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BoothSweet's Motion in Lightspeed case

BoothSweet's Motion in Lightspeed case

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Published by J Doe

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Published by: J Doe on Jul 12, 2012
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITST. CLAIR COUNTY, ILLINOISLAW DIVISION
 _____________________________________ )LIGHTSPEED MEDIA CORPORATION, ))Plaintiff )) No. 11-L-0683v. ))JOHN DOE, ))Defendant. ) _____________________________________ )
JOHN DOE 24.61.144.232’S CONSOLIDATED MOTION & MEMORANDUM TO DISMISSPURSUANT TOSECTIONS 2-615 AND 2-619 OF THE ILLINOIS CODE OF CIVILPROCEDUREI. INTRODUCTION
The general safeguards developed by courts to ensure defendants get a fair chance to presenttheir defenses always apply and are crucial in a case such as this. Plaintiff’s established businessmodel is to use mass litigation to extract settlements from individuals regardless of guilt. To date,Plaintiff has filed no fewer than five similar cases, none of which have been adjudicated on themerits, against a combined total of 7,672+ defendants.
1
Despite changes in venue and tactics,Plaintiff’s bad faith remains constant. In the face of growing opposition in the federal districts,Plaintiff and its counsel
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have adopted a new tactic to avoid personal jurisdiction and joinder issues:sue a single forum resident in state court, but seek discovery on thousands of other IP addresses belonging to “co-conspirators” located throughout the country who are not joined as defendants.
3
 
1
 
 Lightspeed Media Corp. v. John Does 1-9,
4:2011-cv-02261 (N.D. Cal. 2011);
 Lightspeed Media Corp. v. John Does 1-1000,
1:10-cv-05604, 2011 U.S. Dist. LEXIS 35392 (N.D. Ill. 2010);
 Lightspeed Media Corp. v. John Does1-160
, No. 2011-34345-CA-01 (Fla. Cir. Ct., filed Feb. 14, 2012);
 Lightspeed Media Corp. v. Doe
, No. 2012-5673-CA-01 (Fla. Cir. Ct., filed Feb. 14, 2012);
 Lightspeed Media Corp. v. Doe
, No. 11-L-0683 (Ill. Cir. Ct. Jan. 18,2012). (Prenda Law a/k/a Steele Hansmeier PLLC for plaintiff in all matters.)
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The identity of Plaintiff’s counsel is unclear. The Complaint was filed by Judge Michael J. O’Malley (Ret.) of Carey, Danis, & Lowe, LLC. (From 1990 until 2012, Judge O’Malley was a Circuit Judge for the Law Division of the Circuit Court of St. Clair County.) However, production of discovery is directed to Prenda Law a/k/a SteeleHansmeier PLLC, who then contacts the defendants directly regarding the action.
3
 
See, e.g., Pac. Century Int’l, Ltd. v. Does 1-37 
, 102 U.S.P.Q.2d (BNA) 1201 (N.D. Ill. Mar. 30, 2012). (Prenda Lawa/k/a Steele Hansmeier PLLC for plaintiff.)
 
On January 18, 2012 Plaintiff filed a Complaint in state court for assorted federal andcommon law claims.
See,
Complaint, ¶ 1. Plaintiff alleges that John Doe and 6,500+ “co-conspirators,” alleged to include John Doe 24.61.144.232 (“Movant”), conspired to use “hacked passwords to gain unauthorized access to Plaintiff’s website” and “download and disseminate”Plaintiff’s content.
 Id 
. at ¶ ¶ 1, 11, 12. In pursuit of its claims, Plaintiff filed a petition for pre-trialdiscovery. Due to the
ex parte
nature of Plaintiff's motion, Plaintiff faced no opposition from Movantor the other Does, the targets of its discovery, to fully expound on the prejudices Movant or any of the others faced as a result.In this particular context, the Court must balance “the need to provide the injured part[y] withan [sic] forum in which [it] may seek redress for grievances” against those of ISP subscribers“without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit andthereby gain the power of the court’s order to discover their identity.”
Columbia Ins. Co. v.Seescandy.com
, 185 F.R.D. 573, 578 (N.D. Cal. 1999).
See also,
 
