Torrent Law Updates – John Doe Defendant Wins Motion to Quash Subpoena!!!
Filing a motion to quash in a torrent defense case has both pros and cons. For one, if you are sued in the wrong jurisdiction (for example, let's say you downloaded movies in California and live there, but Malibu Media or Strike 3 Holdings sues you in New York or Texas) you may have proper grounds to “quash” (no, it's not “squash” as many people mistakenly think) the subpoena. This blog involves other grounds to seek to invalidate subpoenas that are sent from movie production companies to internet service providers such as Verizon, Cox, Comcast, and others. As part of our process in handling torrent lawsuits, we review the facts of the case to see if there are good grounds to file such a motion, or whether this strategy would merely raise the costs of litigation and actually backfire.
The New York Case
Case 1:17-cv-08956-AKH – New York District Court – Southern District.
Motion to Quash Subpoena
Here was portion of the motions filed by the counsel for John Doe Defendant:
“Movant-defendant John Doe subscriber assigned IP address 22.214.171.124 (hereinafter “John Doe”), by and through counsel, and pursuant to FED. R. CIV. P. 45(c)(3), hereby moves this Court for an Order Vacating its prior Order of December 4, 2017 (ECF No. 9), Quashing the Rule 45 Subpoena, dated December 11, 2017, and returnable January 25, 2018, issued to and served upon Verizon, which is this defendant's Internet Service Provider (“ISP”), and which seeks documents that identify this defendant's name and address. Defendant John Doe submits that such an Order is warranted because
(1) the subpoena presents an undue burden under Rule 45 and the Order would protect John Doe under Rule 26;
(2) the subpoena seeks information not directed to advancing plaintiff's claim;
(3) per Rule 26(b)(1), the subpoena “is not relevant to any party's claim or defense.” The grounds for this motion are more fully set forth in this memorandum of law. For the reasons stated herein below, the Motion should be granted.”
Defendant's privacy interest
“A party has standing to challenge a subpoena issued to a third party when the party has a personal or proprietary interest in the information sought by the subpoena. See Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 21 (D.D.C. 2005). Movant herein has a clear personal and proprietary interest in the personal details sought. Congress recognizes that subscribers have a privacy interest in their personally identifying information retained by ISPs. See H.R. Rep. 98-934 (1984), reprinted in 1984 U.S.C.C.A.N. 4655 at *79 (“The Congress is recognizing a right of privacy in personally identifying information collected and held by a cable company . . .”). Courts addressing the privacy issue in similar contexts show that this defendant has standing because the subpoena implicates defendant's privacy interests. See Hard Drive Productions, Inc. v. Does 1-48, No. 11-9062 (ECF No. 28 at 7), (N.D. Ill. June 14, 2012) (“Generally, a party lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege attached to the information sought or unless it implicates a party's privacy interests.”) (emphasis added). Courts have found standing in similar cases, even where the defendant's privacy interest is “minimal at best.” See, e.g., Malibu Media, LLC v. Does 1-25, No. 12-362 (ECF No. 27 at 3), (S.D. Cal. June 21, 2012).
Because defendant John Doe here has at least a minimal privacy interest in the information requested by the subpoena, defendant has standing to object. Third Degree Films, Inc. v. Does 1-108, No. 11-3007 (ECF No. 31 at 6), 2012 WL 669055, *2 (D. Md. Feb. 28, 2012) (“however minimal or ‘exceedingly small' the Doe Defendants' interests here are, parties need only have ‘some personal right or privilege in the information sought' to have standing to challenge a subpoena to a third party”). Numerous other courts, faced with nearly identical BitTorrent lawsuits, have likewise concluded that the account-holder associated with an identified IP address may challenge subpoenas issued to the subscriber's ISPs. See, e.g., Hard Drive Prods., Inc., v. Does 1-188, 809 F. Supp.2d 1150 (N.D. Cal. 2011) (order granting Doe's motion to quash); Boy Racer, Inc., v. Does 1-60, No. 11-01738 (ECF No. 24) (N.D. Cal. Aug. 19, 2011) (order granting Doe's motion to quash and dismiss Case without prejudice); Nu Image, Inc., v. Does 1-3932, No. 11-00545 (ECF No. 244) (M.D. Fla. May 23, 2012) (order granting Doe's motion to quash or, in the alternative, to sever and dismiss); In Re BitTorrent Adult Film Copyright Infringement Cases, No. 12-01147 (ECF No. 4), 2012 WL 1570765 (E.D.N.Y. May 1, 2012) (granting motions to quash from underlying action). Thus, defendant in this case has standing to challenge the subpoena served on Verizon.”
