What is a motion to quash, and how is it relevant in my copyright infringement lawsuit?
What is a motion to quash in a copyright infringement lawsuit?
In copyright infringement lawsuits, motions to quash are requests to nullify a decision made by the court allowing the plaintiff attorney to send subpoenas to the internet service providers forcing them to provide the identity of an accused defendant.
What is a motion to quash a subpoena?
This is a request for the court to determine whether it has personal jurisdiction over the accused defendant. If the ISP subpoena letter recipient lives outside of the state in which the lawsuit was filed, the court will quash the subpoena and render the subpoena null and void.
A motion to quash is a request for a court to render a previous decision null or invalid. In copyright infringement lawsuits, motions to quash are requests to nullify a decision made by the court which allowed the plaintiff attorney to send subpoenas to the ISPs forcing them to provide the identity of one or more accused defendants.
A motion to quash is the first legal term or so-called “tool” an accused defendant learns about when reading the subpoena letter sent to him by his internet service provider informing him that:
1) He was implicated as a one of a small set of “John Doe” Defendants in a copyright infringement lawsuit.
2) The copyright infringement lawsuit was filed by a copyright holder apparently owning the rights to a movie he clicked on or downloaded.
3) He is being sued for $150,000 for the download of that movie.
4) He may or may not have actually downloaded that movie.
5) His ISP is being forced by a subpoena ordering them to turn over his true identity (along with other relevant information).
After asking around, he learns:
…6) There is a way to stop the internet service provider from handing out his contact information, and that is filing an “objection with the court.”
7) The “objection with the court” that he would file is called a motion to quash.
Motions to quash are not the answer, and here is why:
A motion to quash is the first piece of “legal jargon” an accused defendant grasps onto.
The accused defendant thinks, “I am going to quash the subpoena!” Then the next logical thought is to search the internet for “motions to quash,” or “online forms” on how to file one, or “sample motions,” etc.
What that accused defendant receives in the search results is almost never his answer on how to file the motion to quash, but some enterprising attorney who decided that he will use this term to lure him in as a paying client for many months to come.
Faced with the prospect of hiring an attorney to file it for him, the accused defendant never asks, “should I file a motion to quash in the first place?”
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“Should I file a motion to quash?”
Should I file a motion to quash a subpoena?
Often, the answer is no. If you live outside of the state in which you were sued, your motion to quash the subpoena might succeed. But as a result of quashing the subpoena, the plaintiff attorney can file the same lawsuit in your home state.
Obviously as an attorney I need to dance around this issue because this blog is not to be considered legal advice. However, NO, contrary to popular thought and mob rule, it is my belief having defended “copyright troll” filesharing-based copyright infringement cases since 2010, that motions to quash are NOT an effective tool for stopping your ISP from handing out your information to the plaintiff attorney.
What exactly is a motion to quash?
Simplifying a bit, in the context of a bittorrent lawsuit tells the court that they do not have “PERSONAL JURISDICTION” over you. In other words, it informs the court that the plaintiff attorney / copyright troll filed the lawsuit against you in the *wrong federal court* (and plaintiff attorneys have been forced to reimburse the ISPs for making this mistake).[The actual context is that this would be an opposition to the subpoena which is forcing the internet service provider to hand over your information. The attack itself is on the validity of the subpoena, not the copyright troll or the plaintiff.]
The question a judge must determine when faced with such a defendant is “does this John Doe Defendant live in the jurisdiction or territory in which my federal court has power and control to enforce the laws over that defendant?”
When is a motion to quash successful?
When is a motion to quash a subpoena successful?
If the accused John Doe defendant lives in a state OTHER THAN where the lawsuit was filed. However, the dismissal will still allow the copyright holder to file a lawsuit against that same defendant in his home state.
A motion to quash is successful if the accused John Doe defendant lives in a state OTHER THAN where the lawsuit was filed.
For example, an accused defendant who is living in New York, and not in California where the lawsuit was filed), then the California federal judge will sever and dismiss that defendant from the lawsuit.
