Tag Archives: Does 1-565

Judge Facciola opens up a can of worms with the Cable Act.

These old cases keep creeping back up on us, and I am quite frankly dumbfounded that they are still alive so many months later. In the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, Judge Facciola brought back to life what was a stale, dormant case by answering an unanswered question of whether it would violate the Cable Act if Cablevision complied with the subpoenas and shared subscriber information with the copyright trolls.

Cablevision’s argument resembled a failed argument which I posted on my blog in May, 2011 for literally a day before puling it from the website.

[FOR PURPOSES OF CLARITY, I was writing two years ago about whether you can sue an ISP based on the Cable Act.  Then, I was referring to subsection (f) of the statute; here, Cablevision is referring to subsection (c) of the statute, asserting that the “checklist” of requirements under the Cable Act was not met and thus the subpoena was defective and they didn’t have to comply.]

More than two years ago, I wrote an article entitled “How an attorney can sue an ISP for disclosing a subscriber’s information“. In that article, I stated that a John Doe Defendant could possibly sue his ISP for violating the Cable Communications Policy Act of 1984 (better known as the “Cable Act”). Shortly after writing the article, however, I did further research into the matter and I found that there was a significant amount of case law which held that this statute DID NOT APPLY TO ISPs. Apparently, however, I am not the only attorney who stumbled upon this statute.

In the Openmind Solutions, Inc. v. Does 1-565 case, Cablevision asserted that according to the Cable Act (47 U.S.C. §551(c)(2)(B)), they would violate the statute if they complied with the subpoena issued to it (which makes me wonder why they have been complying in other cases since). On Friday, Judge Facciola disagreed simply because regardless of what the Cable Act says, the Federal Rules of Civil Procedure (“FRCP”) simply gives the court the power to force the ISPs to comply with the subpoenas, and the Cable Act is irrelevant to the issue. (Personal note: A judge can’t throw away a statute that conflicts with the rules! They must address the law and explain why it DOES or DOES NOT apply to the circumstances. They can’t ignore it and pretend the statute is not there!)

In short, the last time I took a look at this argument, I came to the conclusion that it was a very muddy issue. Anyone who wants to have a crack at this, please feel free to comment. I’m merely posting this article so that you understand what argument Cablevision was trying to assert, and why Judge Facciola ruled against it.

Once again, I feel that Judge Facciola didn’t properly address the issue of whether the Cable Act applied to copyright infringement statutes (and particularly to these bittorrent cases where his court has been ruling that John Doe defendants do not have standing to file motions to quash until they are “named” as defendants). In my opinion, Cablevision brought before the court the Cable Act statute, specifically, “47 USC §551 – Protection of subscriber privacy,” subsection “(c) Disclosure of personally identifiable information.” I keep asking myself, “how in the world does this NOT apply to our cases?!? (and if this does not apply, what statute does apply?)” EVEN THE CABLEVISION ISP ITSELF (a cable company) THOUGHT IT APPLIED TO THEM!

In sum, Cablevision brought before the court an issue — “how can I comply with the Federal Rules of Civil Procedure when this statute prohibits me from doing so?” At the very least, Judge Facciola should have ruled on whether the statute applies to these cases because instead, he said, “assuming it does apply, here’s why your argument is wrong.” My question is immediately, “assuming it does apply?!?WHAT?!? WHAT ABOUT ALL THESE OTHER PARTS OF THE STATUTE? DO THEY APPLY TO ISPs TOO?

As a result of this ruling, Judge Facciola has reopened a copyright troll case that until now was pretty much in a coma.  As far as this Openmind Solutions, Inc. case is concerned, expect now to start getting subpoenas from Prenda Law Inc. because once again, Judge Facciola has sided with the copyright trolls and has let the extortion scheme continue.

…And as far as the Cable Act and 47 USC § 551? Judge Facciola has just opened up a can of worms.

[For those of you who want to read the statute on your own, it can be found at http://www.law.cornell.edu/uscode/text/47/551 ]

As far as the two documents which caused this mess, the original motion requesting that the judge rule on Cablevision’s motion applying the Cable Act to bittorrent lawsuits can be found here.

And, Judge Facciola’s ruling (the subject of this article) can be found here.


