Civil rights and consumer organizations are backing Time Warner Cable's federal court effort to block subpoenas for the names and addresses of thousands of individuals who allegedly downloaded movies illegally.
The subpoenas are the result of a litigation campaign by US Copyright Group, a Washington-based venture launched by the intellectual property law boutique, Dunlap, Grubb & Weaver, with offices in Washington, and Vienna and Leesburg, Va.
The campaign is targeting users of the BitTorrent file-sharing application. In an update Wednesday on the law firm's website, the firm noted that more than 50,000 individuals have been sued so far in connection with the downloading of 10 films, including "Call of the Wild 3D" and "Far Cry." Name partner Thomas Dunlap says in that update that Voltage Pictures, producers of the Academy Award-winning "Hurt Locker," recently signed on to the campaign and he is preparing a lawsuit on its behalf.
The Electronic Frontier Foundation, the American Civil Liberties Union, the ACLU of the Nation's Capital, and Public Citizen filed amicus briefs on Wednesday in three suits in the U.S. District Court for the District of Columbia.
Lawyers for the rights groups said they have identified seven "John Doe" lawsuits to date in Washington, implicating more than 14,000 individuals. Subpoenas have been issued to ISPs for the names and addresses of subscribers, they added. Some ISPs have complied, but Time Warner Cable moved to quash its subpoenas.
In their briefs supporting the cable giant, they contend the John Doe defendants are being deprived of a fair chance to defend themselves because of the litigation strategy being pursued by the US Copyright Group. They argue the lawsuits improperly join thousands of unrelated defendants into a single action and were filed in a jurisdiction where few, if any, of the defendants reside. The briefs also argue that the plaintiffs failed to show sufficiently that they had reason to believe the individual defendants did anything wrong before attempting to obtain their identifying information and failed to give the individual defendants notice and an opportunity to challenge the subpoenas.
"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 [US Copyright Group] has stacked the deck against the defendants," said Corynne McSherry, senior staff attorney with the Electronic Frontier Foundation in a statement.
Arthur Spitzer, legal director of the ACLU of the Nation's Capital, added in a statement, "Individuals have a presumptive right to speak and view material on the Internet anonymously. If a party to a lawsuit wants to find out who those anonymous individuals are, it must make an adequate factual showing in a proper court, whether the anonymous individual is accused of copyright infringement, defamation or any other improper conduct. That has not been done here."
The Copyright Group, which has no identified officers, members or phone number on its website, describes itself as having "one singular mission and focus: to stop movie copyright infringement and make illegal downloaders pay damages for the content they have stolen. From Washington D.C. to Los Angeles, technology companies and a conglomeration of intellectual property law firms work hand-in-hand with each other to end unlawful downloading and illegal file-sharing of films."
The Group's partnerships with film companies, it says on its website, "allow us to monitor filing sharing, uploads and downloading. Then, we obtain the infringers' identities through ISP subpoenas, finally resulting in 'cease & desist' letters with a demand for payment of damages being sent to the illegal downloaders on a massive scale."
The Group's letter to the individual user informs the person that he or she could face a maximum penalty of $150,000 per downloaded movie under federal copyright law plus attorney's fees. The letter offers to settle for a "relatively nominal, one-time lump sum payment," according to Dunlap Grubb's settlement information in connection with the "Call of the Wild" lawsuit, anywhere from $1,500 to $2,500.
Dunlap said it is his firm's "standard policy not to try cases in the media." But he said his firm is not the only law firm behind the Group.
"We have firms in a number of jurisdictions that are part of our group," he explained. "The primary purpose is to have coverage across the country for our clients. We also have technical people who do analysis of data and validation of files. For example, there are 15 'Call of the Wild' movies, all different. We have to make sure it's 'Call of the Wild' with Christopher Lloyd."
Dunlap said that while he can take credit for the litigation campaign in the United States, lawyers in Germany, the United Kingdom and the Far East, have taken the same approach for more than three years.
"This has been a fairly common approach for indie filmmakers, people with much smaller production budgets," he added. "You're stealing something when you download these movies. My clients, especially the small ones, are really hurt by this. The 'Hurt Locker' certainly lost a lot of money. It has been called the most downloaded independent film ever, which means that's the most people watching it for free ever."
Still, the mass suits for ISP names and addresses worry the rights groups.
"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 US Copyright Group to follow the rules that apply in all other cases."