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Anonymous accused Bittorrent user moves to quash subpoena using real name

By Evan Brown

Worldwide Film Entertainment, LLC v. Does 1-749, 2010 WL 2011306 (D.D.C. May 20, 2009)

Some have already commented on their scruples arising from the large economies of scale approach to copyright litigation that’s being undertaken by lawyers with the U.S. Copyright Group to go after Bittorrent movie sharers. See, for example, what Mike Masnick and Eriq Gardner have had to say. And the ISPs aren’t all that happy about the work required to respond to a bunch of subpoenas.

So no one should be surprised if some interesting little internet law vignettes play out along the way. One of those vignettes is wrapping up in federal court in Washington D.C. It has to do with anonymity.

Worldwide Film Entertainment has sued over 700 anonymous Bittorrent users over the 2007 film The Gray Man. As with any case of this sort (like the numerous RIAA lawsuits), the plaintiff doesn’t know the identity of the various defendants when the lawsuit starts. All it has is an IP address for each alleged infringement, so it has to go to the ISP to link that IP address with an individual’s name and physical address. Then the plaintiff will know who to list as a defendant.

But most ISPs won’t turn over subscriber information without a subpoena. So Worldwide Film Entertainment had a subpoena issue to Comcast, the ISP for the IP address associated with one of the alleged infringements. Under the Cable Communications Policy Act of 1984 (at 47 USC 551), providers like Comcast have to notify their subscriber before turning over the subscriber’s information.

Comcast notified its subscriber in this case, one Mr. Simko, of Worldwide Film Entertainment’s efforts to learn Mr. Simko’s identity.

And here’s the part that makes this little vignette so charming: rather than challenge the plaintiff’s efforts to unmask his identity, Mr. Simko filed a motion to quash the subpoena USING HIS REAL NAME.

The court denied the motion to quash. The basis for denying the motion is kind of an aside (the motion to quash phase was not the right time to challenge venue or knowledge of the infringement).

What’s noteworthy about the case is Mr. Simko’s decision to voluntarily waive his anonymity. Not only did he challenge the subpoena using his own name, he filed as an exhibit the letter he got from Comcast notifying him of the subpoena. Right there, in all caps and as plain as day were Simko’s name and address for all to see.

Full post as published by InternetCases.com on May 25, 2010 (boomark / email).