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How an attorney can sue an ISP for disclosing a subscriber’s information. [ARTICLE PULLED]

*** AUGUST 30TH, 2012 UPDATE: Judge Thomas Wilson of the Middle District of Florida just suggested that Cable Operators who are also ISPs could be bound by the Cable Act. ***

*** AUGUST 27TH, 2012 UPDATE:  Because of Judge Facciola’s ruling in the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) DC case, I pasted (below) the original article from 5/2011.  Related article is  “Judge Facciola opens up a can of worms with the Cable Act.” ***

Dear Readers,

This morning I posted an article about how it may be possible to sue internet service providers for the disclosure of subscribers’ private information pursuant to a subpoena from an expedited discovery order.

I have since pulled the article because the arguments as I described them would likely not hold up in the courts. The statutes I referenced dealt with government entities seeking subscriber information for the purposes of prosecuting criminal acts. In our John Doe cases, the plaintiffs seeking subpoenas are not government entities.

What fascinated me about the arguments from a purely legal perspective was that the same activity of disclosing private subscriber information while once legal would have over time become illegal based on activities in the courts and would have even subjected the ISPs to civil liability simply for changed circumstances.

In short, part of being your attorney is not only playing the part, but seeking out and testing new applications for statutes and making new arguments in the courts which have not yet been addressed by the current case law or the statutes. This argument will not work. The next one might.

*** AUGUST 27TH, 2012 UPDATE***

Because this issue became relevant in Judge Facciola’s ruling against Cablevision in the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, I am reprinting the article that I pulled under the condition that readers understand that this was a legally unsound argument. I am merely posting it here for INTELLECTUAL CURIOSITY. As readers will note, 1) the statute does not apply to our circumstances, and 2) there is an abundance of case law which states that the Cable Act does not apply to ISPs (although DC never ruled on this issue).

Law can sometimes be dry, but once in a while, it can provide a sweet and juicy protection for those dealing with copyright infringement claims.

It appears to me as if there might be a way to stop the ISPs from handing out subscriber information to the plaintiff attorneys who have been incessantly using expedited discovery motions to gain subscriber information for the purpose of extorting money from them as defendants in these John Doe copyright infringement lawsuits.

Whenever a defendant receives a subpoena, if he or she calls their ISP, they will likely say, “file a motion to quash or else we will be forced to comply with the subpoena.”

However, as soon as they do file the motion to quash, the plaintiff attorneys have been claiming in their motions opposing almost each and every motion to quash that “so-and-so filed a motion to quash; so-and-so has never been named in this lawsuit and is thus not yet a party to the action. So-and-so thus does not have standing to file this motion to quash and so the court should deny his motion to quash.”

READ THIS CLOSELY.

47 U.S.C. 551, entitled “Protection of subscriber privacy,” apparently provides a remedy to this issue. The statute states that the ISPs can disclose private subscriber information only if the accused defendant is given “the opportunity to appear and contest” the plaintiff’s claim [e.g., in a motion to quash].

However, if we consider what plaintiffs have been saying to the courts for many months now, (e.g., that unnamed John Does do not have standing to file motions to quash because they are not parties to the action), then this would indicate that accused defendants are NOT given the opportunity to “appear and contest” their being hauled into court to defend a copyright infringement lawsuit. Plaintiff attorneys joke about this regularly stating that few (if any) motions to quash have ever been successful.

ISPs should be put on notice of this fact by attorneys defending John Doe defendants, because 47 USC 551(f) allows any person aggrieved by this statute to sue the ISP in a US District Court. If sued, the ISP can be found liable for actual damages, punitive damages, and reasonable attorneys’ fees and other litigation costs if they are found to be in violation of this statute.

Once we confirm that this is a viable argument, for those defendants who have been aggrieved by the ISPs’ unauthorized disclosure of their information and have been subjected to unnecessary harassment, settlement costs, or attorney fees in defending such a copyright infringement lawsuit, perhaps this might be a way to right a wrong that so many have suffered.

While we will obviously need to research this statute further to determine whether this can actually be used to stop or deter ISPs in the future from disclosing subscriber information to plaintiff attorneys in copyright cases, for now it appears to be a promising argument that I will bring to their attention. As with any other posting on this site, this article is not to be taken as legal advice and is the editorial of the author, and no representations have been made as to future acts that may be taken by the Firm.

[ONCE AGAIN, I PULLED THIS ARTICLE SHORTLY AFTER POSTING IT BECAUSE THE ARGUMENTS WERE UNSOUND. I AM SIMPLY POSTING IT HERE TO GIVE A BIT OF BACKGROUND ON WHAT IS GOING ON WITH THE OPENMIND SOLUTIONS, INC. CASE WITH JUDGE FACCIOLA AND CABLEVISION’S REJECTED ARGUMENT.]