In a powerful ruling for government transparency and accountability, the U.S. Supreme Court Tuesday rejected so-called "privacy" protections for corporate entities under the Freedom of Information Act (FOIA). EFF and a coalition of other groups filed an amicus brief in this case urging just this result, arguing that a new definition of "corporate privacy" would lead to broad swaths of previously public records becoming hidden from view.
The case, Federal Communications Commission v. AT&T, started when the company tried to block disclosure of records about its participation in the federal government's E-Rate program. AT&T, invoking FOIA exemptions that were created to protect an individual's private data like physical address or email address, argued that it was a "corporate citizen" entitled to "personal privacy." EFF argued that this misreading of FOIA would create more delays in an already lengthy FOIA process and allow even more opportunities for corporations to block important records from the public eye, and we're gratified to see the Supreme Court agree. As Chief Justice John Roberts said in his conclusion, "We trust that AT&T will not take it personally."
Bogus copyright and trademark complaints have threatened all kinds of creative expression on the Internet. EFF's Takedown Hall of Shame collects the worst of the worst. Today, we welcome two new additions to our gallery of villains.
Our first addition to the Hall of Shame involves the Penrose Triangle, an “impossible object”createdbyOscar Reutersvärd of Sweden in the mid-1930s. Last week, Thingiverse, a site where users share 3D designs for printing, received a takedown notice for a 3D design of the triangle. Who sent this takedown notice? Not Reutersvärd. The sender and alleged copyright owner appears to be one Ulrich Schwanitz. Apparently, Mr. Schwanitz also created a 3D model of Reutersvärd’s triangle and is claiming that the version on Thingiverse violated his copyright. You can see a photo of his version here.
Copyright in what, you might askthe original image? If someone else created the earlier illustration of this triangle, then Mr. Schwanitz can’t have the copyright in the image unless he somehow acquired it, or an exclusive right, from the owner. Nor can he claim a copyright in the process of converting the image to 3D; it’s a neat trick, but process isn’t protected by copyright. Finally, the rendering in 3D form doesn’t inject enough creativity into the model for Mr. Schwanitz to claim it’s separately copyrightable from the two-dimensional image. What we have here is another apparently baseless DMCA takedown.
The takedown notice (which Thingiverse has posted on its blog) doesn’t even comply with the DMCA, as it lacks an “under penalty of perjury” statement. Note: In this situation service providers usually advise or work with the sender of the notice to fix the deficiency, but no takedown is required for the safe harbor to apply. We’ll cut Thingiverse a little slack here since apparently it’s the first DMCA takedown notice they’ve ever received, but let’s hope this is the last time they take down content based on a noncompliant notice. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1112 (9th Cir. 2007).
We previewed this addition to our Hall of Shame in a blog post Monday about urban homesteading. In brief, the Dervaes Institute is claiming broad ownership rights over the term “urban homesteading”a commonly used phrase to describe a social movement dedicated to achieving more self-sufficient, sustainable living in citiesand is sending takedown requests and warning letters targeting individuals and organizations that have been using the term for years. Even assuming the Dervaes Institute’s trademark registration is valid, the term has a popular meaning that anyone is free to use in a descriptive sense, which is exactly what the takedown targets did.
If you have received an abusive takedown notice that you think belongs in our Hall of Shame, please contact us at firstname.lastname@example.org with a copy of the notice and a link to the allegedly infringing work. We won’t stand for takedown abuse and neither should you.
These have been some eventful weeks in the world of copyright trolling. Thousands of unnamed “John Does” in P2P file sharing lawsuits filed in California, Washington DC, Texas, and West Virginia have been severed, effectively dismissing over 40,000 defendants. The plaintiffs in these cases must now re-file against almost all of the Does individually rather than suing them en mass. These rulings may have a significant impact on the copyright trolls’ business model, which relies on being able to sue thousands of Does at once with a minimum of administrative expense. The cost of filing suit against each Doe may prove prohibitively expensive to plaintiffs’ attorneys who are primarily interested in extracting quick, low-hassle settlements.
However, EFF has received reports that some Does are still receiving notices from their ISP’s informing them that their identities are being sought in relation to these cases. If you receive a notice from your ISP informing you that it has received a subpoena requesting your subscriber information in connection with one of the cases in the spreadsheet attached below, please contact EFF immediately by emailing email@example.com.
A leading candidate has emerged for the next EFF Takedown Hall of Shame induction: the Dervaes Institute, which is claiming broad ownership rights over the term “urban homesteading” — a term commonly used to describe a social movement dedicated to achieving more self-sufficient, sustainable living in cities. Last year, the Institute managed to register the term as a trademark (in connection with “educational services” such as blogging) and it is now sending takedown requests and warning letters targeting individuals and organizations that have been using the term for years.
The Dervaes campaign raises two related issues.
First, as explained in more detail in a letter EFF sent today on behalf of three of the targets (Kelly Coyne and Erik Knutzen, authors of The Urban Homestead: Your Guide to Self-Sufficient Living in the Heart of the City, and their publisher, Process Media), the legal claims are baseless. Even assuming the registration is valid — there are reasons to question it — the term "urban homesteading" is commonly understood to refer to a popular movement and related set of practices. Our clients — and anyone else — are free to use it in that descriptive sense, and that is exactly what they did.
Second, this dispute highlights the increased danger of granting rights in descriptive marks such as this one. Time was, the registration of this kind of mark might have had limited impact, because sensible mark-owners would think twice before bringing legal action and, short of such action, most legal users could ignore any improper threats. In the Internet context, however, individuals and organizations rely on service providers to help them communicate with the world (YouTube, Facebook, eBay, Blogger, etc.). A trademark complaint directed to one of those providers can mean a fast and easy takedown given that those service providers usually don’t have the resources and/or the inclination to investigate trademark infringement claims. Moreover, because there is no counter-notice procedure, the targets of an improper takedown have no easy way to get their content back up.
Coyne, Knutzen, and Process Media found themselves in just that situation. The Dervaes Institute sent a complaint to Facebook and, as a result, Facebook promptly took down the pages for Coyne and Knutzen’s book. When the publisher protested, Facebook politely suggested that the publisher take the matter up with the Institute and get back to Facebook when the matter was resolved. Of course, in most instances, takedown targets will lack the resources to persuade a trademark owner to withdraw a complaint, much less take legal action if necessary. We're glad that Coyne and Knutzen thought to call EFF for help.
We are also glad to see that our clients are not alone in fighting back against the Dervaes Institute's misguided campaign. Today has been declared an Urban Homesteader’s Day of Action, itself organized through Facebook, that promises “to blanket the web with the words urban homestead and urban homesteading through blog posts, web pages, and articles.” The Dervaes Institute should recognize that this is one community that will not be intimidated, cease its heavy-handed tactics, and take steps to repair the damage it has caused.
There is a lot of discussion about Do Not Track at the moment. The FTC has announced support for the idea; Mozilla has added a Do Not Track header option into Firefox betas, and Congresswoman Jackie Speier has introduced a Do Not Track bill. Other proposed privacy legislation, such as Rep. Bobby Rush's bill, could also achieve similar objectives. And yesterday, EFF submitted comments urging the Federal Trade Commission to defend online privacy by supporting the header-based Do Not Track feature.
Some other anti-tracking technologies have also been discussed a lot recently, including
Microsoft's IE 9 Tracking Protection Lists, and AdBlock Plus with EasyPrivacy. These are great tools, and very much complimentary to the Do Not Track header proposal. We'll be posting about them at greater length soon.
Do Not Track is a technically simple proposal: add a header1 to the messages that browsers and other HTTP clients send when they fetch web pages. The header simply requests that webservers not track the user's behavior. It could be turned on if the user enters "private browsing mode", or if they have enabled a separate configuration setting.
There is more flexibility on the policy side of Do Not Track: "what is tracking?" "what should websites do to avoid tracking users who set the DNT header?" "would any websites be required to comply with the header?
There is a spectrum of good answers to each of these questions. This post will try to set out what we think some of the good answers are.
What is Tracking?
Tracking is a very simple, general concept. A good definition would be:
Tracking is the retention of information that can be used to connect records of a person's actions or reading habits across space, cyberspace, or time.
Despite this simple answer, we believe that there are some kinds of web tracking which — while they are still tracking — may not need to be categorically prohibited when the DNT header is set. A reasonable set of exceptions might be:
Tracking that is limited to a single "1st party"1 website (either by the website itself or by an analytics provider subject to suitable contractual and technical protections)
Tracking that is necessary to prevent fraud or respond to security incidents, provided such data is minimized, only kept for as long as necessary, and not used for other purposes.
