[7/22/2011 UPDATE: As services such as PACER, RECAP The Law, and RFC Express have become widely available, tracking cases and viewing filings online have become available for everyone to do. Thus, I am no longer uploading case documents to the bittorrent networks.]
It has been disturbing to me that a number of websites have been misreporting the success rates of motions to quash in copyright violation cases. I’ve seen more than a few make references to “David versus Goliath” when it comes to the massive copyright enforcement law firms trying to make examples of one or more attorneys who assist their clients in filing motions to quash subpoenas served on their internet service providers. These web sites talk about the successes achieved in “clogging” the court system with filings, with the intent that the court will be unable to function — and they put all the blame on the plaintiff lawfirms who have been filing complaints naming hundreds and often thousands of defendants at a time.
I decided to correct the record and share my understanding how MOTIONS TO QUASH have not been working. After receiving around fifty pieces of hate mail being called all sorts of names, one level-headed reader asked if I would be willing to “prove it” by showing that people have not been achieving success with their motion filings.
When I suggested sharing with them the very case dockets for the Hurt Locker lawsuit and the Far Cry lawsuit, one very brilliant 2600 user suggested that I upload a torrent with the case dockets and the individual filings. Since there is nothing illegal about making proper use of a torrent, and since the filings I’d be putting together are public documents and are already available online on various web sites, I thought, “why not?”
So, I put together and seeded a torrent containing most of the 143 pleadings of the Far Cry lawsuit and almost all of the pleadings in the Hurt Locker lawsuit (surprisingly there were far fewer of them), and I published them on bittorrent sites such as KickAssTorrents.com, BTJunkie.com, Monova.com, and MiniNova.com (now one of the “legitimate” sources of bittorrent downloads). I even made mention of which pleadings included the motions for sanctions against attorney Graham Syfert, a Jacksonville attorney who sold self-help forms and I included the new class action lawsuit in Massachusetts where the copyright enforcement plaintiff and the originator of so many thousands of internet users evening woes is named as a defendant in a very awe inspiring lawsuit that caused a jaw-dropping effect when I read their complaint.
There is something ironic about a “legal” torrent which is indeed legal both in its contents and in its legality. I cannot help but to smile thinking about how a torrent listing pleadings from well-known copyright infringement lawsuits is being seeded over the internet by torrent, and it is listed on sites known for containing illegal copyright-infringing torrents. There is justice in the world.
Mark your calendars, December 6th is the date when the fate of many accused internet downloaders can change for the better or for the worse.
So far, over sixteen thousand internet users have received letters from their internet service providers accusing them of illegally using the torrent peer-to-peer (p2p) / bittorrent protocol to download copyrighted movies such as the Hurt Locker, Far Cry, and a number of others. None of them have been named in the lawsuit so far. That will all change on December 6th, 2010, which is the deadline the United States District Judge Rosemary M. Collyer set in the Far Cry case for the DGW plaintiff attorneys to either name the defendants over whom they believe the court has jurisdiction, or dismiss. This is good for a number of my clients who are unnamed defendants in this case.
With all the defenses against copyright infringement, e.g., “it wasn’t me,” “my roommate used my internet connection,” “my wireless connection was unsecured,” “I don’t know how to download via torrent,” etc., it is funny that in the end, the issue of who wins is PERSONAL JURISDICTION; law school civil procedure 101. This should be a lesson to all you 1L law students out there snoring away in your “CivPro” class — the topics you are learning can be applied to something cool as lawsuits against those who illegally download movies over the internet.
A Motion to Quash might not be the proper response to a subpoena seeking to disclose your identity.
ISPs send you a notice saying that unless you file a motion to quash a subpoena, on a certain date they are obligated to hand over your contact information (your identity) to the plaintiff attorney. Their ISP subpoena notification letter suggests that YOU MUST file a motion to quash or object to the court, or else. In practice, filing a motion to quash might just get you in trouble. (Click to Tweet!)
Now, TEN YEARS LATER (September, 2020), the ISPs STILL SEND THE SAME ISP NOTIFICATION LETTER. Accused John Doe Defendants still read that letter and think, “Oh shoot! I need to hire an attorney to file a motion to quash!”
The original article started here:
“I have been closely monitoring the procedural side of a number of these copyright violation cases where thousands of internet users have been accused of illegally downloading various movies using the bittorrent protocol.”
