US Copyright Group Kicking Off Next Round Of Lawsuits [Updated]

from the can't-stop-now dept

Mon, Jul 19th 2010 6:11am — Mike Masnick

Despite the fact that there are still some serious legal questions about the methods of US Copyright Group (really, DC-based law firm Dunlap, Grubb and Weaver), the firm is apparently about to file its next round of lawsuits, ~~suing thousands more, with the hope that they'll just shut up and pay up, rather than actually wanting to go to court.~~. Update: As pointed out in the comments, this is actually an announcement of the second round of the initial lawsuits, actually filing suit against the named participants who failed to settle when sent the "pay up or we'll sue" notice. This makes it a bit more interesting, seeing as actually filing specific lawsuits would make this program a lot more expensive, which is why other, similar, organizations haven't done so....

The same article also notes (without much surprise) that despite orders from the judge for USCG to work with the EFF to craft a more informative letter to be sent to people who are targeted in the lawsuits, the two sides are having quite a bit of trouble agreeing on the language. Apparently, they're already going back to the judge to say that this isn't exactly working. Shocking.

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Filed Under: automated, copyright, lawsuits, pre-settlement letters
Companies: us copyright group

37 Comments

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Anonymous Coward, 19 Jul 2010 @ 6:20am

Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
http://www.geenstijl.nl/mt/archieven/2010/07/brein_vs_ziggo.html
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- Dark Helmet (profile), 19 Jul 2010 @ 6:42am
  
  Re: Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
  Breaking news! There's a button at the top of the page to submit stories to this website! Holy fucking shit, Batman!
  [ link to this | view in chronology ]
  - Richard (profile), 19 Jul 2010 @ 6:51am
    
    Re: Re: Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
    Sorry to continue off topic - but you must read the Google translation of that link - it is absolutely classic!
    
    "Brein, the testicles of the internet..."
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  - Anonymous Coward, 19 Jul 2010 @ 6:52am
    
    Re: Re: Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
    This isn't a story. It's just spam to boost their ad views.
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- Hephaestus (profile), 19 Jul 2010 @ 6:50am
  
  Re: Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
  Here is the link in english
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  - cc (profile), 19 Jul 2010 @ 7:06am
    
    Re: Re: Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
    That's Engrish.
    Here's English: http://torrentfreak.com/dutch-isps-dont-have-to-censor-the-pirate-bay-100719/
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    - Anonymous Coward, 19 Jul 2010 @ 7:08am
      
      Re: Re: Re: Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
      Sorry, but I like the engrish version better
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  - average_joe (profile), 19 Jul 2010 @ 8:23am
    
    Re: Re: Breaking Brien loses case against Ziggo and XS4ALL - No Pirate Bay Block in Holland!!!!!!!!!
    LOL! That translation is awesome!
    
    "We are careful to drink a beer."
    
    :)
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average_joe (profile), 19 Jul 2010 @ 6:51am

"the firm is apparently about to file its next round of lawsuits, suing thousands more, with the hope that they'll just shut up and pay up, rather than actually wanting to go to court."

Mike, I think you missed the whole point of the article on THR, Esq. It's not that USCG is getting ready to thousands of new people, it's that they are proceeding against the people they have already sued as "Does." They aren't trying to force people to settle, they are taking those who wouldn't settle to court. This shreds the argument that USCG only wanted to threaten people with a court battle to get them to settle--they are following through on their threats.
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- out_of_the_blue, 19 Jul 2010 @ 7:07am
  
  Re: "taking those who wouldn't settle to court"
  On what evidence? An IP address linked to name? Even if the ISP (not merely plaintiff) has unimpeachable records of the data, where's the link to a specific *person*? I don't see that being obtained, if at all, until after intrusive discovery. Any reasonable lawyer advising a defendant would surely mention that if the computer had been "serviced" with a new install, or sold, or whatever, then that link can't be made. -- Unless copyright enforcement is to the stage that it requires only an IP address.
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  - average_joe (profile), 19 Jul 2010 @ 7:25am
    
    Re: Re: "taking those who wouldn't settle to court"
    The sufficiency of such evidence to initiate these types of suits has been challenged in courts on several different grounds. The results have been the same, and the suits are permitted to continue. From the case law has developed a multi-factor balancing test, where the linkage of an IP address to an individual infringer is just one factor.
    