Tracking of users who have agreed to a clear and non-confusing “opt back in”
Tracking that is necessary to complete an online transaction that the user has engaged in.
The existence of such excepted kinds of tracking does not, of course, mean that websites should not consider respecting DNT where possible in these cases too. For instance, we hope that many 1st party domains will choose to adopt limited logging and retention practices for users who enable DNT. There are other definitions of tracking that have been proposed. For instance, CDT proposed a slightly different draft definition, and our approach is largely in agreement with theirs.2
What should websites do in response to the DNT header? Should they be required to comply?
For most websites, and especially 1st party websites, DNT may make more sense as a voluntary convention, like ROBOTS.TXT, rather than a mandatory rule. However, there is a subset of websites where there is a stronger case for requiring compliance with DNT. These are the websites that (1) act as 3rd party tracking domains, invisibly monitoring people's reading habits as they browse the web; and (2) monitor a large number of users' browsing. There are several approaches to incentivizing compliance by large 3rd parties — some commentators have called for pressure in the marketplace via technical means ("if a large 3rd party appears not to be complying with DNT, add it to privacy blacklists"); the Rush bill incentivizes compliance with DNT-style opt outs through a "safe harbor"mechanism, while the Speier bill is more direct. We believe that legislation granting narrow authority to the FTC to set opt-out standards could be constructive, provided it focuses on the task of incentivizing compliance with consumers' preferences and avoids mandating particular technical methods of compliance.
Will a header always be the best mechanism for DNT?
Not necessarily. Over time, we will have new platforms and protocols to which DNT should apply, and perhaps more granular controls for users to express their preferences. Whatever path we follow for getting DNT deployed by browsers and respected by servers, we should be planning to have opt-out standards that evolve and support innovation.
1. Standard terminology is that the website you can see in your browser's address bar is the "1st party" and other domains in the hypertext page are "3rd parties". It would have made more sense to say that you are the 1st party; the website you're looking at is the 2nd party, and embedded domains are 3rd parties.
2. We think it makes slightly more sense to draw the line at the "retention" of tracking data, rather than "collection and correlation", because when trying to enforce DNT it's hard to tell the difference between data that is retained and correlated and data that is retained and not correlated.
In Part I of this post, we looked at the FCC’s stated basis for its authority to regulate the Internet in its Report and Order, issued in late December 2010.
Now, we turn to the substance of the FCC’s Order, and specifically how the Order stacks up against the concerns we raised in our January, 2010, comments to the FCC about the FCC’s October 2009 Notice of Proposed Rulemaking (NPRM). (The Order raises other concerns for us as well, like the exclusion of wireless, that aren’t addressed here; this post just tracks the issues discussed in our NPRM comments.) While we’re big supporters of an open Internet and neutrality in practice, we were concerned that the proposed rules would create large loopholes for non-neutral behavior and barriers to entry for small noncommercial providers.
Unfortunately, it appears the FCC doesn’t share our concernsor at least not enough to make real changes. While the new rules do take account of some of our smaller points about the NPRM, the FCC has made only a cosmetic effort to tackle the bigger problems.
Definition of “Reasonable Network Management”
Our first major substantive concern with the proposed rules had to do with the definition and use of “reasonable network management,” a term used to describe certain non-neutral steps that service providers could take without violating the FCC rules. In the 2009 NPRM, “reasonable network management” included actions preventing “the unlawful transfer of content” and “the transfer of unlawful content”essentially code words for allowing your ISP to interfere with your service if it suspects you of engaging in copyright infringement. The term was included as a specific exception to each of the proposed rules.
Our comments urged the FCC not to target the content of Internet traffic in this way. “Reasonable network management” is typically understood as practices that promote the proper technical functioning of an ISP’s network, and we warned about departing from that standard. The job of an ISPand what it knows bestis to carry bits, not to determine whether transferred content infringes copyrights. (As an aside, we’re curious how such infringement detection would actually be effected.) Pressuring ISPs into becoming enforcers for the content industry is apt to lead to practices that will interfere with free expression of all network users, including those engaged in lawful conduct. Here’s why: Trying to distinguish between authorized and unauthorized uses takes time and resources that service providers would likely prefer to spend elsewhere. Thus, service providers are likely to take the most expedient approach, such as targeting the transfer of any content that could conceivably infringe, even if that approach might affect lawful content as well.
