March 23, 2011 7:44am PT by Eriq Gardner
Mass-Suing of Pirates Gets Shot In Arm Thanks to DC Judge (Exclusive)
A federal judge in Washington has issued what may be the most important decision to date in the ongoing mass-litigation campaign against thousands of individuals who traded copyrighted movies on BitTorrent. In the decision, U.S. District Court Judge Beryl Howell waives away procedural objections, jurisdictional concerns, and First Amendment arguments and will allow several film production companies to pursue what some have termed the "mass-suing" of alleged pirates.
For the past year, several outfits including producers of The Hurt Locker and The Expendables have signed up with an upstart D.C. venture, the U.S. Copyright Group, in pursuing copyright infringement on BitTorrent. These plaintiffs typically join multiple individual defendants in a single lawsuit and subpoenas ISPs to identify its customers flagged for sharing copyrighted content. The legal strategy has been imitated by others, particularly in the adult entertainment industry, who have filed cases around the country against more than 100,000 individuals in sum.
In response to such activity, some ISPs have complained about the burden of complying with subpoena requests. The most active objector is Time Warner Cable, which filed motions to quash subpoenas in several cases in the DC Circuit, including over requests made by Call of the Wild Movie LLC, Maverick Entertainment Group, and Donkeyball Movie LLC. TWC was supported in its action by a host of consumer rights organizations, including the EFF, the ACLU and Public Citizen, all of which submitted amicus briefs.
The objectors raised three concerns: First, that the mass-joining of multiple defendants violated federal rules of procedure. Second, that the plaintiffs had inadequately established jurisdiction, or why actions against defendants should be initiated in the DC court. And third, that the First Amendment protected the defendants' right to anonymity.
On Tuesday, Judge Howell addresses these concerns by issuing a single 42-page decision pertaining to several cases under her purview.
In a ruling that will probably encourage more lawsuits of this nature, she concludes that mass-joinder is best for both plaintiffs and defendants. She writes:
"Given the administrative burden of simply obtaining sufficient identifying information to properly name and serve alleged infringers, it is highly unlikely that the plaintiffs could protect their copyrights in a cost-effective manner. Indeed, Time Warner urges the Court to sever the defendants for this very reason. Time Warner asserts that, if joinder were disallowed, its burden of complying with subpoenas would be diminished because the plaintiffs would not be able to proceed against all of the putative defendants individually At this procedural juncture, the plaintiffs have met the requirements of permissive joinder under Rule 20(a)(2). The putative defendants are not prejudiced but likely benefited by joinder, and severance would debilitate the plaintiffs’ efforts to protect their copyrighted materials and seek redress from the putative defendants who have allegedly engaged in infringing activity."
On the jurisdictional objection, Judge Howell rules that it is "premature" to address such questions before defendants are identified. Typically, in these cases, once ISPs hand over customer information, if an identified alleged pirate don't reside in the jurisdiction in question, they are dropped from the lawsuit, and the plaintiff can file a new lawsuit in that defendant's home state. The opinion is a defeat for organizations like EFF who have argued long and hard this shouldn't be the case.
Lastly, in what might be the first time this issue has been addressed, Judge Howell finds that "file-sharing does involve aspects of expressive communication" that would qualify under the First Amendment. However, she won't go so far as to say that free speech usurps property owner's right of protection, finding "The First Amendment interest implicated by their activity, however, is minimal given that file-sharers’ ultimate aim 'is not to communicate a thought or convey an idea' but to obtain movies and music for free."
Having settled the major objections, Judge Howell denies Time Warner's motion to quash in two of the cases and accepts its motion to quash in the third, the Maverick Entertainment case, because the plaintiff hadn't personally served its subpoena to a named person. However, the judge gives the plaintiffs leave to re-issue its subpoena to Time Warner within ten days.
As a result of the decision, Time Warner will have to comply with expanded subpoena requests. Judge Howell even goes so far as to open up subpoena requests beyond a 28 IP address-per-month limit that was agreed to by the parties in the dispute. Meaning the cable internet giant will soon be swamped with hundreds -- and perhaps thousands -- of subpoena requests shortly.
Here's Judge Howell's full decision: