CLAIR COUNTY, ILLINOIS LAW DIVISION _____________________________________ LIGHTSPEED MEDIA CORPORATION, ) ) ) Plaintiff ) ) v. ) ) JOHN DOE, ) ) Defendant. ) _____________________________________ )

No. 11-L-0683

JOHN DOE’S CONSOLIDATED MOTION & MEMORANDUM TO DISMISS PURSUANT TO SECTIONS 2-615 AND 2-619 OF THE ILLINOIS CODE OF CIVIL PROCEDURE I. INTRODUCTION The general safeguards developed by courts to ensure defendants get a fair chance to present their defenses always apply and are crucial in a case such as this. Plaintiff’s established business model is to use mass litigation to extract settlements from individuals regardless of guilt. To date, Plaintiff has filed no fewer than five similar cases, none of which have been adjudicated on the merits, against a combined total of 7,672+ defendants. 1 Despite changes in venue and tactics, Plaintiff’s bad faith remains constant. In the face of growing opposition in the federal districts, Plaintiff and its counsel2 have adopted a new tactic to avoid personal jurisdiction and joinder issues: sue a single forum resident in state court, but seek discovery on thousands of other IP addresses belonging to “co-conspirators” located throughout the country who are not joined as defendants.3


Lightspeed Media Corp. v. John Does 1-9, 4:2011-cv-02261 (N.D. Cal. 2011); Lightspeed Media Corp. v. John Does 1-1000, 1:10-cv-05604, 2011 U.S. Dist. LEXIS 35392 (N.D. Ill. 2010); Lightspeed Media Corp. v. John Does 1-160, No. 2011-34345-CA-01 (Fla. Cir. Ct., filed Feb. 14, 2012); Lightspeed Media Corp. v. Doe, No. 2012-5673CA-01 (Fla. Cir. Ct., filed Feb. 14, 2012); Lightspeed Media Corp. v. Doe, No. 11-L-0683 (Ill. Cir. Ct. Jan. 18, 2012). (Prenda Law a/k/a Steele Hansmeier PLLC for plaintiff in all matters.)

The identity of Plaintiff’s counsel is unclear. The Complaint was filed by Judge Michael J. O’Malley (Ret.) of Carey, Danis, & Lowe, LLC. (From 1990 until 2012, Judge O’Malley was a Circuit Judge for the Law Division of the Circuit Court of St. Clair County.) However, production of discovery is directed to Prenda Law a/k/a Steele Hansmeier PLLC, who then contacts the defendants directly regarding the action.

See, e.g., Pac. Century Int’l, Ltd. v. Does 1-37, 102 U.S.P.Q.2d (BNA) 1201 (N.D. Ill. Mar. 30, 2012). (Prenda Law a/k/a Steele Hansmeier PLLC for plaintiff.)

On January 18, 2012 Plaintiff filed a Complaint in state court for assorted federal and common law claims. See, Complaint, ¶ 1. Plaintiff alleges that John Doe and 6,500+ “coconspirators,” alleged to include John Doe (“Movant”), conspired to use “hacked passwords to gain unauthorized access to Plaintiff’s website” and “download and disseminate” Plaintiff’s content. Id. at ¶ ¶ 1, 11, 12. In pursuit of its claims, Plaintiff filed a petition for pre-trial discovery. Due to the ex parte nature of Plaintiff's motion, Plaintiff faced no opposition from Movant or the other Does, the targets of its discovery, to fully expound on the prejudices Movant or any of the others faced as a result. In this particular context, the Court must balance “the need to provide the injured part[y] with an [sic] forum in which [it] may seek redress for grievances” against those of ISP subscribers “without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to discover their identity.” Columbia Ins. Co. v., 185 F.R.D. 573, 578 (N.D. Cal. 1999). See also, London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 163 & nn.10-11, 179 (D. Mass. 2008) (holding that the court must consider “the expectation of privacy held by the Doe defendants, as well as other innocent users who may be dragged into the case (for example, because they shared an IP address with an alleged infringer.”)); Stone v. Paddock Publishing, Inc., 961 N.E.2d 380 (Ill. App. Ct. 2011) Plaintiff’s established record of ill conduct indicates that it is now using this Court as nothing more than an inexpensive means to gain Movant’s personal information to coerce payment. II. TECHNICAL BACKGROUND

A. Internet Protocol Addresses.
1. Definition. Any subscriber of an Internet Service Provider (“ISP”), such as Movant, who connects their computer to the Internet via the ISP is assigned an Internet Protocol (IP) address. U.S. v. Heckenkamp, 482 F.3d 1142, 1144 (9th Cir. 2007). In addition to the subscriber’s IP address, the ISP’s network is also assigned its own IP address. LVRC Holdings v. Brekka, 581 F.3d 1127, 1130 (9th Cir. 2009). Typically, subscribers are assigned a dynamic IP address. That is, their ISP assigns a different IP address each time the subscriber logs on to their computer.