Undue burden, annoyance and/or embarrassment
“Furthermore, this defendant has standing under FED. R. CIV. P. 26 and/or 45 to move to quash the subpoena, which will subject her, him or it to undue burden, annoyance and/or embarrassment. As explained above, once the plaintiff obtains the identities of the IP subscribers through early discovery, it serves the subscribers with a settlement demand . . . the subscribers, often embarrassed about the prospect of being named in a suit involving pornographic movies, settle . . . . Thus, these mass copyright infringement cases have emerged as a strong tool for leveraging settlements – a tool whose efficiency is largely derived from the plaintiffs' success in avoiding the filing fees for multiple suits and gaining early access en masse to the identities of alleged infringers. MCGIP v. Does 1-149, No. 11-02331 (ECF No. 14 at note 5), 2011 (N.D. Cal. Sept. 16, 2011) (emphasis added). See also On the Cheap, LLC, v. Does 1-5011, No. C10-4472 (ECF No. 66 at 11), (N.D. Cal. Sept. 6, 2011) (plaintiff's settlement tactics leave defendants with “a decision to either accept plaintiff's demand or incur significant expense to defend themselves” and finding that this does not “comport with the ‘principles of fundamental fairness' ”).
Court have recognized that plaintiffs like this one “would likely send settlement demands to the individuals whom the ISP identified as the IP subscriber. ‘That individual – whether guilty of copyright infringement or not – would then have to decide whether to pay money to retain legal assistance to fight the claim that he or she illegally downloaded sexually explicit materials, or pay the settlement demand.
This creates great potential for a coercive and unjust settlement.' ” SBO Pictures, Inc., v. Does 1-3,036, No. 11-4220 (ECF No. 14 at 8), 2011 WL 6002620, at *8 (N.D. Cal. Nov. 30, 2011) (quoting Hard Drive Prods., Inc., v. Does 1-130, No. C-11-3826 (ECF No. 16), 2011 U.S. Dist. LEXIS 132449 at *9 (N.D. Cal. Nov. 16, 2011) (emphasis added). As one court recently noted,
The Court has previously expressed concern that in pornographic copyright infringement lawsuitslike these, the economics of the situation makes it highly likely for the accused to immediately pay a settlement demand. Even for the innocent, a four-digit settlement makes economic sense over fighting the lawsuit in court – not to mention the benefits of preventing public disclosure (by being named in a lawsuit) of allegedly downloading pornographic videos. Ingenuity 13 LLC. v. John Doe, No. 12-8333 (ECF No. 48 at 7) (C.D. Cal. Feb. 7, 2013). “[T]he court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers 7 Case 1:17-cv-08956-AKH Document 10-2 Filed 01/16/18 Page 12 of 20 (and innocent others caught up in the ISP net).” Hard Drive Prods., Inc. v. Does 1-90, No. 11-03825 (ECF No. 18 at 11), (N.D. Cal. Mar. 30, 2012). This Court noted in a July 6, 2015, decision by the Hon. Alvin K. Hellerstein, U.S.D.J., denying Malibu Media (like plaintiff here) permission to issue a Rule 45 subpoena: Recent empirical studies show that the field of copyright litigation is increasingly being overtaken by “copyright trolls,” roughly defined as plaintiffs who are “more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service.” Matthew Sag, Copyright Trolling, An Empirical Study, 100 IOWA L.REV. 1105, 1108 (2015).