We also noted that since the rules as drafted only implicated lawful activity, no such exceptions for unlawful activity should have been necessary in the first place. In addition, we argued that no “reasonable network management” exception was warranted for transparency (one of the NPRM’s six principles). We see no justification for keeping consumers in the dark about non-neutral “reasonable network management” practices by their service providers.
In the final Rules, the FCC did limit the definition of “reasonable network management” to elements that relate directly to network management functions, such as ensuring network security and making parental controls available to end users. However, loopholes for copyright-based blocking efforts have hardly disappeared. Instead, the FCC simply gave them their own heading. In contrast to the proposed rules, moreover, the new “Other Laws and Considerations” section calls out copyright specifically, stressing that the rules do not prohibit “reasonable efforts ... to address copyright infringement.” It’s ironic that the FCC would work so hard to keep this provision. The excuse of “addressing copyright infringement” could have protected Comcast from FCC action in the BitTorrent blocking scheme that was so fundamental to the FCC’s push for the Report and Order in the first place.
While we approve the removal of copyright enforcement blocking from its incongruous place on the “reasonable network management” list, the practical benefits to be gained from simply pasting it in somewhere else are minimal. Thus, the rules still invite overbroad enforcement behaviors affecting lawful activity. On the other hand, we were pleased to see the FCC removed the “reasonable network management” carve-out from the transparency requirement. That’s a big change and a welcome one.
Exceptions for law enforcement
Our comments also challenged the proposed exceptions for law enforcement as dangerously overbroad. The original rules gave ISPs a general dispensation to engage in non-neutral behavior to address the needs of law enforcement. We urged the FCC to limit the language of the exception to permit ISPs to fulfill their legal obligations but foreclose voluntary non-neutral management practices under the pretext of complying with law enforcement needs. In specific situations where, in order to address law enforcement needs, an ISP might want to engage in non-neutral behavior, we recommended a waiver process whereby an ISP would apply to the Commission for permission in advance of adopting a non-neutral practice. The FCC acknowledged our feedback in the final Report but declined to follow our guidance.
Regulation of non-commercial providers
The NPRM specifically excluded “premise operators”establishments such as coffee shops, airports, and waiting rooms that acquire broad Internet access in order to make it available to patronsfrom compliance requirements. The Commission also suggested exempting services such as personal Wi-Fi networks that are not intended for use by others. While EFF endorsed these provisions and recommendations, we encouraged the Commission to exempt all noncommercial broadband Internet providers from the requirements of the Order, noting that the burdens of FCC regulation on small actors would discourage good faith, public-minded Internet initiatives and would also pose a bar to innovation.
Unfortunately, the FCC did not budge on this point. The Commission does give a nod to EFF in noting that individuals’ wireless networkswhether or not intentionally made available to othersare not included in the rules. In addition, the Commission agreed that blocking traffic unwanted by a premise operator constitutes a legitimate network management purpose, even though the broadband provider of the access is not exempt from the rules.
In response to a question posed in the NPRM, our comments recommended that providers be required to permit tethering using Internet-ready handsets. This recommendation is consistent with our work to try to free handsets in the DMCA Rulemaking. The Report and Order, however, omits any mention of tethering.
All told, the rules as laid out in the final Order aren’t that much improved from the NPRM. That said, these rules may have little effect in the end, given the numerous legal and legislative challenges to the FCC’s authority to enforce them.
EFF just received documents in response to a 2-year old FOIA request for information on the FBI’s "Going Dark" program, an initiative to increase the FBI's authority in response to problems the FBI says it's having implementing wiretap and pen register/trap and trace orders on new communications technologies. The documents detail a fully-formed and well-coordinated plan to expand existing surveillance laws and develop new ones. And although they represent only a small fraction of the documents we expect to receive in response to this and a more recent FOIA request, they were released just in time to provide important background information for the House Judiciary Committee’s hearing tomorrow on the Going Dark program.
We first heard about the FBI’s Going Dark program in 2009, when the agency’s Congressional budget request included an additional $9 million to fund the program (on top of the $233.9 million it already received). Late last year, the New York Timeslinked the program to a plan to expand federal surveillance laws like the Communications Assistance to Law Enforcement Act (CALEA). We issued FOIA requests to the FBI in 2009 for information on Going Dark and in 2010 for information on the agency’s plans to update CALEA. These are the first documents we’ve received since we filed our lawsuit against the agency late last year. The documents provide rare insight into the agency’s multi-year strategy to increase its power to surveil our communications.
