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).
[Click here to read about this story in more depth.]
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.
…still, ten years later! [Please click here to Tweet!]
[CONTACT AN ATTORNEY: If you have a question for an attorney about an ISP Subpoena Notification Letter you received, you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your notice, or you can call/SMS us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].
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