Motion to Quash – “IN THEORY”
Upon receipt of a notice that an ISP has been provided a subpoena forcing it to reveal the identity of a subscriber accused of downloading a copyrighted film, a motion to quash (a.k.a., an “objection to the court”) to stop the ISP from handing out the subscriber’s identity appears to be the suggested next step.
Motion to Quash – “IN PRACTICE”
But IN PRACTICE, filing a motion to quash has not achieved the result we would like it to. Plaintiff attorneys are claiming that the accused John Doe Defendant does not have “standing” to file the motion to quash because they are not yet a defendant in the case.
In 2010, there was a scam going on in mass-bittorrent-based copyright infringement cases. Of the hundreds of defendants, NOBODY was named and served.
A number of these internet users have hired the Cashman Law Firm, PLLC to represent them through the “negotiation and settlement phase” of the lawsuit. [I put this phase in quotes because in truth what has been happening is that the plaintiff attorneys and the underlying media companies have performed what I consider a “slight of hand” with the legal system by naming each of these defendants in the lawsuit by their IP address or by being one of 1-5000 John Does.]
For the most part, as of today (this was November, 2010), the plaintiffs have not named any defendants in these cases. Instead, they have issued subpoenas to the internet service providers (the ISPs) forcing them to hand over their subscribers’ information. The plaintiffs claim this is so they can do “discovery.”
What is actually happening is that outside of the legal system, regardless of whether it is the Hurt Locker lawsuit, the Far Cry lawsuit, or any of the other smaller lawsuits, the plaintiff attorneys have been harassing the accused ISP subscribers and taunting them using scare tactics to persuade them to pay thousands of dollars each to make them go away. In my opinion, this is an abuse of the legal process, and I would like to see an attorney general order this activity stopped. Nevertheless, this is what is happening.
*2020 UPDATE*: This was a great article about motions to quash, but back when I wrote this article in 2010, copyright troll attorneys filed what were known as “mass bittorrent” copyright infringement lawsuits. Back then, it was common to have 5,000 John Doe Defendants clumped together in one lawsuit. TODAY, HOWEVER, copyright infringement cases usually only have ONE DEFENDANT — one “John Doe Subscriber assigned IP address 123.555.555.555” (or whatever the accused IP is).
However, even today (9/1/2020), ISPs still use the same ISP Subpoena Notification Letters that they did ten years earlier (in 2010). These ISP Subpoena Notification Letters still suggest that what the accused defendant needs to do is FILE A MOTION TO QUASH.
This actually happened: In 2010, a defense attorney sold “motion to quash” online forms for a few dollars a copy. Someone pirated the form, everyone used it, and the plaintiff attorney asked the court to sanction the defense attorney.
Because this happened in the context of this case, I kept this horribly terrible-but-funny piece of history in this article (I felt terrible for the attorney this happened to).
In 2010, a group of us attorneys were trying to figure out how to deal with the mass-bittorrent-copyright-infringement lawsuits, and specifically what to do about the ISP Subpoena Notification Letters where the accused defendants were led to believe that they should file a motion to quash as their next legal step to preserve the anonymity of their identity.
My approach was to realize that the motion to quash was a bad idea.
Another attorney’s approach [bless his heart, even today he has my utmost respect] decided to make a few bucks per defendant. He decided to sell “motion to quash” packages containing online forms to download and use (e.g., $10 per download). These “motion to quash” forms made it easy to file a motion to quash, and the attorney made a few bucks along the way, or else that was the plan.
…I will never forget the uncontrollable laughter an attorney next to me experienced when he realized that this defense attorney’s “motion to quash” package was pirated and UPLOADED TO THE BITTORRENT NETWORK. “What did you expect them to do?” he asked me.
As a result, many accused downloaders used this form to file motions to quash in this case (the one the article was written about). The plaintiff attorneys got mad at all of the extra paperwork this caused [because there were thousands of defendants], and they asked the court to sanction the defense attorney who sold the online “motion to quash” forms.
Why I do not recommend motions to quash.
Returning to the “motion to quash” topic, since then, a number of people have asked me why I do not advise a “march into court and file a motion to quash” approach.