Here’s What the Documents Show:
What is the "Going Dark" Program?
The name "Going Dark" is cryptic, and the FBI’s public statements about the program are even more so. Nevertheless, FBI’s Operational Technology Division states that the program is one of the FBI’s "top initiatives" and has "gotten attention so far from high ranking officials in other federal, state, and local agencies and from industry." (GD4, p. 110).1 The FBI has told reporters in emails that Going Dark is:
the program name given to the FBI’s efforts to utilize innovative technology; foster cooperation with industry; and assist our state, local, and tribal law enforcement partners in a collaborative effort to close the growing gap between lawful interception requirements and our capabilities.
(GD2, p1). The FBI has also said that the term "Going Dark" does not refer to a specific capability,
but is a program name for the part of the FBI, Operational Technology Division's (OTD) lawful interception program which is shared with other law enforcement agencies. The term applies to the research and development of new tools, technical support and training initiatives.
(GD2, p 8). Behind this rhetoric, the documents detail a program set up to address the FBI’s allegations that communications providers’ technologies prevent the agency from implementing wiretap and pen register/trap and trace orders – essentially, the FBI alleges it is "'in the dark' by the loss of evidence, that [it] would be lawfully entitled to, due to advances in technology, antiquated ELSUR laws, and or lack of resources, training, [and] personnel," (GD4, p. 120), and the FBI needs new laws and new tools to bring this evidence into the light.
The FBI’s "Five-Prong" Going Dark Strategy
The FBI states the Going Dark program is a "five-prong strategic approach to address the lawful 'Intercept capability gap'" (GD3, p. 10). These five prongs are:
modernization /amendment of existing laws,
enhancing authorities to protect industry proprietary and [law enforcement] sensitive lawful intercept information, equipment and techniques,
enhancing [law enforcement] agencies' coordination leveraging technical expertise of FBI with other [law enforcement] entities,
enhancing lawful intercept cooperation between the communications industry and [law enforcement agencies] with a "One Voice" approach, and
seeking new federal funding to bolster lawful intercept capabilities.
(GD3, p. 10). Originally it seemed the FBI was focused on just updating CALEA (which could be bad enough if it included some of the things we wrote about here), but now it appears the FBI plans to seek changes to the Electronic Communications Privacy Act (ECPA) and other laws, and may also propose new laws. For example, another document we received notes under Prong 1 that "Existing lawful intercept laws (e.g., Title III of the Omnibus Crime Control and Safe Streets Act, Electronic Communications Privacy Act [ECPA], and the Communications Assistance for Law Enforcement Act [CALEA]) require modernization as a result of advancements in communications services and technologies." (GD1, pp. 38-40). And another document breaks the FBI’s legislative strategy down into two categories:
modernizing the Federal ELSUR [electronic surveillance] assistance mandates and Federal ELSUR laws and
enacting new ELSUR-enhancing statutory authorities.
(GD1, p. 13). This is the first hard evidence we've seen that the FBI is pushing to update ECPA in addition to CALEA, and it is concerning to learn that the agency is trying to convince Congress that these two laws should be expanded at the same time to give the FBI even broader power to conduct "lawful" surveillance. Unfortunately, we don’t know much more about the specifics of the FBI’s plan because crucial information in the documents has been withheld or blocked out.
The FBI Has Been Working on "Going Dark" Since at Least 2006 and Has Lobbied Congress and the White House to Support the Program with More Money and Stronger Laws
The FBI and DOJ have been working on amendments to CALEA since at least 2006, though their efforts to lobby Congress and the White House have steadily ramped up within the last few years. (GD1, p. 34). The FBI has met with important Congressional committees and with the White House about Going Dark many times since January 2008 and has specific plans to "socialize [its] Strategy with key Congressional members and staff (e.g., Judiciary, Intelligence, Appropriations)." (GD1, pp. 38-30).
For example, in January 2008, the FBI director testified before the House and Senate at the annual threat assessment hearing and included a Q&A handout on Going Dark for the briefing book. (GD1, p.7). Although the hearings were held in both open and closed sessions (and so this handout should be available to the public), the version we received is heavily redacted. (GD1, p. 22).
