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:
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.