Intellectual Property | Real Estate | Technology | Software

Motion to Quash and Court Response in Torrent Illegal Download Case

Dec 22nd, 2016 | By | Category: Bittorrent Defense

How to respond to a copyright infringement notice and subpoena notice from your ISP – No, it’s not a motion to SQUASH – its a motion to QUASH!!

Torrent subpoena ISP Cox Comcast

Introduction

Here is one motion to quash that was filed in one Torrent illegal movie download case involving the London Has Fallen movie by LHF Productions, Inc..  As you will notice, the Court denied the motion.  This shows how there are limited circumstances when you might want to try to file a motion to quash to stop your ISP (ex. Comcast, Verizon, Cox or AT&T) from turning over subscriber information such as name and address.

Motion to Quash explained by Attorney Steve

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Sample Motion to Quash

DEFENDANT JOHN DOE #12’s MOTION TO QUASH PLAINTIFF’S SUBPOENA John Doe #12 received a letter from the Internet Service Provider Comcast (ISP, hereafter) regarding a subpoena, which included a copy of the Proposed Order Granting Plaintiff’s Application for Leave to Take Discovery (Request for Subpoena, hereafter). See Exhibit #1 (Letter from LHF, Motion for Subpoena, and Proposed Order).

The undersigned respectfully requests this court to quash the Plaintiff’s Request for Subpoena and as grounds states. The Request for Subpoena from the Plaintiff alleges that the undersigned (“John Doe #12) downloaded a video called “London Is Falling,” via the ISP identification number ending in 6811, this information alleging this corroboration can be found on Plaintiff’s Exhibit B within their Request for Subpoena, appearing as a spreadsheet.

The Plaintiff failed to state to this Court that an ISP is not determinative of possession. Namely, that a person may have an ISP assigned to him, and may have a wireless router, with no password protection on that router, and someone else may access that wireless internet feed and that other person may download something without the ISP owner’s knowledge.

Without revealing too many details about the undersigned’s client, that is what he believes may have occurred. Nota Bene: it is perfectly legal to have a wireless router and perfectly legal to have that wireless router unsecured without a password, although after going through this legal process, the undersigned will recommend to anyone that a secured wireless router is the most prudent thing to have.

The Plaintiff has no way to prove that the undersigned illegally downloaded this video, absent seizing the undersigned’s phone, laptop, iPad, tablet, gaming console, and/ or any other item that utilizes a wireless signal. Upon seizure of these items, the Plaintiff has given no timeline upon when it will take them to a forensic computer analyst, what processes will take place (which may harm or damage the items, such as disassembling a delicate cell-phone, tablet, laptop, gaming console, and/ or any other item that it deems necessary), and most importantly when it will return these items, causing the undersigned to be without the use and enjoyment of the possible above mentioned items for months, causing the undersigned to purchase a new phone, laptop, ipad, gaming console, and/ or any other item that connects to the internet and can download and store a movie.

The threat of seizure of these goods for a “forensic analysis” is a useful tool in order to engender a settlement, which is what the Plaintiff is angling for as evidenced by their offers of settlement that they have conveyed to attorney’s that the undersigned contacted in order to defend himself. The threat of this seizure is monumental coupled with the public shame of having oneself named in lawsuit alleging theft of intellectual property.

The undersigned uses this analogy: the Plaintiff is essentially claiming a theft occurred but cannot with particularity identify where the thief went with the stolen property. The Plaintiff knows the thief and the property went down a cul-de-sac but it doesn’t know to which house the property and thief are located. This is directly analogous with the problem of having an unsecured wireless router. Yes, the Plaintiff can identify the general path where it went, but it does not know who accessed the router!

The undersigned has essentially had the burden of proof and production shifted upon him to prove that he doesn’t have the illegal download. In 1998, when the Digital Millennial Copyright Act was written, the primary method of home-download involved a telephone land-line and a 14.4k phone modem. If an illegal download occurred, with near 100% certainty, one could find the illegal download on the registered ISP’s computer.

However, nearly eighteen years after that law was passed, technology has evolved; wireless routers, and hand-held computers that could pick up a signal, without the rightful owners knowledge has arose. One can be fifty feet away, outside of the house, and if that person knows that password, or if the wireless router is unencrypted, then that person may download anything they desire. The ISP is no longer determinative of who the downloading party is. See attached ORDER, drafted by Federal Judge Harold A. Baker, in 2011 in VPR Internationale v. Does 1-1017, Case No: 11-2068, United States District Court, Central District of Illinois (2011).

