Here is my effort to modify a “MOTION TO QUASH OR MODIFY SUBPOENA,” for K-Beech v. John Does 1-78, CASE No. 5:11cv-05060-BMS. Motion to Quash_KBeech
I want to thank SJD as well as the John Doe who filed the first one for this case.
For any/all Does under this case (or any other), please feel free to adapt, edit, revamp, etc., and make it work you.
I added the following paragraphs that may be of interest to the Does. The Envisional report I cited can be found at http://documents.envisional.com/docs/Envisional-Internet_Usage-Jan2011.pdf
I make no claim it is perfect, but at least it is a start. I welcome your comments/edits.
When you file it, make sure you change the date (and other facts as needed) and mail it to the Court and Plaintiff’s attorney from a location other than yours. Since this K-Beech case only has PA defendants, just make sure to mail it from a different county than yours.
In a recent order (6 Sep 2011) by Judge Bernard Zimmerman, Northern District of California, 5010 John Does were dismissed from On The Cheap, LLC, v. Does 1-5011, case C10-4472 BZ, due to improper joinder. Judge Zimmerman stated the following in his order:
“This Court does not condone copyright infringement and encourages settlement of genuine disputes. However, Plaintiff’s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to first create the management and logistical problems discussed above and then to offer to settle with Doe defendants so they can avoid digging themselves out of the morass plaintiff is creating.”
Plaintiff claims all of the Pennsylvania defendants are properly joined because they illegally downloaded/shared the film (Virgins 4) via BitTorrent. Plaintiff provided the Court Exhibit B to their Motion for Leave to Serve Third Party Subpoenas Prior To A Rule 26(f) Conference (Document 4), showing the IP addresses of the defendants and a specific “hit date (UTC),” it was observed illegally downloading/sharing the film. John Doe #60 (IP address 22.214.171.124) was the first instance of downloading/sharing by defendants identified by plaintiff’s agents on 4/12/2011 at 20:07 Coordinated Universal Time (UTC). The last instance of downloading/sharing identified by Plaintiff’s agents was on 7/7/2011, at 20:55 UTC, by John Doe # 72 (IP address 126.96.36.199). Plaintiff incorrectly states the infringement was accomplished by the Defendants “acting in concert with each other.” Exhibit B to Document 4 shows the entire timeframe of the activity, but not which IP addresses acted in concert. The nature of BitTorrent does not support Plaintiff’s claim that All John Doe IP addresses acted together for the entire period of approximately three months.
The nature of BitTorrent is that the work in question is first made available to others BitTorrent users by a small number, usually one IP address. As other BitTorrent users join and start to download/share the work, the swarm grows. Depending on how popular the work is, the swarm can grow fast, or not at all. Eventually as the popularity of the shared work drops, the swarm shrinks, and eventually disappears. IP addresses commonly join and leave various BitTorrent swarms at all times during the life of the torrent. Plaintiff’s agent, Tobias Fieser, IPP Limited, collected the data on John Doe IP addresses (Exhibit A of Document 4) and can verify the nature of BitTorrent, as well as provide details on who (if any) of the John Does IP addresses in this case truly shared the work between the other John Does IP addresses in this case.
In the January 2011 Technical Report: An Estimate of Infringing Use of the Internet, by Envisional(a major company specializing in detecting and guarding against the threats of counterfeiting, piracy, fraud and online brand abuse), the following was noted for the single day analysis of BitTorrent use:
For the 2.72 Million torrents identified, only .2% had 100 or more downloaders. 2.6% of the torrents had 10-99 downloaders. 51.9% of the torrents had from one to nine downloaders. 45.2% had no active downloads. Envisional also noted that a similar spread of “seeders” (users with a complete copy of the work) were associated with the torrents. For 48.5% of the torrents, there were no seeders connected. (Page 9)
This report clearly shows the vast majority of torrents only had zero to nine downloaders associated with them and a very limited number of file seeder at any one instance.
The similar but separate nature of the BitTorrent connections is highlighted in three recently filed K-Beech cases in Colorado (K-Beech Inc., v. John Doe, 1-11-cv-02370-PAB, K-Beech Inc., v. John Doe, 1-11-cv-02371-CMA, and K-Beech Inc., v. John Doe, 1-11-cv-02372-MSK) filed on 8 Sep 2011. These three cases also concern the infringement of the same file as this case (Virgins 4), by John Does in Colorado. Plaintiff’s attorney in Colorado decided to file separate cases for each John Doe, as joinder of the three could not be justified by location only.