Hearing over subpoenas in LW Systems case set for Thursday; John Does want judge to look at Florida declaration

By Bethany Krajelis | Jun 26, 2013

More than two dozen “John Does” identified by their Internet Protocol (IP) addresses in a St. Clair County computer hacking case asked a judge last week to make the named defendant appear at an upcoming hearing and take notice of filings in two similar suits.

A hearing in the case – LW Systems LLC v. Christopher Hubbard, et al. – is set to take place at 9:30 a.m. Thursday before St. Clair Circuit Judge Andrew Gleeson, who will hear motions to quash subpoenas seeking to identify the owners of numerous IP addresses.  

LW Systems sued Christopher Hubbard in January, claiming he and his co-conspirators hacked into its computer system that supplies content for adult Web site operators.

Shortly after the case was filed, Chief Judge John Baricevic signed an agreed discovery order that let LW Systems subpoena personal information associated with certain IP addresses from 325 Internet Service Providers (ISPs).

The LW Systems case is one of several copyright infringement suits across the nation in which Paul Duffy and other attorneys at Prenda Law in Chicago represent the plaintiffs.

In addition to asking Gleeson to make Hubbard appear at Thursday’s hearing, attorneys for some of the John Does requested that he take judicial notice of a declaration filed in a Florida suit, as well as an order for sanctions in a California case.

The declaration that the John Does want Gleeson to take notice of comes from Delvan Neville in the Florida case of First Time Videos LLC v. Paul Oppold.

Neville identified himself as the owner of Amaragh Associates and the creator EUPSC2k, “a proprietary BitTorrent monitoring suit.” BitTorrent is a common protocol used to transfer files and allow users to share files over the Internet.

In his declaration, Neville stated he was contacted by attorneys representing the defendant in the Florida suit to gather data “regarding the use of a BitTorrent monitoring system purportedly used by a company named ‘6881 Forensics’ for lawsuits involving copyright infringement.’”

Neville stated these attorneys also asked to him to try to “determine the likely identity of Pirate Bay user ‘sharkmp4.’” Pirate Bay is a website that uses the BitTorrent protocol to facilitate peer-to-peer file sharing.

In his declaration, Neville provided an explanation of the work he did for the defendant’s counsel in the case.

Technical terms and complicated procedures aside, Neville said his findings suggest that 6881 Forensics is not just collecting logs of those sharing files, but is “actively sharing the contents of the copyrighted works in question.”

Neville notes in his declaration that John Steele registered the domain name 6881forensics.com. John Steele is an attorney at Prenda Law and represents LW Systems.

Comparing comments made on FightCopyrightTrolls.com and DieTrollDie.com --two websites that focus on copyright infringement matters– to information related to the Pirate Bay user ‘sharkmp4,’ Neville’s declaration states that it is likely that there is a connection between 6881 Forensics and the comments made on those two websites.

Neville goes on to explain in his declaration that “sharkmp4” shared copyrighted works of companies called AF Holdings and Ingenuity 13 on Pirate Bay. Prenda Law has represented these two companies in copyright infringement suits.

Based on a screen shot of one of the works shared by sharkmp4 on Pirate Bay, Neville states in his declaration that it appears the “sharkmp4” had the original work.

His inquiry, he added, shows that 6881 Forensics detected infringement of some works before sharkmp4 shared them, which highlights “at minimum, ‘insider information’ between sharkmp4 and 6881 Forensics.”

Neville also noted that Ingenuity 13 has sued on works that "sharkmp4" has uploaded before such work was made available to the general public, suggesting that someone on the inside of these companies is sharing its own works through “sharkmp4.”

“Normally, in situations where a copyright is being enforced, based upon the investigation, I would advise the owner of the copyright to pursue further inquiry of John Steele and/or 6881 Forensics to determine the identity of Pirate Bay user sharkmp4,” Neville stated in his declaration.

But, he added, “Because all three entities appear under the same control, it is my belief that the purpose of sharing the file by sharkmp4 appears to have been in an effort to induce infringement for the purposes of monetization of copyrights of commercially low value.”

In addition to Neville's declaration, the John Does asked Gleeson to take notice of an sanctions order in a California case.

U.S. District Court Judge Otis Wright II in May ordered Steele, Duffy and other lawyers to pay $81,000, finding that they engaged in “brazen misconduct and relentless fraud” in a copyright infringement case in California.

Also last week, Comcast Cable Holdings LLC filed a motion to quash the subpoena or in the alternative, enter a protective order with respect to subpoenas that have or may be entered in the LW Systems case.

Gleeson at a June 6 hearing over the ISPs’ motions to quash determined that some of the subpoenas were invalid because they were issued out of the circuit court in Cook County, rather than St. Clair County.

He granted leave for LW Systems to re-issue the subpoenas and based on Comcast’s most recent motion, it appears the plaintiff did so on June 10.

In its motion to quash, which also contends the agreed discovery order should be vacated and that it should be awarded attorneys’ fees, Comcast asserts that “by all appearances, this is a feigned lawsuit wherein a plaintiff-friendly defendant has ‘agreed’ to open-ended discovery.”

Comcast also noted that LW Systems is not only represented, but is “apparently owned by attorneys at Prenda Law, who invoked Fifth Amendment rights in similar litigation.”

While the plaintiff asserts that it has the right to obtain the personally identifiable information of Hubbard’s alleged co-conspirators, Comcast contends in its motion that LW Systems’ “pleadings are so vague as to be unintelligible.”

Comcast claims that “Plaintiff has not submitted any evidence at all for its allegations, let alone evidence that would justify the extensive, unrestricted and invasive discovery the Agreed Discovery Order purports to authorize of ISP’s in far-flung states and subscribers that have no connection to Illinois.”

In asking Gleeson to award it attorney’s fees, Comcast contends that it has “incurred significant costs in identifying and notifying its affected subscribers in connection with the initial Cook County subpoena.”

“Comcast has a standing agreement with Plaintiff’s attorneys, Prenda Law, Inc., pursuant to which Comcast is to be reimbursed for its reasonable costs in identifying and notifying its subscribers at a rate of $90 for each complete IP address identification and $30 for each unidentifiable IP address,” the motion states.

Comcast asserts in its motion that it prepared an invoice for these costs and that it, along with several others in similar actions filed by Prenda Law, “remain unpaid.”

Comcast’s motion was filed by Belleville attorney Andrew G. Toennies. Belleville attorney Laura Beasley and Chicago attorney Erin Kathryn Russell submitted the motions on behalf of the John Does.

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