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

From: Declan McCullagh (declan@private)
Date: Thu Mar 18 2004 - 00:07:42 PST

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    -------- 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@private>
    To: <declan@private>
    
    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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