If the ISP is no longer determinative of who downloaded whatever was downloaded, then the Plaintiffs have fundamentally used this court’s subpoena tools to round up a whole host of people that may never have been involved in this type activity, cause them to seek legal assistance at their own expense, force them to either hand over their cellphones, laptops, tablets, and/ or desktops to them for their forensic analysts in order to prove that these alleged Does #1-18 have their downloaded copyrighted material, and even if the Does #1-18 are not in possession of the copyrighted material they are still without the use and enjoyment of their digital devices like their cellphones, laptops, tablets, and/ or desktops for a completely unspecified amount of time.

As previously stated, were this 1999 and the Does #1-18 were utilizing America OnLine (“AOL”) and were downloading copyrighted material over the telephone line to their desktop, then the ISP would be reasonably calculated to lead to the correct individual, however there is no allegation of specificity that any of the individuals, especially if Doe #12 was using this method.

Absent any basis for specificity, other than the much discredited ISP number, the Plaintiff’s proposed subpoena is a classic example of a fishing expedition. The only thing that the plaintiff alleges is that a copyrighted item was downloaded from that ISP, they have not even shown the indicia of proof of how they know what was downloaded, how it was downloaded, and most importantly who downloaded it. As previously mentioned, the ISP is a gateway and the wifi-router sends the access to the ISP out over the airwaves. It is common and not illegal to have a wifi-router without a password.

If someone, unbeknownst to the ISP owner downloads something that’s copyrighted on your wifi signal, then that does not make you liable. The similar analogy would be that if someone went to a coffee-shop and utilized the shop’s free wi-fi to download something that is copyrighted, unbeknownst to the coffee-shop owner, hypothetically, the Plaintiff would be demanding a Subpoena to be sent to the ISP provider for the name and address and would subject that innocent owner to the same frivolous demand for compensation. 10. In finality, this subpoena, were it to be granted would be used for the improper purpose of harassment, threat of exposure to having one’s name appear on a federal lawsuit (whether one actually downloaded something, or is the innocent owner of an unsecured wifi-router), all followed by a demand of payment for several thousand dollars in order to reach a settlement.

The threat of the Plaintiff taking the cellphone, laptop, desktop, and/ tablet for an indeterminate amount of time to be “forensically analyzed,” is fundamental deprivation that the Defendants would incur in order for the Plaintiff to make certain that Does 1-18 actually did download the copyrighted material. 11. Absent a concrete allegation that this material was on the hardware of Doe #12, and not streamed through his ISP, potentially, by someone else; this Subpoena Request should be quashed.

WHEREFORE, the undersigned, respectfully moves this court to quash the Subpoena on the grounds that it is being utilized in a purpose not consistent with law and it is designed to harass or intimidate people into a settlement, through fear of being named in a federal lawsuit, and whom the plaintiff can’t not identify as the actual infringing downloader; ergo this request for a subpoena must be denied.”

Court Order Denying Motion to Quash

“This matter comes before the Court on Defendants Doe #12’s Motion to Quash. Dkt. #12. This is a copyright infringement case against several unknown John Doe Defendants that appear to be using “peer to peer” or BitTorrent file “swapping” networks to illegally obtain and distribute the copyrighted motion picture “London Has Fallen.” Dkt. #1 at ¶ ¶ 10-35.

“Plaintiff has obtained expedited discovery in this matter in order to identify and name the John Doe Defendants so it can complete service of process and proceed with litigation. Dkt. #8. Defendant Doe #12 requests that this Court quash Plaintiff’s Subpoena issued to Comcast, his Internet Service Provider (“ISP”). Dkt. #12 at 1. Doe #12 argues that his IP address is not determinative of possession of the copyrighted material because “he believes” that someone else may have accessed his unsecured wireless router and downloaded the copyrighted material without his knowledge.”

