Imagine yourself as a lawyer who wants to sue 4,577 anonymous Internet users for swapping the Uwe Boll-produced film Far Cry through BitTorrent networks. Would you prefer to file one lawsuit, pay one filing fee, and submit one set of documents, or would you like to file 4,577 separate lawsuits, each with their own filing fees and documents?

The question answers itself, and it explains why Boll's law firm of Dunlap, Grubb, & Weaver filed a single federal lawsuit against "Does 1-4,577" in DC's District Court earlier this year.

But in multiple court filings today, the American Civil Liberties Union has joined forces with the Electronic Frontier Foundation and Public Citizen to attack this “sue 'em all” P2P litigation strategy.

The DC court should "sever" the cases, according to the civil liberties groups, dropping everyone but "Doe 1." If the lawyers want to sue the 4,576 others in the Far Cry case, they can "of course file new lawsuits in the District."

The same logic would also apply to the other cases filed this year, all of which have targeted numerous Does—sometimes as many as 5,000 at once.

Jurisdiction

The argument against these huge “joined” lawsuits is based on three principles. First is the key idea of jurisdiction; all of the cases to date have been filed in Washington DC, despite the fact that the defendants come from all over the US.

Yesterday we profiled three defendants from Colorado, Indiana, and Georgia, all of whom filed their own motions with the court.

One woman from Fort Wayne, Indiana even noted in her handwritten letter that "this is a very strong hardship for me, all this being over a 100 miles away, and me not having any knowledge of this at all." The concept of jurisdiction is meant to protect people from routinely being sued far from home where they would have difficultly responding to the charge.

The new amici briefs filed today in three of these P2P lawsuits all argue that Dunlap, Grubb, & Weaver could have, with little work, "Discovered that hardly any of the Does it has sued appear to reside in this District, and that therefore the case against them was likely not properly brought here. Nonetheless, Plaintiff improperly sued them here, apparently seeking to force almost all of the Doe defendants to incur the expense and burden of a defense in a foreign District (or to settle in order to avoid the expense).”

Reverse DNS lookups on the IP addresses used in the case would have shown that the defendants were likely located across the country “from Hawaii to Florida.”

"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,” write the amici.

Adventures in joinder

Second, the groups claim that "Plaintiff's joinder of more than 4,500 defendants in a single action is improper and runs the tremendous risk of creating unfairness and denying individual justice to the suit. Mass joinder of individuals has been disapproved by federal courts in both the RIAA cases and elsewhere."

Joinder generally requires all defendants to have participated in the same incident—a group of piratical friends running an illegal website together, for instance. But in this case, the defendants have no connection with each other and are not part of a single conspiracy or group.

“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,” write the amici.

Joining the cases together allows the lawyers to avoid paying individual filing fees for a large number of lawsuits and ensures that the small, Leesburg, Virginia law firm of Dunlap, Grubb, & Weaver can avoid huge amounts of travel. But the approach raises “serious questions of individual fairness and individual justice.”

The amici want each Dunlap, Grubb, & Weaver mass lawsuit "severed."

Prove it

Finally, the amici raise concerns about the thinness of the evidence presented so far. The lawyers have asked for more than 14,000 subpoenas in the last six months, all of them based on general declarations and long lists of alleged infringing IP addresses.

But where is the evidence that each particular IP address is properly targeted? “Plaintiff has provided no specific evidence other than its summary declarations to support that these activities were done for each Doe defendant,” say the amici, requesting screenshots and other specific documents of each alleged offense.

Without such information, they argue that the lawsuits are improper violations of the First Amendment right to anonymous speech. That right is obviously given up if one engages in illegal behavior, but some actual evidence of that behavior must be offered before the shield of anonymity is removed.

Opposition mounts



If the court adopts the approach suggested here, the costs of the current anti-P2P litigation strategy could become untenable. If each anonymous defendant requires several hundred dollars in filing fees, individual paperwork, individual subpoenas, and detailed information on their alleged distribution, settling for a mere $1,500 doesn't sound so hot.

The filing also puts the EFF, ACLU, and Public Citizen on the side of Time Warner Cable, which has been the most vocal ISP involved in challenging the subpoenas stemming from these cases.

In seeking to quash the subpoenas, TWC told the court last month:

It is not evident from the complaint in this case that there is anything common to the 2,094 defendants [this was before the lawyers upped it to 4,577 defendants] that would justify joining them in a single litigation... Courts facing these identical circumstances have repeatedly held that a plaintiff may not join in a single action multiple defendants who have allegedly downloaded or facilitated the download of copyrighted material at different times and locations. Thus, if the plaintiff wants to sue these 2,094 defendants, it owes this court 2,094 separate filing fees, and it must file individual actions. Plaintiff then would be unable to combine together a single, massive discovery request with which to burden non-party ISPs such as TWC.

Dunlap, Grubb, & Weaver now faces consolidated opposition from ISPs and public interest groups over its approach to dealing with P2P usage online. It will need to convince a judge that jurisdiction and joinder are proper in order to keep the lawsuit juggernaut rolling along.

If it can't, the firm's entrepreneurial adventures in copyright settlement could meet an untimely end—or the lawyers might decide to hike their settlement fees to compensate for all the extra work.