“The paradigmatic troll plays a numbers game in which it targets hundreds or thousands of defendants, seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim.” Id. The lawsuits most frequently target anonymous John Does for alleged infringement related to the use of BitTorrent. Indeed, of “the 3,817 copyright law suits filed in 2013, over 43% were against John Does and more than three-quarters of those related to pornography.” Id. at 1108-09. But almost none ever reaches a hearing. Rather, the “lawsuits are filed to take advantage of court ordered discovery [under Fed. R. Civ. P. 26(d)] to break the veil of anonymity thatseparatesIP addresses from the account information of actual human beings.” Id. at 1109; see also Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012). They then use this information to quickly negotiate settlements on mass scale without any intention of taking the case to trial. See, e.g., Media Prods., Inc., DBA Devil's Film v. John Does 1-26, No. 12-cv-3719, at 4 (S.D.N.Y. June 18, 2012) (explaining that the settlements in these BitTorrent cases are “are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of masslitigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls.”). In 2012, judges in the Southern District and across the country began awakening to the danger of copyright trolls, especially in the context of pornography. For example, the late Judge Harold Baer, Jr. explained that “[i]n such cases, there is a risk not only of public embarrassment for the misidentified defendant, but also that the innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.” Media Prods., Inc. [DBA Devil's Film v. John Does 1-26,] No. 1:12-cv-03719 (ECF No. 5 at 4) (S.D.N.Y. June 18, 2012) (Baer, J.). The largest copyright trolls were increasingly unscrupulous in abusing the litigation process to exploit this dynamic. See In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 89 (E.D.N.Y. 2012).2 (“The most persuasive argument against 2 An alternative citation is In re BitTorrent Adult Film Copyright Infringement Cases, No. (continued…) 8 Case 1:17-cv-08956-AKH Document 10-2 Filed 01/16/18 Page 13 of 20 permitting plaintiffs to proceed with early discovery arises from the clear indicia, both in this case and in related matters, that plaintiffs have employed abusive litigations tactics to extract settlements from John Doe defendants.”); [ ] Patrick Collins, Inc. v. John Does 1-37, No. [2:12-cv-01259], 2012 WL 287832, at *3 n. 2 (C.D. Cal. Jul. 11, 2012) (“the federal courts are not flexible enough to be shaped into ‘cogsin a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that [Plaintiffs have] no intention of bringing to trial.' ”); Malibu Media, LLC v. Does 1-5, No. 1:12-cv-02950 (ECF No. 7), 2012 WL 2001968, at * 1 (S.D.N.Y. June 1, 2012) (Oetkin, J.) (“This Courtsharesthe growing concern about unscrupuloustactics used by certain plaintiffs, especially in the adult films industry, to shake down the owners of specific IP addresses from which copyrighted adult films were allegedly downloaded.”); Digital Sins, Inc. v. John Does 1-245, No. 1:l l-cv-08170 (ECF No. 18), 2012 WL 1744838, at *3 (S.D.N.Y. May 15, 2012) (McMahon, J.) (“In these BitTorrent cases, numerous courts have already chronicled abusive litigation practices …”); SEO Pictures, Inc. v. Does 1-20, No. 12-cv-03925, 2012 WL 2034631, at * 1 (S.D.N.Y. June 5, 2012)
“Finally, early discovery has been used repeatedly in cases such as this one to harass and demand of defendants quick settlement payments, regardless of their liability.”); Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (“This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive meansto gain the Doe defendants' personal information and coerce payment from them. The Plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.”). These tactics, warned Judge Baer, “could turn copyright protection on its head.” Media Prods., Inc., DBA Devil's Film v. John Does 1-26, No. 1:12-cv-03719 (ECF No. 5 at 4) (S.D.N.Y. June 18, 2012) (Baer, J.). In order to prevent that from happening, judges began attaching conditions to the various subpoenas they issued, but have found that plaintiffs often ignore them. Malibu Media, LLC, v. John Doe subscriber assigned IP address 126.96.36.199, No. 1:15-cv-04369 (ECF No. 10 at 5-6) (S.D.N.Y. July 6, 2015) (Hellerstein, J.) As such, because of the track record and tactics of copyright trolls like plaintiff here, this defendant's privacy interests are at stake and defendant no doubt will be subjected to annoyance, harassment, and undue burden and expense if this Court does not grant the requested relief or otherwise prohibit plaintiff from obtaining Movant's identity and address.”
Plaintiff's Discovery Request Will Not Identify the Alleged Offender
“Another problem with this case is that plaintiff will be unable to show that any actual infringer (if there actually is one) is the subscriber John Doe, and not some third person in this defendant's business or household, or a family guest or customer, or a neighbor, or a stranger driving by who may have hacked or leeched this defendant's internet access. As a court noted in a series of these cases a couple of years ago, the subscriber information is not a reliable indicator of the actual infringer'sidentity. Due to the proliferation of wireless internet and wireless-enabled mobile computing (laptops, smartphones, and tablet computers), it is commonplace for internet users to share the same internet connection, and thus, share the same IP address.
