February 15, 2011 | By Corynne McSherry

Don't Mess With Texas: Another Texas Judge Scrutinizes Mass Copyright Litigation

Looks like the Texas courts are no place to file suit if you want to bypass due process. A few weeks ago, we reported that Mick Haig Productions had dismissed its copyright infringement lawsuit against 670 "John Does," complaining that the court's appointment of attorneys from EFF and Public Citizen had impeded its ability to prosecute its case. In a brief filed on behalf of the Does, EFF and Public Citizen had argued that Mick Haig should not be allowed to send subpoenas for the Does' identifying information, because it had sued hundreds of people in one case, in the wrong jurisdiction and without meeting the constitutional standard for obtaining identifying information. We have also raised questions about the plaintiff's conduct, as it appears it sent out subpoenas without the court's permission.

Last week, we learned that another federal judge in Texas is considering appointing attorneys to represent the Does in five mass copyright cases: Steve Hardeman LLC v. Does 1-168; Serious Bidness LLC v. Does 1-109; Funimation Entmn’t v. Does 1,337; Adult Source Media v. Does 1-247 and Harmony Films Ltd v. Does 1-739. (see below for the court's orders). In each case, Judge Royal Furgeson has ordered the plaintiff to explain, by February 28, 2011, why the court should not appoint attorneys to represent the Does in responding to the plaintiff's request for permission to send out subpoenas for the Does' identities. In several of the above cases, the court has also vacated earlier rulings authorizing such subpoenas, which means the Does' service providers are no longer required to respond to any subpoenas they may have already received.

In his orders, Judge Furgeson notes an essential feature of mass copyright litigation: unlike the normal case, in which a defendant is notified of early case developments and can intervene to protect his or her interests (such as by opposing a plaintiff's request to send out subpoenas), the Does in these cases are unlikely to have any idea a lawsuit has been filed, much less that the plaintiff is seeking their identity. Appointing an attorney ad litem for limited purposes is one way to address that problem and help ensure that the Does receive the same constitutional protections that must apply to any defendant, in any litigation. We are pleased that Judge Furgeson is considering it.

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