As we reported this week, the Virginia-based law firm of Dunlap, Grubb, & Weaver has filed suit against 14,583 anonymous "John Doe" P2P defendants in the first six months of 2010. The charge: sharing various indie films online without permission. Once a Doe's identity is revealed by his or her Internet service providers, the lawyers then demand a settlement of between $1,500 and $2,500, or they threaten to seek $150,000 in federal court.
Some users have been fighting back, trying to keep their identities a secret. "Motions to quash" have dribbled into the Washington, DC District Court from around the country, several of them scrawled by hand. Each contains a plea—one goes so far as to say that she is "now throwing myself on the mercy of the courts to have this [subpoena] quash or vactated. [sic]"
Lawyers are rarely involved, and the motions are badly formed, sometimes unsigned, often missing key sections or failing to address basic arguments. They are the response of citizens who find themselves one day suddenly caught up in a federal lawsuit happening in Washington. They are alternately weird, sad, or outraged. What they are not is "effective."
"Strong hardship for me"
In each of the cases it brings for its clients, Dunlap, Grubb, & Weaver seeks subpoenas that convert IP addresses into real names and physical addresses. These subpoenas go out to ISPs like Verizon, AT&T, and Time Warner Cable, who do the actual lookup. Before sending back the requested information, though, the ISPs generally notify their customers about the subpoena in order to give them time to object to the court.
A handful—perhaps as many as two dozen total—have done so.
On April 2, for instance, a handwritten two-page letter arrived at the DC District Court from one Gwen W., who provided her full name and street address in Fort Wayne, Indiana. The fact that Gwen's "motion to quash" was meant to keep this very information private shows how little grasp of the legal process some of these respondents have; Gwen's name and home address are now visible to the world through the court's electronic PACER records system.
In the motion to quash, Gwen pleads with the judge, saying that she "had no knowledge that; Intellectual Property Copyrights, (17:101) Copyright Infringements, was being done or even being uploaded and/or downloaded by Internet from Worldwide Film Entertainment, LLC, by his or her computer, or even on his or her computer. [sic throughout]"
Gwen was accused of sharing a movie called The Gray Man, produced by Worldwide Film Entertainment. In her motion, she tells the court that she "does now have his or her computer under control and is now being monitored, so if this is what have been happing it will not happen again on (Does 1-749) his or hers computer. [sic throughout]"
Reading a narrative into these lines is tough, though they could be interpreted to mean that a household computer was used by kids or a spouse or friends and that it's possible something illicit happened. The sheer disparity in resources here is striking; the law firm on the one hand, and on the other a Fort Wayne woman who says that she "sented" a copy of her motion to Comcast as well.
But the law rules on facts. Despite Gwen's claim that this is a "very strong hardship for me, all of this being over a 100 miles away, and me not having any knowledge of this at all," the federal judge overseeing her case rejected the motion. For one thing, Gwen "has not demonstrated that compliance with the subpoena imposes any burden on her at all," noted the judge, especially because Gwen did not need to pay or do anything. Her ISP was the one handling the subpoena.
Secondly, the key issues of fact need to be settled later; the judge has no real information yet on Gwen's case. "Movant’s denial of knowledge of the alleged infringement cannot be evaluated in the context of the motion to quash the subpoena served upon Comcast," wrote the judge. "This court has observed that 'factual and technical arguments... are unrelated to any appropriate inquiry associated with a motion to quash.'"
I'm a... journalist?
In the same DC court, a Doe defendant from Georgia took a different tack. This Doe, who describes himself as "a student, a father, and a reserve police officer," was accused of sharing the film Uncross the Stars.
In his motion to quash, he claimed that "the Subpoena violates my First Amendment right to speak anonymously." He then claimed that he was protected by a Georgia shield law for journalists while admitting that he used P2P networks—but only to report piracy to rightsholders as a sort of freelance copyright vigilante.
"I have only passed the information on to the proper contacts that have a better chance of getting the information off of the internet," he wrote, adding:
I have to report the things that I find in a way that protects my identity at all times. On several occasions I have went [sic] to sites that allow downloading of materials through filesharing. These sites have all types of material and they continue to post new files daily. I have done my best to stay up-to-date on what the sites have and report my findings. I am also writing about my finding and doing various researching activities to find information. On one hand, the information that I have found falls under the Freedom of Speech rights that individuals have. The other side is that they are finding the information so easily on the Internet that I am only trying to get the information removed... As mentioned, I have been on these sites for researching and reporting only and not for personal use.
He goes on to say that "none of the files in question are on my computer and during the time in question my computer was not in service. Compaq had to walk me through a reset of my system due to my system being cloned. This is what made me want to find out the various uses for and what happens on the peer-to-peer and other social networking sites. I have young children that hear about many sites form [sic] other students at their schools and I try to make sure that the sites that they hear about are not those that pedophiles and other sick individuals may be on."
The judge had no sympathy for this frankly bizarre document, pointing out that issues of fact will be resolved at a later date. "Moreover, the Georgia reporter shield law cited by John Doe is not applicable. That law protects from disclosure 'any information, document, or item obtained or prepared in the gathering or dissemination of news.' Even if the unauthorized download of Plaintiff’s movie could qualify as newsgathering activity, the Georgia shield law would not prevent disclosure of John Doe’s identity because John Doe’s personal information was not the information 'obtained or prepared' within the meaning of the statute."
Malware got me
Finally, we'll highlight a third motion to quash, this one from a Worldwide Film Entertainment case. The respondent, who apparently lives in Denver, sent a Colorado County Court form to the DC District Court on which was scrawled in tiny handwriting a "motion to quash."The DC court accepted the document, which reads, "My computer was infected with a virus that was installed without my knowledge or permission and is responsible for any and all acts of infringement of a copyrighted work. Upon receiving notification of the subpoena from my Internet provider on 3/10/10, my son-in-law's brother used 'hijackthis' to search for any suspect applications. There were many which prompted him to reformat, reinstall a fresh copy of Windows, and help me purchase antivirus software to prevent this from reoccurring. I have a copy of my confirmation of purchase for the antivirus software that I purchased on 3/14/10 that can be provided if needed."
This is the complete motion, and of course it failed to move the judge; it contains questions of fact that the judge is simply not positioned to rule on at this point in time.
It's also a textbook example of why consulting with a lawyer can be a good idea in these matters. Dunlap, Grubb, & Weaver note in their settlement letter that "you have been on notice of our claim since you received a notice from your ISP that we subpoenaed your information... If in the course of litigation the forensic computer evidence suggests that you did delete media files following receipt of the letter from your ISP, our client will amend its complaint to add a spoliation of evidence claim against you."
Getting a subpoena notification letter from your ISP and then promptly reformatting the computer's hard drive is... not a smart move.
The real world
The homespun motions to quash that litter the DC court dockets provide tiny glimpses of the real people who stand behind all those IP addresses. Judges have routinely rejected the motions for good reasons, but they're still useful documents that show the bewilderment and panic that can descend upon households when hit with a federal lawsuit.
Most of those targeted by this new crop of lawsuits are no doubt liable, but the motions to quash remind us of just how many defenses exist. We've now heard from those who claim to be totally innocent, those who claim to be freelance copyright cops, and those who claim that malware did it.
Are they all telling the truth? Who knows. But those who are submitting these filings face a daunting set of legal bills as they hire lawyers to litigate a case that could be taking place in federal court hundreds or thousands of miles away—and they face the prospect of $150,000 in statutory damages if a jury rules against them. Even if found not liable for infringement, legal fees at this level can be severe.
Perhaps it's just easier, and cheaper, to settle. That's what the plaintiffs are apparently banking on.
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