Family members, roommates, employees, or guests may all share a single IP address and connect to BitTorrent. If the subscriber has an unsecured network, it is possible that the actual infringer could be a complete stranger standing outside the subscriber's home, using the internet service and who's internet activity is being attributed to the unknowing subscriber's IP address. Thus, obtaining the subscriber information will only lead to the person paying for the internet service and not necessarily the actual infringer. It is even more unlikely that early discovery will lead to the identities of Defendants given how commonplace internet usage outside one's home has become. An increasing number of entities offer publically-accessible internet service; consider coffee shops, workplaces, schools, and even cities. Mobile-computing allows internet users and copyright infringers, to connect to the internet in any such location.
A given entity may have hundreds or thousands of users in a one to two-month period. Obtaining the subscriber information in these cases will only lead to name of the entity and is unlikely to yield any identifying information about the actual infringer. Accordingly, granting early discovery for the subscriber information is not very likely to reveal the identities of Defendants. Malibu Media, LLC, v. John Does, No. 2:12-01642 (ECF No. 32 at 4-5) (D.C. Cal. Oct. 10, 2012) (internal citations omitted)
Plaintiff here cannot demonstrate that the requested discovery will even lead to identification of the proper John Doe defendant. The prevailing accepted wisdom in district courts across the country is that an IP address does not equate to the infringer of a plaintiff's copyright and that merely identifying the individual who pays the internet bill associated with a particular ISP account does not identify the individual who may have infringed a copyright via that IP address.
As the court in SBO Pictures understood, “the ISP subscriber to whom a certain IP address was assigned may not be the same person who used the internet connection for illicit purposes.” SBO Pictures, Inc., supra. See also VPR Internationale v. Does 1-1,017, No. 11-02068 (ECF No. 15 at 2 ),(C.D. Ill. Apr. 29, 2011)
“Where an IP address might actually identify an individual subscriber and address the correlation is still far from perfect . . . . The infringer might be the subscriber, someone in the subscriber's household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”)
“Several courts have found it troubling that the subscriber associated with a given IP address may not be the person responsible for conduct traceable to that IP address.” Malibu Media, LLC v. Doe, No. 8:13-cv-00365 (ECF No. 60 at 7), 2014 WL 7188822, at *4 (D. Md. Dec. 16, 2014); see Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233, 237-39 (E.D.N.Y. 2012) (an IP address is insufficient to identify an infringer because “the actual device that performed the allegedly infringing activity could have been owned by a relative or guest of the account owner, or even an interloper without the knowledge of the owner”); Patrick Collins, Inc. v. John Does 1-4, No. 1:12-cv-02962 (ECF No. 7 at 2), 2012 WL 2130557, at *1 (S.D.N.Y. June 12, 2012) (Baer, J.)
“The fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer.”). (All cases cited in Manny Film, LLC, v. John Doe Subscriber Assigned IP Address 188.8.131.52, No. 0:15-cv-60446 (ECF No. 10) (S.D. Fla. April 8, 2015)).
The District of New Jersey held in at least four (4) cases that the release of the same personal information plaintiff here seeks could impose an undue burden on individuals who may have provided their information to an ISP, but did not engage in the alleged illegal distribution of Plaintiff's work. * * * Plaintiff must go beyond the “limited discovery” that it asserted would lead to the John Doe defendants' identities. The burdens associated with the potentially expansive and intrusive discovery that Plaintiff may need to propound in order to obtain the John Doe defendants' identities likely outweighs Plaintiff's need for expedited discovery. Malibu Media, LLC, v. John Does 1-11, 12-07615 (ECF No. 8 at 6-7) (D.N.J. Feb. 26, 2013); Modern Woman, LLC, v. Does 1-X, 12-04859 (ECF No. 6 at 7) (D.N.J. Feb. 26, 2013); Modern Woman, LLC, v. Does 1-X, 12-04860 (ECF No. 6 at 7) (D.N.J. Feb. 27, 2013); Modern Woman, LLC, v. Does 1-X, 12-04858 (ECF No. 6 at 7) (D.N.J. Feb. 27, 2013). Accord Third Degree Films, Inc., v. John Does 1-110, No. 12-5817 (ECF No. 7 at 3) (D.N.J. Jan. 17, 2013) (Order denied a motion for Rule 45 subpoenas and expedited discovery because [i]n some instances, the IP subscriber and the John Doe defendant may not be the same individual. Indeed, the infringer might be someone other than the subscriber; for instance, someone in the subscriber's household, a visitor to the subscriber's home or even someone in the vicinity that gains access to the network. See VPR Internationale v. Does 1-1,017, No. 11-2068 (ECF No. 15), 2011 WL 8179128 (C.D. Ill. Apr. 29, 2011).