If successful, the ISP will be released from its obligation to hand over the information for that John Doe Defendant to the plaintiff attorney.
The dismissal will be, however, “without prejudice,” meaning that the copyright holder will still have three (3) years from the alleged date of infringement to sue that defendant in the federal court of the state in which he or she lives.
When is a motion to quash not successful?
When is a motion to quash a subpoena not successful?
When the accused “John Doe” defendant lives in the state in which he was sued. Here, the judge will determine that the federal court has personal jurisdiction over that defendant, and the motion to quash will be denied.
What happens if I lose a motion to quash a subpoena?
The internet service provider who initially held back that accused defendant’s contact information from the plaintiff attorney who sent the subpoena will now comply with the subpoena and will provide that defendant’s information to the plaintiff attorney.
A motion to quash a subpoena is not successful when the accused “John Doe” defendant lives in the state in which he was sued. Here, the judge will determine that the federal court has personal jurisdiction over that defendant, and the motion to quash will likely be denied.
The effect of this is that as soon as it is denied, the internet service provider [who initially held back that accused defendant’s contact information from the spreadsheet of names and addresses provided to the plaintiff attorney] will now separately comply with the subpoena as to that John Doe Defendant who failed in his attempt to stop the internet service provider from sharing his contact information.
Think of this as the ISP sending that defendant’s contact information in a FedEx package to the plaintiff attorney stating, “this is the guy who filed the motion to quash and lost.”
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Isn’t it illegal for the ISP to hand out my information? Can I sue my internet service provider if they comply with the subpoena?
Can I sue my internet service provider if they comply with the subpoena?
Yes. However, there are limits on who can sue an ISP for disclosing subscriber information, and even if you win your lawsuit against your ISP, your damages are limited to $1,000.
This is actually an interesting topic which I first researched many years ago. The answer is that it depends on whether the federal judge in your case considers the ISP to be under the rules of the Cable Act or not.
You would think this is an easy answer, “yes or no, does an internet service provider fall under Title II of the Communications Act of 1934?” but judges in the filesharing copyright infringement cases have had different opinions of this over the years.
Unrelated to the very muddy area of under which Title of the Communication Act the internet service providers do fall, this issue has become relevant to our Cashman Law Firm, PLLC practice in defending our clients.
The reason for this is that a cornerstone part of our strategy is not only understanding the personality and proclivities of the plaintiff attorney (will he name and serve, what are his motivations, etc.), but also to understand how each federal judge sees the validity of his copyright infringement cases.
Judges who quote a certain set of case law (which places the ISPs in the context of being under the Cable Act) or who quote Arista Records LLC (sorry for the Wikipedia link) are usually plaintiff / copyright holder friendly, and they do not care about your privacy interests. Those that do not are more “John Doe” Defendant friendly.
Anyway, in 2011, I once looked into suing an ISP for disclosing the identity of a John Doe Defendant, and I was hit with a wall of messy, disorganized law with inconsistent case law rulings on this topic (whether internet service providers fall under the Cable Act, whether they are to be considered under Title 2 of the Communication Act, or under some other classification).
In short, even if I were successful, in the end, my client would have only had damages awarded to him of $1,000, so it made no sense to fight the lawsuit (the time alone to file it would have cost the defendant the slap-on-the-wrist money he would have made from being right). Anyway, just a fun tidbit about whether you can sue your internet company.
The plaintiff lawyers’ response to a motion to quash
Historically, the lawyer for the copyright troll company who sees an accused John Doe Defendant file a motion to quash will claim that the defendant lacks “STANDING” to file the motion.
Would I win a motion to quash a subpoena?
Likely no. The plaintiff attorney will tell the court that you do not have STANDING to file the motion to quash. The reason is because you are not yet a named and served defendant in the lawsuit.
He will claim that the John Doe was never named and served in the lawsuit (and might never be named and served).
