NuImage, makers of ‘The Expendables’ brought suit earlier this year against over 23,000 internet users alleged to have illegally downloaded the movie, making it the largest copyright infringement case of its kind, at least by number of defendants. Earlier this month, the court hearing the case forced NuImage to drop all anonymous defendants (usually called Doe defendants). NuImage, in what appears to be a tactical move, has dropped all defendants. However, according to the Hollywood Reporter, defendants should not breathe too easily. NuImage attorney Thomas Dunlap is reported to be planning to refile the case in smaller groups; for example, 10 lawsuits with 2300 defendants each instead of all of them lumped together.
The main issue for NuImage seemed to be jurisdictional: the judge didn’t think it was appropriate to hear a case where so many defendants might have had only a tenuous link to the jurisdiction. While jurisdiction is a complicated area, it basically boils down to whether it is fair or appropriate for a particular court to hear a case. For example, if someone from Florida sues someone from California for a traffic accident in New York, they probably shouldn’t sue in a Texas court; even if they have an otherwise viable case, the Texas court can throw it out solely because there is no link to Texas to justify trying the case there. Thus, Dunlap hopes to focus more on the ‘swarms’ (peers and seeders who share a torrent) in an effort to match defendants more closely to appropriate jurisdictions.
Movie studios have had some success with these types of mass actions, although there has been a learning curve as lawyers and studios figure out the best way to approach these cases. Often defendants are offered a choice: settle for $2,000 or face a lengthy litigation (or a beating by Dolph Lundgren) and many pay up. Hence, there have been enough settlements and default judgments to make these appear worthwhile for the studios. Furthermore, many studios are known for spending millions on suits just to prove a point. With ‘Conan’ bombing at the box office and suspicions that pirating may have contributed to the soft opening, there is a suit for Conan in the works and probably more on the way. One thing seems certain: suits against internet pirates are here to stay for the foreseeable future.