Judges across the country have been hammering mass file-sharing lawsuits in recent months, with one in West Virginia even going so far as to “sever” every such lawsuit filed in that district. But it's not all bad news for the attorneys bringing these suits, as they managed to score a victory this week. A federal judge in Washington, DC has decided that three such cases can continue, and the ISPs involved need to turn over names in a timely fashion.
Lawyers and public interest groups have taken part in such lawsuits all over the US, commonly arguing that suing hundreds or thousands of alleged BitTorrent users in a single lawsuit should not be allowed. Three reasons are usually given. First, the defendants in such cases are “improperly joined,” since they did not act together to break the law in the way that, for instance, an organized criminal syndicate might do. Each case should instead be filed individually, for $350 apiece in filing fees.
Second, most of the people sued in most of these cases live outside the district of the federal court in which they are being sued. Copyright holders should have known this, goes the argument, because geolocation tools make it simple to approximate someone's location with just an IP address. All of these people should be dismissed from the case.
Finally, defendants have a First Amendment right to anonymous speech. This right can obviously be breached when the law has been broken, but groups like the American Civil Liberties Union don't believe that turning in a list of IP addresses to a court is good enough evidence to invade someone's privacy, especially when cases concern pornographic films (as many do).
On Tuesday, Judge Beryl Howell rejected all three claims—at least for now.
For the purposes of this ruling, the judge combined three such mass lawsuits currently pending before the court. As for improper joinder, the judge ruled that suing hundreds or thousands of anonymous defendants at once was permissible, since the claims against them are all “logically related.” The judge also decided that forcing copyright holders to file a separate suit against each individual would cost too much money, something that would “further limit their ability to protect their legal rights.” Later in the case, defendants might well each present different defenses and different factual scenarios that would require them to be separated, but the judge said that they could be joined in the initial discovery phase.
As for personal jurisdiction, the judge said that jurisdiction remains unclear. Geolocation only reveals “where a defendant is ‘likely’ to be located. Given that these lookup tools are not completely accurate, this does not resolve the question of whether personal jurisdiction would be proper.” Once defendants are actually identified by their ISP, "they will then have the opportunity to file appropriate motions" if they are outside the court's jurisdiction.
On First Amendment concerns, the judge did agree that file-sharers are “engaged in expressive activity, on some level,” but concluded that this was fairly minimal and that the copyright holders had compelling reasons to seek out the defendants' identities.
The decision is a victory for the US Copyright Group, which brought the lawsuits. Though actually prosecuting all of the lawsuits to completion might still require thousands of separate cases, large sums of money, and years of effort, one more judge is at least open to mass subpoenas at an early stage of litigation. That should allow rightsholders to continue their preferred approach of filing large cases, mailing out settlement letters, and ending the lawsuit for a few thousand dollars.
Still, with other judges issuing nearly opposite rulings, no clear consensus has yet emerged in the federal judiciary about the proper approach to take.
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