A German maker of pornographic movies brought suit in Dallas Texas
alleging that more than six hundred anonymous Internet users had
infringed its copyright by making its movie "Der Gute Onkel" available
for others to download. Mick Haig moved for early discovery, seeking
authority to send subpoenas to the Does' Internet Service Providers. The
trial judge appointed lawyers from Public Citizen and the Electronic
Frontier Foundation as attorneys ad litem for the Does, so that there
would be an adversary presentation on the issue of early discovery.
Counsel ad litem argued that the case had not been properly brought in
Texas, that joining hundreds of separate Does in one action was
procedurally improper, and that the risk of misidentifying the anonymous
Internet users as having offered pornography to others required special
care to ensure a proper showing of infringement by each of the Does
before discovery to identify them should be allowed.
It turned out that Mick Haig's lawyer issued subpoenas without waiting for the judge to approve its motion, and when we found out about this action, we complained to its lawyer about his jumping the gun. Our letter warned of the possible consequences of his action; in reaction, the lawyer immediately dismissed the suit with prejudice. However, the lawyer has refused to answer questions about his dealings with the Doe defendants. At our behest, the district court imposed sanctions on plaintiff’s counsel, ordering him to provide information about his contacts with the anonymous defendants and to notify all courts in which he is counsel about the sanctions order, as well as imposing a fine and requiring the payment of attorney fees.
Stone appealed the sanctions order and the attorney fees award, but the Court of Appeals affirmed, including a useful albeit brief discussion of the reasons why anonymous defendants may care very much about remaining anonymous, and why plaintiffs’ efforts to identify defendants should be constrained.