They will point out to the court that the purpose of the “JOHN DOE” placeholder, by definition, is that this is an unnamed defendant. In order to determine who the actual defendant-to-be-named is in the lawsuit, they need the subscriber’s identifying information to determine whether this subscriber was the downloader or not.
[A plaintiff attorney deciding to “NAME AND SERVE” a defendant is outside the scope of this article. Click here for more information on what to do when you are named and served.]
As a result, federal judges sometimes buy this argument and they deny the motion to quash, or they find some other justification to deny it.
A quick comment about the personalities of the plaintiff attorneys who represent the copyright holders:
Plaintiff attorneys / “copyright trolls” have a bad reputation because they have been known to incorporate their personal hurt feelings and egos into the prosecution of their client’s cases.
The purpose of a “copyright troll” / bittorrent-based copyright infringement lawsuit is to extract as many multi-thousand dollar settlements as possible in return for the $400 filing fee their client paid to file the lawsuit. Most of these attorneys work on a commission basis, so the time they spent “fighting” the case is court is wasted time.
When a defendant files a motion to quash, this forces the plaintiff attorney to oppose it. Following most oppositions comes a hearing (which sometimes takes up the entire morning, even though the hearing itself is 5 minutes long).
Thus, any defendant who files the opposition with the court ends up with a potentially vindictive attorney who is looking to recoup that time lost in dollars and commissions (which as a copyright troll, he is probably not paid for). This translates into an overly hostile or vindictive attorney who increases the settlement price to “nail” that defendant who wasted his time.
What happens after motion to quash?
The court will determine whether it has jurisdiction over the defendant. If the defendant wins the motion to quash, the court will sever and dismiss him from the lawsuit, and will order the subpoenas quashed for the other defendants as well.
Instead of a motion to quash, what should the first step of defense be?
Great question. Rather than jumping to file a motion to quash, the accused “John Doe” defendant needs to figure out whether he actually downloaded the movie that is the subject of the lawsuit.
Next, whether he downloaded it or not, he needs to speak to an attorney to determine what his options are.
Most attorneys who understand that motion to quash attempts are usually unsuccessful will instruct the client to forego filing it, and to move right into defending the claims against the client.
There is a long period of time in which the “John Doe” defendant remains anonymous. During this “John Doe” phase, the anonymity of the accused John Doe Defendant is preserved.
During this time, your plaintiff attorney has a window in which he can investigate whether each accused downloader actually downloaded the file or not; he purportedly does this in order to determine which John Doe Defendants to name and serve, and which not to name and serve.
Really, this is the bulk of where the bittorrent-based copyright infringement lawsuits spend their time.
During this “John Doe” phase of the lawsuit, the courts issue FRCP Rule 4(m) extensions over and over until the judge forces the plaintiff attorney to name and serve some defendants or stop wasting the court’s time.
During this time, an attorney representing a John Doe Defendant has the opportunity to obtain whatever evidence the plaintiff attorney has on his client, and he has the opportunity to explain that it was not the accused John Doe who did the download.
If the client actually did the download, the defense attorney has other tools at his disposal (e.g., the “no settlement” route, the “ignore” route, or the minimum statutory damages strategy, if the plaintiff attorney names and serves the defendant or otherwise won’t negotiate a settlement).
Obviously, negotiating a settlement for a defendant who actually did the download is usually the quickest way out of the lawsuit (watch out for settlement factory attorneys and so-called defense attorneys who actually represent the copyright holders (“weretrolls”), but it perpetuates the whole copyright troll scheme.
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Why FIGHTING the case is not the best answer either (even with an innocent defendant).
Lastly, there is always the option to “FIGHT,” or litigate and defend the claims against you, like a hero slaying a “copyright troll” dragon (I did not make up that analogy). However, there are bad attorneys here too, because they really want you to pay them an hourly fee for the next few hundred hours.
They’ll claim that they are defending your case because the copyright holder does not actually have evidence of copyright infringement (which is true — what they actually have is called “snapshot evidence,” which is not copyright infringement). They will also explain that copyright law gives the prevailing party (the “winner”) the attorney fees they paid to their attorney.
Thus, they can spend $20K-$30K on the litigation, and they’ll recoup it from the copyright troll when they win their case, right?? Wrong.
Copyright Troll / Plaintiff Attorneys know EXACTLY WHEN to dismiss an innocent defendant to avoid having to pay attorney fees.
The plaintiff attorneys are very aware of the attorney fees which are awarded to the winner of the lawsuit.
Thus, they know EXACTLY WHEN to dismiss an accused defendant (usually after being named and served, right after discovery (think, depositions, interrogatories, evidence gathering, and questions under oath, etc.) once the defendant establishes that he actually did not do the download).
This means that the plaintiff attorney deprived the wrongly accused “innocent” defendant of ALL the money and months of anguish he paid to his defense attorney.
The defendant is dismissed, taking nothing back for his losses. However, the defense attorney sits there fat and piggish having taken every penny the named defendant had.
Chances are, that attorney never explained to the named defendant that such a dismissal could happen, or else the defendant may have chosen to settle early on (and the defense attorney would have made significantly fewer dollars in fees).
Why FIGHTING based on the argument that the plaintiff attorney has no evidence is also dumb.
This deserves to be its own post, but I’ll get straight to the point. Representing a client who did the download based on the argument that the plaintiff attorney has no evidence is foolish, and here is why:
Even if I were to charge a defendant only $100 to defend the claims against him (if I said pro bono or no fee), and I defended that client on the basis that the plaintiff attorney had no evidence against my client [based on the “snapshot evidence” theory]:
*EVEN IF I AM RIGHT* (that “snapshot evidence” is insufficient to prove copyright infringement), MY OWN CLIENT WHO DOWNLOADED THE MOVIE WOULD BE THE ONLY EVIDENCE THE PLAINTIFF ATTORNEY WOULD REQUIRE TO PROVE COPYRIGHT INFRINGEMENT.
Why? Because after being named and served, there is something called “discovery,” where among other things (such as having a computer forensics expert check the computer for the infringing copyrighted title), my own client would be forced to answer questions under oath, AND ONE OF THOSE QUESTIONS WOULD BE, “DID YOU DOWNLOAD THE XYZ FILE USING BITTORRENT?”
At that point, once your client admits guilt in a deposition, or otherwise under oath, there is nothing to do but to settle. Snapshot evidence at that point becomes irrelevant to whether this defendant downloaded the film.
As one attorney cleverly said it, I believe today on Twitter:
“I can be the most educated, smartest, wizardly genius attorney ever to exist. No legal argument can change the fact that my client downloaded the film.”
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IN SUM, INSTEAD OF THE MOTION TO QUASH, CONSIDER YOUR CASE.
Thus, for someone who received notice that their ISP is handing out their information to the plaintiff attorney, think past the motion to quash. Ask yourself whether you recognize the movie you are accused of downloading, and whether you downloaded or watched the movie without a license (e.g., with bittorrent, or with Popcorn Time, etc.).
Whether the answer is yes or no, don’t wait. Hire an attorney, explain your situation, and let the attorney either 1) convince the plaintiff attorney that you did not do the download or will not otherwise settle (a.k.a., the “no settlement” representation), or 2) have the attorney settle the claims against you.
This time while you are an “anonymous” John Doe is precious to you; don’t squander it.
Fighting (defending the claims against you in litigation) only makes sense when 1) you understand that EVERYTHING YOU PAY YOUR ATTORNEY TO DEFEND YOU WILL BE LOST, but you do not want to give in and settle the claims against you, and 2) when you want your attorney to file an answer, admit guilt, and argue $750 minimum statutory damages (when you did the download and the plaintiff attorney is unwilling to settle or negotiate fairly).
All other times, one of the “ignore” routes or “settle” route is the more economical approach.
So, based on what I just shared with you, ask yourself, “should I file a motion to quash?”
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