As a result, Plaintiff's sought after discovery has the potential to ensnare numerous innocent internet users into the litigation placing a burden on them that outweighs Plaintiff's need for discovery as framed.). Indeed, other decisions from this District cited in the July 6, 2015, decision have noted the non-connection between a mere IP address and the actor.
“The fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarilymean that the owner of that IP address wasthe infringer. Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection.” Patrick Collins, Inc. v. Does 1-6, No. 1:12-cv-02964 (ECF No. 7), 2012 WL 2001957, at *1 (S.D.N.Y. June 1, 2012) (Oetkin, J.) (internal citations omitted); see also In re BitTorrent Adult Film Copyright Infringement Cases, No. 12-01147 (ECF No. 4), 2012 WL 1570765 (E.D.N.Y. May 1, 2012)
“[T]he assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time.”); Digital Sin, Inc. v. John Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (Nathan, J.) (Judge Nathan finding that approximately 30% of John Doesidentified by their internet service providers are not the individuals who actually downloaded the allegedly infringing films).
The risk of misidentification is great in a world with 12 Case 1:17-cv-08956-AKH Document 10-2 Filed 01/16/18 Page 17 of 20 ubiquitous Wi-Fi, and given courts' concerns that these sorts of allegations – especially by this plaintiff – are likely to coerce even innocent defendants into settling, the risk of misidentification is important to protect against. Malibu Media, LLC, v. John Doe subscriber assigned IP address 184.108.40.206, No. 1:15-cv-04369 (ECF No. 10 at 9-10) (S.D.N.Y. July 6, 2015) (emphasis added) (Hellerstein, J.).
Courts in other districts also have concluded that an IP address “may not be a sufficient basis on which a plausible claim can lie against a subscriber.” Malibu Media, LLC v. Doe, No. 8:13-cv-00365 (ECF No. 60 at 7), 2014 WL 7188822, at *4 (D. Md. Dec. 16, 2014); see ElfMan, LLC v. Cariveau, No. 2:13-00507 (ECF No. 78), 2014 WL 202096, at *2 (W.D. Wash. Jan. 17, 2014) (“While it is possible that one or more of the named defendants was personally involved in the download, it is also possible that they simply failed to secure their connection against third-party interlopers.”); Malibu Media, LLC v. Tsanko, No. 12-3899, 2013 WL 6230482, at *10 (D.N.J. Nov. 30, 2013) (“The Court questions whether these allegations are sufficient to allege copyright infringement stemming from the use of peer-to-peer file sharing systems where the defendant-corporation is connected to the infringement solely based on its IP address.
It may be possible that defendant is the alleged infringer that subscribed to this IP address, but plausibility is still the touchstone of Iqbal3 and Twombly. 4 ”); AF Holdings LLC v. Rogers, No. 3:12-cv-01519 (ECF No. 14), 2013 WL 358292, at *3 (S.D. Cal. Jan. 29, 2013) (“Due to the risk of ‘false positives,' an allegation that an IP address is registered to an individual is not sufficient in and of itself to support a claim that the individual the touchstone of Iqbal and Twombly.”); AF Holdings LLC v. Rogers, No. 12-cv-1519, 2013 WL 358292, at *3 (S.D. Cal. Jan. 29, 2013) (“Due to the risk of ‘false positives,' an allegation that an IP address is registered to an individual is not sufficient in and of itself to support a claim that the individual is 3 Ashcroft v. Iqbal, 556 U.S. 662 (2009). 4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2008). 13 Case 1:17-cv-08956-AKH Document 10-2 Filed 01/16/18 Page 18 of 20 guilty of infringement.”). Accord, Manny Film, LLC, v. John Doe Subscriber Assigned IP Address 220.127.116.11, No. 0:15-cv-60446 (ECF No. 10) (S.D. Fla. April 8, 2015).
Thus, because the discovery sought by plaintiff in this case only will identify the ISP subscriber and not the infringer, the discovery sought in the subpoena is not likely to lead to the identity of the allegedly infringing Doe defendant or allow plaintiff to effectuate service thereon. Defendant submits that this Court should heed the concerns expressed, supra,
(1) about the coercive procedures typically utilized by plaintiffs to extract and extort settlements from putative defendants without ever actually litigating the case on the merits;
(2) disclosing defendant's name and address will reveal only the internet subscriber – not a person likely to have committed the acts complained of (if they were committed at all). Accordingly, there is good cause for this Court to vacate its prior Order and Quash the Subpoena issued to Verizon to prevent the release of this defendant's identity.”
