2. Defending Subpoena for Identifying Information

Background

A subpoena is a formal request for records.  A lawyer sends a subpoena to a person or company which has records he/she wants, which is why the subpoenas in these cases are sent to the company that provides people with internet connections (Internet Service Providers, or "ISPs").  It is because they are the ones with the personally identifying information for its subscribers, which the plaintiffs need in order to figure out whose name to replace the words 'John Doe Number 27.'

A motion to quash is a request that the court responsible for the subpoena order the recipient of that subpoena not to honor it.  In copyright cases, if you file a "motion to quash the subpoena," and that motion is allowed, the case is over for the plaintiffs, and they cannot proceed.  If it is denied, then the ISP will have to comply with the subpoena, and the personal identifying information for the subcriber will be turned over.

Defending Against the Subpoena

If you want to fight the case, your first step is to file a motion to challenge the subpoena.  If the motion is allowed, the case is dead in the water.  If it is denied, you are in the same position as you were before, except that I would expect the plaintiffs to demand a higher settlement amount than they would have otherwise.  If you receive a notice that your ISP has received a subpoena for your records, and you ultimately decide that your best option is to ask the court to “quash” the subpoena, you have two choices.

First, you can file the motion yourself.  You would essentially argue that you have a reasonable expectation of privacy in your identifying information and a qualified right to speak and associate anonymously online (see here).  You would also argue (where appropriate) that the case in which the subpoena has been issued is abusive, filed without a good faith belief in the court's jurisdiction or venue, that all the John Does should not be joined in the same lawsuit, and any other procedural infirmities you can identify with the subpoena or the way it was served.  The problems with this are (a) it will be difficult to do without legal training, and (b) you must include your contact information in the motion, which is exactly the information the plaintiffs are looking for anyway. 

Your second option is to hire an attorney to create, file and argue those motions.  The benefit of this option is that an attorney will address the particular issues in your case, and may include issues not addressed in the motions linked above.  The problem with this is that it represents an up-front cost with an uncertain outcome.

Liklihood of Success

In the early days of copyright trolling in Massachusetts, the chances of success on these motions was bleak.  But on August 10th, 2012, Cheif U.S. Magistrate Judge Sorkin issued an opinion and order quashing all subpoenas in Discount Videos v. Does 1-29, largely based on the reasoning of U.S. Magistrate Judge Brown in a very good case for the Defense, In Re Bittorrent Adult Film Copyright Infringemente Cases.  Both opinions adopt the proposition that it is inappropriate for the plaintiffs to either name, or threaten to name people in these cases if all the plaintiffs know is that such people are merely the owners of the internet connection which was allegedly used to download the copyrighted work.  Since then, District Judge William Young issued an order in one of the earliest Massachusetts cases, exercising the court's discretion to sever all the Does except one from the case and dismissing the cases against those Does and motions to quash, sever, and dismiss have been granted in several other pending cases.  Most promisingly, Judge Sorkin has now denied a motion for early discovery stating that that the Plaintiffs' assertions "smack of bad faith" and its conduct "suggests an improper effort to engage in judge shopping and evidences a disregard for the Court’s limited public resources."

All of which is to say, as of the end of 2012, the chances of success on a motion to sever, quash and/or dismiss in Massachusetts looks promising.

Conclusion

If the motion to quash the subpoena is granted, the information is never turned over, and the case against that person is finished.  If it is not, the expense, in terms of money and time, invested in filing that motion is lost without any benefit.

To be clear, there are no good options, but if you decide that your best option is filing a motion to quash, you are most likely to be successful by hiring an attorney to file draft, file and argue the motion on your behalf.

1. Copyright Lawsuit Overview

3. Post-Subpoena Stage