Liberty media holdings, LLC, is being stolen iom massively through an Internet file-sharing protocol known as BitTorrent. Rather than pay for Plaintiff's works, anonymous Internet users download and distributed them without Plaintiff's permission, and without paying. Because the identities of the Internet pirates are unknown to Plaintiff, Plaintiff cannot simply file suit without taking any discovery as to the identity of the pirates.
Liberty media holdings, LLC, is being stolen iom massively through an Internet file-sharing protocol known as BitTorrent. Rather than pay for Plaintiff's works, anonymous Internet users download and distributed them without Plaintiff's permission, and without paying. Because the identities of the Internet pirates are unknown to Plaintiff, Plaintiff cannot simply file suit without taking any discovery as to the identity of the pirates.
Liberty media holdings, LLC, is being stolen iom massively through an Internet file-sharing protocol known as BitTorrent. Rather than pay for Plaintiff's works, anonymous Internet users download and distributed them without Plaintiff's permission, and without paying. Because the identities of the Internet pirates are unknown to Plaintiff, Plaintiff cannot simply file suit without taking any discovery as to the identity of the pirates.
Liberty Media Holdings, LLC, Plainti, Jury Trial Demanded v. April Term 2012 John Does 1-441, Defendants. No. 01874 Order Today, this day of 201 2, upon consideration of John Does Motion to Quash, and Plaintis re- sponse, is ordered that the motion is denied. vv rnv couvr: , J. Case ID: 120401874 23 AUG 2012 01:45 pm M. COVIN Control No.: 12075391 By: A. Jordan Rushie Jordan@FishtownLaw.com Pa. Id. 209066 Mulvihill & Rushie LLC 2424 East York Street Suite 316 Philadelphia, PA 19125 215.385.5291 Attorneys for Plainti In the Court of Common Pleas of Philadelphia Civil Trial Division Liberty Media Holdings, LLC, Plainti, Jury Trial Demanded v. April Term 2012 John Does 1-441, Defendants. No. 01874 Plaintis Reply to John Does Motion to Quash Plainti, Liberty Media Holdings, LLC, through its counsel, A. Jordan Rushie, responds to John Does Motion to Quash as follows: Background Information. 1. Plainti Liberty Media Holdings, LLC, is being stolen iom massively through an internet le-sharing protocol known as BitTorrent. Rather than pay for Plaintis works, anonymous internet users download and distributed them without Plaintis permission, and without paying. This is, essentially, the elec- tronic version of walking into an electronics store, pocketing a DVD, walking out without paying for it. 2. Because the identities of the internet pirates are unknown to Plainti, Plainti cannot simply le suit without taking any dis- covery as to the identities of the pirates that would be sanc- tionable conduct. Case ID: 120401874 Control No.: 12075391 3. Congress created a mechanism under the Digital Millennium Copyright Act (DMCA) whereby subpoenas could be served on Internet Service Providers (ISPs). Under section 512(h) of the DMCA, a copyright owner or its representative may request a subpoena to a service provider in order to identify iniingers. 4. However, decisions iom the 8th Circuit and District of Co- lumbia Court of Appeals appear to have made DMCA subpoenas unavailable in matters such as this case. 1
5. Under those cases, a DMCA subpoena may not be used to iden- tify potential internet pirates where an ISP merely facilitates pi- racy of content rather than actually storing pirated content on its own servers. 6. Filing such a subpoena would likely be sanctionable. 7. Therefore, to help determine the identity of the potential de- fendants in this case, Plaintis led a Writ of Summons, and asked for leave to take pre-complaint discovery here in Philadel- phia in the courthouse a scant three blocks iom Comcasts headquarters. 8. To date, plainti has used the information to conduct reason- able investigations dismissing those who are innocent or who have extenuating circumstances. 9. If this Court wishes to authorize plainti to use a DMCA sub- poena to obtain the information, rather than proceeding by writ of summons, then Plainti would be pleased to do so. However, because federal circuits have indicated its unavailability to Plain- ti, Plainti chose to proceed by Writ of Summons. Liberty Media Holdings LLC v. John Does 1-441 Plaintis Response to John Does Motion to Quash 2 1 See, e.g., In re: Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771 (8th Cir 2005) and RIAA v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. 2003). Case ID: 120401874 Control No.: 12075391 Argument Opposing this Motion to Quash 10. On August 3, 2012, an anonymous pro se litigant led a motion to quash the subpoena. 11. There is no way to determine whether the motion was led by a real party in interest or a stranger to the litigation. 12. As such, the ling is improper. 13. Moreover, apparently John Doe used a template Motion to Quash that plainti believes was downloaded iom ghtcopyrighttrolls.com, a website that assists and encourages pro se litigants to le motions to quash. (A printout of the web- site is attached as Exhibit A, and the template motion is attached as Exhibit B). 14. The Motion to Quash found on ghtcopyrightrolls.com is al- most identical to the motion led by John Doe. (Compare John Does Motion to Quash with Exhibit B). 