2. Purpose.
The purpose of an IP address is to route traffic efficiently through the network. It does not identify the computer being used nor the user. IP addresses only “specify the locations of the source and destination nodes in the topology of the routing system.”4 3. Identification. Plaintiff has identified only an account being used to commit infringing activity, not the subscriber of the account. Trying to use an IP address as a window through which the Plaintiff can see the identity of an actual infringer is futile. What Plaintiff sees instead is a router or wireless access point—not who did it. Nor is an IP address alone a reasonable basis to believe that a subscriber has infringed. A subscriber can be misidentified in multiple ways as an infringer without participating in any infringing behavior, including: 1. Reliability issues with using IP addresses and timestamps to identify the correct party;

2. If a subscriber has dynamic IP addressing through its website host, it is sharing an IP address with several other subscribers;6 or 3. Anyone with wireless capability can use a subscriber’s wifi network to access the Internet, giving the impression that it is the subscriber who is infringing. 7 4. Reliability. There are serious issues surrounding the credibility of the evidence proffered by the Plaintiff in support of its discovery request. Plaintiff, Lightspeed Media Corporation (“LMC”), operates numerous pornography websites. LMC is owned by Steve Jones. Its main offices are located at 4402

4 5

“IP Address” (Last visited May 9, 2012).

Michael Piatek et al., Challenges and Directions for Monitoring P2P File Sharing Networks—or—Why My Printer Received a DMCA Takedown Notice, 3-4 (2008), See also, “IP address spoofing” (Last visited May 9, 2012) (“(the term IP address “spoofing” refers to the creation of a forged IP address with the purpose of concealing the user’s identity or impersonating another computing system.)
6 7

“Web hosting service” (Last visited May 9, 2012).

Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers' Wi-Fi connections (including a secure connection from the State University of New York). See Carolyn Thompson, Bizarre Pornography Raid Underscores Wi-Fi Privacy Risks (April 25, 2011), 3

N. Arcadia Drive, Phoenix, AZ 85018.8 Plaintiff “retained” Arcadia Data Security Consultants, LLC (“Arcadia”) to identify IP addresses associated with the use of hacked passwords to access Plaintiff’s websites and content. Complaint, ¶ 14. Arcadia’s address is 4402 N. Arcadia Drive, Phoenix, AZ 85018, the same address as LMC.9 Likewise, Arcadia is also owned by Steve Jones. Declaration of Steve Jones, ¶ 2 (“Declaration”). The software used by Arcadia was also developed by Steve Jones. Id. In essence, Plaintiff’s principal, Steve Jones, retained Steve Jones to use Steve Jones’ forensic software to identify IP addresses associated with compromised passwords. III. STANDING ARGUMENT A. Plaintiff is Estopped from Arguing Movant Does Not Have Standing to Dismiss. An individual becomes a party when sufficiently identified in the complaint, whether by an actual or fictitious name.10 The Complaint sufficiently identifies Movant as a co-conspirator through his “unique IP address” he was assigned at the time of alleged infringement. Petition, ¶ 4. “The court notes that it cannot ignore the inconsistency of the plaintiff's position that the Doe … lacks standing to pursue a motion to [quash] because it has not been named or served, but at the same time refer throughout the … complaint to the [co-conspirator] who the plaintiff expressly identifies in the … complaint as the person with the Internet Protocol address []. … For all intents and purposes, the plaintiff has filed a complaint naming [Movant] IP Address [] as a [co-conspirator]. The plaintiff's contention otherwise does not make it so.” Millenium TGA, Inc. v. Does 1-800, No. 10-cv-05603, 2011 U.S. Dist. LEXIS 94746, *3-4 (N.D. Ill. Aug. 24, 2011) (Steele Hansmeier PLLC a/k/a/ Prenda Law for plaintiff). In a case such as this, the Appellate Court has “assume[d] that the unidentified person [will] oppose the Rule 224 petition” through a motion to dismiss. Stone at 398. The Appellate Court, therefore, has tacitly conferred the subject of a Rule 224 petition with standing to oppose it. Plaintiff seeks to impose joint and several liability upon John Doe and his co-conspirators, though at present it asserts only John Doe is a party. However, a nonparty cannot be bound by a case in which he or one in privity with him is not a party unless the party is represented in the action and


State of Arizona Corporations Commission, (Last visited May 22, 2012).

State of Arizona Corporations Commission, (Last visited May 22, 2012).

