Openmind Solutions, Inc. v. Does 1-2925
MOTION for Leave to File The Electronic Frontier Foundation's Motion for Leave to Appear as Amicus Curiae by Electronic Frontier Foundation. (Attachments: # 1 Exhibit Amicus Brief, # 2 Exhibit ISP Notice, # 3 Exhibit Schoen Declaration)(Mudd, Charles)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Individually, and as Representatives of a class, )
OpenMind Solutions, Inc.,
Case No. 3:11-cv-00092-GPM-SCW
Judge: Hon. G. Patrick Murphy
Magistrate Judge: Hon. Stephen C.
THE ELECTRONIC FRONTIER FOUNDATION’S
MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE
The Electronic Frontier Foundation (“EFF”) respectfully requests that this Court grant
leave to file the attached amicus curiae brief. EFF seeks leave to file because no one currently
before this Court represents the interests of the anonymous Doe Defendants Plaintiff seeks to
unmask and because we strongly believe that the Court would benefit from a thorough
explanation of (a) the context of the recent nationwide campaign of mass end-user litigation
against alleged infringing downloaders; (b) the substantive and procedural safeguards that
protect the Doe Defendants; and (c) the relevant rules regarding class actions and joinder and
how their rigorous application is especially important in cases in which, as here, the rights of
thousands of anonymous Defendants are at issue.
With respect to the latter, EFF’s brief discusses several recent decisions in related cases
in other jurisdictions, in which over 40,000 Does have been severed for misjoinder in the past
few months alone. EFF’s brief (and accompanying Request for Judicial Notice) compiles those
decisions as of the date of filing, in order to advise the Court of important additional persuasive
authority from other courts across the country that have been asked to entertain these novel suits.
EFF also submits expert analysis that raises serious questions regarding the jurisdiction of the
Court to entertain this action.
INTEREST OF AMICUS
EFF is a non-profit, member-supported civil liberties organization working to protect
rights in the digital world. EFF actively encourages and challenges industry, government and the
courts to support free expression, privacy, and openness in the information society. Founded in
1990, EFF is based in San Francisco, California. EFF has members all over the United States
and maintains one of the most-linked-to Web sites (http://www.eff.org) in the world. Currently,
EFF is supported by over 500 paying members in Illinois. In addition, more than 2,500 Illinois
residents subscribe to EFF’s weekly e-mail newsletter, EFFector.
As part of its mission, EFF has served as counsel or amicus in several cases in which
plaintiffs have attempted to sue hundreds or even thousands of anonymous John Doe defendants
from all over the country in individual lawsuits, alleging copyright infringement, often of a
single pornographic movie. For example, EFF has been appointed attorneys ad litem to represent
670 Doe defendants in a similar case in the Northern District of Texas1 and has participated as
amicus in numerous others nationwide.2 While EFF takes no position on the merits of the actual
copyright claims in these cases, EFF is deeply concerned that the litigation tactics commonly
used by the plaintiffs bypass basic due process and First Amendment protections that should
apply to every defendant, in every lawsuit. Outside the courtroom, EFF offers resources for the
many Does in these cases who are seeking counsel and trying to understand the nature of the
litigation in which they have become embroiled,3 and has played a leading role in advising the
Mick Haig Prods. v. Does 1 – 670, Case No. 3:10-cv-01900 (N.D. Tex. Oct. 25, 2010). The
case was voluntarily dismissed with prejudice following the filing of EFF’s motion to quash. Id.,
Docket No. 9.
See, e.g., First Time Videos, LLC v. Does 1 – 500, Case No. 1:10-cv-06254 (N.D. Ill. Jan. 14,
2011) (motion for leave to file as amicus pending); Call of the Wild Movie LLC v. Does 1 –
1,062, Case No. 1:10-cv-0455 (D.D.C. Jan. 3, 2011); Mick Haig Prods. v. Does 1 – 670, Case
No. 3:10-cv-01900 (N.D. Tex. Oct. 25, 2010); Third World Media LLC v. Does 1 – 1,243, Case
No. 3:10-cv-0090 (N.D. W. Va. Nov. 23, 2010).
For example, EFF’s website includes pages regarding subpoena defense resources and mass
copyright litigation. Subpoena Defense Resources, ELECTRONIC FRONTIER FOUNDATION,
public of the latest developments in these cases.4 In short, EFF has been deeply involved in
these cases almost from their inception, which allows it in turn to offer the Court a unique
perspective as well as the aforementioned information.
EFF seeks leave to file its amicus brief in this action because the Plaintiff seeks to use the
authority of this Court to unmask thousands of Doe Defendants, in contravention of (1) the
federal rules governing both joinder and class actions; (2) appropriate jurisdiction principles; and
(3) well-settled First Amendment jurisprudence.
Plaintiff’s motion for early discovery did not address these issues and, therefore, the
Court’s ruling authorizing discovery was not based on a full consideration of the relevant
statutory and Constitutional raised by this litigation. Especially as there is no indication that the
targets of the Complaint have been made aware of these proceedings, EFF respectfully requests
that it be permitted to appear in order to submit to the Court a discussion of the relevant legal
As explained in detail in the attached brief, the “federal courts have safeguards, both
procedural and substantive, to protect the rights of individual defendants, several of which
Plaintiff in this mass copyright case has not followed, violating the rights of the John Doe
Defendants.” Courts nationwide have recognized this, and have severed these cases, effectively
dismissed more than 40,000 Doe Defendants nationwide. See, e.g., Third World Media, LLC v.