15. While ghtcopyrighttrolls.com is an informative website that blogs about bit-torrent litigation, unfortunately some Does use it in place of retaining counsel just as John Doe did here. 16. As a result, John Does motion does not address Pennsylvania law, pre-complaint discovery, or many of the issues already de- cided in this case. 17. John Does motion also makes improper allegations of a shake down, which are not true. 18. Plainti is using pre-complaint discovery so it can identify ac- tual wrongdoers and avoid naming those who are innocent. 19. This is necessary because an IP address is not a person, but similar to an internet phone number. Liberty Media Holdings LLC v. John Does 1-441 Plaintis Response to John Does Motion to Quash 3 Case ID: 120401874 Control No.: 12075391 20.An IP address will lead back to the person who is responsible for paying the bill, called the subscriber. 21. Plainti recognizes, though, that just because a person is re- sponsible for paying the internet account does not mean they are necessarily the iniinger. 22. However, in most cases, the subscriber will be able to identify who has access to his or her internet account and ultimately the wrongdoer. 23. From there, Plainti can prepare and serve a proper Complaint on the wrongdoer and hopefully put those who are innocent out of harms way quickly. 24. Liberty understands that many innocent people would rather settle a case involving adult content simply to avoid being associ- ated with it. 25. To address privacy concerns, every Doe in this case who has en- gaged Liberty has been aorded every opportunity to take this matter to a private arbitration if they feel they were targeted un- fairly or have a valid defense, including this John Doe. (Exhibit C). 26. Based on Libertys current investigation, several Does have al- ready been released iom the case with a telephone call and an adavit, without any payment whatsoever. (See, e.g., Exhibit D and Exhibit E). 27. Pre-Complaint discovery allows Liberty to properly vet its claims and avoid naming those who are innocent. 28. When Liberty is reasonably certain that it has the actual wrong- doer, it will le an appropriate complaint against them. Liberty Media Holdings LLC v. John Does 1-441 Plaintis Response to John Does Motion to Quash 4 Case ID: 120401874 Control No.: 12075391 29. John Does motion should be denied so Plainti can nish con- ducting its investigation and le a complaint against those who pirated its content. wnvvvvovv, Plainti Liberty Media Holdings, LLC, requests this Honorable Court to deny John Does Motion to Quash. vvsvvcrvu::v suvxi rrvu, A. Jordan Rushie Jordan@FishtownLaw.com Pa. Id. 209066 Mulvihill & Rushie LLC 2424 East York Street Suite 316 Philadelphia, PA 19125 215.385.5291 Liberty Media Holdings LLC v. John Does 1-441 Plaintis Response to John Does Motion to Quash 5 Case ID: 120401874 Control No.: 12075391 By: A. Jordan Rushie Jordan@FishtownLaw.com Pa. Id. 209066 Mulvihill & Rushie LLC 2424 East York Street Suite 316 Philadelphia, PA 19125 215.385.5291 Attorneys for Plainti In the Court of Common Pleas of Philadelphia Civil Trial Division Liberty Media Holdings, LLC, Plainti, Jury Trial Demanded v. April Term 2012 John Does 1-441, Defendants. No. 01874 Plaintis Memorandum of Law in Opposition to Comcasts Mo- tion to Certify Orders Denying Motion to Quash and Motion for a Protective Order for an Interlocutory Appeal 1. Matter before the Court. Before this Honorable Court is Plainti, Liberty Media Holdings, LLCs Memorandum of Law in Opposition to John Does Motion to Quash. 2. Statement of Question Involved. Question: Should this Honorable Court quash Plaintis subpoena before it has had an opportunity to identify the persons who harmed it? Suggested Answer: No. Case ID: 120401874 Control No.: 12075391 3. Facts. Liberty has evidence that 441 anonymous Internet users pirated its content via their Comcast accounts. Liberty has only the IP ad- dresses of the iniingers, which is not enough to identify them for purposes of investigation and initiating suit. Since Liberty does not know the identity of the iniingers, it initi- ated this matter via Writ of Summons. Liberty then asked this Hon- orable Court for permission to identify the internet account holders so it could eventually unmask the pirates while keep the innocents out of unnecessary litigation. Libertys request was granted on May 18, 2012. For the reasons below, John Does Motion to Quash should be de- nied. 4. Legal Argument. (a) Liberty cannot dra and serve a Complaint until it knows the correct party to sue Imagine this scenario: an anonymous person is making obscene phone calls. The victim asks the telephone company, Comcast (a company based in Philadelphia), to reveal the account holders identity so the prank caller can be pursued. The telephone number is traced to Mr. Jones. Now that the victim has Mr. Joness name and address, a proper claim can be led against him, right? Not quite. There is one problem just because someone is respon- sible for the telephone bill doesnt necessarily mean they made the prank calls at issue. The oending calls could have been made iom a spouse, a iiend, or anyone else who had access to the phone. But with knowledge of who the subscriber is, the victim can now conduct an investigation to determine the wrongdoer. Once it has the iden- tity of the wrongdoer, it can take action against them. Liberty Media Holdings LLC v. John Does 1-441 Plaintis Memorandum of Law in Opposition to John Does Motion to Quash 2 Case ID: 120401874 Control No.: 12075391 Back to our oending phone caller. Imagine Mr. Jones was renting a room to a house guest, and while Mr. Jones