Indie filmmakers to refile piracy suits

There appears to be plenty of fight left in Thomas Dunlap, the lawyer who has filed lawsuits against thousands suspected of illegal file sharing this year on behalf of independent film studios, including the makers of the Oscar-winning film "The Hurt Locker."

Dunlap, Grubb & Weaver (DGW) set out in February to force people accused of pirating films made by his clients to compensate them for their losses. That goal has lately appeared to be in peril.

Yesterday, DGW dropped more than 4,400 defendants from a lawsuit filed earlier this year in federal court on behalf of the makers of the film "Far Cry." Only 140 people remain on the complaint. Rosemary Collyer, the judge in the case, was eager to rule on whether a federal district court in Washington, D.C., was the proper place to hear a case involving thousands of people who resided outside the court's jurisdiction.

To decide that issue, the judge needed DGW to provide all the names of the defendants, but the firm sought an unusually long extension before doing that: five years. The judge flatly denied the request. Now, DGW says it will refile the complaints in courts around the country by Thursday.

"We have local law firms in most jurisdictions taking the cases directly," Dunlap said in a e-mail exchange with CNET. "So, while we will pursue people ourselves in the D.C. area (Virginia, Maryland), we have a number of other law firms that already have a list of defendants in hand."

Some of DGW's legal opponents are skeptical that the firm can afford to pursue these cases in all of the country's 94 federal districts. Carey Lening, a Washington, D.C.-based attorney representing several people accused by DGW, said she has seen signs that indicate people accused by DGW can be found throughout the country.

"DGW will have to work and consult with other counsel in order to bring these suits," Lening said. "I don't think they can do it, not unless they want to throw a lot of money away. The music industry filed these cases and it was a loss for them. What we learned was that, sure, you can sue, but then you have to recover the money."

And this is only for the movie "Far Cry." Lening said that they will ask judges overseeing DGW's other copyright complaints to follow Collyer's lead. And what about the porn industry's legal efforts? A dozen or more makers of adult films have filed copyright suits very similar to those brought by indie film studios. Could the judges in these cases be influenced by Collyer's decisions?

Other important legal issues also confront DGW. Opposing lawyers still argue that it's improper to name hundreds or thousands of people in a single complaint. And some opposing counsel have told CNET that they have clients who refuse to settle and are prepared to challenge the allegations brought by the indie filmmakers in court. DGW has said it will litigate these cases but has yet to make much happen.

The entire film industry says piracy takes money out of the pockets of not just movie moguls but those of actors, sound engineers, cameramen, set designers, Teamsters, and anyone involved in filmmaking. Indie studios say they are particularly vulnerable to online file sharing because their profit margins are typically much slimmer and they are without an organized body to help fight them piracy in the way that the six largest studios can lean on their trade group, the Motion Picture Association of America.

Lening, who says that she and other copyright attorneys understand the plight of creators, argues that this litigation campaign brought by DGW and indie film studios was the wrong approach. She called the strategy of naming thousands in a single complaint in one court an "abuse of process."

Yesterday, Lening and some colleagues were preparing to celebrate DGW's decision to drop the 4,400 defendants. "This is a victory for our side," Lening said. "At a minimum, it gets the action out of Washington, D.C."