Does 1 - 1,243, Case No. 3:10-cv-0090 (N.D. W.Va. Dec. 16, 2010) (“several courts agree that
where there is no allegation that multiple defendants have acted in concert, joinder is improper”);
IO Group, Inc. v. Does 1 - 453, Case No. 10-4382 (N.D. Cal. Jan. 10, 2011) (“the allegations that
defendants simply used the same peer-to-peer network to download plaintiff’s work – on my
https://www.eff.org/issues/file-sharing/subpoena-defense (last visited March 11, 2011);
Copyright Trolls, ELECTRONIC FRONTIER FOUNDATION, https://www.eff.org/issues/copyrighttrolls (last visited March 11, 2011).
See, e.g., Greg Sandoval, EFF’s Cohn Fights Copyright’s “Underbelly,” CNET (Oct. 19,
2010), http://news.cnet.com/8301-31001_3-20020028-261.html; Amanda Becker, New District
Law Group Tackles Movie File-sharing, THE WASHINGTON POST (June 14, 2010),
different days at many different times – is insufficient to allow plaintiff to litigate against
hundreds of different Doe defendants in one action”).
Apparently aware that its Complaint would not pass legal muster using joinder under Fed
R. Civ. P. 20, Plaintiff here attempts to bring nearly 3,000 Defendants under this Court’s
jurisdiction by maintaining a reverse class action.
This is clearly improper.
Due to the
inherently and fundamentally troubling nature of suing a class of unnamed defendants, most – if
not all – of whom will not be responsible for his or her own defense, the “due process rights of
unnamed class members of a defendant class are entitled to special solicitude.” Pabst Brewing,
Inc. v. Corrao, 161 F.3d 434, 439 (7th Cir. 1998).
Of course, Plaintiff has not yet moved to certify the defendant class. Indeed, EFF fears
that that is precisely the point of Plaintiff’s strategy. By deferring certification, it hopes to deter
the Court from inspecting too closely its Potemkin class action. As with other mass copyright
suits filed all over the country, the true goal is not to reach the underlying merits, but to obtain
discovery of Defendants’ identities as a means to extract settlements from fearful, unrepresented,
and poorly-informed individuals.
EFF’s concerns are based, in part, on the context of the case. This litigation is the
iteration of a disturbing trend of mass copyright cases, in which more than 100,000 people have
been sued in lawsuits around the country since March 2010. These cases appear not to be filed
with the intention of litigating them. Instead, it seems that in these cases the plaintiffs’ lawyers
hope to take advantage of the threat of an award of statutory damages and attorneys’ fees, the
ignorance of those sued about their potential defenses, and, in many cases, the stigma that is
associated with downloading pornographic movies, to induce the anonymous defendants into
settling the case for a payment of roughly $1,500 to $2,500 dollars.5 It is no coincidence that this
Indeed, plaintiffs’ counsel in these cases have made public statements to this effect. See, e.g.,
Porn Titans Come Together to Expose Pirates, THE INDEPENDENT, September 27, 2010,
available at http://www.independent.co.uk/arts-entertainment/films/porn-titans-come-togetherto-expose-pirates-2090786.html; John Council, Adult Film Company’s Suit Shows Texas Is Good
amount is less than a defendant would likely have to spend just to hire a lawyer to defend the
case.6 Thus, the Court’s decision on whether Plaintiff will be able to obtain the identities of the
Defendants may be the last chance that the Court has to ensure that the Defendants are treated
For the foregoing reasons, EFF respectfully requests leave to file the attached
memorandum, and supplemental documents thereto.
Dated: March 15, 2011
By /s/ Charles Lee Mudd, Jr.
Charles Lee Mudd Jr.
Mudd Law Offices
3114 West Irving Park Road, Suite 1W
Chicago, Illinois 60618
Cook County Attorney No.: 38666
Electronic Frontier Foundation
454 Shotwell St.
San Francisco, CA 94110
New York Law School
185 West Broadway
New York, NY 10013
Attorneys for Amicus Curiae EFF
Strong defenses exist for many sued: for example, it appears that Plaintiff in this case would be
hard-pressed to prove actual damages caused by any particular Defendant and there is a
reasonable chance that Plaintiff will not have any basis for seeking statutory damages. See
proposed amicus brief at 11.
CERTIFICATE OF SERVICE
I, Charles Lee Mudd, Jr., do hereby certify that service of THE ELECTRONIC
FRONTIER FOUNDATION’S MOTION FOR LEAVE TO APPEAR AS AMICUS
CURIAE was accomplished pursuant to Electronic Case Filing as to ECF Filing Users and shall
be served upon all other parties listed in the attached Service List by sending said documents via
postage pre-paid U.S. mail on this 15th day of March 2011.
/s/Charles Lee Mudd, Jr.
Charles Lee Mudd, Jr.
Charles Lee Mudd, Jr.
Mudd Law Offices
3114 W. Irving Park Road
Chicago, Illinois 60618
All counsel of record are ECF users and no pro se parties have filed appearances of
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