Doe #12 expresses concern that Plaintiff would have no way of proving that Doe #12 in fact downloaded the copyrighted material without seizing and potentially damaging his phone, laptop, iPad, etc., and that such a seizure would deprive him of these devices for an indeterminate amount of time. Id. at 2-3. Doe #12 argues that much has changed in technology since the Digital Millennial Copyright Act was passed, cites a 2011 case from the Central District of Illinois, and characterizes Plaintiff’s actions as a fishing expedition. Id. at 3-5. Doe #12 argues that the real purpose of Plaintiff’s subpoena is harassment. Id. at 5.

In response, Plaintiff argues that it has sufficiently identified Doe #12 via his IP address. Dkt. #14 at 2 (citing Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 579-580 (N.D. Cal. 1999)). Plaintiff argues that Defendants’ arguments are outdated and not supported by current law in this district. Id. at 3 (citing Dallas Buyers Club, LLC v. Does, Case No. 14- cv-1336RAJ (Nov. 14, 2014) (Dkt. 16); Dallas Buyers Club, LLC v. Does, Case No. 14-cv- 1819RAJ (Feb. 13, 2015) (Dkt. 16); Dallas Buyers Club, LLC v. Does, Case No. 14-cv- 1926RAJ (Feb. 13, 2015) (Dkt. 15); Cobbler Nevada, LLC v. Does, Case No. 15-cv-1408TSZ (Nov. 19, 2015) (Dkt. 13); Cobbler Nevada, LLC v. Does, Case No. 15-cv- 1435TSZ (Dec. 18, 2015) (Dkt. 21)).

Plaintiff argues that it is ultimately entitled to learn the identity of those responsible for use of the IP addresses to infringe its copyright, that must start with the subscriber, and if the responsibility lies with others in the household or with access to the IP address at the relevant time, verified discovery—starting with discovery from the identified subscriber and owner of the property—will confirm that fact.”

Plaintiff argues that “Defendants have no legitimate expectation of privacy in the subscriber information they provided to the ISPs much less in downloading and distributing the copyrighted motion picture without permission.  (citing Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001) (“computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person—the system operator”); Interscope Records v. Does 1-14, 558 F. Supp. 2d 1176, 1178 (D. Kan. 2008) (a person using the Internet to distribute or download copyrighted music without authorization is not entitled to have their identity protected from disclosure under the First Amendment); Sony Music Entm’t, Inc. v. Does 1–40, 326 F. Supp. 2d 556, 566 (S.D.N.Y. 2004) (“defendants have little expectation of privacy in downloading and distributing copyrighted songs without permission.

”Plaintiff argues that it is making its claims in good faith and that Doe #12 has failed to show a “more convenient, less burdensome, or less expensive” way to identify and name the John Doe Defendants so it can complete service of process and proceed with litigation. Id. at 3. Doe #12 has failed to file a Reply in support of his Motion. The Court has broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16. See Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011). Under Rule 45(d)(3)(A), the Court must quash or modify a subpoena that requires disclosure of privileged or other protected matter or subjects a person to undue burden. The Court may limit the extent of discovery if the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i).

The Court finds that Doe #12 has failed to show that the subpoena at issue requires disclosure of privileged or otherwise protected information, or subjects him to an undue burden. To the extent that Doe #12 objects to the undue burden of turning over his phone, computer, or other electronics to Plaintiff, the Court has insufficient facts before it and such objections are properly raised in a future discovery motion after the discovery request has been made. The Court agrees with Plaintiff who cited cases in this district and beyond—Plaintiff is entitled to learn the identity of the individuals associated with the IP addresses used to infringe Plaintiff’s copyright as a first step to pursuing claims against the actual, liable Defendants. Furthermore, the Court is convinced that the requested information cannot be obtained from some other source that is more convenient, less burdensome, or less expensive.

Accordingly, Defendant Doe #12’s Motions is denied. Having reviewed the relevant pleadings, the declarations and exhibits attached thereto, and the remainder of the record, the Court hereby finds and ORDERS that Defendants #12’s Motions to Quash (Dkt. #12) is DENIED.

Contact an internet lawyer

We can help you if you are involved in a copyright infringement case involving illegal movie, music, software, games, comics or other digital downloads.  Call us for a free initial consultation at (877) 276-5084.  We offer low flat rate legal fees for most cases.  We have substantial federal court experience and excellent Avvo client reviews.  Whether the movie at issue involves Malibu Media or London Has Fallen, Mechanic Resurrection, Septembers of Shiraz, Mr. Church or other movie, we can help.  We have helped “John Doe” Defendants across the United States.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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