Thanks Quincy for the quick reply. It says Southern District of New York. I've seen some advice saying not to quash because it doesn't seem to work, i'm not expert either, the point i'm asking is what are the pros and cons of doing so? Thanks again
The pro of filing a motion to quash the subpoena is that the court may find that your motion has merit and your identity will not be revealed to Malibu Media. Most of the copyrighted material alleged to have been infringed will be pornographic films so many defendants want to keep from being named in court documents that relate to these films. If your motion succeeds, you would be able to remain anonymous in court filings, although Malibu Media would still be able to proceed with its case against an anonymous-you.
The con of filing a motion to quash the subpoena (which would have to be filed "under seal" to protect your identity in the motion) is that the court could deny the motion and your account information would be released to Malibu. Malibu would then proceed with its copyright infringement suit against you, but you will be identified as the defendant in the case.
I am not sure how the SDNY has been handling these motions to quash. I can check on this for you. Some courts routinely deny them. You also have a disadvantage in that Malibu Media has filed suit against you in New York and, because you are a resident of New York, the court has personal jurisdiction over you. Malibu Media has learned from problems other copyright holders have had in the past when filing mass defendant infringement actions against defendants whose residences are spread throughout the US.
You have options. You can file the motion to quash which, if nothing else, will work to delay the action. You can do nothing and let Malibu proceed with its action. What generally happens is that, once you are identified, Malibu will send you a settlement demand letter. The demand letter will ask for X amount of dollars to settle the suit out of court. You can negotiate the demand amount or you can ignore the settlement demand and wait for Malibu to take you to court.
If the case proceeds to court, the court could award Malibu as little as $200 (if the infringement can be shown to be innocent) but the court could also award Malibu as much as $30,000. Statutory amounts for copyright infringement when the copyrighted works have been registered range from $750 to $30,000 for each work infringed.
You appear to have at least somewhat of a defense to the infringement, if your computer was unsecured and someone else could have downloaded the film. The tracking of copyrighted material to a home computer is an art that has been perfected over the years, however, and courts are accepting the tracking as proof of infringement. It is hard to fight this evidence of an illegal download, in other words. Plus, the copyright holders will routinely demand in discovery for a forensic examination of the computer in question. Although this type of discovery request can be argued, it is possible that your computer could have its contents checked for any illegal downloads.
It is generally a good idea, and one I recommend, to have an attorney in your area help you with a copyright infringement suit.
