder is severance, not dismissal. The Court kept open the possibility of severing the various cases. Arista Records, LLC v. John Does 1-19, No. 07-1649 (CKK) [Memorandum Opinion of April 28. 2008].

As is apparent from these summaries, this is a developing area of law. If you receive a notice from your ISP that your name will be disclosed in a lawsuit, or a demand letter from law firm, it may be a worthwhile investment of time and money to discuss the matter with a qualified attorney.

The Copyright Law Group, PLLC
Ms. Soyoung Lee, Attorney at Law
4000 Legato Road, Suite 1100
Fairfax, Virginia 22033
Phone: (703) 385-3085
Fax: (703) 385-3374
Email: contact@copyrightdefenselawyer.com

Disclaimer: This general summary may not apply to your individual case. If you have received a subpoena or a demand letter, you should discuss it with a qualified attorney.

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The Copyright Law Group, PLLC
Defending You Against Copyright Infringement Claims

Did you receive a letter from your ISP that a law firm is trying to find out your identity? Did you receive a “demand letter” from a law firm stating that you illegally downloaded a movie? Does it ask you to pay $2,500 or more? We can help.
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