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23,322 John Does for The Expendables case? Not so fast, says Judge to US Copyright Group
June 8, 2011
Thomas Mennecke
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It's nice to have a huge pile of John Does to sue. Some will fight, others will acquiesce. Those who acquiesce are a gold mine - they're so shit scared of a multi-million dollar copyright lawsuit they'll settle for a few grand to make the whole nightmare go away. It's probably extortion at some level, at least at the moral level, but it's a dirty job and someone has to do it, like WeFightPiracy.com or the US Copyright Group.

The USCG has become notorious in its fight to stem the tide BitTorrent piracy against its clients, which include an oddball mix of independent movies like "Far Cry", "Donkeyball", and "Cornered!". There's a few bigger movies too under their belt, you'll probably recall the movies "The Hurt Locker" and "The Expendables". These latter two movies are also well known because there are over 20,000 John Does per case currently pending in US District Court - or at least there was.

Both of these cases were filed in US District Court in Washington, DC. As you may know, the population of DC is just over 600,000 individuals. You may also know that the courts have been very sensitive over the issue of jurisdiction and venue - how can anyone in their right mind honestly believe that nearly 6.5% of the DC population is pirating both of these movies? The Judge presiding in The Expendable case doesn't seem to be buying it.

In a ruling made yesterday (read the order here), Judge Robert L. Wilkins was not impressed by the USCG dragging its feet in the discovery process, noting that not one Doe has been served – despite the USCG’s intense efforts for expedited discovery.

“…over two months later, Plaintiff has informed the Court that not a single subpoena has been served in this case. The Court finds this especially surprising given the fact that one of Plaintiff’s stated reasons for “good cause” for the expedited discovery was that the ISPs typically retain the information that Plaintiff seeks for only a limited period of time, and if this information is erased, Plaintiff will be unable to pursue its lawsuit.”

Judge Wilkin also scolded the USCG over jurisdictional issues – noting that it seems rather impossible that all 20,000+ individuals committed copyright infringement in DC. And he doesn’t seem particularly pleased that his time is being wasted.

“The Court finds it inappropriate and a waste of scarce judicial resources to allow and oversee discovery on claims or relating to defendants that cannot be prosecuted in this lawsuit. If venue is improper in this district, the Court must either dismiss the case or transfer it to a court in which venue is proper.”

Finally, the Judge gave the USCG the court’s order – and it’s a tough nut to crack. Basically, the USCG must show how all 23,000+ defendants are applicable to DC District Court, and how it intends to serve each of those defendants.

“The Court hereby ORDERS Plaintiff, if it intends to pursue the previously filed motion for expedited discovery, to show cause as to why venue and joinder is proper for all 23,322 putative defendants in this case. Alternatively, Plaintiff may seek leave to amend its complaint to name a certain subset of defendants and file a new motion for expedited discovery, addressing both legally and factually why venue and joinder is proper as to each defendant, and how Plaintiff intends to establish the same.”

For good measure, Judge Wilkins also vacated his previous ruling that GRANTED discovery for the Plantiffs – effectively nullifying any progress in this case.

“Because Plaintiff has taken no action on the expedited discovery that this Court granted over two months ago, and Plaintiff has not made any showing why venue is proper for all putative defendants in this case pursuant to 28 U.S.C. § 1400(a), the Court vacated its March 17, 2011 Order granting Plaintiff leave to take discovery prior to a Rule 26(f) conference.”

Time is not on the side of the USCG, it has until June 21 to answer the court on these issues. That coupled with 23,000+ Does to negotiate around, along with a blithering campaign that’s fighting their progress tooth and nail, the copyright trolling campaign in the United States may soon meet the same fate as that in the United Kingdom.

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