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Monthly Archives: August 2013

Malibu Media Gets Does Information – Case Moving Ahead

Malibu Media v. Does 1-49, Case No. 12-6676, Slip Op. (N.D. Ill. Aug. 22, 2013)(Dow)

After filing this case, four Does filed motions to quash subpoenas.  Malibu responded by dismissing all of the other Does and continuing the case against the four filers (a tactic that more or less all copyright plaintiffs have adopted).  The Court rejected the Does various arguments, and is allowing Malibu to get their information and proceed against them.

As usual, the Court rejected the argument that the subpoenas impose an undue burden on the Does, as the party to whom the burden applies – the Does ISPs – is not subject to an undue burden by revealing the Does identities.

The Court then rejected the Does arguments that the harm to the Does of providing the information outweighs the benefit to Malibu.  In particular, the Court stated:

The Court understands that Defendants are in an undesirable spot, and their assessment of Plaintiff’s motivation may be more or less correct, but that does not mean that the burden of Plaintiff’s proposed discovery outweighs its benefit. The “burden” that Defendants have identified is simply the burden of being accused of stealing pornography. It is not a wild assumption on Plaintiff’s part that the subscriber may be the alleged infringer or may lead to the alleged infringer. Without connecting the IP address to a person, Plaintiff would have no way of prosecuting infringement of its claimed copyright. The Court will not prohibit this discovery because it is less than certain to identify the individual who Plaintiff really wants to find. See also Malibu Media, LLC, 2013 WL 2150679, at *5 (describing the subpoena to discover the subscriber as a “useful starting point for identifying the actual infringer” and refusing quash the subpoena based on a defendant’s general denial of liability). And the Court will not prohibit Plaintiff’s requested discovery because it will allow Plaintiff to make reasonable, albeit somewhat embarrassing, claims against each Defendant. Defendants’ motions to quash are denied.

The Court denied various Does requests to modify the subpoena to not reveal the Does phone number, MAC Address, and email.  In particular, the Court reasoned that this information would be produced during discovery anyways.

In addition, the Court refused to sever the cases.  As an observation, this may work to the Does advantage as they may be able to pool money to mount a better defense to Malibu’s claims.

Finally, the Court denied one of the Doe’s motion to dismiss Malibu’s claim for statutory damages, as the work was registered within 3 months of publication, and the Court granted a protective order to one Doe allowing him/her to proceed anonymously through the end of discovery.

If recent Malibu activity is any guide, this case may well be going trial.

If you are identified by your ISP as a Doe Defendant in a file sharing lawsuit, you may want to review this article, which contains some helpful tips on how to deal with these kinds of suits:

http://ezinearticles.com/?The-5-Steps-You-Need-to-Take-When-You-Receive-an-ISP-Subpoena-Letter&id=7696216

Atty Ad:  The Law Offices of Konrad Sherinian, LLC with offices in Naperville and Chicago, has successfully defended numerous file sharing cases alleging the use of Bit Torrent to copy movies, music, software and other content other the Internet.  Call (630) 318-2606 or (312) 981-5004 today for a free consultation if you have received a subpoena letter from your ISP.

ISP Supboena Letters Courtesy of Osiris Entertainment

Osiris Entertainment v. Does 1-38, Case No.  13-4901, Slip Op. (N.D. Ill. Aug. 20, 2013)(Tharp)

Judge Tharp largely followed the same logic that he did in his earlier decision; i.e. ; Bicycle Peddler.

If you are identified by your ISP as a Doe Defendant in a file sharing lawsuit, you may want to review this article, which contains some helpful tips on how to deal with these kinds of suits:

http://ezinearticles.com/?The-5-Steps-You-Need-to-Take-When-You-Receive-an-ISP-Subpoena-Letter&id=7696216

Atty Ad:  The Law Offices of Konrad Sherinian, LLC with offices in Naperville and Chicago, has successfully defended numerous file sharing cases alleging the use of Bit Torrent to copy movies, music, software and other content other the Internet.  Call (630) 318-2606 or (312) 981-5004 today for a free consultation if you have received a subpoena letter from your ISP.

Numerous Motions to Quash Denied – Bicycle Peddler Does Information to be Turned Over

The Bicycle Peddler v. Does 1-99, Case No. 13-2375, Slip. Op. (N.D. Ill. Aug. 13, 2013)(Gottshcall)

This is yet another case where numerous Does filed motions to quash subpoenas issued to their ISPs – and, following recent precedent, all of the motions were denied.

In this case, Does filed motions to quash based on the following circumstances:

• Doe (# unknown) moves to quash the subpoena issued to his/her ISP, Comcast, on the ground that it would violate his/her right to privacy. (Motion to Quash, ECF No. 22.)
• Doe (# unknown) moves to quash the subpoena, arguing that he was admitted to the hospital at the time of the alleged downloading of copyrighted material. (Motion to Quash, ECF No. 24.)
• Does 19 and 23 move to quash the subpoena because an IP address does not identify an individual infringing downloader, and to sever and dismiss Does 19 and 23 from the action because joinder is improper under Federal Rule of Civil Procedure 20(a)(2) when defendants did not participate in a BitTorrent swarm simultaneously. (Motion to Quash, ECF No. 26.)
• Doe (believed to be Doe 85) moves to quash because he does not reside in this district and would have to travel more than 100 miles to appear in this court, and because, he contends, he did not make the download in question. (Motion to Quash, ECF Nos. 27, 28, 34, 35.)
• Doe (# unknown) moves to quash because the use of an IP address does not accurately identify an infringer, the subpoena would violate his or her privacy, and joinder is improper under Rule 20. (Motion to Quash, ECF No. 30.)

To start, the Court did not rule on whether the various Does even had standing to object – a number of rulings in the Northern District of Illinois have determined that Does do not have standing to object.  Second, the Court disposed of the argument that an IP address only identifies a household rather than an infringer:

[E]ven if defendants have standing, there is no merit to the challenge to the subpoenas. [The] argument that the subpoena should be quashed because the information sought will not itself identify the actual infringer demonstrates a lack of understanding of the basic scope of discovery under the federal rules. “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1). . . . Even if the customer associated with the IP address is not necessarily the person who illegally download[ed] plaintiff’s software, the customer’s name is the first step in identifying the proper defendant.

The Court other motions as denials of liability, which is not a proper reason to quash a subpoena.

Finally, the Court turned to the motion to sever, and denied that as well.  In doing so, the Court cited recent decisions by Judge Tharp and Judge Castillo in determining that joinder is appropriate even if the Does did not share data with each other, and with no requirement of temporal proximity.  The Court also denied discretionary severance on the grounds that at least some efficiency is gained by having the Does in the same suit.

It is likely that the Does information has already been turned over to the Bicycle Peddler’s counsel, who are likely receiving phone calls already.

If you are identified by your ISP as a Doe Defendant in a file sharing lawsuit, you may want to review this article, which contains some helpful tips on how to deal with these kinds of suits:

http://ezinearticles.com/?The-5-Steps-You-Need-to-Take-When-You-Receive-an-ISP-Subpoena-Letter&id=7696216

Atty Ad:  The Law Offices of Konrad Sherinian, LLC with offices in Naperville and Chicago, has successfully defended numerous file sharing cases alleging the use of Bit Torrent to copy movies, music, software and other content other the Internet.  Call (630) 318-2606 or (312) 981-5004 today for a free consultation if you have received a subpoena letter from your ISP.