The good folks over at FightCopyrightTrolls and DieTrollDie do a great job, probably better than anyone, at keeping everyone informed about the state of mass bittorrent litigation, frequently called copyright troll suits. One of the hottest topics, always, is what to do when you get that letter or email from your ISP telling you that they got a subpoena for your private information. I already wrote a little about what it means when you get that letter. Now I’m going to tell you what the three most common options actually mean.
Your three main options when you are informed about one of these ISP subpoenas are:
- file a motion to quash
- file a motion to sever
- file a motion to dismiss
You can do any one or more of those, in any combination. Actually there are several more options than that, but those are the most frequent, especially if you want to resist the subpoena. Of course, you could just do nothing, but that’s not any fun.
Motion to Quash Subpoena
The motion to quash is basically a request to kill the subpoena, but not the lawsuit. So the subpoena is actually nothing except an order by the Court to produce some information. In these cases, that information is your personal name and address. So the subpoena is an order to your ISP to produce your name and address to the accuser (the troll). So if your motion to quash is successful, all you have done is prevented the troll from learning your name and address directly from the ISP, at least for now. You are still a defendant in an active federal litigation matter. In other words, you have still been sued and that case is still moving forward.
A winning motion to quash must attack the sufficiency of the subpoena itself, not the merits of the lawsuit. In other words, informing the Court that they don’t have personal jurisdiction over you might be proper grounds for a motion to quash. But just telling the Court you didn’t do it is not proper grounds. If you want to address the merits of the lawsuit, that’s what the litigation process is all about.
Motion to Sever
The motion to sever is basically a request to separate out all the defendants, but continue the lawsuit. Ordinarily when these mass bittorrent cases are filed, the plaintiff (the troll) names a large number of defendants (the subscribers), sometimes in the thousands. If you got one of these ISP letters, that means you are one of those defendants. A motion to sever is basically asking the Court to divide up the several defendants into their own, unique and individual lawsuits. So if the original lawsuit had 1,000 defendants, a successful motion to sever would result in converting one lawsuit into 1,000 individual and separate lawsuits. But still, even if your case is severed, you may well still be in an active federal litigation matter, just not the same one as was originally filed.
A winning motion to sever must attack the propriety of having lots of defendants in one lawsuit, again, not the merits of the case. Proper grounds for a motion to sever are that the multiple defendants don’t have anything in common and each defendant has his or her own unique defenses that should properly be litigated separately. Also, proper grounds can include the difficulties of such a large number of individual defendants having to show up for hearings at the same time. In a nutshell, you should argue that keeping all the defendants in one lawsuit would be impractical for the Court.
Motion to Dismiss
The motion to dismiss is the big one. A motion to dismiss is a request to the Court to let you out of the lawsuit. In other words, a successful motion to dismiss is the only way you are officially completely let out of the suit. If your motion to dismiss is successful, you are no longer a defendant in any federal litigation matter.
A proper motion to dismiss is the only place that you can address the actual merits of the case, and even then the evidence must be overwhelming. Remember, the litigation process is exactly how all the he-said-she-said disputes are resolved. So you will not win an actual motion to dismiss with just “the troll can’t prove I did it” or even worse “trolling is just bad.” You have to advance clear undeniable evidence that it wasn’t you, like “that IP address was never mine” or “I’m not even a Comcast subscriber.”
Those are tough cases to make, and those facts are probably rarely true. But the best winning argument you can make is that the Court where the case is currently filed doesn’t have personal jurisdiction over you. To do that, you would have to inform the Court that you have absolutely no ties to the state where the lawsuit is pending. You would have to include an affidavit or declaration, and it would need to say things like “I do not now nor have I ever lived in Forum State,” “None of the acts complained of occurred in Forum State,” and “I do no business in Forum State.” That is a much easier argument to make, and due to the nature of these types of cases, those facts are usually true. And the good news is if those facts are true, and you put them forth in a clear and easy format, the Court is very likely to grant your motion to dismiss.
What does it all really mean?
So those are the technical differences between your three main options to respond to one of the ISP subpoena letters. I should mention that although only the third one (M2D) actually lets you out of the lawsuit, as a practical matter any one of the three would do it. If any one of these three motions is granted, then the cost to the troll plaintiff goes way, way up (orders of magnitude). That extra cost usually makes pursuing the case cost-prohibitive and the trolls just go away. The copyright trolls are having a tough time pursuing their main objectives. So far (with a few exceptions) the trolls stick to the low hanging fruit.
Hopefully, this has cleared up a little confusion that some of you may have had about the legal differences between those three motions. If you still have questions, feel free to contact me or put them in the comments below, anonymous if you’d like.