Here is a brief update on some of the cases in which
Public Citizen, Electronic Frontier Foundation, and the
American Civil Liberties Union and its local affiliates
have filed amicus briefs arguing that persons accused of
file sharing should be accorded minimal due process rights
before subpoenas are authorized to identify them. We have
just received rulings in two of the cases, one which
accepts our argument that the record companies should have
to file separate lawsuits against the individual
filesharers rather than lump them all into a single case
as they have done, and the other which found our arguments
helpful, but premature.

In the case filed in Philadelphia against 203 Doe defendants
whose Internet Service Provider is Comcast (BMG Music v Does
1-203), Judge Clarence Newcomer agreed with at least part of
the legal arguments we raised. He agreed that it was
improper to join all 203 defendants in a single lawsuit, and
ordered the music companies to file separate complaints
against each of the Doe defendants, paying a full filing fee
for each case, for a total of about $30,000, and making
individualized allegations against each defendant. Judge
Newcomer retained the case against Doe #1, one of the three
defendants about whom the music companies had provided
detailed evidence (more than a hundred pages, each listing
many songs made available for download), and authorized the
issuance of a subpoena for that individual's identity only.

Although Judge Newcomer left it to the discretion of each
judge to which the 202 new complaints would be assigned to
decide how to handle discovery, it would seem that in each
case, the plaintiffs will need an affidavit making the
proper showing about that individual defendant. Defendants
will presumably need to decide, in each case, whether they
can allege that filing in Philadelphia is appropriate.

In the case filed in Atlanta against 252 Doe defendants
whose Internet Service Provider is Cox Communications,
(Motown Record Co. v. Does 1-252), Judge Willis Hunt
authorized a subpoena, and required that Cox be allowed a
full twenty five days before compliance with the subpoena,
so that the subscribers could have extra time to object to
identification if they so desired. However, the Court
declined to consider the constitutional issue that amici
raised on the grounds that they were premature and could be
raised by the Defendants (and amici at that time) once the
Defendants have been notified that their identities are
being sought.

The judges who are hearing Virgin Records v. Does 1-44
(filed in Atlanta seeking to subpoena the identity of
alleged filesharers whose ISP is Earthlink), and BMI
Recordings v. Does 1-199 (filed in Washington, DC against
Doe defendants whose ISP is Verizon), are still considering
the issues presented by the motions and by amici.



Cindy Cohn

   Legal Director

   Electronic Frontier Foundation

Paul Levy


   Public Citizen Litigation Group

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