    The multi-factor balancing test was set out in Sony Music v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004).
    
    A great appellate case to read for analysis of this issue is Arista Records v. Doe 3, 604 F.3d 110 (2nd Cir. 2010).
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- Richard (profile), 19 Jul 2010 @ 7:22am
  
  Re:
  They aren't trying to force people to settle, they are taking those who wouldn't settle to court.
  
  No, you read it wrong. What is happening is that in those cases where the ISP gave up the user's identity without a fight they are sending out their first round of letters.
  
  They aren't going to go to court like the RIAA did - making a huge loss... (see recent posts on this site)
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  - average_joe (profile), 19 Jul 2010 @ 7:27am
    
    Re: Re:
    Nope.
    
    Did you read the article on THR Esq. that Mike linked to?
    
    From THR Esq.: "The U.S. Copyright Group, which is representing a handful of independent film production companies, has signed up 15 law firms across the continental U.S. to act as local counsel and begin filing individual lawsuits against those alleged file-sharers who refused to settle."
    
    They are proceeding with lawsuits against the "Does" who refused to settle.
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    - Richard (profile), 19 Jul 2010 @ 7:54am
      
      Re: Re: Re:
      Yes I did read it - the operative point of the sentence you quote is the signing up of local law firms - an admission that their earlier policy of trying to run all the cases centrally may not succeed.
      If you read the sentence carefully it doesn't actually imply that they are about to start taking people to court - merely that the local firms have been brought on board for that purpose - (which may mean "to threaten the purpose")
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      - average_joe (profile), 19 Jul 2010 @ 8:08am
        
        Re: Re: Re: Re:
        You read it? OK good. Then you realize that you were wrong in saying that this is about sending out the first round of letters. It's not.
        
        They are taking the next step. They are replacing the unnamed "Doe" defendants in the complaint with named defendants. Joining all of the defendants for the early discovery phase of the trial was proper. The court held so. Once a defendant is named they then gain standing to challenge joinder and jurisdiction. The court will order that the defendants be severed and the cases will be moved.
        
        You can view this all as a bluff, but I think USCG taking the next affirmative step in litigation shows that they intend to follow through with the litigation. I'm sure many people thought they weren't even going to take this step.
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        Richard (profile), 19 Jul 2010 @ 9:16am
        
        Re: Re: Re: Re: Re:
        Based on observation of the behaviour of Davenport-Lyons and ACS Law in the UK I predict that this is a bluff. The fact that you believe otherwise may simply demonstrate that the bluff has fooled you.
        
        In the UK the only lawsuit that I am aware of that was actually pursued was a county court case against Davenport-Lyons by one of the accused. Davenport Lyons failed to show up and lost the case. The person they accused won damages to cover his time plus travel and court costs.
        
        http://www.cableforum.co.uk/board/34690659-post287.html
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        average_joe (profile), 19 Jul 2010 @ 9:35am
        
        Re: Re: Re: Re: Re: Re:
        LOL! OK, Richard, believe what you want. Time will tell what happens.
        
        The fact is that USCG is taking this to the next level. This next step is a huge step that I presume many never thought they would take.
        
        Personally, I hope USCG isn't bluffing. I'd love to see these legal issues worked out in court.
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        Richard (profile), 19 Jul 2010 @ 12:48pm
        
        Re: Re: Re: Re: Re: Re: Re:
        The key factor is that USCG - like the German and UK organisations before them have talked about a "revenue stream" and "monetising filesharing".
        
        This leads me to believe that they intend to make money out of this process. Noting your comment below I suggest you spend some time investigating the economics of this process - bearing in mind that the RIAA has engaged in a similar process over the last few years and has recorded a massive financial loss from it. Compare the cost of filing a lawsuit with the size of the out of court settlement. Now compare the likely damages +costs (that you could actually recover) in a case that actually goes all the way with the costs of bringing that case. Now factor in the losses from unsuccessful cases (and there will be some - remember that those IP addresses were harvested by software - and all software has bugs). DO all those summ and you will see that actually going to court is a financial nightmare - but of course the threat must be made credible.
        