Simply, so far, attorneys and individuals who filed motions to quash have not been successful. Just two days ago (2010), the plaintiff attorneys in the Voltage Pictures, LLC v. Does 1-5,000 case filed a motion asking the court to sanction an attorney who created forms which internet users purchased, copied-and-pasted, and filed with the court. [Now you know the story because I added it in, now 10 years later.]
While I just spent close to an hour e-mailing the attorney against whom sanctions were requested and suggesting ways as to how to properly defend himself against their accusations, the fact that the law firm maliciously went after this defense attorney trying to help people out of this situation is notable, but it is not useful to you, the reader.
“NO STANDING” ARGUMENT: Filing a motion to quash is inapplicable to a defendant before he is named and served.
[2020 UPDATE: Unfortunately, it was this same case which gave birth to the “no standing to file a motion to quash” response that became a common plaintiff attorney response when someone files a motion to quash.]
What is telling is that in their motion (Case 1:10-cv-00873-RMU, Document 19, filed 11/22/2010, pages 4-6), the plaintiffs stated that a motion to quash, motions to dismiss, and motions for protective orders ARE COMPLETELY INAPPLICABLE BECAUSE DEFENDANTS ARE NOT YET NAMED OR SUED AS DEFENDANTS IN THE LAWSUIT. The plaintiffs continue (on page 5) and say, “The subpoenas are issued to the ISPs, and the Doe Defendants do not have to do anything in responding to the subpoenas [because they have not yet been named in the lawsuit].” (Emphasis added.)
2020 UPDATE: This document ended up causing the standard “no standing” response to all motions to quash filed after 2010. After this lawsuit, plaintiff attorneys responded to motions to quash by stating, “So-and-so just filed a motion to quash. However, I do not know who so-and-so is. I sued “John Does 1-5000”; so-and-so is not a defendant in this lawsuit.
“THUS, HE IS NOT A DEFENDANT IN THIS CASE, AND THUS HE HAS NO RIGHT TO FILE A MOTION TO QUASH YET. *IF AND WHEN* we name and serve him, if he does not live in the state, he can object to the personal jurisdiction of the court in his answer.”
…Thus the “no standing” objection to motions to quash were born, and thus died the filing a motion to quash.
My Opinion: There should be some motion or filing available to accused defendants, but a motion to quash has not yet been an effective answer.
I must point out that I disagree with the plaintiffs here because in my understanding, being named in a lawsuit (regardless of whether the defendant is named as an IP address or as a Doe Defendant) causes undue harm to the defendant even prior to being named as a defendant.
The reason I say this is that each John Doe Defendant is sent a threatening letter from their ISPs accusing them of illegal activity. Each Doe is “put on notice” that he or she has been named in a lawsuit and thus anticipates being sued. Each Doe Defendant is advised to retain an attorney and is told that he or she can be criminally and/or civilly liable for violation of the federal copyright laws.
Each Doe Defendant is then ACTIVELY solicited and threatened by the attorney plaintiffs to “pay up or face a real lawsuit” where a judgment can cost a family their home, all their savings, their freedom, and possibly force them into bankruptcy. In my opinion, to say that an unnamed John Doe Defendant at this point has no right to file such a motion because he does not yet have “standing,” and that such a motion is not yet applicable until the defendant is actually named in the lawsuit is simply irresponsible lawyering.
But so far, I have not seen the motions to quash be an effective tool against the media companies looking to enforce their copyrights. I have not seen the judges letting defendants off the hook for simply sending in letters and/or form responses asserting what in my opinion are proper jurisdictional arguments.
[2020 UPDATE: We are now 10 years later from the date I wrote this letter, and motions to quash are still the same, plagued with the same issues (and yielding the same response from the plaintiff attorneys) and the same outcomes. Cases have evolved and copyright trolls started suing defendants in the state in which they lived (making motions to quash useless because they claim the plaintiff sued them in the wrong state), but the “no standing” problem is still there, even today.
Similarly, the ISP subpoena notification letters still make the ISP subscribers think that they need to immediately file a motion to quash to preserve their anonymity. I am happy to share that after all of the articles I wrote over the years on motions to quash, now people are educated on the topic. Nevertheless, the initial gut reaction when someone is sued as a John Doe is STILL to file a motion to quash.
CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
A few days ago, Wall Street Journal reported that a Minneapolis federal court found Jammie Thomas-Rasset guilty of violating copyright law. Jammie is a single mother. The court ordered that she pay $1.5 million for sharing 24 songs over the internet. The plaintiff was the Recording Industry Association of America (“RIAA”).
