Saturday, February 19, 2011

Copyright lawsuits have a hard time in Texas, and rightly so

My original plan for todays blog was to talk about the EFF's Deeplinks blog post, "Don't Mess With Texas: Another Texas Judge Scrutinizes Mass Copyright Litigation." But before I could do that, I saw "6,374 DISMISSED John Doe Defendants cheer as the LFP Internet Group lawsuits go down in flames," on the TorrentLawyer blog.

I'm proud of the Texas judges who are upholding civil liberties. I'm not defending illegal file sharing, but I am defending the right of the accused to due process. The plaintiff's lawyers in these cases try to treat it more like a racketeering case, filing one suit against all of the John Doe defendants. As Corynne McSherry of DeepLinks put it:

In his orders, Judge Furgeson notes an essential feature of mass copyright litigation: unlike the normal case, in which a defendant is notified of early case developments and can intervene to protect his or her interests (such as by opposing a plaintiff's request to send out subpoenas), the Does in these cases are unlikely to have any idea a lawsuit has been filed, much less that the plaintiff is seeking their identity. Appointing an attorney ad litem for limited purposes is one way to address that problem and help ensure that the Does receive the same constitutional protections that must apply to any defendant, in any litigation.

Filing one suit for hundreds, even thousands of John Does allows the plaintiff's attorneys to proceed with the case without paying filing fees for most of the defendants. Most of the defendants also don't have lawyers, so there is little opposition to whatever the plaintiffs lawyers do. One thing Judge Furgeson has done is consider appointing attorneys for the John Does. He also severed each of the John Does from the primary case. noting that the plaintiff has not offered any proof of conpiracy, and just because a group of people are doing the same thing does not mean they are conspiring or working together.

Because the judge severed each of the defendents, if the plaintiff wants to sue them he will have to sue each individually, paying the filing fees for each case. That will get expensive very quickly. They would also have to file in the correct jurisdiction, another problem with the John Doe cases that have been filed recently in movie sharing cases.

The RIAA and MPAA have a right to protect their interests, but they need to realize that this is not 1980. Although they could look back to the late '70's and early '80's and maybe learn a few things. Then it was the VCR that was the doom of the movie industry. A solution was found then, and once the RIAA and MPAA quit panicking one will be found now. Independent musicians and film makers are using the very things causing traditional content providers problems to promote themselves as they've never been able to before. Instead of suing current and potential customers they should be finding ways to turn make use of the new technologies. And in case nobodies noticed, all their encryption and lawsuits haven't even managed to slow down file sharing. Instead of trying to cut heads off the hydra, they should be seeking a way to harness the beast.