PublishedJune 10, 2010

Misadventures in Copyright Enforcement

A new copyright enforcement venture started making headlines earlier this year: the U.S. Copyright Group (USCG). Although the USCG name just recently started getting attention, it appears connected to the Leesburg, VA law firm Dunlap, Grubb & Weaver (DGW), which was established in 1999. The logos for USCG and DGW are the same and Thomas Dunlap, a named partner of DGW, filed several massdefendant (PDF) complaints (PDF) on behalf of movie company plaintiffs as part of USCG. Further, the DGW name is prominently located on the top of settlement pages created for the litigations and can be found several times in the settlement (PDF) agreements (PDF) offered to alleged infringers in order to avoid litigation. Some blogs and The National Law Journal say that USCG is DGW, while DGW’s blog suggests it was simply “engaged” by USCG.

USCG and DGW utilize an enforcement process employing the widely criticized shotgun methods of DigiProtect and ACS:Law: issuing thousands of pre-settlement letters to alleged copyright infringers. The letters purport to offer recipients the opportunity to avoid copyright infringement litigation for a fixed lump sum. For example, the Far Cry pre-settlement letter (found here in three parts) provides for a settlement payment of $1,500 before June 11, 2010, with the amount rising to $2,500 after that date. While the settlement pages for Far Cry and The Steam Experiment reflect a $1,500 settlement payment, the other three settlement pages created as of now all require a $2,500 payment. Recipients with the $1,500 option thus have a relatively short shot clock to decide whether to pay, or undertake the quite possibly more expensive alternative of retaining an attorney and defending the charges. This has prompted criticisms that even innocent recipients may pay to avoid the cost of litigation, as well as criticism that the joinder of so many arguably unrelated parties constitutes an abuse of process.

How do USCG and DGW identify potential defendants? USCG and certain “partners” monitor file-transfer services and log the IP address, date, time and other pertinent information whenever someone shares a file containing a client’s copyrighted material. DGW then files a single lawsuit in the D.C. District Court on behalf of a movie studio plaintiff naming John Does 1-XXXX for alleged infringing downloads of a given film. Attached to the complaint is a list of the allegedly infringing IP addresses. DGW says it has already filed “about 10 or 11” such complaints “on behalf of” USCG. Seven of those complaints have been filed this year, totaling 14,583 unnamed defendants.

  1. A complaint against 749 unnamed defendants for the alleged illegal downloading of the film The Gray Man. Worldwide Film Entertainment, LLC v. Does 1-749, No. 1:10-cv-00038-HHK-DAR (D.D.C., filed Jan. 8, 2010).
  2. complaint (PDF) for the alleged illegal downloading of the film Uncross the Stars, originally against 83 unnamed defendants but subsequently amended to increase the unnamed defendants to 195. G2 Productions LLC v. Does 1-195, No. 1:10-cv-00041-CKK (D.D.C., filed Jan. 8, 2010).
  3. complaint (PDF) for the alleged illegal downloading of the film Far Cry, originally against 2,094 unnamed defendants but subsequently amended to increase the unnamed defendants to 4,577. Achte/Neunte Boll Kino Beteiligungs GMBH & CO KG v. Does 1-4,577, No. 1:10-cv-00453-RMC (D.D.C., filed Mar. 18, 2010).
  4. complaint (PDF) for the alleged illegal downloading of the film Call of the Wild 3-D, originally against 358 unnamed defendants but subsequently amended to increase the unnamed defendants to 1,062. Call of the Wild Movie, LLC v. Does 1-1,062, No. 1:10-cv-00455-RMU (D.D.C., filed Mar. 19, 2010)
  5. A complaint against 2,000 unnamed defendants for the alleged illegal downloading of the film The Steam Experiment (also called The Chaos Experiment). West Bay One, Inc. v. Does 1- 2,000, No. 1:10-cv-00481-RMC (D.D.C., filed Mar. 23, 2010)
  6. A complaint against 1,000 unnamed defendants for the alleged illegal downloading of Smile Pretty (aka Nasty). Maverick Entertainment Group, Inc. v. Does 1-1,000, No. 1:10-cv-00569-RJL (D.D.C., filed April 8, 2010)
  7. A complaint against 5,000 unnamed defendants for the alleged illegal downloading of Oscar Best Picture winner The Hurt Locker. Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873-RMU (D.D.C., filed May 24, 2010).

Once the complaint is filed, DGW then asks the court to issue subpoenas requiring Internet access providers (IAPs) to turn over the names and addresses associated with the accounts having the allegedly infringing IP address. These subscribers are then contacted and given the choice of settling up front, or being added to the suit.

IAPs have responded to these subpoenas differently. Verizon notifies customers of subpoenas but has not yet sought to quash them. Comcast and Cablevision are both reportedly working with DWG to reach an agreement on how to handle this large number of subpoenas. However, Time Warner Cable (TWC) has moved to quash USCG’s subpoenas in the Far Cry, Call of the Wild 3-D, and The Steam Experiment cases. TWC’s motion argues that USCG should have filed individual cases against the John Does, as there appears to be no relation amongst them. Further, TWC cites the growing scope of the subpoenas and the hardship TWC will face in having to respond to all 809 information requests. USCG and DWG responded with what appears to be a veiled threat of going after TWC for contributory infringement. Three civil liberties groups, the Electronic Frontier Foundation (EFF), American Civil Liberties Union (ACLU), and Public Citizen, have chimed in with joint amicus briefs in support of TWC’s motion to quash in all three cases (all three PDFs). The amicus briefs argue that USCG and DWG’s tactics deprive letter recipients of a fair chance to defend themselves. Earlier this week, the Honorable Judge Rosemary Collyer ordered the plaintiff movie companies in the Far Cry and The Steam Experiment cases to show cause why she should not dismiss the case as to defendant Does 2-XXXX for “misjoinder under Federal Rule of Civil Procedure 20.”

Given the ease with which IP addresses can be misinterpreted or falsified (two years ago researchers successfully framed (PDF) a university’s network printer for copyright infringement), one question presented is whether a mere IP address is sufficient to allege infringement? Another question is whether hundreds of ostensibly unrelated defendants can be haled into court in a single litigation based merely on the commonality of the allegedly infringing work. D.C. federal courts will likely be required to answer both questions.

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