Opposition to Motion
Below are portions of the Plaintiff's Motion to Quash OPPOSITION.
“In this online copyright infringement action, Plaintiff cannot identify and serve Defendant without the information subpoenaed from his or her ISP. [See generally CM/ECF 7]. This Court should not quash the subpoena because it seeks relevant information and is not unduly burdensome or coercive. Indeed, Plaintiff's subpoena is just seeking Defendant's name and address so that Plaintiff can serve Defendant with the Complaint. And, Plaintiff encourages Defendant to proceed anonymously to the public in the litigation under a protective order. Although Defendant attempts to stitch a scarlet letter on Plaintiff for being a “copyright troll” – what Defendant defines as “an owner of a valid copyright who brings an infringement action not to be made whole, but rather as a primary or supplemental revenue stream”–Defendant fails to support this with any facts. Plaintiff owns a successful entertainment company that makes the majority of its income from sales of its content, and Plaintiff is being hit very hard by piracy. See Declaration, Exhibit A. In this case, Defendant is one of the worst of the worst infringers, and does not even deny committing the infringement.”
“Defendant's arguments in favor of quashing the subpoena are meritless, and have been rejected by this Court and others in cases raising similar facts. The limited information sought in the Subpoena is relevant because the case cannot proceed without it. Additionally, Defendant lacks standing to assert an undue burden because he or she is not the recipient of the subpoena. But even if Defendant could, no burden exists, particularly in light of Plaintiff's willingness to offer a protective order. Finally, Defendant does not (and cannot) point to any actual misconduct on Plaintiff's behalf. For the foregoing reasons, Plaintiff respectfully requests the Court deny Defendant's motion.”
Alleged legal standard on Motion to Quash
Here was the legal standard the Plaintiff asked the Court to apply in ruling on the motion.
“[T]he party seeking to quash a subpoena bears a heavy burden of proof.” Kirschner v. Klemons, No. CV 99-4828 (RCC), 2005 WL 1214330, at *2 (S.D.N.Y. May 19, 2005) (citation omitted). The Federal Rules of Civil Procedure are clear: courts will only quash or modify a subpoena under six circumstances. See Fed. R. Civ. P. 45(d)(3)(A)–(B). Those include whether the subpoena
(1) “fails to allow a reasonable time to comply”;
(2) requires a non-party to travel beyond certain geographical limits;
(3) requires disclosure of privileged materials;
(4) subjects a person to “undue burden”;
(5) requires disclosure of “a trade secret or other confidential research, development, or commercial information”;
(6) requires disclosure of certain expert opinions. Id. “No other grounds are listed.” Crocs, Inc. v. Effervescent, Inc., No. CV 06-00605- PAB-KMT (D. Colo. Jan. 30, 2017) (collecting cases). “Absent a finding by a court that a valid basis exists to quash a subpoena, the party receiving the subpoena must comply with it. Id. (collecting cases) (emphasis original).
Verizon's Compliance with Plaintiff's Subpoena Does Not Impose an Undue Burden, Embarrassment, or Annoyance on Doe Defendant
“Once relevance has been established, ‘the movant bears the burden of demonstrating an undue burden.'” Shaw v. Arena, No. MC 17-0448 (AJN) (S.D.N.Y. Jan. 3, 2018) (citation omitted). “Because the burden is on the party seeking to quash a subpoena, that party cannot merely assert that compliance with the subpoena would be burdensome without setting forth the manner and extent of the burden and the probable negative consequences of insisting on compliance.” Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 299 (S.D.N.Y. 2009) (citation omitted). Despite assembling a parade of hypotheticals and ad hominem attacks, Defendant's “concerns are not tethered to the realities of these cases.” Toussie v. Allstate Ins. Co., No. CV 14-2705-FB-CLP, (E.D.N.Y. Oct. 20, 2017) (criticizing the moving party's unsupported privacy arguments).