        Tje UK firms that tried this have attracted a lot of bad press - however I believe it has been a profitable exercise for them.
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        average_joe (profile), 19 Jul 2010 @ 2:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I hear ya. I've seen the math when others have tried this. The drama of it makes me hold onto my armrest and eat that much more popcorn while this plays out. What I wouldn't give to represent either side of this debate in court... ;)
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- Mike Masnick (profile), 19 Jul 2010 @ 10:10am
  
  Re:
  t's not that USCG is getting ready to thousands of new people, it's that they are proceeding against the people they have already sued as "Does.
  
  Interesting. I've updated the post to reflect this.
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out_of_the_blue, 19 Jul 2010 @ 6:55am

Hope "informative" letter includes that ignoring it is possible.
"Possible" being *not* advice to do so, merely giving a range of actions. An IP address linked by ISP to name is no proof of anything; they'd need at least a court order to enter premises and examine computers. That seems a prohibitive burden on plaintiff (good!), besides that the letter gives potential defendants plenty of warning time to wipe disks. So I don't see any *actual* trials coming, this is sheer extortion -- or if assuming guilt, sheer *bluff*.
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- average_joe (profile), 19 Jul 2010 @ 7:06am
  
  Re: Hope "informative" letter includes that ignoring it is possible.
  The letter doesn't really tell people anything substantive. It explains what's happening in laymen's terms, but that's about it. At this point of the proceedings, there isn't really anything a defendant can do to "get out" of being sued.
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  - out_of_the_blue, 19 Jul 2010 @ 7:08am
    
    Re: Re: Hope "informative" letter includes that ignoring it is possible.
    We crossed comments. Being sued, yes, but convicted?
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    - average_joe (profile), 19 Jul 2010 @ 8:01am
      
      Re: Re: Re: Hope "informative" letter includes that ignoring it is possible.
      Convicted? Absolutely. Although really "found liable" is a better way to put it.
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- fogbugzd (profile), 19 Jul 2010 @ 7:47am
  
  Re: Hope "informative" letter includes that ignoring it is possible.
  >> the letter gives potential defendants plenty of warning time to wipe disks.
  
  Actually, wiping disks to intentionally destroy evidence potentially gets them in more trouble. There is very little that will sway a judge against a defendant's case faster than destruction of evidence.
  
  Besides, I doubt that the people who get caught would have the expertise to effectively wipe the hard disk and all evidence of file sharing. After all, it takes very little expertise to avoid getting caught file sharing. If they got caught, their technical skills are in question.
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  - average_joe (profile), 19 Jul 2010 @ 7:56am
    
    Re: Re: Hope "informative" letter includes that ignoring it is possible.
    LOL! You're exactly right. Wiping your drive will only work against you. As will fighting this if you in fact did what they claim you did. As the litigation progresses, the cost of defending yourself or settling the suit increase.
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    - Free Capitalist (profile), 19 Jul 2010 @ 8:32am
      
      Re: Re: Re: Hope "informative" letter includes that ignoring it is possible.
      As the litigation progresses, the cost of defending yourself or settling the suit increase.
      
      Which is exactly why it is immoral to engage in mass - anonymous lawsuits where proof of infringement is not required until trial has commenced.
      
      Ordinary people do not make enough money to defend themselves against this type of exploitation of the system. Allowing this abuse to continue will not garner copyright any more supporters, that is for certain.
      
      In my opinion, the USCG needs to be smacked down and run out of town.
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    - minijedimaster (profile), 19 Jul 2010 @ 9:08am
      
      Re: Re: Re: Hope "informative" letter includes that ignoring it is possible.
      who needs technical skills to take their computer to a random friends house for it to reside for a while? And to either have or borrow a basic laptop that no one cares about? Sorry Mr Judge, this is the only computer I have and I did not use it to infringe the plaintiff's copyright. Must have been someone driving by and using my wifi which I don't have the technical skills to lock down. My bad... easy peasy.
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  - TPBer, 19 Jul 2010 @ 9:58am
    
    Re: Re: Hope "informative" letter includes that ignoring it is possible.
    Why would you just wipe the disk, remove the nic and hd and let them prove it was on the machine in question. Or the whole machine itself for that matter. Nobody can say you actually had a certain box unless they have proof of purchase.
    
