August 26, 2011 11:23am PT by Eriq Gardner
Massive 'Expendables' Piracy Lawsuit Dropped But Will Be Refiled Soon (Exclusive)
Nu Image has voluntarily dismissed its case against the last remaining defendants in a high-profile lawsuit that targeted 23,322 alleged pirates of The Expendables, the 2010 film starring Sylvester Stallone.
As a result, one of the biggest copyright infringement lawsuits in Hollywood history is history, but before anybody who downloaded The Expendables on BitTorrent feels any relief at the development, we've learned that Nu Image plans to re-file copyright infringement allegations across the nation against thousands of the film's alleged pirates.
Nu Image's move to voluntarily dismiss the lawsuit comes in the aftermath of an August decision by a federal judge in Washington, who had used his discretion to force the plaintiff to drop all anonymous defendants who weren't reasonably believed to be residing in his jurisdiction.
Instead of dropping most of the defendants, the company's lawyers at the U.S. Copyright Group dropped all of them, leading to speculation that the avalanche of lawsuits against BitTorrent users in the United States may have reached a turning point.
Not so fast.
According to Nu Image's attorney, Thomas Dunlap, the plaintiff has merely decided to modify its strategy by taking a "swarm approach" to litigation. Now, Nu Image plans to group these joinder suits according to various file swarms -- file-sharing-speak for the peers and seeders who collectively share a torrent. In other words, instead of one lawsuit against 20,000+ individuals, the film company might pursue ten cases around the nation targeting 2,000 defendants apiece.
Dunlap says that the new cases will be filed with a closer eye towards matching defendants to a more proper jurisdiction. Perhaps just as importantly, by going this route, the plaintiff will spread the purview of these lawsuits to a greater number of judges around the nation. As the history of mass-joinder litigation suggests, some judges express high tolerance for overseeing heavy discovery requests while some judges demonstrate little patience for these cases.
If the order last month by a federal judge to trim the mass lawsuit had any possibility of humbling Nu Image into a more modest legal campaign against pirates, that doesn't seem to be the case.
Nu Image also plans to file lawsuits against alleged pirates of its films Conan the Barbarian, Drive Angry, and The Mechanic.
The move to sue Conan downloaders may raise some eyebrows as the film has barely been in theaters for a week yet already is a hit on file-sharing websites. The film also looks to be a box office bomb, costing an estimated $90 million to make, yet only grossing $10 million in its opening weekend. It's possible Nu Image blames some of this on pirates. Also of note is the fact that that the underlying rights on Conan are now subject to a just-filed lawsuit by Stan Lee Media. If Nu Image decides to go ahead with plans to sue pirates of the film, it could indicate some confidence that SLM won't prevail.
Regardless, Dunlap says that the track record of success in mass litigation is enough to continue forward on these types of lawsuits.
The attorney points out that the firm has indeed followed up on past mass actions on films including The Hurt Locker and Far Cry to bring lawsuits targeting named individuals. Of the some 50 piracy cases against named defendants that have been filed by the U.S. Copyright Group and its affiliate partners throughout the nation, half have settled and nearly ten have resulted in default judgments. Dunlap says that the typical default award has been $30,000 plus attorney's fees.