Illinois courts have historically and uniformly held that suits brought against fictitious parties are void ab initio, unless otherwise allowed by statute. Bogseth v. Emanuel, 655 N.E.2d 888, 891 (Ill. Supreme Court 1995). 4

the representation is full and adequate. Feen v. Ray, 109 Ill.2d 339, 348, 487 N.E.2d 619, 622 (1985); Hansberry v. Lee, 311 U.S. 32 (1940). To prevent Movant from challenging the subpoena begs the question as to whether the proceedings are truly adversarial or little more than an attempt to use expedited discovery to wrest quick settlements, regardless of innocence. On the Cheap, LLC v. Does 1-5011, No. 10-cv-04472, 2011 U.S. Dist. LEXIS 99831 (N.D. Cal. 2011). See also, VPR Internationale v. Does 1-1017, No. 11cv-02068, 2011 U.S. Dist. LEXIS 64656 (C.D. Ill. 2011) (Steele Hansmeier PLLC a/k/a/ Prenda Law for plaintiff). MOTION TO DISMISS PURSUANT TO SECTION 2-615 Illinois requires fact pleading. Under Section 2-615 of Illinois’ Code of Civil Procedure, the pleadings need to include a significant amount of specific information to survive the motion to dismiss. Plaintiff fails to plead sufficient facts supporting a cause of action or to satisfy the conditions of Rules 222 and 224. A. Plaintiff’s Complaint Fails to Comply with Rule 222. Rule 222 requires, for civil cases seeking monetary damages, an affidavit stating whether or not the total damages sought exceed an amount not in excess of $50,000 exclusive of interests and costs.11 Plaintiff seeks judgement in its favor of “an amount in excess of $100,000,” but the required affidavit is neither attached to the Complaint nor otherwise discernible on the docket. The language of Rule 222(b) is clear—a party shall attach his or her affidavit. Grady v. Marchini, 375 Ill. App.3d 174, 874 N.E.2d 179, 182-83 (4th Dist. 2007) (precluding recovery of more than $50,000 where plaintiff did not file an affidavit). B. Plaintiff Fails to Comply with the Standards of Rule 224. Rule 224 requires that the verified petition for discovery set forth “the reason the proposed discovery is necessary.” Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704 (2010). The Plaintiff’s contention, is that: 1) the identity of a non-party; 2) whom the Court knowingly does not have jurisdiction over; 3) who may not be an actual infringer; and 4) who likely will not be sued; 5) but is necessary to pursue claims against John Doe. See, Complaint.


This applies regardless of whether the pleading asserting the cause of action is a complaint or similar document asserting a cause of action. S.H.A. ILCS S.Ct. Rule 222(c). 5

Before ruling on a Rule 224 petition, a court must ensure that: 1) the petition is verified; 2) it states with particularity facts that would demonstrate a cause of action; 3) it seeks only the identity of a potential defendant; and 4) a hearing is held to determine whether the petition sufficiently states a cause of action against the potential defendant. Id. at 711. Here, the Complaint does not allege with any specificity facts as to claims involve which defendants or what roles those unknown individuals might have played in this matter, nor has Plaintiff moved to amend the Complaint to name such parties—despite contacting them directly and attempting to coerce settlements. See, e.g., Kirch v. Embarq Mgmt. Co., 2011 U.S. Dist. LEXIS 92701, *2 n.2 (D. Kan. Aug. 19, 2011). Nor has Plaintiff explained why Movant’s phone number and email address are necessary to identify him as a “potential” defendant. Lastly, Plaintiff seeks the MAC address of Movant. A MAC (media access control) address is a unique numeric code that is permanently assigned to each unit of most types of networking hardware. This request is to determine Movant’s actual liability. A petitioner may not seek Rule 224 discovery to establish actual liability or responsibility rather than potentiality for liability, discovery should be denied. Beale v. EdgeMark Financial Corp., 279 Ill. App. 3d 242, 252-53, 664 N.E.2d 302, 308 (1st Dist. 1996). The identities of the putative defendants “are the only thing a Rule 224 action was intended to supply.” Roth v. St. Elizabeth’s Hosp., 241 Ill. App. 3d 407, 419 (Ill. App. Ct. 1993). 1. Information about Movant’s IP Address is Not “Necessary” to the Litigation. Discovery is appropriate if the information sought is necessary or relevant, which means that it is “reasonably calculated to lead to the discovery of admissible evidence.” See, e.g., Williams v. Blagojevich, 2008 U.S. Dist. LEXIS 643, *3 (N.D. Ill. Jan. 2, 2008) (“The scope of material obtainable by a … subpoena is as broad as permitted under the discovery rules. (citations omitted)). “[I]f a petitioner cannot satisfy the section 2-615 standard, it is clear that the unidentified individual is not responsible for damages and the proposed discovery is not necessary.” Stone at 389. To have relevance to the pending action, the requested discovery must bear on the civil conspiracy claims. The Plaintiff contends the identity of Movant will be relevant to future claims, presumptively against Movant. By that conceit, the Plaintiff can avoid all personal jurisdiction and joinder hurdles, and yet obtain the identifying information connected with Movant and thousands of


other IP addresses located all over the country through a single lawsuit.12 However, in light of Plaintiff’s inability 13 to show that Movant conspired with any other Defendant, actually disseminated any content, or how Movant obtained which passwords, it is not a reasonable calculation that he will have any discoverable information. More so, once Plaintiff obtains discovery it contacts Defendants to discuss settlements, belying any effort to amend the complaint accordingly. Complaint, ¶¶ 3, 6. When evaluating relevancy, “a court is not required to blind itself to the purpose for which a party seeks information.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978). Thus, “when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.” Id. That is precisely the situation here. C. Plaintiff’s Pleadings Fail to State a Claim for Relief. A pleading must assert a legally recognized cause of action and it must plead facts that bring the particular case within that cause of action. Section 5/2-615; Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006). Sufficiently stating a proper cause of action is part and parcel of the Rule 224 petitioner’s burden to show that the discovery requested is “necessary.” Stone v. Paddock Publishing, Inc., 961 N.E.2d 380, 389 (Ill. App. Ct. 2011). In the instant case, Plaintiff has done little more than reiterate the elements void of supporting facts. Stone at 390 (citing, Isebergv. Gross, 227 Ill. 2d 78, 86, 879 N.E.2d 278, (2007) (pleadings require “plaintiff to allege facts, rather than mere conclusions, to demonstrate that his claim constitutes a viable cause of action”); and Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 406 Ill. App. 3d 325, 336, 943 N.E.2d 646 (2010). (“to survive a motion to dismiss, the plaintiff “must allege specific facts supporting each element of [its] cause of action and the trial court will not admit conclusory allegations and conclusions of law that are not supported by specific facts.”)). 1. Conversion. To establish a cause of action for conversion, a plaintiff must prove by a preponderance of the evidence that: 1) the plaintiff has a right to the property; 2) the plaintiff has an absolute and

Bringing suit against 6,500 additional defendants is neither practical nor necessary. In all likelihood the Plaintiff will use the identifying information to leverage a settlement before ever suing. See, Digiprotect USA Corp., 2011 U.S. Dist. LEXIS 40679, *2 (“The court … remains concerned[] that defendants over whom the court has no personal jurisdiction will simply settle with plaintiff rather [than] undertake the time and expense required to assert their rights.”).

“[T]he T.H.I.E.F. Security System does not identify how the thieves actually gain the usernames and passwords that they use.” Declaration, ¶ 5. 7

unconditional right to the immediate possession of the property; 3) the plaintiff made a demand for possession;14 and 4) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property. Cirrincione v. Johnson, 184 Ill.2d 109, 114 (1998). To satisfy the fourth element of conversion, the Plaintiff is required to prove that Movant exercised control over the property in a manner inconsistent with the Plaintiff's right of possession. Illinois Jurisprudence, Personal Injury and Torts § 10:07. There can be no wrongful assertion of dominion or control where the property is voluntarily transferred to the defendant by the plaintiff, even if the transfer was done by mistake. Illinois Jurisprudence, Personal Injury and Torts § 10:10. Here, the Plaintiff knew its password(s) were compromised, but voluntarily allowed alleged infringers to use the password(s) and download content. Complaint, ¶ 14. Furthermore, intangible property, like the content in question, can be the subject of conversion only if it is merged into a tangible document over which the alleged defendant exercised dominion or ownership.15 The Film and Tape Works, Inc. v. Junetwenty Films, Inc., 368 Ill. App. 3d 462 (1st Dist. 2006).16 Plaintiff has not alleged such tangible, physical conversion. a. Plaintiff’s Conversion Claim is Preempted by the Copyright Act. Plaintiff’s claim of conversion asserts the same interests as those under the Copyright Act (17 U.S.C. §§ 101 et al): to control the reproduction and distribution of content. Daboub v. Gibbons, 42 F.3d 285, 289 (5th Cir. 1995) (finding all of the plaintiffs’ state law claims preempted because “[t]he core of each of these state law theories of recovery…is the same: the wrongful copying, distribution, and performance of the [work]”). The Copyright Act preempts “all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106” and are “in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103.” 17 U.S.C. § 301(a). Indeed, though the Copyright Act is not pled,

The cases are divided as to whether an allegation of demand and refusal is always necessary to maintain a cause of action for conversion. (Compare Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App.3d 915, 933, with Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App.3d 631, 633-34, 407 N.E.2d 156.)

Indeed, the nature of intangible property means that the owner is never without possession. Ho v. Taflove, 696 F. Supp. 2d 950, 957 (N.D. Ill. 2010) (Regarding conversion of intangible property, the court noted that there was no evidence that the defendants prevented plaintiffs “from conducting, controlling, accessing, using, or publishing their research.”).

