Court Orders US Copyright Group To Work With Time Warner, EFF To Craft More Informative Letter To Those Being Sued

from the it's-something dept

The saga of US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) continues. As you may recall, the firm is filing lawsuits against tens of thousands of people accused of file sharing certain movies, such as Uwe Boll’s Far Cry and the Oscar-winning Hurt Locker. The lawsuits lump thousands of “John Does” into a single suit located conveniently (for Dunlap, Grubb & Weaver) in Washington, DC. Time Warner Cable has been resisting the demands to identify so many of its subscribers, and EFF, Public Citizen and the ACLU joined forces to point out that it isn’t legal to lump together so many different totally unrelated defendants into a single case in an unrelated jurisdiction. US Copyright Group defended the lumping together by claiming that since BitTorrent worked by different people sharing little bits, perhaps all of the thousands of people shared together. The judge seemed skeptical.

However, rather than throw out the lawsuits against all but one of the defendants, the judge is asking the various parties — US Copyright Group, Time Warner Cable, EFF, Public Citizen and the ACLU to all work together to craft a note that can be sent to individuals targeted in these lawsuits. The idea is that this note, unlike the one people get directly from USCG, will inform people of their rights, including the right to challenge the jurisdiction of the lawsuit (and, I assume, the fact that they’re randomly lumped in with other people).

My guess is that the judge is still uncomfortable with all these lawsuits being lumped together, but realized that none of the parties in the court room are really the right ones to be challenging the specifics of the lawsuit. That needs to come from someone actually being sued. Thus, this agreed-upon letter could still lead to a lawsuit that says such joining of massive lawsuits into one is not allowed.

Still, given USCG’s statements in the lawsuits to date, and the text of the current letters it sends, I’m guessing that there’s going to be a lot of disagreement about what goes into this new mutually agreed-upon letter.

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Companies: aclu, eff, public citizen, time warner cable, us copyright group

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Comments on “Court Orders US Copyright Group To Work With Time Warner, EFF To Craft More Informative Letter To Those Being Sued”

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32 Comments
Niall (profile) says:

Re: Re:

Shouldn’t you be paid to download a Uwe Boll movie? What about the damages for irreparable harm you could then claim?

With Uwe Boll, this really smacks of ‘free’ (read ‘desparate’) advertising for a product no-one in their right mind would want to go anywhere near. Funny how The Hurt Locker would be in a similar category had it not fortunately won an Oscar in such a news-worthy way. But it’s not exactly challenging Avatar for sales even so… and guess which of those is likely to be the more pirated 🙂

John Doe says:

Re: Re: Reverse Class Action Suit...

Why does this sound horrible to me? I won’t be named in the suit as I don’t pirate anything.

What idiots like you should be concerned about is the abuse of the courts in this way that sets a precedent where someday you may be involved in a lawsuit with many others in a far away district.

The Infamous Joe (profile) says:

Free Business

So, a group of lawyers with opposing views of the plaintiffs are going to craft a letter letting the defendants know their legal rights. I wonder who the people who get this letter are going to choose to defend them? 😛

On a side note, “Techdirt Lite” (which I’ve never heard of) does not allow threading of comments or creation of a comment. Now that *is* “lite”. 🙂

JWW (profile) says:

Every time I see this story I make a mental note to my self to avoid SEEING any films from independent filmmakers. Oh, wait, they don’t want me to not see their movies, they just want me not to download them, too bad I figure not even seeing them is better.

I sure hope the guys who produce “The Hurt Locker” begin advertising “from the people that brought you The Hurt Locker” on their new films so I know what to avoid.

There was a time I was interested in seen Hurt Locker, now I don’t think I’d even buy it on DVD if it were in the bargain bin for $ .50.

average_joe says:

“My guess is that the judge is still uncomfortable with all these lawsuits being lumped together, but realized that none of the parties in the court room are really the right ones to be challenging the specifics of the lawsuit. That needs to come from someone actually being sued. Thus, this agreed-upon letter could still lead to a lawsuit that says such joining of massive lawsuits into one is not allowed.”

Actually, if the judge thinks there is misjoinder of the defendants, she can sever them sua sponte, i.e., without prompting from any of the parties. Anyone can suggest severance to her, even those without proper standing to do so.

I believe the defendants will indeed be severed, but not because of misjoinder in the sense that it’s incorrect to join the defendants, but rather because of the simple fact that having so many defendants in one suit is unmanageable for the court.

I also think the judge is going to allow discovery of the joined Doe defendants to be completed first since this doesn’t cause them prejudice.

Anonymous Coward says:

Re: Re:

“rather because of the simple fact that having so many defendants in one suit is unmanageable for the court.” – having 5000 lawsuits on the docket would be the same. if anything, this is the effecient way to move forward with this, at least to the point of having full discovery of who the actual parties are. at that point, the judge can move forward with rulings not based on a bunch of does.

Anonymous Coward says:

Re: Re:

“I also think the judge is going to allow discovery of the joined Doe defendants to be completed first since this doesn’t cause them prejudice.”

