Motions to Quash Subpoenas in Copyright Infringement Cases for Illegal Movie Download

Several U.S. law firms are conducted 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.

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.

The Electronic Frontier Foundation (www.eff.org) has supported motions for quashing such subpoenas. In one of these cases in the District of Columbia brought by one of the major players in this area, the law firm of Dunlap, Grubb & Weaver, EFF argued that the defendants are deprived of a fair chance to defend themselves. Regardless of where the alleged defendants live, they are lumped together by the thousands in a single case. They do not have an opportunity to defend themselves adequately. Also, the court does not appear to have jurisdiction over most of the alleged Defendants. As explained below, the Courts have generally rejected such arguments.

While EFF’s arguments make sense in the real world, they do not always work in legal system. For example, one individual was notified by his ISP that the law firm of Steele Hansmeier PLLC is seeking his identity in an Illinois lawsuit. The individual lives in Fairfax, Virginia, but the subpoena was issued through a court in Norfolk, Virginia. The notice did not inform him what movie he allegedly downloaded. To fight this subpoena, he would have to file a motion to quash in Norfolk. This would be quite burdensome, especially because this individual has only Social Security income.

There may be other grounds for quashing a subpoena. For example, several alleged infringers have claimed that they were misidentified. One alleged infringer had moved and was living a hundred miles away from the location where he allegedly downloaded a movie from the internet. Since the connection users are identified by a string of numbers, errors can creep in during the investigation and transcription of the information. Or the connection user may have a publicly accessible wireless network that permitted someone else to illegally download or share a movie file. Again, courts are generally unwilling to accept such arguments at the subpoena stage.

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].

Similarly, the Court denied the motion to quash by an individual B.Y. The Court noted that the subpoena to disclose her identity had been served upon her ISP, and ruled that “a party does not have standing to object to a subpoena served on a non-party, unless the party objects to the subpoena on the grounds of privilege, proprietary interest, or privacy interest in the subpoenaed matter.” Also, the Court re-iterated that defendants have no cognizable claim of privacy to their internet subscriber information; their names and addresses are not privileged or proprietary. Achte/Neunte Boll Kino Beteiligungs GmbH & Co. KG v. Neal, No. 10-453 (RMC) (U.S. District Court for the District of Columbia). [Order Denying Motion to Quash of November 18, 2010, Document #141].

In a case involving alleged illegal downloads of 13 different movies, including “Army of the Dead,” “Stripper Academy” and “Treasure Raiders,” the Plaintiff listed thousands of putative defendants. The Court permitted the Plaintiff to subpoena the ISPs to identify the defendants. Dozens of the affected individuals filed motions to keep their identity anonymous and to quash the subpoena. As for motions to quash under the Federal Rules of Civil Procedure (FRCP) 45, the Court rejected the arguments (1) that no illegal conduct occurred, (2) that the subpoena is seeking privileged or otherwise protected matters, and (3) that the subpoena causes an undue burden because the defendants have to litigate in a forum that is far away from their residence. The Court ruled as to (1) that a general denial of liability is not a basis for quashing a subpoena. (2) Further, the right to anonymity does not shield from copyright infringement allegations. (3) Finally, there is no undue burden on the defendants because the subpoenas are issued against the ISPs, not the defendants. As for the defendants’ motion to keep their identity confidential, the Court ruled that “defendants’ First Amendment Rights to anonymity in the context of their BitTorrent activity is minimal and outweighed by the plaintiff’s need for the putative defendants’ identifying information in order to protect its copyrights.” As for the improper joinder of all the defendants, the remedy is severance. Once the defendants have been identified, they can raise that argument that their cases should be severed. As for the Court’s lack of jurisdiction over certain defendants, the Court considers the argument premature, and may re-consider it once the individuals are listed by name and address. Maverick Entertainment Group, Inc. v. Does, No. 10-0569 (BAH) [Opinion of May 12, 2011].

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.

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.