Types of intangible property that Illinois courts have recognized as merging into a specific document to satisfy the property requirement for conversion are valuable papers, or evidences of title to real or personal property for checks, promissory notes, bank bills, bonds, bills of exchange, drafts, certificates of stock in incorporated companies, securities of any kind, books of account, vouchers, and the like. Film and Tape Works, Inc. at 462. 8

Plaintiff invokes remedies exclusive to the Act necessitating preemption.17 See, Personal Keepsakes, inc. v. PersonalizationMall.Com, Inc., 101 U.S.P.Q.2D (BNA) (N.D. Ill. 2012) (dismissing as preempted state law claims that “are simply copyright claims in different clothing.”). The complaint, with respect to conversion, states that “[Movant] downloaded Plaintiff’s private content and disseminated that information to other unauthorized individuals.” Complaint, ¶ 28 (emphasis added). The conversion claim, then, is focused on the defendants’ alleged unauthorized downloading and dissemination, not possession, of the protected content.18 That content—

pornographic films—is within the subject matter of copyright. Because reproduction and distribution are rights under the Copyright Act, the conversion claim is preempted. 2. Unjust Enrichment. “[T]o state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff's detriment, and that defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989). If an unjust enrichment claim rests on the same improper conduct alleged in another claim,19 then the unjust enrichment will stand or fall with the related claim. See, e.g., Ass’n Benefit Servs. v. Caremark Rx, Inc., 493 F.3d 841, 855 (7th Cir. 2007). See also, Martis v. Grinnell Mut. Reinsurance Co., 905 N.E.2d 920, 928 (Ill. App. Ct. 2009). Here, Plaintiff knew of the compromised password(s) but still allowed access to its websites and content. Where the underlying claim for fraud is deficient, the courts have dismissed claims for unjust enrichment. See, e.g., Mosiman v. BMW Fin. Servs. NA, Inc., 321 Ill.App.3d 386, 392, 748 N.E.2d 313, 318 (2001). Further, unjust enrichment claims are also preempted by the Copyright Act. See, Herrot v. Byrne, 2008 U.S. Dist. Lexis 104214 (N.D. Ill. 2008); CustomGuide v. Career Builder, LLC, 813 F.Supp.2d 990, 1003-04 (N.D. Ill. 2011).


See, Complaint, p. 9. (“Order of impoundment under 17 U.S.C. §§ 503 & 509(a) …”). Plaintiff also seeks an award of “attorneys’ fees, litigation expenses (including fees and costs of expert witnesses), and other costs of this action.” This is contrary to the American Rule, but is provided for in 17 U.S.C. § 505.

“[S]tate laws that intrude on the domain of copyright are preempted even if the particular expression is neither copyrighted nor copyrightable.” Toney v. L'Oreal USA, Inc., 406 F.3d 905, 911 (7th Cir. 2005); Ho v. Taflove, 648 F. 3d 489, 501 (7th Cir. 2011).

See, e.g., Lewis v. Lead Indus. Ass’n, 793 N.E.2d 869, 877 (Ill. App. Ct. 2003). (“In order for a cause of action for unjust enrichment to exist, there must be some independent basis which establishes a duty on the part of the defendant to act and the defendant must have failed to abide by that duty.”). 9

Plaintiff contends it was denied “compensation for the services and content provided by Plaintiff”. 20 Complaint, ¶ 31 (emphasis added). Unjust enrichment does not seek to compensate a plaintiff for loss or damages suffered but seeks to disgorge a benefit that the defendant unjustly retains. HPI Health Care Servs. at 678. (“a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff's detriment”) (emphasis added). Compensation for services goes to damages or loss, not the disgorgement of a benefit.21 Thus, Plaintiff fails to state a claim. Lastly, a plaintiff can have either a breach of contract claim or an unjust enrichment claim, but not both. Recovery under a theory of unjust enrichment is based on a contract implied in law. Wheeler-Dealer, Ltd. v. Christ, 379 Ill.App.3d 864 (1st Dist. 2008). Yet, the Plaintiff argues the existence of a contract between itself and Movant. If taken as true, where the parties’ relationship is governed by a contract, the doctrine of unjust enrichment is not applicable. Id. See also, Shaw v. Hyatt Int’l. Corp., 461 F.3d 899 (7th Cir. 2006) (citing, Guinn v. Hoskins Chevrolet, 836 N.E.2d 681, 688, 690 (1st Dist. 2005). 3. Breach of Contract. A breach of contract claim has four elements: 1) the existence of a valid and enforceable contract; 2) the plaintiff’s performance; 3) the defendant’s breach; and 4) the plaintiff’s resulting injury. Fabrica de Tejidos Imperial, S.A. v. Brandon Apparel Group, Inc., 218 F. Supp. 2d 974, 976 (N.D. Ill. 2002); Finch v. Ill. Community College Board, 315 Ill. App.3d 831, 734 N.E.2d 106 (2000). Where Plaintiff alleges unauthorized access, it defeats any claim of “meeting of the minds” that would make a contract enforceable. “[A] contract includes only the terms on which the parties have agreed. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1450 (7th Cir. 1996). To access Plaintiff’s website(s), Plaintiff claims users must state that they agree with the following statement: “I have come to this website knowing it's [sic] contents and agree to view sexually explicit material for my personal use. Viewing such material does not knowingly violate the community standards of the area in which I live.” Complaint, ¶ 35.


Plaintiff also claims “reputational harm.” Complaint, ¶ 32. This is an element of defamation—not unjust enrichment.