Concur for a myriad of reasons. While the judge has concerns about proper joinder, as yet the judge has no information in hand that such joinder is improper. Perhaps there are issues of in personam jurisdiction, but this too is unkown at this time without identifying where these IP addresses are actually located. IIRC, the ISPs noted in the suit share a common trait of having a physical presence in the district in which the suit was filed. If this is the case, then the court does have a means by which to order disclosure of IP addresses.

Eventually things will sort out, but in order for this to happen some discovery must take place before the court is positioned to eventually issue meaningful orders bsed upon evidence versus mere conjecture on its part.

average_joe says:

Interesting...

This is interesting…

I looked up the copyright on “Far Cry” and its publication date is 11-24-09 and registration date is 01-19-10. You get a grace period of three months from the publication date to register your copyright, so that’s not the problem.

The problem is this: the effective date of the registered copyright here is the publication date. Any infringement that occurred prior to the publication date is still actionable, but plaintiff couldn’t collect statutory damages or attorney’s fees. They would have to prove actual damages for these infringements.

Several hundred of the alleged infringements in the “Far Cry” case occurred prior to the effective date of the copyright, according to the plaintiff’s own exhibit. I posted it here: http://www.scribd.com/full/33778615?access_key=key-1hosbd45mquzldg11bk9

Plaintiff’s settlement offer makes it sound like the plaintiff could ask for statutory damages and attorney’s fees. Here’s a picture of one guy’s settlement offer courtesy of CNET: http://i.i.com.com/cnwk.1d/i/tim//2010/05/30/duntojon2_540x287.jpg

If there’s a defendant who received a settlement offer like that one for an alleged infringement that occurred prior to 11-24-09, I think plaintiff and their attorneys could be in trouble. Intimating that they could go after someone for statutory damages and attorney’s fees when they cannot is really bad.

I could have this wrong, but after reading through Title 17, several cases, and the info on the Copyright Office’s website, I’m pretty sure I’ve got this right.

Mike Masnick (profile) says:

Re: Interesting...

I looked up the copyright on “Far Cry” and its publication date is 11-24-09 and registration date is 01-19-10. You get a grace period of three months from the publication date to register your copyright, so that’s not the problem.

The problem is this: the effective date of the registered copyright here is the publication date. Any infringement that occurred prior to the publication date is still actionable, but plaintiff couldn’t collect statutory damages or attorney’s fees. They would have to prove actual damages for these infringements.

Yes, we actually wrote about that back when the suits were first filed:

http://www.techdirt.com/articles/20100331/1443278816.shtml

However, some folks in the comments suggested why this isn’t actually an issue.

average_joe says:

Re: Re: Interesting...

I just read through the comments at your link, and I’m not convinced. I think my statement is correct that plaintiff couldn’t collect statutory damages or attorney’s fees for the infringements prior to 11-24-09.

If plaintiff wanted to protect his movie with a registered copyright prior to the publication date, he would have had to file a preregistration. I checked, and there’s no preregistration for “Far Cry.”

It turns out that in one sense, not preregistering may have actually worked in his favor: for a preregistered work, you have one month from the publication date to file your registration if you’re aware of any infringing activity, not three months.

Since plaintiff knew of the infringing activity before the movie’s publication date, his filing for registration two months later would have been untimely, and he would lost the right to statutory damages and attorney’s fees from all defendants.

Still, I think the defendants who downloaded before 11-24-09 would only have to pay actual damages, and for plaintiff to suggest otherwise is wrong… and actionable.

I read some cases last night/this morning that led me to believe this is how it works. I’ll pull some language from some of those cases when I get a chance.

I emailed my thoughts to Corynne McSherry at EFF to see what she thinks…

average_joe says:

Re: Re: Re: Interesting...

The poster in the other thread was correct that we should be looking to 17 U.S.C. 412, but they skipped over the most important part.

“In any action under this title . . . no award of statutory damages or of attorney’s fees . . . shall be made for– (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.”

It’s part (1) I’m looking at. Prior to 11-24-09, the date of publication, the movie was by definition “unpublished.” Therefore, no statutory damages or attorney’s fees are available for the infringements prior to 11-24-09.

Reading through the official notes after the statute, it says: “However, section 412 [this section] would deny any award of the special or “extraordinary” remedies of statutory damages or attorney’s fees where infringement of copyright in an unpublished work began before registration or where, in the case of a published work, infringement commenced after publication and before registration (unless registration has been made within a grace period of three months after publication). These provisions would be applicable to works of foreign and domestic origin alike.”

Seems pretty clear to me. Statutory damages and attorney’s fees are not recoverable for infringement of unpublished, unregistered works.

NAMELESS ONE says:

aclu and eff should say we do not want to participate in lawsuits against people

aclu and eff should say we do not want to participate in lawsuits against people, and on that grounds not be part of the letter.

JUST think of the headlines as you could now claim that the letter you get is also FROM THE EFF and ACLU?

NO WRONG and MORE WRONG.

anon says:

Corruption at its finest

Not only is our Government corrupt (republicans and democrats), apparently our entire justice system is also corrupt.

This is insane, and they should not be allowed to get away with filing lawsuits like this. This will only open up the floodgates because now every company will be doing this to make big bucks.

Funny how the Judge threatened and wanted to know why she shouldn’t just throw all them out except one, yet comes up with this decision?

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