Washington, D.C. - The Electronic Frontier Foundation (EFF) asked judges in Washington, D.C., Wednesday to quash subpoenas issued in predatory lawsuits aimed at movie downloaders, arguing in friend-of-the court briefs that the cases, which together target several thousand BitTorrent users, flout legal safeguards for protecting individuals' rights. Public Citizen and the American Civil Liberties Union (ACLU) Foundation joined EFF on the briefs filed Wednesday.
The lawsuits are the brainchild of a Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG). USCG investigators have identified IP addresses they allege are associated with the unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." To date, USCG has filed seven "John Doe" lawsuits in D.C., implicating well over 14,000 individuals, and has issued subpoenas to ISPs seeking the names and addresses of the subscribers associated with those IP addresses. Several ISPs have complied, but Time Warner Cable moved to quash the three subpoenas it received, arguing that USCG is abusing the discovery process.
In briefs filed in support of the cable giant, EFF says the John Doe defendants are being deprived of a fair chance to defend themselves by the strategies adopted by the USCG.
"By requiring those sued to defend these cases in D.C., regardless of where they live, and by having thousands of defendants lumped into a single case, the USCG has stacked the deck against the defendants," said EFF Senior Staff Attorney Corynne McSherry. "In addition, the First Amendment mandates that each defendant be given notice and opportunity to quash a subpoena and that the plaintiff offer sufficient evidence of infringement about each defendant individually."
"If USCG wants to sue thousands of people, it needs to give each defendant a fair chance to fight the accusations," added EFF Civil Liberties Director Jennifer Granick. "Instead, USCG is taking shortcuts that will result in innocent people getting tangled up in the dragnet."
USCG's strategy appears to be to threaten a judgment of $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for about $2,500 per person. USCG unapologetically explains this strategy on its website: "As a practical matter each individual infringer lacks the assets, net worth and earning capacity to make civil prosecution practical...until the SaveCinema.org efforts of the US Copyright Group." USCG has also said it plans to target thousands more individuals for legal action in the coming months.
"We've long been concerned that some attorneys would attempt to create a business by cutting corners in mass copyright lawsuits against fans, shaking settlements out of people who aren't in a position to raise legitimate defenses and becoming a category of 'copyright trolls' to rival those seen in patent law," said EFF Legal Director Cindy Cohn. "We're asking the court to step in now and force USCG to follow the rules that apply in all other cases."
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