Monday, November 24, 2008

Judge quashes Boston University subpoena as to 'John Does' whom BU could not identify 'to reasonable degree of technical certainty'

In one of the "John Doe" cases targeting Boston University, consolidated under the heading London-Sire Records v. Does 1-4, after the university advised the Court that it could not identify John Does #8, 9, and 14 to a reasonable degree of technical certainty, Judge Nancy Gertner deemed the letter a motion to quash, and granted it, quashing the subpoena as to those defendants:

The Court treats Boston University's 9/23/08 Letter as a Motion to Quash and GRANTS the motion with respect to Doe Defendants # 8, 9, and 14. The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty. As a result, the Court finds that compliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery. Accordingly, under the test laid out in its 3/31/08 Order, the Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14.
Order (a) treating University's letter as motion to quash, and (b) quashing subpoena as to John Does #8, 9, and 14

Commentary & discussion:
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Anonymous said...

It looks like a judge finally is starting to get it.

Thank you Judge Gertner!

Maybe this is where we should start getting the champagne on ice?

Howard Knopf said...


This is good. Similar considerations led to a denial of an order to reveal the defendants' identities in Canada - though not a dismissal - in Canada about four years ago. See:


The record companies were unable or unwilling to come back with better evidence.

I was very involved in the Canadian case.



StephenH said...

Does this mean that RIAA will not be pursuing the doe defendants who successfully quashed their subpoena? I was also curious if they will learn a lesson here that IP addresses don't prove one's identity the way DNA does.

Anonymous said...


I don't think that the RIAA is capable of learning, just look at the last several years of their "sue 'em all" campaign.

I just hope that other judges take Judge Gertner's lead. Hopefully she will put her thoughts about IP != Identity into a legal memo, brief, or whatever way that judges happen to record their findings so that other defendants can refer to it in their defense.

It's taken long enough for any judge to throw up a red flag for this flawed legal campaign, just if the other judges will follow her lead.

Anonymous said...


If the RIAA does pursue a case against the Does who quashed here, they'll have to do what they should have had to do before -- investigate moar.

The outcome I hope to see here is for other universities to take note of this case. Other universities now have a wonderful example of how to express oneself when one doesn't have a clear idea who the infringer is.


Anonymous said...

A seemingly small, yet very important, victory. And it leads this man to ask, "Would this open up the door to other Doe(s) who could demonstrate that others had the ability to use or 'impersonate' the IP address in question in order to quash the subpoena against them as well?" This is, after all, where these flimsy cases should be stopped in the first place. The RIAA acts like an IP address is as certain as a telephone number, yet telephone numbers don't change every few hours like IP addresses under the current numbering scheme (IPv4) must do. Nor can telephone numbers be simultaneously shared by as many users as can connect by wire or wirelessly to a single router using that IP address.

The finest part of this decision was the realization of the judge of the intrusive nature of the RIAA discovery process and the necessity to protect those not clearly and directly implicated in any infringement from it.

{The Common Man Speaking}

Anonymous said...

The RIAA's fishing expeditions are getting more and more out of hand. If the infringers can't be identified by the IP address, what does the RIAA want to do then...prosecute innocent people? What would they do, simply attach any name to an IP address and say "He did it your honor!". I'm beginning to wonder when they will simply start driving around the streets and choosing people at random and drag them into court with a "This person exists therfore this person must have infringed the copyright." argument.

My personal opinion is that the RIAA's activities should be outlawed. If they had approached my child like they did in the Thomas case, I would have had them arrested at the very least.

Doesn't anyone at the RIAA actually have a law degree? Maybe they were absent from class the day know...taught law. Or...better yet, don't they have any common sense?

I don't copy anything and I don't download anything, I don't even use P2P. I buy all my music CD's. I don't even use that 'free digital copy' that comes with some DVD movies. But you know what...the RIAA and their stupid, short sighted, obvious exploitation of the law, makes me want to just stop buying any entertainment media. They have probably done more harm then good overall.