was at dinner with his wife, the houseguest was making prank telephone calls iom Mr. Joness phone. Aier the parties conduct an investigation, the houseguest admits his misdeeds, and the culprit is apprehended. BitTorrent litigation works similarly; an IP address is essentially an internet telephone number. At this point, Liberty has the internet telephone number of those who injured it, but little else. It needs pre-complaint discovery to fully investigate its claims. Liberty has no desire to sweep innocents into its claims. Instead, Liberty wants to be certain it has identied the wrongdoer before making allegations in a Complaint. (b) Jurisdiction is not a proper objection to a Writ of Sum- mons. John Does Motion to Quash relies on a canned brief it downloaded om an internet website, which is probably why it does not address Pennsylvania law. John Does motion to quash was downloaded iom a website, ghtcopyrighttrolls.com, and therefore does not address Pennsylva- nia law. Jurisdictional issues were briefed in Comcasts Motion to Quash and Motion for a Protective Order, both of which were de- nied by this Honorable Court. Pa.R.C.P. 1028 provides the exclusive procedure for objecting to subject matter jurisdiction. The rule plainly states: "Preliminary objections may be led by any party to any pleading and are limited to the following grounds: (1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or com- plaint..." (emphasis added). Our courts have conrmed that jurisdictional arguments cannot be raised to a Writ of Summons because a writ is not a pleading. The Pennsylvania Supreme Court has explained: Liberty Media Holdings LLC v. John Does 1-441 Plaintis Memorandum of Law in Opposition to John Does Motion to Quash 3 Case ID: 120401874 Control No.: 12075391 Under the Pennsylvania Rules of Civil Procedure the exclusive method by which a party may raise "jurisdic- tional" objections is by preliminary objections. C. E. Wil- liams Co. v. H. B. Pancoast Co., supra at p. 170, Pa. R. C. P. 1017(b), 1028(b), 1032. But preliminary objections may not be led until aier the complaint is led. This is true even though certain "jurisdictional" objections may be- come apparent immediately aier service of a writ of summons and before the complaint is led. The inclu- sion of preliminary objections in the list of allowable pleadings, Pa. R. C. P. 1017, indicates that it was in- tended to be a response to a prior pleading; a writ of summons is not a pleading. Also, the Note of Procedural Rules Committee to Rule 1017 states that "[a] prelimi- nary objection may be led to a complaint, answer, reply or counter-reply," without mentioning a summons. Moreover, waiting until aier the complaint is led would accord with the policy of the Rules to reduce the pretrial stages of the action, and to telescope the various dilatory actions of the defendant, 1 Goodrich-Amram 1013(b)6, p. 54; Vant v. Gish, 412 Pa. 359, 368, 194 A. 2d 522, 527 (1963), because the objections raised by the writ of summons could be disposed of at the same time as the objections raised by the complaint independently of the writ. Monaco v. Montgomery Cab Co., 417 Pa. 135, 140- 141 (Pa. 1965) The explanation logically ows iom the intent of pre-complaint discovery, which is to obtain particular facts, such as all proper parties liable to plainti for injury, or the identity and where- abouts of witnesses. Luckett v. Blaine, 850 A.2d 811, 818 (Pa. Commw. Ct. 2004) (emphasis added). The Third Circuit has also conrmed this principle. In Sikirica v. Na- tionwide Ins. Co., 416 F.3d 214 (3d Cir. 2005), the Third Circuit held that a Writ of Summons was insucient to support removal, and that only the ling and serving of a complaint was sucient to meet Liberty Media Holdings LLC v. John Does 1-441 Plaintis Memorandum of Law in Opposition to John Does Motion to Quash 4 Case ID: 120401874 Control No.: 12075391 Section 1446(b)s denition of an initial pleading. Id. at 222- 223. This is because [a] Writ of Summons, without a complaint, does not state a case or controversy sucient to satisfy the require- ments of Article III of the Constitution and statutes and rules estab- lishing the federal court's jurisdiction. Gervel v. L & J Talent, 805 F. Supp. 308, 309 (E.D. Pa. 1992)., n.4. Following Sikrica, federal courts have consistently held they have no subject matter jurisdiction over a suit initiated via Writ of Summons until a Complaint is led. For instance, in McFarland v. Muse, Civ. No. 5-1155, 2005 WL 2133672 at *1 (M.D. Pa. Sept. 1, 2005), the district court explained: [t]he Federal Rules and the removal stat- ute presuppose that an initial pleading setting forth a claim for re- lief has been led [w]ithout such an initial pleading, the removal of a Writ of Summons alone is premature since [the federal court] cannot have subject matter jurisdiction. (emphasis added). For instance, in Lane v. CBS Broad. Inc., 2008 U.S. Dist. LEXIS 26906 (E.D. Pa. Apr. 2, 2008), Defendant attempted to remove a suit initiated via a Writ of Summons into federal court by arguing: Plainti is [] clearly telegraphing her intention to assert claims against CBS Broadcasting based on federal anti-discrimination law". Id. at n. 6. However, the court rejected the argument, stating: While Defendant may very well be correct with regard to the particular claims that Plainti will bring, at this point Defen- dant is only speculating based upon what Plainti has "tele- graph[ed]" and "suggest[ed]" through her state court ling. 6 (Doc. No. 1 at 3.) Id. at 