Another Excercise in Futility in Copyright Enforcement by the Recording Industry | ...

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In case you have not read this story on slashdot.org: Lawsuit against 23,000 individuals.

The one interesting concept is the idea of a “Reverse Class Action.” The idea behind a class action lawsuit is actually for the benefit of defendants. For example, let’s say you are a company who puts out a defective product. Eventually, you get sued in a products liability case. When does the litigation end? The idea behind a class action is to serve notice on foreseeable/IDENTIFIABLE plaintiffs. If you get notice and  you ignore it, you automatically opt-in. That means you are part of a class – which may be one of several classes. Classes are subdivided by type of injury (not all plaintiff’s are created equally!!). If you opt-in, you are essentially giving up your rights to sue at some later time. The concept of Res Judicata applies to you and if you did decide to sue, that concept would be raised as an affirmative defense. On the other hand, you can opt-out – and go it alone. All of this is promulgated under Rule 23 of the Federal Rules of Civil Procedure.

In the linked story above, the tables have been turned. Apparently, there are 23K “folks” out there who have downloaded a movie. The studio, being none too pleased, has decided to sue 23K unnamed defendants. It’s really interesting because it turns our legal system on its ear. First off, I put the word FOLKS in quotes because all the plaintffs have is an IP address. Somewhere along the way, the bells went off and the realization hit that an IP Address != an identifiable person!!

Our entire system is setup on the notion that if you are being sued, as a defendant, you have comfort in knowing that a plaintiff bears the burden of proof – to put forth a prima facie case. You can’t sue an IP address. How does one associate a person with an IP address? Sometimes you can. Often times, you can’t. This whole scheme amounts to a reverse class action – something I don’t believe the Federal Rules contemplate.Back to identifying the people, if you can’t do that, there is no case.

For these cases to go forward, Internet providers, like Comcast, would need to cooperate in discovery requests. For criminal cases, that often happens. But in civil cases??? In isolated cases, no doubt this happens. But in cases like this, where it is a blind fishing expedition, what precedent is being set? It seems to me that when you go digital and you play in the sandbox of that medium, you take the risks. Does that mean these 23K incidents are not copyright infringement? Of course not. It is infringement. However, at some point, what I call the “Law of Practicality” has to kick in. Yes – theoretical cases exists. But practically speaking, there is no way to prosecute all the infringers and recover damages.

Hence – it’s an  exercise in futility.

Nice try from the lawyers at Voltage Pictures… :)  I think this case, which became bizarre, is going to get 12b6’d out of the court room. If you want to sue people, do what every  other plaintiff has to do. Find your defendants, make your case, and then sue them. Don’t go to the court to try and get a judgment now, and then find the defendants later…  Here’s a thought.. spend your money on better movies than the Expendables and the Hurt Locker. Those movies just plain sucked!!