 London-Sire Records, Inc. v. Doe 1
,542 F. Supp. 2d 153, 163 & nn.10-11, 179 (D. Mass. 2008) (holding that the court must consider “theexpectation of privacy held by the Doe defendants, as well as other innocent users who may bedragged into the case (for example, because they shared an IP address with an alleged infringer.”));
Stone v. Paddock Publishing, Inc.
, 961 N.E.2d 380 (Ill. App. Ct. 2011)Plaintiff’s established record of ill conduct indicates that it is now using this Court as nothingmore than an inexpensive means to gain Movant’s personal information to coerce payment.
II. TECHNICAL BACKGROUND
A.
Internet Protocol Addresses.1.Definition.
Any subscriber of an Internet Service Provider (“ISP”), such as Movant, who connects their computer to the Internet via the ISP is assigned an Internet Protocol (IP) address.
U.S. v. Heckenkamp
, 482 F.3d 1142, 1144 (9th Cir. 2007). In addition to the subscriber’s IP address, theISP’s network is also assigned its own IP address.
 LVRC Holdings v. Brekka
, 581 F.3d 1127, 1130(9th Cir. 2009). Typically, subscribers are assigned a dynamic IP address. That is, their ISP assigns adifferent IP address each time the subscriber logs on to their computer.
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2.
Purpose.
The purpose of an IP address is to route traffic efficiently through the network. It does notidentify the computer being used nor the user. IP addresses only “specify the locations of the sourceand destination nodes in the topology of the routing system.”
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3.Identification.
Plaintiff has identified only an account being used to commit infringing activity,
not 
thesubscriber of theaccount. Trying to use an IP address as awindow through which the Plaintiff cansee the identity of an actual infringer is futile. What Plaintiff sees instead is a router or wirelessaccess point —not who did it. Nor is an IPaddress alone a reasonable basis to believe that asubscriber has infringed. A subscriber can be misidentified in multiple ways as an infringer without participating in any infringing behavior, including:1.Reliability issues with using IP addresses and timestamps to identify the correct party;
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2.If a subscriber has dynamic IP addressing through its website host, it is sharing an IP addresswith several other subscribers;
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or 3.Anyone with wireless capability can use a subscriber’s wifi network to access the Internet,giving the impression that it is the subscriber who is infringing.
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4.Reliability.
There are serious issues surrounding the credibility of the evidence proffered by the Plaintifin support of its discovery request. Plaintiff, Lightspeed Media Corporation (“LMC”),o peratesnumerous pornography websites. LMC is owned by Steve Jones. Its main offices are located at 4402
3
4
“IP Address” http://en.wikipedia.org/wiki/IP_address (Last visited May 9, 2012).
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Michael Piatek et al.,
Challenges and Directions for Monitoring P2P File Sharing Networks—or—Why My Printer  Received a DMCA Takedown Notice
, 3-4 (2008), http://dmca.cs.washington.edu/uwcse_dmca_tr.pdf 
See also,
“IPaddress spoofing” http://en.wikipedia.org/wiki/IP_address_spoofing (Last visited May 9, 2012)
 
(“(the term IPaddress “spoofing” refers to the creation of a forged IP address with the purpose of concealing the user’s identity or impersonating another computing system.)
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“Web hosting service” http://en.wikipedia.org/wiki/Web_hosting_service (Last visited May 9, 2012).
7
Carolyn Thompson writes in an MSNBC article of a raid by f ederal agents on a home that was linked todownloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktopcomputer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned theequipment after determining that no one at the home had downloaded the illegal material. Agents eventually tracedthe downloads to a neighbor who had used multiple IP subscribers' Wi-Fi connections (including a secure connectionfrom the State University of New York).
See
Carolyn Thompson,
 Bizarre Pornography Raid Underscores Wi-Fi Privacy Risks
(April 25, 2011), http://www.msnbc.msn.com/id/42740201/ns/technology_and_science-wireless/

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