

EFF tries to block litigation strategy by which 14,000+ P2P users have been sued - grellas
http://www.law.com/jsp/article.jsp?id=1202459212707&Rights_Groups_Enter_Illegal_Downloading_Fight

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grellas
This is directly related to <http://news.ycombinator.com/item?id=1397342>
("The RIAA? Amateurs. Here's how you sue 14,000+ P2P users").

In essence, the litigation strategy followed here targets those who illegally
download films produced by indie filmmakers, sues them collectively as
fictitious or "Doe" defendants, uses subpoenas to ISPs to compel disclosures
of their true identities, and then sends demand letters telling those targeted
to pay $1,500 or so to settle up or face litigation that is almost a sure
losing proposition for them (I had discussed why I think this is so in a
commend or two made in the link above).

It now turns out that Time Warner Cable, instead of simply complying with the
subpoena it received, has moved to quash it and this has given EFF and other
rights groups a venue in which to argue that a collective suing of "Doe"
defendants in a remote forum with which the individuals being targeted have
little or no connection allegedly violates the rights of those individuals.

In effect, the underlying litigation strategy being used here by those suing
for copyright infringement "plays the numbers" and depends on mass processing
for its effectiveness. As the article linked to above points out, the
estimated recovery on these claims to date approximates $20 million and the
strategy is obviously just beginning to gain traction, with many thousands
more being and about to be sued in this manner.

What EFF and others are trying to do is block the ability of the plaintiffs in
such cases to file in one convenient venue and use a single subpoena to gather
the identifying information easily and quickly. The arguments they raise
suggest that this violates due process rights belonging to the persons being
fictitiously sued and, therefore, that the plaintiffs should instead filed
individual suits against these people in the districts where they live.

It these arguments stick, it obviously would upend this whole strategy but, in
my view, the decades-long use of the "Doe" procedure, coupled with the fact
that it is obviously not possible to sue individuals in the districts in which
they live when you don't yet know their identities, makes it unlikely that the
court will go with this argument. It will be interesting to see how the court
rules.