The fact that a person benefits another is not of itself sufficient to require the other to make restitution. Hayes Mechanical, Inc. v. First Indus., L.P., 351 Ill.App.3d 1 (1st Dist. 2004). 10

Plaintiff asserts Movant violated this agreement by disseminating the downloaded content to other individuals. Complaint, ¶ 36. Yet the software used by the Plaintiff to track infringers offers no basis for claiming such dissemination. The software identifies only the websites accessed, the content being viewed and downloaded, and the date and time of the activity. Declaration, ¶ 12. Likewise, Plaintiff’s Petition contradicts this assertion: “They could even download Petitioner's private content and disseminate that information to other unauthorized individuals.” Petition, ¶ 12. Either Movant did disseminate Plaintiff’s content or he did not. Plaintiff seems unsure at best and provides not even a byte of evidence to support its allegation. In the alternative, Plaintiff argues that Movant breached by knowingly violating the community standard where he lives, because “violations of the law are presumably a violation of the community standards.” Complaint, ¶ 35 (emphasis added). However, the plain language of the agreement clearly predicates a breach on “viewing” such material and not “knowingly” violating the community standards. Again, Plaintiff fails to state a claim. 4. Civil Conspiracy. “[T]he elements of a civil conspiracy are: 1) a combination of two or more persons; 2) for the purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose by unlawful means; 3) in the furtherance of which one of the conspirators committed an overt tortious or unlawful act.” Fritz v. Johnston, 209 Ill. 2d 302, 317, 807 N.E.2d 461, 470 (2004). As the third element of this test indicates, civil conspiracy is not an independent tort: if a “plaintiff fails to state an independent cause of action underlying his conspiracy allegations, the claim for conspiracy also fails.” Thomas v. Fuerst, 345 Ill. App. 3d 929, 936, 803 N.E.2d 619, 626 (2004). Plaintiff’s claims of civil conspiracy are unfounded, because the Plaintiff has not pled and cannot plead the existence of an agreement among the alleged conspirators. As Plaintiff admits, “the T.H.I.E.F. Security System does not identify how the thieves actually gain the usernames and passwords that they use.” Declaration, ¶ 5; Complaint, ¶ 17 (“Arcadia’s software logged other important information into a uniform database, such as the specific websites that were unlawfully accessed and the files that were downloaded during that unauthorized access.”). In fact, Plaintiff claims no fewer than four distinct methods by which the passwords might be obtained: 1) “special computer programming software”; 2) posting the password for all to see on a website; 3) purchasing the password from the original hacker (or rightful owner); and 4) “various other means.” Complaint,

¶¶ 8-9. Plaintiff has failed to show that any of the Defendants “acted in concert” or actually exchanged any passwords or content with one another. Plaintiff alleges that over a three month period 6,500+ conspirators whose identities are unknown to each other, obtained different passwords by different means to download and disseminate different content with the Plaintiff’s tacit permission— this kind of attenuated relationship is not sufficient for conspiracy. 5. Computer Fraud and Abuse Act. The Computer Fraud and Abuse Act (“CFAA”) provides seven distinct bases for civil actions. See, 18 U.S.C. § 1030(a)(1)-(7). 18 U.S.C. § l030(g) states that “any person who suffers damage or loss ... may maintain a civil action ... for compensatory damages and injunctive relief or other equitable relief.” It’s difficult to determine which, if any, of the provisions of 18 U.S.C. § 1030(a) have been violated. Plaintiff does not identify the specific section of the CFAA that Defendants have allegedly violated and fails to make out a claim under any.22 Subsections (a)(1), (a)(2)(A), (a)(2)(B), and (a)(3) are all unavailable to LMC.23 A claim under subsection (a)(2)(C) requires intentionally accessing a computer without authorization or exceeding authorized access, and obtaining information from any protected computer. Copying information does not constitute obtaining information under the CFAA, because it does not impair any data, system or information. Garelli Wong & Assocs., Inc. v. Nichols, 551 F.Supp.2d 704, 710 (N.D. Ill. 2008); Farmers Ins. Exch. v. Auto Club Group, 823 F. Supp. 2d 847, 852 (N.D. Ill. 2011) This leaves the broad catch-all provisions of (a)(4). Though Plaintiff has not specified the alleged fraud, § 1030(a)(4) is the most applicable to the facts of this case. A claim under 18 U.S.C. § 1030(a)(4) has four elements: “1) a defendant has accessed a ‘protected computer;’ 2) has done so without authorization or by exceeding such authorization as was granted; 3) has done so ‘knowingly’ and ‘with intent to defraud; and 4) as a result has furthered the intended fraud and obtained anything of value.”24 Plaintiff has not alleged

Regarding Plaintiff’s claims for “statutory damages, and reputational injury” under the CFAA—the statute provides for no such remedies. 18 U.S.C. § l030(g); Complaint, ¶ 23.

Subsections: (a)(1) concerns information relating to national defense or foreign relations; (a)(2)(A) concerns information contained in a financial record of a financial institution; (a)(2)(B) concerns information from any department or agency of the United States, and (a)(3) concerns accessing a nonpublic computer of a department or agency of the United States. See, 18 U.S.C. § 1030.

