BitTorrent John Does Catch a Break as Judge Reignites Jurisdiction Issue

Every single US Copyright lawsuit against nearly 19,000 John Does has been filed in Washington DC. Discovery has been granted in every case, which means the identification process against many of these individuals is taking place as you read this article. Before the USCG can obtain the identifiable information associated with the IP address collected during their copyright infringement investigation, they have the opportunity to file a motion to quash - or prevent the USCG from obtaining their information.

According to the court, "A person served with a subpoena may move for a protective order under Federal Rule of Civil Procedure 26(c). Under Rule 26(c), a court may “make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” upon a showing of good cause."

The Washington DC district court, in this case and the rest of the USCG cases, has received dozens of pleas from individuals asking the court not to reveal their personal information. Unfortunately, virtually all of the motions were amateurish - in many instances, defendants use their real name and address when the goal is to stay anonymous. This is easily remedied by filing the motion under seal, otherwise the identities of the accused are simply spoon feed to the USCG. But getting this information could become a lot more difficult for the USCG.

Today, US District Judge Rosemary M Collyer took a Gatling Gun to the John Does in the Achte/Neute (Far Cry) lawsuits, continuing a long losing streak for the defendants. Four motions to quash were capped when Judge Collyer found that none of the motions met the merits to deny the plaintiffs their personally identifiable information.

One of the Does, who divulged their own identity, pleaded he has no working knowledge of file-sharing technology. It was denied because defense of the charge does not occur until the individual is actually sued.

"My wife and I are both 69 years of age and the only occupants of this location. Charter personnel installed the high speed equipment for our internet connection and we have made no modifications to it. If it had any features that made it vulnerable to “hacking”, we had no knowledge of that. This technology is way above our abilities to deal with."

Another John Doe claimed his identity was 'personal'. However, this motion was denied because the Judge concluded that there is no reasonable expectation to privacy while online. Ouch.
However, there is some light at the end of the tunnel. Although all the motions were quashed, two of the defendants were located outside the District of Columbia. In an order rarely seen in these cases, the Judge ruled that the USCG must show cause by September 30th why the cases against them shouldn't be dismissed due to jurisdiction.

"These defendants appear to live outside of Washington, D.C...Because they live elsewhere, it is questionable whether [defendants] had sufficient contact with the District of Columbia to warrant this Court’s exercise of personal jurisdiction over them."

This issue has been brought up before when a John Doe from Minnesota filed a motion to quash based on jurisdiction. There was never any judicial opinion on the matter, as all parties involved settled out of court. But not this time!

The issue was also raised by the EFF in the pre-discovery phase of the trial, however, Judge Collyer ruled in favor of the USCG. It would appear that the timing wasn't right, since the individual being sued has to challenge jurisdiction. Now that times have changed, it's possible to see a ruling in favor of the John Does. Unfortunately for the John Does who unwittingly gave up their identities, they will be the sacrificial lambs whose efforts helped the approximately 6,500 John Does keep theirs - that is if Judge Collyer is unmoved by the USCG's response to show cause.

While a pro-defendant ruling would be helpful, it won't stop the lawsuits - the USCG can simply sue the individuals in their home state. But it would be another wrench in the process - how much of a dent it makes in the money making venture will be determined by the amount of opposition.