    These suits only catch the rookies anyway. None have caught any who really know how to game the system.
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    - Anonymous Coward, 19 Jul 2010 @ 1:10pm
      
      Re: Re: Re: Hope "informative" letter includes that ignoring it is possible.
      Just as a mental exercise, let me ask: What do people "who really know how to game the system" do to avoid detection? Exactly how, hypothetically speaking, of course, would one avoid these types of lawsuits, if they were so inclined to do so?
      
      My own research shows me that a simple paid-for usenet account with SSL is better than using bit-torrent any day. Is that right?
      
      Thanks!
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      - AJ, 19 Jul 2010 @ 1:35pm
        
        Re: Re: Re: Re: Hope "informative" letter includes that ignoring it is possible.
        Small, secured, invitation only groups who carefully screen their members would be fairly safe. Proxies, open wireless networks, and servers that host content in countries where it's not illegal would be as well. Nothing is really full proof, but the further removed from the main stream you are, the less of a target you are.
        
        Funny thing is, in order for the AA's to get into a private network, they would have to break the law, may be a bit more difficult to present evidence that was obtained like that...
        
        Hell, i've "heard" of USB parties where everyone shows up with their media and shares in person.... would be damn near impossible to stop that one....
        
        The more they go after the main stream guys, the more people like you will ask that question. In the next couple of years, they will have fragmented file sharing to the point it will no longer be a useable platform for them to distribute from..... by the time they realize they could make money this way, it will no longer be main-stream.... lol figures.
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      - TPBer, 19 Jul 2010 @ 2:00pm
        
        Re: Re: Re: Re: Hope "informative" letter includes that ignoring it is possible.
        Just provide trusted users with access to your Rapidshare acct is one way.
        
        They have no caved yet. I have a group of friends approx 50, that we all share this way. They have no answer for this simple game. hat are they gonna do block RS, LOL.
        
        This is not even a challenge anymore, I have since taught hundreds or more on the simple task of setting up their own accts, of course I have access :)
        
        I don't even need to look online anymore, just thru contacts stuff.
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Joel (profile), 19 Jul 2010 @ 7:35am

Here we go again...
This is my favorite part of the whole story...

"The U.S. Copyright Group, which is representing a handful of independent film production companies, has signed up 15 law firms across the continental U.S. to act as local counsel and begin filing individual lawsuits against those alleged file-sharers who refused to settle."

And I still haven't heard anything about this on TV, I wonder why that is?
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average_joe (profile), 19 Jul 2010 @ 7:46am

The fact that they are lining up attorneys across the country indicates that they anticipate severance of the defendants. Once a "Doe" defendant is turned into a named defendant, then the jurisdictional issues will be ripe and the cases will be severed and moved. USCG knows they aren't fighting all these cases in D.C.
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AJ, 19 Jul 2010 @ 9:56am

hmmm
The troll is strong with this one..... Check out his comment history, anyone want to guess what he does for a living?
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AJ, 19 Jul 2010 @ 10:06am

Who's better?
I find it quite funny that they are using extortion to battle what they call theft. Now, even more than before, they are creating an "Us vrs Them" culture, and Us always wins.... they need us, we don't need them.
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average_joe (profile), 19 Jul 2010 @ 11:13am

Right on! I know you follow lots of stories, but this is one I follow particularly closely. I've done a bunch of legal research on each side of the case. I'm in law school now, and I plan on a career in IP litigation, so that's my motivation. I did about 30 hours of research into the idea that USCG can't get statutory damages in the "Far Cry" case, and I passed that along to the EFF. I was told by the EFF that they had passed along my information to the list of lawyers that they have put together to represent the defendants. I also did about 10 hours of research into USCG's side of things and shared that. While I never heard back from them, I noticed that they used arguments and case citations identical to the ones I pointed out. LOL! My point is, I'm enjoying the USCG cases from the cheap seats--and I'm taking notes. Thanks for running a website that discusses issues I'm deeply interested in! :)
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