Judge "rejected all of the EFF's arguments" on P2P cases

By Nate Anderson | Ars Technica

Can a law firm sue up to 5,000 accused P2P users from across the US at once, and in a single DC court? For now, at least, it can.

In a 45-minute hearing yesterday before federal judge Rosemary Collyer of the Washington, DC District Court, lawyers from the ACLU, EFF, and Time Warner Cable squared off with Thomas Dunlap of Dunlap, Grubb, & Weaver, the firm behind the "US Copyright Group." 

US Copyright Group has spent the last year partnering with indie film producers like German video game auteur Uwe Boll and the producers of The Hurt Locker, offering to go after P2P downloaders of their films. Those who settle for $1,500-$2,500 can avoid a threatened court case that would seek $150,000 in damages.

But the EFF and ACLU argued that it just wasn't proper to sue thousands of people this way, because the people have no real connection to one another (a question of "joinder"). They also complained about suing people from Hawaii in a DC court (an issue of "jurisdiction"). And Time Warner Cable objected that it couldn't possible process thousands of IP lookup requests in a timely manner (an issue of "burden").

Judge Collyer was "very thoughtful about the issue" said EFF attorney Corynne McSherry when I spoke to her yesterday after the hearing. Collyer considered the concerns of everyone involved and eventually decided on a "creative solution," in McSherry's words: ISP subscribers will soon receive an additional notification letter agreed to by all parties. The letter will better explain their rights and the grounds on which they or their lawyers can object to the subpoena.

McSherry admitted that there were "other things we would have preferred to happen"—EFF and ACLU had asked the joined cases to be "severed" and each one filed individually, while Time Warner wanted the whole subpoena limited to 28 requests a month or else be quashed altogether.

While Collyer's order won't put an end to the subpoenas in process, it will call a halt to subscriber notifications in two of the main cases until all parties can agree on the notice text. Tom Dunlap tells Ars, "Until the court has approved the notice, in the two cases before Judge Collyer, the ISPs will not send notices to their subscribers." (The other cases are being heard before different judges in the same court.)

And Dunlap argued that the ruling was a basic validation of his firm's P2P litigation. "I would note the court rejected all of the EFF's arguments, including the request to sever any defendant at this stage in the case," he told Ars.

Those targeted by the lawsuits are still free to make their own arguments to the judge about issues like jurisdiction, but the litigation campaign is currently free to proceed.