19-20. Given that John Doe has led a template motion to quash it down- loaded iom a website, it comes as no surprise that the motion does not bother to address settled Pennsylvania law. Liberty Media Holdings LLC v. John Does 1-441 Plaintis Memorandum of Law in Opposition to John Does Motion to Quash 5 Case ID: 120401874 Control No.: 12075391 (c) Disclosure of the Does identities will not necessarily cause them any harm if they were not ininging on Lib- ertys content. Disclosing the identities of the Does will not harm the John Does if they did not iniinge on Libertys content. In that case, a deposition can be conducted anonymously and the wrongdoer will be identi- ed. The Does have also been oered private arbitration to ensure they do not settle the case simply out of fear of being associated with adult content. Several of these cases have been resolved by a telephone call and a private adavit between counsel. Libertys goal is to identify the wrongdoers so it can take them to trial. Pre-Complaint discovery allows Liberty to do precisely that. 5. Relief. Liberty respectfully requests this Honorable Court to deny John Does Motion to Quash. vvsvvcrvu::v suvxi rrvu, A. Jordan Rushie Jordan@FishtownLaw.com Pa. Id. 209066 Mulvihill & Rushie LLC 2424 East York Street Suite 316 Philadelphia, PA 19125 215.385.5291 Liberty Media Holdings LLC v. John Does 1-441 Plaintis Memorandum of Law in Opposition to John Does Motion to Quash 6 Case ID: 120401874 Control No.: 12075391 Exhibit A. Fightcopyrighttrolls.com Printout Case ID: 120401874 Control No.: 12075391 8/17/12 For those who have just received a letter from their ISP Fight Copyright Trolls 1/6 fightcopyrighttrolls.com/2011/06/22/forthosewhohavejustreceivedaletterfromtheirisp/ Fight Copyright Trolls Let's demote copyright troll species' status first to endangered, then to extinct Stay updated via RSS For those who have just received a letter from their ISP Posted: June 22, 2011 in Court documents, Defense, Readers contributions Tags: bittorrent, copyright troll, mass bittorrent lawsuit, troll 8
i 1 Vote () Note that a new version of the motion was uploaded on August 5. Please read this post first and then follow the link at the bottom of this page. To the best of my knowledge, this is not applicable to currently open IO cases. However, I hope it can help the blog visitors looking for help with other troll cases (there are quite a few according to the blogs search statistics.) I have received a letter with a draft of a motion similar in spirit to the motion that I filed for my case. Unlike my motion, which was a motion to dismiss multiple Does because of improper joinder, this one is called MOTION TO QUASH OR MODIFY SUBPOENA. The author suggests to file this motion on behalf of John Doe, i.e. without signing your real name. This is exactly what I did (http://www.scribd.com/doc/54297987/310-Cv-03647-MEJ-Docket-16- Exhibit A Case ID: 120401874 Control No.: 12075391 8/17/12 For those who have just received a letter from their ISP Fight Copyright Trolls 2/6 fightcopyrighttrolls.com/2011/06/22/forthosewhohavejustreceivedaletterfromtheirisp/ Motion-to-Dismiss) (I also listed my e-mail instead of an address, and the court is still sending new filings to me). Consequently, I believe that this kind of a motion will likely be filed. I dont know, however, whether the judges will read these motions: I dont think that the judge on my case read my motion (http://www.scribd.com/doc/55048420/310-Cv-03647-WHA-Docket-38- Motion-to-Dismiss) before striking it as improperly filed (http://www.scribd.com/doc/55118336/310-Cv-03647-WHA-Docket-39-Order-Striking- Motion-to-Dismiss) (i.e. without a real name and address). On the other hand, similar motions worked in IL, and because each judge makes his own decisions, who knows, maybe this motion will work in some courts. I think it is worth trying: I did and I dont regret that I spent time on this. The more motions are filed, the more likely it is that the judges will pay attention. One piece of advice: dont mail the motion from a location close to your home. I asked my friend in a remote state to re-mail my filings. If your case is filed exclusively for a Californian IP addresses, you could drive a couple of counties away from your home and mail it from there. Remember that your envelope will likely be filed as well (http://www.scribd.com/doc/55048425/310-Cv-03647-WHA-Docket-38-2-Envelope), so consider writing down your Doe e-mail address instead of any postal address there: this way you will not look like trying to mislead the court. And dont forget to correct the number of Does on the case, which is mentioned not only in the header, but also, e.g., on p.p. 2 and 5. Also fax a copy of your motion to your ISP: in my experience, they love these faxes since they dont have to work on compiling Doe lists until the judge rules on the motion. Hi Jane Doe, For the 20,000+ cases in California, Steele Hansmeier and others are going after California residents only, so the personal jurisdiction argument wont do. Many of these cases are being severed for misjoinder. Ive attached a sample Motion to Quash or Modify Subpoena which includes this argument. I think that it would help John Does to go after this procedural issue at this early stage, as it will make the Plaintiff reconsider whether its worth it to shake down every John Doe if it costs them $350 apiece. Also, every other type of argument gets answered with OK, you can bring that up later. The attachment is in OpenOffice format. I