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3 YEARS

Massive Piracy Lawsuit Over 'The Expendables' Hits Big Roadblock

The Expendables
Lions Gate/Everett Collection

Nu Image's lawsuit against 23,322 alleged pirates of The Expendables has taken a big hit. A federal judge in Washington has ordered that the studio must have a good-faith basis for believing those defendants reside in the local jurisdiction before proceeding further. An order issued last week might force the plaintiff's attorneys to drop a good majority of the anonymous John Does who were sued in one of the biggest mass copyright infringement lawsuits in Hollywood history.

As we've reported, the lawsuit was filed earlier this year by the US Copyright Group, a DC-based legal team that has helped pioneer an economical way to sue pirates in US courts. USCG joins multiple individual defendants in a single lawsuit and subpoenas ISPs to identify its customers flagged for sharing copyrighted content on BitTorrent. After that happens, letters are then sent out with demands to settle, lest those identified be pursued in follow-up litigation.

USCG's strategy was first employed on behalf of several independent film companies, and then hit the big time when the firm represented makers of the Oscar-winning film The Hurt Locker.

Despite resistance from ISPs, which have objected to the "heavy burden" of complying with massive subpoena requests, and despite some push-back by non-profit legal organizations like the EFF and the ACLU, USGC has been quite successful over the past year in getting judges to waive away procedural and jurisdictional objections.

But now the USCG has run into DC District Court Judge Robert Wilkins, who appears to be less friendly to the legal tact, questioning why pirates outside of his district should be sued in his courtroom.

Last month, the judge ordered the plaintiff to show cause why venue and joinder is proper for all 23,322 alleged pirates of The Expendables.

USGC argued that the initial filing was akin to a request for jurisdictional discovery and that such requests have been granted liberally in the past. The firm said it was unusual for courts to dismiss a case for lack of personal jurisdiction before residency could or couldn't be established in the discovery process.

In a decision last week, Judge Wilkins retorts, "While those propositions are generally true, it is also true that the Court 'has broad discretion in its resolution of discovery problems that arise in cases pending before it.' The Court's broad discretion includes imposing reasonable limitations on discovery, particularly where, as here, the Court has a duty to prevent undue burden, harassment, and expense of third parties."

In other words, the judge says he's under no firm obligation to let USGC go on a fishing expedition, and he leans towards the interests of ISPs that don't wish to submit to discovery. Moreover, he encourages the USGC to bring its case against those John Does in other court districts.

And so, Judge Wilkins has decided to only entertain subpoena requests on internet accounts reasonably believed to be located in the District of Columbia.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner