EFF, Public Citizen And ACLU Ask Judge To Quash Mass Subpoenas From US Copyright Group: “While companies like Verizon apparently won’t stand up to protect their users’ rights against the ridiculous and overly broad mass copyright infringement lawsuit filings made by a group called US Copyright Group (really a DC-based lawfirm called Dunlap, Grubb and Weaver), Time Wadrner Cable is pushing back, but mainly on procedural issues — not in any way to stand up for the rights of those being sued. Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.
Those three organizations filed an amicus brief with the court in the Time Warner Cable case, where they point out that there are multiple reasons why the subpoenas should be quashed. Among the many problems with the process used by USCG are the ideas of suing thousands of people in a single lawsuit and all in Washington DC. Obviously, this makes it easier and cheaper for Dunlap, but it’s not how the legal system is supposed to work. First, it only makes sense that each lawsuit should be filed individually, as each involves different circumstances. Second, they should be filed in the proper jurisdiction, not in DC. As the briefing notes:
This Court cannot consider this case unless it has personal jurisdiction over the Doe
Defendants, and it is Plaintiff’s burden to show that such jurisdiction exists. The Constitution
imposes that burden on every plaintiff as a fundamental matter of fairness, recognizing that no
defendant should be forced to have his rights and obligations determined in a jurisdiction with
which he has had no contact. These requirements ‘give[ ] a degree of predictability to the legal
system that allows potential defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to suit.’ World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Plaintiff has not met this burden. Instead, the very information upon which Plaintiff
relies as a basis for seeking the identity of the Doe defendants — their Internet Protocol (IP)
addresses — indicates that few, if any, reside in this District. If, as it appears, the vast majority of
the Doe defendants do not have sufficient minimum contacts with this jurisdiction to satisfy due
process, the Court should quash the subpoena for information about out-of-district defendants.
Requiring individuals from across the country to litigate in this District creates exactly
the sort of hardship and unfairness that the personal jurisdiction requirements exist to prevent. It
requires the individuals urgently to secure counsel far from home, where they are unlikely to
have contacts. In this particular instance the hardship is very clear. When the underlying claim is a single count of copyright infringement, the cost of securing counsel even to defend a
defendant’s identity is likely more than the cost of settlement, and possibly even more than the
cost of judgment if the Defendant lost in the litigation entirely.
As for lumping all of the lawsuits into a single filing, the brief shows that courts have rejected this approach in the past as unreasonable and should do so again here:
There is little doubt that Plaintiff’s joinder of more than 4,500 defendants in this single
action is improper and runs the tremendous risk of creating unfairness and denying individual
justice to those sued. Mass joinder of individuals has been disapproved by federal courts in both
the RIAA cases and elsewhere. As one court noted:
Comcast subscriber John Doe 1 could be an innocent parent whose internet access
was abused by her minor child, while John Doe 2 might share a computer with a
roommate who infringed Plaintiffs’ works. John Does 3 through 203 could be
thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs’ property and
depriving them, and their artists, of the royalties they are rightly owed. . . .
Wholesale litigation of these claims is inappropriate, at least with respect to a vast
majority (if not all) of Defendants.
BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)
(severing lawsuit involving 203 defendants).
Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against them
must arise from a single transaction or a series of closely related transactions. Specifically:
Persons . . . may be joined in one action as defendants if: (A) any right to relief is
asserted against them jointly, severally or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will
arise in the action.
Fed. R. Civ. P. 20. Thus, multiple defendants may be joined in a single lawsuit only when three
conditions are met: (1) the right to relief must be ‘asserted against them jointly, severally or in
the alternative’; (2) the claim must ‘aris[e] out of the same transaction, occurrence, or series of
transactions or occurrences’; and (3) there must be a common question of fact or law common to
all the defendants. Id.
Joinder based on separate but similar behavior by individuals allegedly using the Internet
to commit copyright infringement has been rejected by courts across the country. In LaFace
Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008),
the court ordered severance of lawsuit against thirty-eight defendants where each defendant used
the same ISP as well as some of the same peer-to-peer (‘P2P’) networks to commit the exact
same violation of the law in exactly the same way. The court explained: ‘[M]erely committing
the same type of violation in the same way does not link defendants together for purposes of
joinder.’ LaFace Records, 2008 WL 544992, at *2. In BMG Music v. Does 1-4, No. 3:06-cv-
01579-MHP, 2006 U.S. Dist. LEXIS 53237, at *5-6 (N.D. Cal. July 31, 2006), the court sua
sponte severed multiple defendants in action where the only connection between them was
allegation they used same ISP to conduct copyright infringement.
The brief also takes issue with the evidence that Dunlap presents in the USCG filings:
Moreover, Plaintiff provides no specific evidence other than its summary declarations to
establish that its investigation was done for each Doe. And such evidence ought to be readily
available, including screen shots showing the IP addresses of the Doe defendants so the Court
can see that the addresses submitted to the Court match those discovered during the
investigation, copies or real-time capture of the activities of the ‘proprietary technologies’ used,
and shots of the P2P server logs that to which Plaintiff apparently had access. Without those, the
declarations merely describe downloading activity in general, and fail to provide the Court with
real information linking each of the individuals sued to the alleged infringement.
This is a big concern because Dunlap and USCG are seeking to reveal private information based on incredibly flimsy evidence:
Robust protection for the right to engage in anonymous communication — to speak, read,
view, listen, and/or associate anonymously — is fundamental to a free society. See, e.g., Talley v.
California, 362 U.S. 60 (1960) (recognizing the First Amendment right to communicate
anonymously); McIntyre v Ohio Elections Comm’n, 514 U.S. 334 357 (1995) (same;
‘Anonymity is a shield from the tyranny of the majority.’); Lamont v. Postmaster General, 381
U.S. 301 (1965) (recognizing the First Amendment right to receive ideas in privacy). This
fundamental right enjoys the same protections whether the context for speech and association is
an anonymous political leaflet, an Internet message board or a video-sharing site. See Reno v.
ACLU, 521 U.S. 844, 870 (1997) (there is ‘no basis for qualifying the level of First Amendment
scrutiny that should be applied to’ the Internet).
Courts in this District have recognized that First Amendment protections extend to the
anonymous publication of expressive works on the Internet even where, as here, that publication
is alleged to infringe copyrights. In re Verizon Internet Servs. Inc., 257 F. Supp. 2d 244, 260
(D.D.C.), rev’d on other grounds, 351 F.3d 1229 (D.C. Cir. 2003) (hereinafter ‘Verizon’); see
also UMG Recordings, Inc., v. Does, No. 06-0652 SBA, 2006 WL 1343597, at *2 (N.D. Ca.
March 6, 2006) (citing Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564
(S.D.N.Y. 2004)). As the court in Sony noted:
Arguably, however, a file sharer is making a statement by downloading and
making available to others copyrighted music without charge and without license
to do so. Alternatively, the file sharer may be expressing himself or herself
through the music selected and made available to others. Although this is not
‘political expression’ entitled to the ‘broadest protection’ of the First
Amendment, the file sharer’s speech is still entitled to ‘some level of First
326 F. Supp. 2d at 564 (quoting Verizon) (citations omitted). The Sony court continued:
‘Against the backdrop of First Amendment protection for anonymous speech, courts have held
that civil subpoenas seeking information regarding anonymous individuals raise First
No one is arguing that a legitimately filed lawsuit shouldn’t entitle USCG to get the right to an individual’s information. The issue is that not nearly enough evidence is presented in these cases, and what is presented is done in a way that does not allow an individual to protect their First Amendment rights. This destroys the basic balance that the courts have established to permit such lawsuits to go forward.
The filing is an important one, and it’s unfortunate that it had to come from three public interest groups rather than the ISPs themselves. In an email from Verizon PR, in response to a question on this issue from reporter Dave Burstein, Verizon PR gave the ‘we’re just following orders’ response, and tries to suggest it goes above and beyond by giving their customers a week or less of notification to fight this on their own. Verizon (and Time Warner Cable) could be making these same arguments on behalf of their customers, and it’s a shame that they have not and, in fact, have handed over information on such flimsy proof in such questionably filed lawsuits.