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File sharer beats 'Hurt Locker' makers to punch

Michigan man files legal response to Voltage Pictures copyright complaint--without actually having been accused of sharing movie.

The file-sharing community has gone on the offensive in its court fight with the makers of the Oscar-winning film "The Hurt Locker."

Jeff Kowalski, 28, filed an "Answer" to the complaint laid against 5,000 as yet unnamed people who the film's producers allege have shared the movie illegally via peer-to-peer services.

"Defendant Mr. Kowalski requests that Plaintiff's complaint be dismissed," Kowalski wrote earlier this month to U.S. District for the District of Columbia.

One of the problems with Kowalski's legal claims, however, is that he can't know whether he's a defendant because Voltage Pictures, producer of "The Hurt Locker," has yet to subpoena the names of the accused file sharers from their Internet service providers, according to court documents. For that reason, Voltage's attorneys were forced to file an eight-page motion to strike Kowalski's response on grounds that he isn't a defendant and because his "answer" doesn't comply with federal rules of civil procedure.

"[Voltage] is still proceeding against all defendants as anonymous Doe Defendants," wrote Dunlap, Grubb & Weaver, the law firm handling the litigation for Voltage. "As the court has not ruled on [Voltage's] motion for expedited discovery yet, and consequently [Voltage] has not even sent subpoenas to the ISPs yet."

This will undoubtedly have little bearing on the outcome of the "Hurt Locker" case but it could be a good example of the kind of opposition Voltage and Dunlap Grubb will face as they attempt to kick-start an antipiracy approach employed for five years by the top four music labels before it was abandoned in Dec. 2008.

Dunlap is offering to sue individual file sharers who allegedly have pilfered the films of indie production companies. The potential revival of mass antipiracy litigation has stirred outrage in the file-sharing community and among those who oppose this kind of approach. The Electronic Frontier Foundation has offered to help anyone accused of pirating movies by Dunlap Grubb to find legal counsel. An Arizona law firm, White Berberian, will represent those accused for a $249 fee. So far, Dunlap Grubb reportedly has a dozen clients and, it's said, may file suits against 50,000 individuals.

Many people who say they downloaded an unauthorized copy of "The Hurt Locker" have reached out to CNET for information about when they might be contacted by Dunlap Grubb, so news that the court hasn't given Voltage permission to subpoena ISPs will likely come be welcome.

In a phone interview, Kowalski acknowledged that he filed his response to Voltage's lawsuits as a protest. He says he disagrees with the producers' copyright strategy but is sympathetic to their plight.

How sympathetic? Well, he spends some of his time trying to get pirated films removed from file-sharing networks.

Does he share files?

"Yes," said Kowalski, who said he is running for county commissioner in Saginaw County, Mich. "I download the files but some of the movies we do buy after I download them."

How is that fair?

"I think it's only fair that they compensate me for helping them," he said.

Is he on the level?

"Yes, I wanted to take a stand against file sharing."

Kowalski did not obtain a pirated copy of "The Hurt Locker" but said he did make a copy of the one he purchased legally. He claims that's fair use.

[Thanks to reader Alex for a heads-up on the filing.]