hope that your readers would find it useful. Its important that every defendant take this, change it to reflect their current case, maybe adding or removing what they see fit, and filing this when they receive their subpoena notice. Remember to send a copy to the plaintiffs counsel, and of course, your name is John Doe. Sy Ableman (mailto:syableman@hushmail.com), Pro Se Attorney and Serious Man Click to open or download: MOTION TO QUASH OR MODIFY SUBPOENA (http://fightcopyrighttrolls.files.wordpress.com/2011/06/steele_quash.odt) Exhibit A Case ID: 120401874 Control No.: 12075391 8/17/12 For those who have just received a letter from their ISP Fight Copyright Trolls 3/6 fightcopyrighttrolls.com/2011/06/22/forthosewhohavejustreceivedaletterfromtheirisp/ Updated version: MOTION TO QUASH OR MODIFY SUBPOENA (http://fightcopyrighttrolls.files.wordpress.com/2011/08/steele_quash_v2.odt) (see the new post (http://fightcopyrighttrolls.com/2011/08/05/updated-motion-to-quash-or-modify- subpoena/)). (If your word processor does not understand Open Office format, let me know: Ill convert and upload this document in other formats.) See the update (http://fightcopyrighttrolls.com/2011/08/05/updated-motion-to-quash-or- modify-subpoena/). Comments 1. Linda says: September 11, 2011 at 12:18 am
0
0
i Rate This My processor does not understand Open Office format. Can you please convert the document? Reply sophisticatedjanedoe says: September 11, 2011 at 2:46 am
0
0
i Rate This First of all, as you are commenting to this (outdated) post, not to the updated motions one, Im afraid you did not read it yet. Did you? Try this a MS Word format. If you still have problems, let me know. In that case I will have to ask you what word processor (and which version) do you use. Ill make sure to put the link to MS Word version links to the posts. Exhibit A Case ID: 120401874 Control No.: 12075391 Exhibit B. Template John Doe Motion to Quash om Fightcopyrighttrolls.com Case ID: 120401874 Control No.: 12075391 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BOY RACER, INC., Plaintiff, vs. DOES 1-60, Defendants. __________________________/ CASE No. C-11-01738 MEJ MOTION TO QUASH OR MODIFY SUBPOENA MOTION TO QUASH OR MODIFY SUBPOENA I received a letter from my ISP regarding a subpoena, which included a copy of the Order Granting Plaintiff's Application for Leave to Take Discovery. From accounts of previous defendants of Steele Hansmeier, these subpoena notifications are followed by demand letters. These letters -- which demand around $2900 to avoid dealing with their lawsuit 1 -- and their phone calls, which are persistent 2 , are the reason I am filing this motion, and for this reason, I respectfully request that I be allowed to do so without revealing my personally identifying information. INTRODUCTION To cut court costs while suing as many individuals as possible, Plaintiff's counsel, Steele Hansmeier is using improper joinders in their mass lawsuits alleging copyright infringement through BitTorrent. These lawsuits include over twenty-thousand defendants in 1 Google search: steele hansmeier letter 2 Google search: steele hansmeier phone calls Exhibit B Case ID: 120401874 Control No.: 12075391 the Northern District of Calfornia alone. Steele Hansmeier (Formerly Steele Law Firm, LLC) also has mass lawsuits in Illinois, including a BitTorrent case nearly identical to this one, CP Productions, Inc. v. Does 1-300 case 1:2010cv06255, and in this case the court notes before dismissal: [I]f the 300 unnamed defendants have in fact infringed any copyrights (something that this court will assume to be the case, given the Complaint's allegations that so state), each of those infringements was separate and apart from the others. No predicate has been shown for thus combining 300 separate actions on the cheap - if CP had sued the 300 claimed infringers separately for their discrete infringements, the filing fees alone would have aggregated $105,000 rather than $350. Later, Judge Milton Shadur writes about Steele Hansmeier's abuse of the litigation system in more than one way with its ill-considered lawsuit: This Court has received still another motion by a Doe defendant to quash a subpoena in this ill-considered lawsuit filed by CP Productions, Inc. (CP) against no fewer than 300 unidentified Doe defendants this one seeking the nullification of a February 11, 2011 subpoena issued to Comcast Communications, LLC. This Courts February 24, 2011 memorandum opinion and order has already sounded the death knell for this action, which has abused the litigation system in more than one way. But because the aggrieved Doe defendants continue to come out of the woodwork with motions to quash, indicating an unawareness of this Courts dismissal of this action, 1 CPs counsel is ordered to appear in court on March 9, 2011 at 9:00 a.m. Counsel will be expected to discuss what steps should be taken to apprise all of the targeted Doe defendants that they will not be subject to any further trouble or expense as a result of this ill-fated (as well as ill-considered) lawsuit. CP Productions, Inc. v. Does 1-300 case 1:2010cv06255 (dismissed ALL John Doe defendants) In another Steele Hansmeier BitTorrent case in Illinois, Judge Harold A. Baker writes in denying the motion for expedited discovery: Plainly stated, the court is concerned that the expedited ex parte discovery is a fishing expedition by means of a perversion of the purpose of and intent of Fed. R. Civ. P. 23. VPR Internationale vs. Does 1-1017 