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Jammie Thomas-Rasset

the first US file-sharer to take her RIAA-initiated lawsuit all the way to a trial and a verdict back in 2007. Five years, three trials, and one appeal later, she owes $222,000 to the recording industry for sharing songs on the Kazaa file-sharing network, but she doesn't plan to quit fighting.

Thomas-Rasset will follow Joel Tenenbaum, the second US resident to take his file-sharing case that far. Tenenbaum—who reached the Supreme Court first because he had only one jury trial instead of three—tried to convince the justices that they should take his case to stop the music label plan to create, in his lawyer's words, "an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future." The Supremes showed no interest, denying Tenenbaum's petition back in May.

The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad. A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Mr. Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped. In making that argument, he said a defendant who faced evidence derived from the law would have proper legal standing and would be notified, so dismissing the lawsuit by Amnesty International would not close the door to judicial review of the 2008 law. The court accepted that logic, voting 5-to-4 to dismiss the case. In a statement, Patrick Toomey, staff attorney with the American Civil Liberties Union, which had represented Amnesty International and the other plaintiffs, hailed the move but criticized the Justice Department’s prior practice.

Still, it remains unclear how many other cases — including closed matters in which convicts are already service prison sentences — involved evidence derived from warrantless wiretapping in which the National Security Division did not provide full notice to defendants, nor whether the department will belatedly notify them. Such a notice could lead to efforts to reopen those cases.

In the recent Octane Fitness case (PDF), the Supreme Court changed the test for fee-shifting precisely to deter behavior such as Lumen's, Cote found. Lumen didn't do "any reasonable pre-suit investigation," and filed a number of near-identical "boilerplate" complaints in a short time frame. That all suggests "Lumen’s instigation of baseless litigation is not isolated to this instance, but is instead part of a predatory strategy aimed at reaping financial advantage from the inability or unwillingness of defendants to engage in litigation against even frivolous patent lawsuits."