Judges rule on subpoenas, procedure in P2P litigation [ip]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: Judges rule on subpoenas and procedure in file sharing litigation
Date: Fri, 05 Mar 2004 19:46:47 -0500
From: Paul Levy <plevy () citizen org>
To: <declan () well com>

Here is a brief update on some of the cases in which Public Citizen,
Electronic Frontier Foundation, the American Civil Liberties Union, and
local ACLU affiliates in each location have filed amicus briefs arguing
that even persons accused of file sharing by reputable music companies
should be accorded minimal due process rights before subpoenas are
authorized to identify them.

This week we have received rulings in two of the cases, one which
accepts our argument that the record companies should have to file
separate lawsuits against the individual filesharers rather than lump
them all into a single case as they have done, and the other which found
our arguments helpful, but premature.

In the case filed in Philadelphia against 203 Doe defendants whose
Internet Service Provider is Comcast (BMG Music v Does 1-203), Judge
Clarence Newcomer agreed today with at least part of the legal arguments
we raised.  He agreed that it was improper to join all 203 defendants in
a single lawsuit, and ordered the music companies to file separate
complaints against each of the Doe defendants, paying a full filing fee
for each case (for a total of about $30,000) and making individualized
allegations against each defendant.  Judge Newcomer retained the case
against Doe #1, one of the three defendants about whom the music
companies had provided extremely detailed evidence (more than a hundred
pages, each listing many songs made available for download), and
authorized the issuance of a subpoena for that individual's identity
only.

Although Judge Newcomer left it to the discretion of each judge to
which the 202 new complaints would be assigned to decide how to handle
discovery, it would seem that in each case, the plaintiffs will need an
affidavit making the proper showing about that individual defendant.
Defendants will presumably need to decide, in each case, whether they
can allege that filing in Philadelphia is appropriate.

In the case filed in Atlanta against 252 Doe defendants whose Internet
Service Provider is Cox Communications, (Motown Record Co. v. Does
1-252), Judge Willis Hunt authorized a subpoena earlier this week, and
required that Cox be allowed a full twenty five days before compliance
with the subpoena, so that the subscribers could have extra time to
object to identification if they so desired.  However, the Court
declined to consider the constitutional issue that amici raised on the
ground that they were premature and could be raised by the Defendants
(and amici at that time) once the Defendants have been notified that
their identities are being sought.

The judges who are hearing Virgin Records v. Does 1-44 (filed in
Atlanta seeking to subpoena the identity of alleged filesharers whose
ISP is Earthlink), and BMI Recordings v. Does 1-199 (filed in
Washington, DC against Doe defendants whose ISP is Verizon), are still
considering the issues presented by the motions and by amici

Key court records for all of these cases, including the complaints
and amicus briefs, are available at:
http://eff.org/IP/P2P/riaa-v-thepeople.php

A listing of all of the IP addresses that are being sought are
available here:
http://www.eff.org/IP/P2P/riaasubpoenas/


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html


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