The big ISPs, especially Comcast and Time Warner Cable, have intervened for months in massive file-sharing lawsuits, telling judges that they simply can't drop all of their activity for law enforcement in order to spend weeks doing IP address lookups on behalf of pornographers. And, when the ISPs get the chance to make their arguments before judges, they routinely go beyond complaints about the workload and challenge the very basis of the mass lawsuits.

One recent case serves as a good example. Last November, the large New York law firm of Foley & Lardner jumped into the P2P game, filing John Doe lawsuits on behalf of films like Anal Fanatic. A judge granted expedited discovery and subpoenas went out to ISPs—but the ISPs objected.

Comcast tried privately to negotiate a schedule, suggesting that the company could do 25 IP address lookups a month and for $95 apiece (a bargain given the $120 list price). The Foley & Lardner attorneys didn't agree. So Comcast, upset about the pressure it was under, sent one of its lawyers to intervene in the Anal Fanatic case.

Two judges overseeing two similar cases granted Comcast's lawyer a joint hearing. According to Houston attorney Rob Cashman, who was representing one of the defendants, the hearing went quite badly for the plaintiffs:

I have heard that one judge (Judge Thomas P. Griesa) got upset with the plaintiff attorney based on the jurisdiction, joinder, etc. issues with the case, dismissed it, and walked off the bench. The other Digiprotect case with Judge Paul A. Crotty was not dismissed, but the judge was upset about what he heard. I believe Judge Crotty gave the plaintiff attorney a number of days to respond to the issues this attorney brought before the court.

Despite the oral dismissal, Foley & Lardner attorney Britton Payne continued to seek settlements from defendants in the days that followed, including one from Cashman's client.

Cashman didn't like this, even though such oral dismissals are not binding and judges may later change their minds. "I do not believe this changes anything or permits the plaintiff attorney to solicit a settlement offer while the case is in limbo since as it stands, the case is dismissed," he told me a few days ago.

Britton Payne, a recent Fordham law school grad who also illustrates books and sings in a cappella groups, did not respond to questions about the propriety of this approach to settlements.

When we called Judge Griesa's chambers on Thursday, we were told that the case had in fact been orally dismissed back in January at the hearing with Comcast's attorney—but that the judge had just rescinded his own order at another court hearing on Wednesday. Anal Fanatic is back in play, and settlements can continue.

But the ISPs don't intend to let this drop. Time Warner Cable has just asked Judge Griesa to admit one of its own attorneys to the case, and the judge this week agreed. It's safe to say that Time Warner, which was called "a good ISP for copyright infringers" by another P2P attorney last year, won't be on the side of the pornographers.