I’m posting this piece of information to impress upon those contacting our law firm — the Cashman Law Firm, PLLC — that contrary to what you’ll read on the forums, the threat of being sued is real. This is just one example of a case where the accused internet user likely read about low settlement amounts, and when the RIAA offered her a $25,000 settlement [where the proceeds of that settlement would go to a music-related charity fund], she rejected that offer because she didn’t believe such a lawsuit could happen to her.
I want to point out that judgement is for sharing a number of SONGS. Our potential clients are looking to defend against downloading MOVIES. Think for a moment about the seriousness of this. Lucas Entertainment, Far Cry, and the Hurt Locker subpoena requests are all claiming the same violation of the same copyright law that was enforced against Jammie Thomas-Rasset just last week.
When someone calls me and balks at the prospect of paying a few thousand dollars to settle a MOVIE copyright violation, I scratch my head and wonder if they realize what they are up against.
With the representation the Cashman Law Firm, PLLC provides our clients, before we suggest that our client consider paying anything, we insist that the media company demonstrate that they have evidence linking our clients to the accused infringing download.
It also goes without saying that simply informing the media companies that their accused potential defendant is represented by an attorney, the media company is put on notice to only contact the attorney and not the client. By doing this, they are forced to adhere to the state and federal debt collection statutes, and the consumer statutes protecting the accused from any deceptive statements that might be given to an unrepresented accused internet user. Lastly, when writing the settlement, we make sure the release that accompanies the settlement contains language that prevents the media company from using the settlement as an admission of guilt and turning around and suing the internet downloader for the SAME DOWNLOAD they just paid to settle. It sounds unthinkable, but remember, it is the internet service provider (the ISP) who is served with a subpoena request demanding that they turn over their subscribers’ records. Once the media companies have this information, they immediately contact the to-be defendants and solicit a settlement. Remember, they do this without naming the defendant in the lawsuit. The settlement does not stop the company from coming after the defendant again in a formal lawsuit (using the settlement agreement as an admission of illegal activity).
In short, as twisted as this might sound, this is the reality of what is going on. Be careful out there. Hire an attorney and properly defend yourself. Play their negotiation game, and hope that they either drop the charges or offer an amicable settlement. When they do, be reasonable. Many would-be clients are kicking themselves for not spending $12 at the theater, or paying a Netflix membership when they had the chance. Now they must deal with this, and it is unfortunate.
However, ALWAYS REMEMBER that the goal is to avoid the lawsuit being filed against you. Because if a lawsuit is filed in your jurisdiction accusing a copyright violation, it is no laughing matter.
…I’ve been hearing through the grapevine that the Hurt Locker copyright prosecution team has begun their next wave of lawsuits. Internet users will be shortly receiving a subpoena from their attorneys accusing them of downloading this movie.
Nothing to do yet, at this point, the prosecution only wants your information so that they can contact you to elicit a settlement to deprive you of your hard-earned cash without a trial. Again remember — they haven’t named you in their lawsuit, nor is the settlement they are proposing a settlement to a lawsuit they have filed against you. They are trying to circumvent that step in the legal process and skip to where you pay them to go away. Has anyone heard another term for this sort of activity? It starts with an e.
Through the Cashman Law Firm, PLLC, we are telling these thugs to back off and to follow the law. We are also sending letters to various political operatives attempting to get them to change the law with regard to the way it is being applied (or misused) to charge users of committing crimes without filing suit in a court of law. There is no such thing as an extrajudicial hearing, and the concept of “innocent until proven guilty” has not changed.
Regardless of whether you obtain an attorney to defend your copyright infringement case (and there are MANY reasons for doing so), remember that the burden of proof is on them to prove their case before you bring one iota of evidence. At this point, some unrepresented parties are answering their questions and giving them forensic data to their computer and their hard drives to prove they are not guilty of that particular crime. Forensic computer experts have caught the scent of this game as well and have started up’ing their prices.
Again, at this point, they have only contacted your ISP asking for your information. While it is to your benefit to hire an attorney so that you are not “low hanging fruit,” so to speak, remember that there is nothing to defend against and provide evidence for because YOU HAVE NOT BEEN NAMED AS A DEFENDANT AND THUS YOU HAVE NOT YET BEEN SUED.