In March 2008, staff from the Senate Subcommittee on Commerce, Justice, and Science visited the FBI's Operational Technology Division and had a briefing on Going Dark with Kerry Haynes, the Assistant Director of the Investigative Technologies Division. Topics discussed included "unfunded requirements, level of cooperation/understanding/assistance from DNI, level of sharing and cooperation with IC/telecom and [international] partners, consolidation of tech efforts across industry, working groups/detailees [sic] to consolidate efforts, the 'data coordination center' concept." (GD1, p. 32).
The FBI focused much of its lobbying efforts on the Senate Commerce, Justice, Science (CJS) Appropriations Subcommittee, and met with met with Senator Mikulski, the committee chair, and her staffers several times over the last few years in both open and closed sessions, including in April 2008, June 2008, May 2009, and June 2009. In fact, according to the FBI, Senator Mikulski stated during the June 2008 meeting: "The FBI and the CJS have had a very productive working relationship and the FBI can count on the CJS for whatever it needs to fulfill the mission of the FBI." (GD1, p. 30).
The FBI also met or communicated with key members of the current administration and other agencies, including meeting with the Obama transition team in November 2008, (GD3, p. 8-9). The agency discussed Going Dark with the Department of Commerce in May 2009, (GD4, p. 26), and met with ODNI on Going Dark in October 2008. (GD4, p. 80) The FBI also worked directly with the DEA to try to collect information detailing agents' inability to conduct electronic surveillance, to provide support for the agency's claim that it needed new and better tools and laws. (GD4, pp. 24-25). And the agency planned to vet its 5-prong strategy with both the Office of Management and Budget (OMB) and Department of Justice (DOJ). (GD1, pp. 38-30).
The FBI Has Also Worked With State and Local Law Enforcement and Private Government Contractors to Develop and Implement its Strategy
Several of the documents we received detail the FBI’s holistic approach to implementing Going Dark. For example, the agency sought input from state and local law enforcement leadership such as "IACP, Major Cities Chiefs, Major County Sheriffs' Association," (GD1, pp. 38-40), and asked state and local law enforcement to provide it with examples of electronic surveillance failures. The agency also reached out to the communications industry, including "IP-based communications service providers and manufacturers" and "third-party lawful intercept solution providers." (GD1, pp. 38-40, 2-3). And the agency contracted with private government consultants at RAND Corporation and Booz, Allen & Hamilton to study the problem and help devise solutions. (GD3, p. 28; GD4, pp. 6-7; GD4, p. 112)
What Does This Mean for our FOIA Lawsuit and for the FBI’s Hopes to Implement Changes to Federal Surveillance Laws?
The interesting thing about all this is that the DOJ has argued in response to our motion seeking documents that because there’s no draft legislation being publicly bandied about right now, there can be no urgency to our FOIA request. For this reason, the agency won’t agree to any deadline to produce its documents. We’ll be arguing this point in the court hearing on our motion tomorrow and hope to convince the court that the Going Dark documents, combined with the House Judiciary Committee hearing, show that the DOJ is serious about pushing through changes to communications surveillance laws as soon as possible. We'll be urging the court to order the DOJ to produce the rest of the documents in response to our FOIA requests while there’s still time to influence the debate.
1. The citations refer to the documents posted at the end of this deeplink. Page numbers refer to the pages in each pdf document.
When we said that Texas was no place to file suit if you want to bypass due process, we weren't kidding. Senior federal judge Royal Furgeson has "severed" thousands of Does in these and several other cases. (see below for sample order). Judge Furgeson is the same judge that ordered the plaintiffs in five cases to explain why the court should not appoint attorneys to represent the Does' interests.
In essence, these rulings mean that the plaintiff in each case must re-file against each Doe defendant individually, rather than attempting to sue hundreds (or thousands) of Does at once, something that may make these cases less lucrative for the lawyers hoping to turn copyright trolling into a business model.
This is the latest court to accept the joinder argument EFF -- along with the ACLU and Public Citizen in some cases -- pioneered in multiple cases across the country (D.C.,West VirginiaIllinois, and Texas).
The argument is that the fact that hundreds of defendants happened to allegedly download the same movie with the same software is no basis for lumping them together in the same lawsuit. Citing one of recent decisions by a West Virginia federal court, Judge Furgeson affirmed that "merely committing the same type of violation in the same way does not link defendants together for purposes of joinder." Quite right.
Kudos to Judge Furgeson for refusing to allow the plaintiffs to bypass basic due process rights and helping to ensure the judicial process is fair for everyone involved.