case 2:2011cv02068 In the Northern District of California, these nearly identical BitTorrent cases have been severed for improper joinder: Pacific Century International LTD v. Does 1-101 case 4:2011cv02533 (severed Exhibit B Case ID: 120401874 Control No.: 12075391 does 2-101) IO Group, Inc. v. Does 1-435 case 3:2010cv04382 (severed does 2-435) Diabolic Video Productions, Inc v. Does 1-2099 case 5:2010cv05865 (severed Does 2-2099) New Sensations, Inc v. Does 1-1768 case 5:2010cv05864 (severed Does 2-1768) In yet another nearly identical BitTorrent case, filed in the Northern District of California by Steele Hansmeier, Millennium TGA, Inc v. Does 1-21 case 3:2011cv02258, Judge Samuel Conti found the same joinder problems, and wrote in his order denying request for leave to take early discovery, This Court does not issue fishing licenses; And these nearly identical BitTorrent cases in the Northern District of California by the same plaintiff Boy Racer, again represented by Steele Hansmeier, have been severed for improper joinder: Boy Racer, Inc v. Does 1-52 case 5:2011cv02329 (severed Does 2-52) Boy Racer, Inc v. Does 1-71 case 5:2011cv01958 (severed Does 2-72) ARGUMENT 1) Plaintiff Has Improperly Joined 60 Individual Defendants Based on Entirely Disparate Alleged Acts The Plaintiffs joinder of 60 defendants in this single action is improper and runs the tremendous risk of creating unfairness and denying individual justice to those sued. Mass joinder of individuals has been disapproved by federal courts in both the RIAA cases and elsewhere. As one court noted: Comcast subscriber John Doe 1 could be an innocent parent whose internet access was abused by her minor child, while John Doe 2 might share a computer with a roommate who infringed Plaintiffs works. John Does 3 through 203 could be thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs property and depriving them, and their artists, of the royalties they are rightly owed. . . . Wholesale litigation of these claims is inappropriate, at least with respect to a vast majority (if not all) of Defendants. BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004) (severing lawsuit involving 203 defendants). Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against Exhibit B Case ID: 120401874 Control No.: 12075391 them must arise from a single transaction or a series of closely related transactions. Specifically: Persons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Fed. R. Civ. P. 20. Thus, multiple defendants may be joined in a single lawsuit only when three conditions are met: (1) the right to relief must be asserted against them jointly, severally or in the alternative; (2) the claim must aris[e] out of the same transaction, occurrence, or series of transactions or occurrences; and (3) there must be a common question of fact or law common to all the defendants. Id. Joinder based on separate but similar behavior by individuals allegedly using the Internet to commit copyright infringement has been rejected by courts across the country. In LaFace Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008), the court ordered severance of lawsuit against thirty-eight defendants where each defendant used the same ISP as well as some of the same peer-to-peer (P2P) networks to commit the exact same violation of the law in exactly the same way. The court explained: [M]erely committing the same type of violation in the same way does not link defendants together for purposes of joinder. LaFace Records, 2008 WL 544992, at *2. In BMG Music v. Does 1-4, No. 3:06-cv-01579-MHP, 2006 U.S. Dist. LEXIS 53237, at *5-6 (N.D. Cal. July 31, 2006), the court sua sponte severed multiple defendants in action where the only connection between them was allegation they used same ISP to conduct copyright infringement. See also Interscope Records v. Does 1-25, No. 6:04-cv-197-Orl-22DAB, 2004 U.S. Dist. LEXIS 27782 (M.D. Fla. Apr. 1, 2004) (magistrate recommended sua sponte severance of multiple defendants in action where only connection between them was allegation they used same ISP Exhibit B Case ID: 120401874 Control No.: 12075391 and P2P network to conduct copyright infringement); BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004) (severing lawsuit involving 203 defendants); General Order, In re Cases Filed by Recording Companies, filed in Fonovisa, Inc. et al. v. Does 1-41 (No. A-04-CA-550 LY), Atlantic Recording Corporation, et al. v. Does 1- 151 (No. A-04-CA-636 SS), Elektra Entertainment Group, Inc. et al. v. Does 1-11 (No. A-04- CA-703 LY); and UMG Recordings, Inc., et al. v. Does 1-51 (No. A-04-CA-704 LY) (W.D. Tex. Nov. 17, 2004), RJN Ex. A, (dismissing without prejudice all but first defendant in each of four lawsuits against a total of 254 defendants accused of unauthorized music file-sharing); Order Granting in Part and Denying in Part Plaintiffs Miscellaneous Administrative Request for Leave to Take Discovery Prior to Rule 26 Conference, Twentieth Century Fox Film Corp., et al., v. Does 1-12, No. C-04-04862 (N.D. Cal Nov. 16, 2004) (in copyright infringement action against twelve defendants, permitting discovery as to first Doe defendant but staying case as to remaining Does until plaintiff could demonstrate proper joinder). Plaintiff may argue that, unlike the RIAA cases, its allegations here are based upon use of the Internet to infringe a single work. While that accurately describes the facts alleged in this case, it does not change the legal analysis. Whether the alleged infringement concerns a single copyrighted work or many, it was committed by unrelated defendants, at different times and locations, sometimes using different services, and perhaps subject to different defenses. That attenuated relationship is not sufficient for joinder. See BMG Music v. Does 1-203, 2004 WL 953888, at *1. Nor does the analysis change because the BitTorrent protocol works by taking small fragments of a work from multiple people in order to assemble a copy. Nearly all of the older protocols in the aforementioned cases work in this fashion. Kazaa, eDonkey and various Gnutella clients (e.g., LimeWire) have incorporated multisource/swarming downloads since Exhibit B Case ID: 120401874 Control No.: 12075391 2002. 1 Discussions of the technical details of the BitTorrent protocol aside, the individual Defendants still have no knowledge of each other, nor do they control how the protocol works, and Plaintiff has made no allegation that any copy of the work they downloaded came jointly from any of the Doe defendants. Joining unrelated defendants in one lawsuit may make litigation less expensive for Plaintiff by enabling it to avoid the separate filing fees required for individual cases and by enabling its counsel to avoid travel, but that does not mean these well- established joinder principles need not be followed here. Because this improper joining of these Doe defendants into this one lawsuit raises serious questions of individual fairness and individual justice, the Court should sever the defendants and drop Does 2-60, from the case. See Fed. R. Civ. P. 21. Dated: 6/25/2011 Respectfully submitted, s/John Doe John Doe Pro se 1 http://gondwanaland.com/mlog/2004/12/30/deployment-matters/ Exhibit B Case ID: 120401874 Control No.: 12075391 CERTIFICATE OF SERVICE I hereby certify that on 6/25/2011, I served a copy of the foregoing document, via US Mail, on: Brett L. Gibbs, Esq. Steele Hansmeier PLLC. 38 Miller Avenue #263 Mill Valley, CA 94941 Exhibit B Case ID: 120401874 Control No.: 12075391 Exhibit C. Oer for Private Arbitration. Case ID: 120401874 Control No.: 12075391 Subject: Uberty Media Holdings, LLC v. Does l-441 From: "A. Jordan Rushre" <jordan@fishtownlaw.com> Date1 8/3/12 At!g 3, 20127:11 PM To: CC: Marc 'Randazza BCC: Dear Mr. or Mrs. Doe: we received yo1Jr motion to quash. _I war1ted to one dftlie issttes ii'l it our.teplyin due: course ... Lit>erty underStands that some,people c-oerced. don't want to_ be gay ;l)ornagraphy. We getthat, we do: tC?.: innocent justbecaus.e you're afraid of befng associ(lted with p.orn. is {lOf Jn6;v.t.we{lo 'b;u$lfle$s. tlEineral Mar-c Hanaazza, has manaated that anyoFie who so. We are willing tboffery:oy a !l)fivateafbitratiorl, or to ' lte reswon$iMfaJ:j(i!lisof:}, 'If yoo nave a .legitfmate defense to:this case, we are mO,te than wilting : \Mf _ of refusing to money: from. if all indications areoth<1t . .. _ _ _ . ;Its to find the! personorespof'l$ible fonfistril;)titing libefly'swork: Our goatds'tiottoseel:(.qpic _. _ initiated this ma{tentia a \o/rit Q'f Summons; requesting - ' .- resporisiDle lnsteado(justan 'If:! Precpmplaint - . . .. _ . culpai:>Je paftY befere we nave. tomake aiJegations ih .court ;we. _ _ than'later, Mdmove ttiewayand focus on the C!Jfp'a'ble. par;tY; 0 , oil'Qiiwe int_ent"to Vt" - , , - _- ., , I'm n.etsute ityou knowtf:iis; out a interested in april{ate arbitratio-n, I wil.l' tell them to hdlcl off onp>redUCit1Q :lfyp,lt\tJ .k_' . .. .. ,_. .. :a__.. ...._.__ . conversati'dfl allbut your or just fptyou to ask: liberty - a'"" """ "" _ . _ .,, r "' any manner tnat makes yoU: feel Mr. !las _. . ... -_ . when po.tert:tial to,eh{i.l,age ,in lntorrnar ;i;>re,suit_disGover( So; if .. - to have some d()clitnent!it19Apfovidetl, or it- yousirJ1ply wish to u.s, ; , < commtinicationare Oflen. We fr:t a way ftiat you can call in, sothatyou canma1:ritain ' . - . Have a: nl{::eweekend. Ple.ase me'l(il\l()W do,:,an(t dpri'i h:El$itate 'to tfYOU ques'ttOrl$ Of . concerNs;-M -is;afso on tliis'email. g-pJ).redat ybur'i:itferttioril to 'tlils m'attek: - . . Sincere!;. A .. Jofdan Bus hie Muivinitl.& -Hushie bLC !'he Fishtown .. . .. 2424 E Stree.t, Suite.316 r Philaa$1ptlia, PA 19t25 ' Office: 2t5:3!,P.5291 Direct: efax: www.fjstitownlaw:com * Ucerrsefi tnPAa'Ao taJ Exhibit C. Case ID: 120401874 Control No.: 12075391 Exhibit D. Adavit. Exhibit D. Case ID: 120401874 Control No.: 12075391 WEBER GALLAGHER SIMFSQN ST ,APLETON FIRES & NEWBY, LLP Joseph Esquire (ID 21376) Jacqueline Lux., Esquire (ID 309073) 2000 Market Street, 1J 1 h Floor Philadelphia, PA 19103 (21 5) 972-7900 Fax: (215) 5647699 jgoldberg@wilaw .com jlux@wglaw.com LIBERTY MEDIA HOLDINGS LLC \\S. DOES 1-441 Attorneys for Defendant Jane Doe, also known as B.A. COURT OF COMMON PLEAS. PHILADELPHIA COUNTY APR1L TERM, 2012 CIVIL ACTION NO. 01874 AFFIDAVIT OF B A I, B A hereby swear and affirm that: l received a July 30, 2012 letter from the Comcast Legal Response Center, attached hereto as Exhibit. A; notifying me that the lntemet Protocol ("IP") address assigned to me allegedly uploaded or downloaded a movie without permission from Liberty Media Holdings, LLC onFebruary 1, 2012 at 7:ll a.m. GMT. I did not upload or download a movie belonging to Liberty Media Holdings. LLC on February 1; 2012. I live with my daughter, P A only, and no one else had access to my computer on February 1, 2012 at 7:11 a.m. GMT. At the time ofthis alleged activity, !had an unsecured wireless router. Sworn ..c .. r.ibe.d befi.o.re me this . .. day of August,)OJ7 ..
N'otar;:Plic .
HOANG VAN TRAN
NOTARY PUBLIC . COMMISSION EXPIRES
:..;., :' .. :;. .: ... ' 'o M 0 ..... , ',; ',;j.., :, ' Page 1 of I Exhibit D. Case ID: 120401874 Control No.: 12075391 .GALL4:G$R:SfM:tSON FJt6i:$ & 1-ltl'- .. Jacquelin.e. Esquire (I:J). 2000 Market Street, J3th .. PA l9W3 (215) 7900 , , . f .. vs. A9lYL TERM, 2012 .. I I ). i I ! ' ''' . , _'._ .-. '- . I)OlES l-44J .. ' crv1t Ac'rioN No. oJat4 ' ,, r resiqewitlj M i My a; J\fiY . ft9m the petiter, as thfi! !fi. Internet Protocol ("IP'') to llef 9t (fovo'dliladt4 a tn9Vie ' .. without pcrmissi&n ftorn Lib"erty Nfedia 7:H . I di'd -not uploa9-:or down:IQad a :@()vie to J;..ibc;rcy, l, . -. . nu'l tbi -:- 3 : , . day 201 Zi .
Case ID: 120401874 Control No.: 12075391 Exhibit E. Adavit. Case ID: 120401874 Control No.: 12075391 ST\TE OF lLLlNOIS :SS: COOK COUNTY The undersigned, Adam E. Urbanczyk, being duly sworn, deposes and says: 1. That affianr is an attorney-at-law and that this affidavit is made on behalf of and at the requesr of rhc individual subscribed to rhc internet account associated with the 67. 175.162.89 IP address on 02/ 10/ 20 12 at 04:03 (Gil H) ("SubsCliber"); and 2. That Subscciber's, via his TP address, is listed as a potential responsible party in tJ1c discovery action Liberty Media Holdings LLC v. Does 1-+1, Case l o. 12-1874 (Philadelphi:t County, Pennsylvania); 3. Tl1:1t Subscriber is not a technologically sophisticated party and ts unfamiliar with Bir Torrent or other ftle sharing prowcols; 4. That Subscriber <.lid not download "Down on d1e Farm" or any Corbin Fisher-related film; 5. l11at on the date associared w-ith Subscriber's lP address- February 10, 2012 - Subscriber utilized an unsecured wireless rourer ro access his intemet accounr; 6. That Subscriber restdes m an apartmenr bwlding and lives in very close proxirrury to his neighbors; and 7. l11ar after explaining the foregoing ro .\.Jordan Rushic, counsel for Liberty ilfcdia Holdings, llC ("PlaintifP'), Plaintiff has agreed to disregard Subscriber as Plaintiff, satisfied with Subscriber's representations a d..attestation, is nor interested in simplr coercing setrlemenr payments from Subscriber and is focusing irs res / ccs on pursuing the actual individuals res()onsible for infringing conduct . .Affiant further sayerh naught. si- Swom to before me day of .\ugust, 2012. "OFFICIAL SEAL" MIRIAM MORADO -- E. Urbanczyk, on behalf of rhe 6 .175.162.89 Subscriber . \ u, U .C - Torrenrlirigacion.com 365 N. Jefferson Chicago, lL 60661
(312) 715-7312
MV COMMISSION EXPIRES MAY 23, 2014 - Exhibit E. Case ID: 120401874 Control No.: 12075391 Certicate of Service. I, A. Jordan Rushie, certify that I sent a copy of Plaintis Reply to Non-Party Comcasts Motion for Certication to the following par- ties via electronic mail: Corey Osborn, Esquire One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1700 Philadelphia, PA 19103 John Doe Alleged IP Address: 68.84.104.002 Philadelphia, PA 19011 johndoe1441pa@gmail.com
A. Jordan Rushie Dated: Thursday, August 23, 2012 Case ID: 120401874 Control No.: 12075391 Certicate of Service. I, A. Jordan Rushie, certify that I sent a copy of Plaintis Reply to Non-Party Comcasts Motion for Certication to the following par- ties via electronic mail: Corey Osborn, Esquire One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1700 Philadelphia, PA 19103 John Doe Alleged IP Address: 68.84.104.002 Philadelphia, PA 19011 johndoe1441pa@gmail.com
A. Jordan Rushie Dated: Thursday, August 23, 2012 Case ID: 120401874 Control No.: 12075391