See, § 1030(g); Kluber Skahan & Assocs., Inc. v. Cordogan, Clark & Assoc., Inc., 2009 U.S. Dist. LEXIS 14527, *6 (N.D. Ill. Feb. 25, 2009) (citing Motorola, Inc. v. Lemko Corp., 609 F. Supp. 2d 760 (N.D. Ill. 2009); P.C. Yonkers Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005). 12

specific facts constituting fraud, as required, and has not pleaded the elements sufficiently to state a CFAA claim. Plaintiff fails to state a loss. A CFAA plaintiff must “show that there are triable issues as to (i) whether a CFAA-qualifying ‘loss’ aggregating at least $5,000 occurred, and (ii) whether this loss was ‘caused’ by a CFAA violation.” Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678, 693 (D. Md. 2011). Plaintiff has done neither. Plaintiff offers no facts or allegations of any value, nor anything that totals an amount exceeding $5,000.25 The statute defines “loss” broadly as: “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” 18 U.S.C. § 1030(e)(11) (emphasis added). Here, Plaintiff claims that its losses primarily consist of the lost fees that it would have received for the downloaded content. Complaint, ¶ 12. Lost sales and profits per se are not the measure of loss under the CFAA. Cassetica Software, Inc. v. Computer Scis. Corp., 2009 U.S. Dist. LEXIS 51589, *9-14 (N.D. Ill. June 18, 2009). See also, Nexans Wires S.A. v. Sark-USA, Inc., 166 Fed. App’x. 559, 562-63 (2d Cir. 2006) (“the plain language of the statute treats lost revenue as a different concept from incurred costs, and permits recovery of the former only where connected to an ‘interruption in service’”). That is, the statutory language requires any “loss” to be related to an interruption of service. Economic losses, such as membership fees, are unrelated to the computer system and do not fall within the statutory definition of the term. Garelli Wong & Assocs., Inc. v. Nichols, 551 F.Supp.2d 704, 711 (N.D. Ill. 2008). There is no evidence pleaded as fact to support such a theory. Simply copying files is not causing a loss because of interruption of service. Cassetica at *12; Cohen v. Gulfstream Training Acad., Inc., 249 F.R.D. 385 (S.D. Fla. April 9, 2008). See also, v. Verio, Inc., 126 F. Supp.2d 238, 252 (S.D.N.Y. 2000). Likewise, the Complaint fails to identify the damage that allegedly was caused by the access. Garelli Wong at 708 (finding that the CFAA requires a plaintiff to plead both damage and loss in order to survive a motion to dismiss). In interpreting the definition of “damage” under the CFAA,


If the plaintiff has suffered only “loss,” the statute requires the plaintiff to satisfy the CFAA's jurisdictional threshold of “loss to 1 or more persons during any 1-year period … aggregating [to] at least $5,000 in value” to maintain a cause of action. § 1030(c)(4)(A)(i)(I). Given Plaintiff’s inability to allege a conspiracy or satisfy the definition of ‘loss’, there can be no aggregation meeting the $5,000 threshold. 13

other courts have consistently found that merely copying electronic information from a computer system does not satisfy the “damage” element because the CFAA only recognizes damage to a computer system when the violation caused a diminution in the completeness or usability of the data on a computer system. Cassetica at *10 (citing, Del Monte Fresh Produce, N.A., Inc. v. Chiquita Brands Int’l Inc., 616 F. Supp. 2d 805 (N.D. Ill. 2009); Kluber Skahan, 2009 U.S. Dist. LEXIS 14527, *7; Sam’s Wines & Liquors, Inc. v. Hartig, 2008 U.S. Dist. LEXIS 76451, *3 (N.D. Ill. 2008); Garelli Wong at 709; Worldspan, L.P. v. Orbitz, LLC, 2006 U.S. Dist. LEXIS 26153, *5 (N.D. Ill. 2006)). Plaintiff further fails to state a valid CFAA claim because they cannot establish that its computers were accessed “without authorization” or in a manner which “exceed[ed] authorized access.” As discussed in the section concerning conversion herein, Plaintiff knew of the compromised passwords, but chose to allow and monitor their continued use rather than restrict access. Complaint, ¶ 3 (“In the course [of] monitoring website access, Plaintiff's agents observed unauthorized access”). Given that Plaintiff was the one who granted access to its websites 26 and content, it can hardly be considered “unauthorized.” “Access to a protected computer occurs ‘without authorization’ only when initial access is not permitted, and a violation for ‘exceeding authorized access’ occurs only when initial access to the computer is permitted but the access of certain information is not permitted.” Salestraq Am., LLC v Zyskowski, 635 F. Supp. 2d 1178, 1183-84 (D. Nev. 2009) (citing, U.S. Bioservices Corp. v. Lugo, 595 F. Supp. 2d 1189, 1192 (D. Kan. 2009)). Plaintiff does not allege any facts that would plausibly suggest that the downloads caused a diminution in the completeness or usability of its computerized data. Absent from the Complaint are allegations that the downloads resulted in lost data or the inability to offer downloads to its customers. Instead, Plaintiff only alleges the improper downloading of its content. Therefore, Plaintiff has failed to properly allege the downloads caused “damage” within the meaning of the CFAA.


In this case, issues about “exceeding” authorization or, indeed, the presence or absence of authorization hinge in part on the presence of notice about permitted uses of the website. EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58, 62 (1st Cir. 2003). Plaintiff proffers none. 14

MOTION TO DISMISS PURSUANT TO SECTION 2-619 Pursuant to § 5/2-619(a)(1), this Court lacks subject matter jurisdiction over the pending action. Plaintiff’s conversion claim is focused on the allegedly unauthorized downloading and dissemination of Plaintiff’s content. Complaint, ¶ 28. Because reproduction and distribution are rights under the Copyright Act, Plaintiff’s claimed violations of those rights can only amount to, indeed, is tantamount to, a claim of copyright infringement and falls within the exclusive jurisdiction of the federal courts. 17 U.S.C.S. § 106; 28 U.S.C. §1338. Pursuant to § 5/2-619(a)(9), the Plaintiff has failed to plead facts establishing personal jurisdiction, dissemination or conspiracy. Plaintiff contends that, after discovery of the identity connected to each IP address, it intends “to seek leave of the Court to amend this complaint to include Defendant’s co-conspirators as defendants in this action pursuant to 735 ILCS 5/2-405.” Complaint, ¶ 6. At the time it filed its Complaint, Plaintiff already knew which ‘co-conspirators’ this Court had jurisdiction over and that Movant was not among them. Complaint, ¶ 4 (“Plaintiff used geolocation technology to trace Defendant’s location to St. Clair County.”). As Plaintiff acknowledges, a number of public domain tools are available on the Internet, such as ARIN Whois, available at, to determine the country, state, city in or near which an IP address is located. Entering “” returns a location of Topsfield, Massachusetts. Thus, without any of the information sought in the subpoena, the Plaintiff already knows neither the ISP nor the Moving Defendants are subject to this Court’s jurisdiction. Indeed, though expedited discovery was granted on February 9, 2012, Plaintiff has yet to amend the complaint to include any of John Doe’s co-conspirators as defendants in this action— perhaps because it never intends to.27 Regardless, this Court does not have jurisdiction over Movant. Plaintiff also makes repeated, unsubstantiated allegations that Movant disseminated downloaded content to other individuals. Complaint, ¶ ¶ 12, 21, 26 and 28. Yet the software used by the Plaintiff to track infringers precludes any such assertion, nor do they offer any evidence to the contrary. As noted above, the software identifies only the websites accessed, the content being viewed and downloaded, and the date and time of the activity. Declaration, ¶ 12.


In fact, Plaintiff has yet to serve any of the 7,672+ defendants it has filed suit against. 15

Lastly, Plaintiff has failed to allege any facts that Movant “acted in concert” with any of the Defendants or actually exchanged any passwords or content with one another. The facts, as Plaintiff pleads, are that: 1) over a three month period; 2) 6,500+ conspirators whose identities are unknown to each other; 3) purportedly agreed; 4) to obtain different passwords by different means; 5)to download and presumptively disseminate different content; 6) with the Plaintiff’s tacit permission. This kind of attenuated relationship is not sufficient for a conspiracy claim, nor is it supported by Plaintiff’s own evidence. Declaration, ¶ 5 (“the T.H.I.E.F. Security System does not identify how the thieves actually gain the usernames and passwords that they use.” ) See also, Complaint, ¶ 17. IV. CONCLUSION Plaintiff has not properly alleged the elements for any of its claims. Denying discovery about non-party IP addresses will not leave the plaintiffs without a remedy to uncover the identity of these and other purported copyright infringers. The plaintiffs need merely sue each IP address in the district in which the address is located, and then subpoena the ISPs for identifying information pertaining to that IP address. What the plaintiffs may not do, however, is improperly use court processes by attempting to gain information about thousands of IP addresses located all over the country in a single action, especially when many of those addresses fall outside of the court’s jurisdiction. Movant therefore respectfully urges this Court to vacate its ruling on Plaintiff’s petition for pre-trial discovery, and dismiss the Complaint in its entirety. Dated: June ___, 2012 Respectfully,

____________________________________ Jason E. Sweet BOOTH SWEET LLP 32R Essex Street Cambridge, MA 02139 Tel.: (617) 250-8619 Fax: (617) 250-8883 Email:


VERIFICATION Under penalties of perjury as provided by law pursuant to section 1-109 of the code of civil procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except to matters herein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that the undersigned believes the same to be true. ____________________________________ Jason E. Sweet - Declarant

Subscribed and sworn to before me this ____ day of June, 2012.

____________________________________ Notary Public