February 7, 2011 | By Corynne McSherry

EFF to Judge: Watch for Fairness in Mass Copyright Suits

One of the major problems with the mass copyright lawsuits we seen over the last year is that the judges hearing the cases often aren’t aware of the full legal and practical context of the litigation. That’s because they are asked to make important decisions (e.g., whether to allow the plaintiffs to send out subpoenas for the Does’ identities) before any of the defendants have had a chance to point out the fundamental flaws in the plaintiff’s case.

Last Friday, Electronic Frontier Foundation and its co-amici Public Citizen, American Civil Liberties Union and ACLU of the Nation’s Capital took one more step toward addressing that problem for one of the cases in the District of Columbia, Call of the Wild v. Does 1-1062. This is actually one of the earlier troll cases: it was originally filed in March of last year, with the U.S. Copyright Group acting as counsel for the plaintiff. In June, EFF submitted an amicus brief noting critical due process and speech problems with the lawsuit. In January, the case (and several other mass copyright cases) was transferred to a new judge, Judge Beryl A. Howell. Shortly thereafter, USCG submitted a response to our brief.

We decided to submit a further brief, because we thought Judge Howell might like to know about various recent developments, such as the fact that federal judges in West Virginia and California have recognized that it is improper to join thousands of people in one lawsuit based solely on the fact that they all allegedly used the same software protocol to share one or more copyrighted works. We urged Judge Howell to take a similar approach and also explained that the plaintiff had failed once again to meet its burden of establishing jurisdiction and to meet the leading test for obtaining a Doe’s identifying information. Finally, we corrected the record regarding measures Judge Rosemary Collyer has taken in similar cases in the District of Columbia to dismiss defendants who had clearly been sued in the wrong court.

We're glad that courts around the country are taking steps to help ensure that the litigation process is fair to both plaintiffs and defendants. We hope Judge Howell will do the same.

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