First, Defendant is not even required to comply with the subpoena, so cannot assert an undue burden “[b]ecause the subpoena does not obligate Defendant to do or produce anything . . . .” See Malibu Media, No. CV 15-3147 (AJN) “[Courts] have extensively addressed this issue in copyright BitTorrent actions similar to the instant case, and those courts have held that John Doe Defendants generally have no standing to move to quash the subpoena that is issued to a third party, such as an ISP, on the basis of undue burden.” Malibu Media, LLC v. Doe No. 4, No. CV 12-2950 JPO (S.D.N.Y. Nov. 30, 2012) (internal quotations and citations omitted). “While this Court is sensitive to the privacy concerns at issue in a case such as this one [Defendant's] legitimate concerns have no place within the undue burden calculus, as the burden of literal compliance with this subpoena falls to a third-party, Verizon.” Id. (citations omitted).
Defendant's argument that there would be an undue burden on him, rather than on [the ISP], assumes that the ‘undue burden' contemplated by Rule 45 can be something other than the burden of production on the recipient of a subpoena. That assumption is incorrect. Courts have consistently rejected the position that a party who is not the recipient of a subpoena can nonetheless challenge that subpoena because it creates an undue burden.
Malibu Media, No. CV 15-3147 (AJN), (collecting cases); see also Third Degree Films, Inc. v. Does 1-118, No. CV 11-03006-AW, (D. Md. Dec. 28, 2011) (“Defendants' argument that the subpoena presents an undue burden is unavailing because the subpoena is directed toward the ISPs and not the Doe Defendants and accordingly does not require them to produce any information or otherwise respond. “). Case law overwhelmingly supports the notion that Defendant lacks standing to claim undue burden in this instance.
But even if Defendant did have standing to raise undue burden, Defendant's arguments are deficient on the merits. Defendant has failed to produce any evidence, beyond innuendo, that Plaintiff will use its litigation posture to coerce Defendant. Defendant notes that Plaintiff “would likely send settlement demands” and that Plaintiff has “no desire to actually litigate.” (quoting cases discussing different plaintiffs)]. Plaintiff has never sent settlement demands, nor does it ever intend to do so. And even if it did – which it does not – Defendant is represented by counsel, who will shield Defendant from any communications.
In addition, Defendant attempts to conflate Strike 3 with other BitTorrent copyright plaintiffs, painting Strike 3 with broad strokes as a “copyright troll.” [CM/ECF 10-2, at 8–9 (quoting Malibu Media, LLC v. Doe, No. CV 15-4369 AKH (S.D.N.Y.9 July 6, 2015))]3. This is a red herring. Tellingly, Defendant presents no evidence, cites no authority, and proffers no discussion about why Strike 3 is a “copyright troll.” Plaintiff's ability to pursue its valid claim for copyright infringement should not be hindered by actions of unrelated plaintiffs in other cases. And, as Plaintiff states in its declaration, “[o]ur copyrights are the foundation of our livelihood. Our copyrights enable us to open our office doors each day, pay our employees, make a difference in our community and create motion pictures that raise the industry standard. We have to protect them.” laintiff is enforcing its rights as the Copyright Act intended – it is not a so called “copyright troll.”
Regardless, the Federal Rules of Civil Procedure, along with this Court's inherent authority to manage its docket and direct the flow of litigation, provide substantial protections for Defendant. Cf. Katz v. Cellco P'ship, 794 F.3d 341, 346 (2d Cir. 2015) (“[D]istrict courts no doubt enjoy an inherent authority to manage their dockets . . . .”). If Defendant's baseless potential for abuse standard were enough to quash the subpoena, Plaintiff would be left with a right without a remedy. “[G]ranting the motion to quash would effectively end the litigation [Plaintiff] has been pursuing against Doe, because [Plaintiff] would not be able to serve Doe” Malibu Media, LLC. v. Doe, No. CV 15-1834 JGK (S.D.N.Y. July 20, 2015).
Although Defendant has not requested it, Plaintiff respectfully suggests that Defendant be allowed to proceed anonymously so that he or she may not risk any public embarrassment…….from being publicly named as a consumer of pornographic films (and the corresponding likelihood of a coercive and unfair settlement) is largely mitigated by providing the Defendant with the opportunity to litigate the suit anonymously.” Malibu Media, No CV. 15-7788 (KMW),. Plaintiff believes in a consumer's choice of what content to enjoy, whether it be adult entertainment or otherwise, is a personal one to the consumer. Because of this, Plaintiff's policy is to keep confidential the identity of not only its lawful customers, but even those who infringe its content. Id. Although the Court's Order does not discuss allowing Doe Defendant to proceed pseudonymously, and Defendant's Motion to Quash does not include a motion for a protective order, Fed. R. Civ. P. 26(c), Plaintiff welcomes an order allowing Defendant to proceed to the public anonymously. Cf. Signature Mgmt. Team, LLC v. Doe, 876 F.3d 831, 837 (6th Cir. 2017) (finding that “like the general presumption of open judicial records, there is also a presumption in favor of unmasking anonymous defendants” which is why Plaintiff needs an affirmative court order to keep Defendant's name anonymous).
