Case3:10-cv-03647-MEJ Document18 Filed03/25/11 D. GILL SPERLEIN (172887) THE LAW OFFICE OF D. GILL SPERLI 584 Castro Street, Suite 879 San Francisco, California 94114 Telephone: (415) 404-6615 Facsimile: (415) 404-6616 gill@sperleinlaw.com Attorney for Plaintiff 10 GROUP, INC Page! of 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IO GROUP, INC. d/b/a TITAN PLAINTIFF 10 MEDIA, a California corporation, Plaintiff, vs. DOES 1-244 individuals, No Hearing Date Defendants. PROCEDURAL HISTROY Plaintiff filed this action for copyright infringement a The infringing activity occurred on line and the only information Plaintiff has as to who engaged in the infringing activity is the IP address from which the infringer accessed the Internet, Thus, Plaintiff moved for leave to take early discovery, which the Court permitted, (Order Granting Plaintiff's Request for Leave to Take Early Discovery, 10-3647 (MEJ) GROUP, INC.’S OPPOSITION TO ANONOMOUSLY FILED MOTION MOTION TO STRIKE IN TO DISMISS; AND igainst 244 Doe Defendants.W 12 14 1s 16 7 18 19 20 21 2 23 24 25 26 27 28 Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page2 of 9 Docket No. 10.) Plaintiff served a subpoena on the Internet access provider AT&T Internet, requesting identifying information for the subscribers to whom AT&T had assigned specific IP addresses at various dates and times. AT&T Internet claimed it was unable to provide the subpoenaed information until March 16, 2011, Upon Plaintiff's motion, the Court extended the time to serve Defendants until July 14, 2011, in order to allow Plaintiff sufficient time to process information once provided by AT&T, to complete further investigation, to amend the Complaint with the actual names of Defendants, and to serve the Summons and Complaint, (Order Extending Plaintiff Io Group’s Time to Serve Doe Defendants and Resetting Case Management Conference, Docket No. 15), On March 14, 2011 an anonymous individual claiming to be a possible Doe Defendant filed a Motion to Dismiss. (Docket No. 16) The individual did not identify him or herself, did not claim to be a party to the suit, and did not even claim to be one of the non-party Internet subscribers whose information Plaintiff seeks from AT&T. Based on the anonymous non-party’s filing, AT&T suspended production of the subpoenaed information, further delaying Plaintiff's ability to proceed in this matter. On March 22, 2011 the Court issued an Order Directing Defendant! to file a Consent/Declination Form. Plaintiff hereby opposes the Motion to Dismiss and moves to Strike the Document in its entirety, as it was not filed by a Party in this matter and as not properly signed as " As noted hercin, this is an error as Plaintiff has not yet identified any Defendants,W 12 14 1s 16 7 18 19 20 21 2 23 24 25 26 27 28 Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page3 of 9 required under the Federal Rules of Civil Procedure.” Plaintiff also respectfully requests that the Court reconsider its Order Directing Defendant to file a Consent/Declination Form based on the fact that the filer is not a Defendant in this action, a fact that apparently was unknown or not considered by the Court prior to its Order. ARGUMENT L THE INDIVIDUAL WHO FILED THE NOTICE TO DISMISS IS NOT A PARTY. TO THIS ACTION AND HAS NO STANDING TO BRING A MOTION TO DISMISS. (a) The Filer is not a Defendant, The individual who filed the Motion to Dismiss (the Filer) is not a party to this action, The Filer made this perfectly clear when he or she signed the filing as “Possible John Doe”. AT&T has not provided any information about subscribers to Plaintiff; thus, Plaintiff has no more information about whom it may eventually name as Defendants than it did when it initially filed its Complaint and Motion for Leave to Take Early Discovery. Plaintiff has not identified any of the Defendants, has not amended the Complaint with the names of any individuals, and has not served a Summons or Amended Complaint upon any Defendants. Moreover, neither Plaintiff nor the Court knows if the individual who filed the Motion is even one of the subscribers whose information Plaintiff seeks under the subpoena to AT&T. If he or she is one of those individuals we do not know which one. 2 Because this is an improperly filed document that must be stricken, Plaintiff does not address the substantive arguments. Should the Court not strike the document, Plaintiff requests an opportunity to address the merits through further briefing and oral argument.Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page4 of 9 The non-party Filer provided no facts as to why he or she believes he or she is a “Possible John Doe”. If the individual is one of the subscribers whose records Plaintiff seeks and he or she does not wish to have those records released, his or her remedy is to file a ‘motion to quash the subpoena, He or she has not. Like any entrant to litigation, the Filer must establish that he or she has standing under Article III of the U.S. Constitution to participate in this proceeding. As noted, the Filer has not submitted any evidence that he or she is a party to the litigation. Indeed he or she cannot, because no such evidence exists, Filing a document signed “Possible John Doe” is not sufficient to confer standing to participate in this action. See generally Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983); California Consumers v. Columbia House, Case No, C-97-3233-VRW 1997 U.S, Dist. LEXIS 20649 at *3-4 (N.D. Cal. Dee. 24, 1997), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 601-61 (1992) and Warth v. Seldin, 422 U.S. 490, 498 (1973). Central to the Filer’s standing is whether the Filer has a “personal stake” in the controversy’s outcome. Stoianoff, 695 F.2d at 1223; see Lujan, 504 U.S. at 601-61; Warth 422 U.S. at 498. In this case, the Filer has not alleged, nor made any sworn statement regarding whether or not he or she is a defendant, but claims that his or her involvement as a party is “possible.” Merely “possible” participation, however, does not create a “personal stake” in the litigation that is sufficient for the Court to entertain Doe’s motion. See Lujan, 504 U.S. at 560-61. Thus, Filer lacks Article III standing for this Court to entertain his or her Motion to Dismiss.W 12 14 1s 16 7 18 19 20 21 2 23 24 25 26 27 28 Case3:10-cv-03647-MEJ Document18 Filed03/25/11 PageS of 9 (b) The Filer may not even be one of the AT&T Subscribers. In this matter, Plaintiff secks to hold responsible the individuals who infringed its copyrighted works using peer-to-peer technology. Many people vehemently oppose copyright holder lawsuits in which the right holders seek to enforcement their copyrights in this manner. In the past, these detractors have shown a willingness to engage in extreme tactics in order to disrupt litigation, For example, in September 2010, a group of hackers conducted a “Distributed Denial of Service” (DDoS) attack on a UK-based law firm that was prosecuting peer-to-peer infringement cases. ‘The hackers obtained and distributed passwords, personal information and confidential e-mails from the law firm as part of their attack, John Leyden, Anti-Piracy Lawyers’ Email Database Leaked Afier Hack, The Register (Sept.27, 2010), http://www. theregister.co.uk/2010/09/27/anti_piracy lawyer email _leak/ (last accessed Mar. 24, 2011). These hackers have also engaged in attacks on plaintiffs who have sued peer-to- peer inftingers, including Lamy Flynt Productions. Weoneybeer, Hustler Continues Filing New Suits Despite DDoS Attacks, myce.com (Oct. 28, 2010), http://www. myce.com/news/hustler-continues-filing-new-lawsuits-despite-anonymous- ddos-attacks-35952/ (last accessed Mar. 24, 2011). Perhaps coincidentally, but perhaps not, the loosely-knit group of hackers that carried out these attacks call themselves “Anonymous.” Given the range and intensity of disdain peer-to-peer users have towards copyright litigation, it is reasonable to consider that the non-party Filer may have filed his or her