April 7, 2011 | By corynne mcsherry

Mass Copyright Litigation Roundup: Positive Trend for Due Process?

Judicial decisions are starting to come fast and furious in the movie copyright troll cases – and the trend is mixed but promising for those of us who care about protecting due process.

The good news is that judges continue to recognize the fundamental flaws in these cases. In the Northern District of Illinois, for example, Judge Blanche Manning recently severed Millennium v. Does 1-800, effectively dismissing the case against almost every Doe defendant. The court also suggested that the suit had been brought in the wrong place:

The plaintiff is a Hawaii corporation with its principal place of business in California. As far as the plaintiff knows, none of the defendants are located in Illinois and it merely alleged, without any basis the court can discern, that “on information and belief each Defendant may be found in this district and/or a substantial part of the acts of infringement complained of herein occurred in this District.” Amended Comp. at ¶7. Indeed, apparently none of the Doe defendants who have filed motions to quash are located in Illinois and it appears that easily accessible tools exist to verify the locations of the IP addresses of the other named Doe defendants, see, e.g.,http://whois.arin.net/ui/, many (if not all) of which are not located in Illinois.

Judge Manning has also ordered severance in Lightspeed v. Does 1-1000, on similar grounds.

Another Illinois federal judge has expressed not just skepticism but outrage at the tactics of one copyright troll. Calling the case of CP Productions v. 1-300 both “ill-fated’ and “ill-considered” he not only dismissed the case but read the riot act to the plaintiff’s attorney in open court, demanding to know why, if the case was properly filed in Illinois, he was getting motions to quash from defendants all over the country.

And, as we reported last week the judge in one mass copyright “reverse class action” in the Southern District of Illinois has stayed discovery while it considered whether the plaintiff should be allowed to subpoena the Does’ identities given the fundamental flaws in its case. A hearing on the issue is scheduled for Monday.

These views are not yet universal, however. In late March, Judge Beryl Howell issued an unfortunate decision on motions to quash discovery in three cases filed in the District of Columbia (the plaintiffs are all represented by the US Copyright Group). EFF participated as amicus in one of the cases, Call of the Wild Movie v. Does 1,062. The judge denied the motions, concluding, in essence, that it was too early in the litigation to address deep the procedural flaws in the plaintiffs’ cases. We are particularly disappointed that Judge Howell (1) accepted the idea that using BitTorrent to download the same movie was enough to establish a logical relationship between defendants; and (2) suggested that the Doe defendants are not harmed until they are actually named in a lawsuit, not withstanding the efforts of plaintiffs to extract settlements based, in part, on the coercive effect of being sued far from home with the threat of statutory damages of up to $150,000.

Since then, however, Judge Howell has indicated that she is keeping a close eye on USCG. For example, in one of the cases, Maverick v. Does 1-4350, Judge Howell has ordered the plaintiff to dismiss hundreds of Does where the plaintiff either does not intend to name and sue the Does in D.C. and/or the information for those Does is no longer available. The court noted that “since plaintiff filed its Complaint, it has not named a single defendant in this action” and that while plaintiff had stated it would dismiss numerous Does, it had not bothered to submit a proposed order to that effect, leaving those Does in limbo.

We'll continue to monitor these cases, and to get involved directly where we can.


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