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US Copyright Group Tries to Convince Judge that DC Court has Jurisdiction Over All John Does
October 1, 2010
Thomas Mennecke
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The US Copyright Group has responded to Judge Rosemary Collyer's September 10th order to show cause why the cases against the defendants shouldn't be dismissed. In her order, the judge noted that the defendants didn't appear to live in the District of Columbia - and questioned why should her court have jurisdiction.

"These defendants appear to live outside of Washington, D.C...Because they live elsewhere, it is questionable whether [defendants] had sufficient contact with the District of Columbia to warrant this Court’s exercise of personal jurisdiction over them."

The John Does under Collyer's gavel have so far traveled a difficult road. Jurisdictional issues were brought up by the EFF and ACLU back on June 3rd of this year. On behalf of the John Does, the EFF and ACLU filed an amicus brief (Friend of the Court), in an attempt to convince the judge that each case should be filed separately (the issue of joinder) and in the defendant's home state. On June 7th, Judge Collyer issued a minute order, demanding that the USCG provide justification why the case shouldn't be dismissed .

"MINUTE ORDER requiring Plaintiff to show cause in writing no later than June 21, 2010 why Doe Defendants 2 through 4,577 should not be dismissed for misjoinder under Federal Rule of Civil Procedure 20."

In this circumstance, the USCG argued that it was too early in the game to dismiss the cases against the John Does . In summary, the USCG submitted that the defendants were not yet identified - and jurisdictional issues can only be determined once you know where the defendant lives. Secondly, they argued all the Does had something in common - they all allegedly participated in sharing the same file. Judge Collyer accepted the USCG's pursuit of justice argument and discharged the order to show cause. But there was a silver lining to her ruling.

"...at this juncture, the numerous Doe Defendants are not severed due to misjoinder, but they may be severed in the future..."

Is that time now? The USCG is attempting to prevent that, as a judgment against them would force a copyright complaint against the defendants in their home state. Once again, the USCG group is arguing that it's simply too early in the trial to dismiss the cases or to file a motion to quash. The USCG made three major arguments why the DC court should have jurisdiction over the defendants: 1) because you can't motion to quash unless you've been actually been served with a lawsuit, 2) they should be able to verify the addresses purported by the Does, and 3) by golly all those Does could have uploaded or downloaded to someone in Washington DC. The following argument from the USCG supports their second justification, which is also their strongest, that the actual Doe address remains an unknown:

"As the ISPs are the only ones that can verify the link between a particular IP address on a given date and time with one of its customers, Plaintiff’s only method to obtain this verified evidence is from the ISPs in response to the subpoenas. Because Plaintiff would otherwise be entitled to this discovery and because this discovery is already in progress, Plaintiff should at least be entitled to complete its discovery to independently verify Mr. Wright’s IP address on the date and time of alleged infringing activity."

Overall, the USCG's latest justification on jurisdiction is much weaker than their first. There appears to be a lot of uncertainty on whether a Doe who hasn't been officially served with a lawsuit can file a motion to quash. We also tend to believe that it's almost impossible for each defendant to have some association with Washington DC - are there that many DCers sharing "Far Cry"? It seems that if there is a moment for Judge Collyer to rule in favor of the John Does, this could be it.


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