Here is a portion of the reply brief:
“Defendant has standing and faces a substantial burden. Contrary to plaintiff's arguments in his brief in opposition to this Motion, a party has standing to challenge a subpoena issued to a third party when the party has a personal or proprietary interest in the information sought by the subpoena. See Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 21 (D.D.C. 2005). Defendantin this case has a personal interest in the personal details sought. Congress recognized in enacting the Cable Franchise Policy and Communications Act that cable or internet subscribers have a privacy interest in their personally identifying information retained by ISPs. See H.R. Rep. 98-934 (1984), reprinted in 1984 U.S.C.C.A.N. 4655 at *79 (“The Congress is recognizing a right of privacy in personally identifying information collected and held by a cable company . . .”).
Defendant's initial brief in support of her, his or its motion points to several decisions acknowledging defendant's privacy interest in the information sought by plaintiff's subpoena. Also contrary to plaintiff's arguments, this defendant does face a substantial burden as delineated in the plethora of cases cited in defendant's initial brief in support of this Motion, many of which describe the pattern of typical copyright trolls2 such as the plaintiff in the use of extortion and coercive settlement demands, the low probability that the sought-after information actually would identify the correct defendant(s) (if any), and where the plaintiff has no interest in actually bringing these cases to trial. See Defendant's Memorandum of Law in support of this Motion at 6-13.
Plaintiff is aware that the tremendous financial burden to defend one of these cases. Thus, even if there is limited relevance to the information seeks, plaintiff undoubtedly will amend and proceed against defendant, who then must continue to pay for legal counsel throughout the pleading, discovery, and eventual summary judgment phases of the case, regardless of whether there is any evidence whatsoever of infringement.”
The brief went on to discuss:
Plaintiff's subpoena is not likely to identify the alleged infringer.
“Even though, in some cases, an internet account subscriber might have some relevant information that might lead to who an actual infringer might be, those internet account subscribers are named as defendants in this cases by their IP address, as in this case. This is despite the high risk of false positives, and high risk the actual infringer (if there actually is one) is some third person in the subscriber who somehow got access to defendant's internet connection, whether that be someone in defendant's business or household, or a family guest or customer, or a neighbor, or a stranger driving by who may have hacked or leeched this defendant's internet access. See Defendant's Memorandum of Law in support of this Motion at 10-13.
Thus, since this defendant has a privacy right in the personal information sought, and the information sought is not likely to lead to the identity of the actual infringer (if any) or any other discoverable evidence, defendant will incur a tremendous financial expense to defend the case, divulging it to plaintiff most likely would subject defendant to undue annoyance, harassment and burden. On balance, where there is a tremendous burden on defendant here, and where the information sought from plaintiff's subpoena is of very limited or no value with a risk of providing misleading information, the burden outweighs the risk. Accordingly, defendant has standing to Quash plaintiff's Subpoena served on Verizon in this case.”
Copyright Toll Defined?
The reply brief also cited a case appearing to define what a “copyright troll” is. In the footnote it was noted:
Third Degree Films v. Does 1-47, No. 12-10761 (ECF No. 31 at 1) (D. Mass. Oct. 2, 2012) A copyright troll is an owner of a valid copyright who brings an infringement action “not to be made whole, but rather as a primary or supplemental revenue stream.” (citing James DeBriyn, Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages, 19 U.C.L.A. ENT. L. REV. 79, 86 (2012)
Court Order to Quash
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What to do if you receive a notice of Torrent infringement from your ISP
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TOP 10 BITTORRENT LAW VIDEO RESOURCES
Here are some background videos that are essential watching if you are caught up in a p2p (peer-to-peer) illegal movie download case. No other firm can match our quality videos designed to make the law more understandable and accessible.
- Online copyright infringement penalties
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- Strike 3 Holdings, LLC January 2019 Lawsuit Report
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