What To Expect When You're Expecting Prenda Law To Get A Judicial Beat Down

from the a-scorecard-for-those-playing-along dept

Wed, Mar 6th 2013 1:28pm — Mike Masnick

Earlier today we had a post about Judge Otis Wright ordering nearly everyone associated with copyright trolling operation Prenda Law to be in his courtroom on Monday. We made the rather obvious understatement that it appeared Wright was not happy with Prenda or what he had seen happening in the various Prenda cases he is presiding over. If you're just picking up the story now, you may have missed some of the backstory behind all of this, but, no worries, Ken White at Popehat (a former federal prosecutor and long term litigator) has put together a post that lays out, in great detail (and in an easy to understand format for non-lawyers) both exactly how we got here and "what to expect." It's worth a read.

It actually leaves out some of the history and details that suggest Prenda/John Steele/others have been acting with something less than good faith. As we've discussed in the past, it often feels like Prenda Law is using an any means necessary approach to getting access to people's identities, often piling questionable legal trick upon questionable legal trick to create a multi-layer operation of questionable activity, all designed to get identities to then start hounding those people for "settlements." Even leaving aside many of those tricks, many of which don't touch on this particular case, Prenda's actions in this case alone are quite incredible. And as White makes clear, each move by Prenda lawyer Brett Gibbs seemed to only draw more attention from Judge Wright. This started early on, when Gibbs sought sanctions against the opposing lawyer, Morgan Pietz, which the judge quickly denied. As White points out: "It's a bad sign when the judge denies your motion summarily before the other side can even oppose it."

Throughout our coverage of this case, we've repeatedly pointed out that Gibbs could have just put most of the questions to rest by identifying Alan Cooper. But his continual tap dancing around the simple question "who is Alan Cooper?" has been pretty damning. Responding: "I am sure there are hundreds of Alan Coopers in this world," really seemed to make clear that something fishy was going on here. Personally, I was wondering if there was some reasonable legal strategy that I was completely unaware of, that would explain the failure to answer the Alan Cooper question, and White points out that everyone's general suspicions are correct: it makes no sense unless there is no such Alan Cooper:

I've been a lawyer for almost 19 years now. I've practiced in federal court that entire time. Here's what's very strange to me about Gibbs' opposition to the ex parte application, and about Gibbs' sanctions motion: they conspicuously avoid direct engagement with the most incendiary accusations Pietz makes. It's one thing to argue that Pietz' evidence is insufficient, or that other courts have failed to act based on them. It's quite another to evade the question of who "Alan Cooper" really is. I find it very difficult to imagine a scenario in which an experienced litigator would have a good reason to avoid confronting such a serious charge of fraud head on by saying, for instance, "the Alan Cooper who is a principal in Ingenuity 13 LLC is a real person who is resident of the State of X, living at Y, and has no relation to the Alan Cooper who has made scurrilous allegations against Prenda Law. Here is a declaration from the Alan Cooper who is a principal of Ingenuity 13 LLC, and here are reasons why the other Alan Cooper has a grudge against Prenda Law and is lying." It is very difficult to imagine an innocent scenario explaining why Prenda Law would not offer such a response if it could.

So, what to expect? White lists out four possibilities, with a focus on the last two as being the most likely:

3. Some of the individuals named could assert that exigent circumstances or medical conditions prevent them from attending, or could ask for an extension to allow them to retain counsel and get their new counsel of up to speed.

4. Some of the individuals named could show up and answer Judge Wright's questions.

I've been wondering if Judge Wright would grant an extension, given the extremely short notice on all of this. Normally such an extension would be pretty normal, and lawyers and judges often bend over backwards to try to accommodate things like that. But given that it appears Wright is clearly deeply concerned about the possibility that Prenda is committing fraud on the court, I wonder if he'll be a little less lenient than might otherwise be normal.

Oh, and for those wondering if this could end in jail time for everyone showing up in court, White is a little more skeptical there, but suggests it is entirely possible that it leads to a criminal case, which could result in jail time:

Judge Wright could certainly issue monetary sanctions against, at a minimum, Mr. Gibbs. The question of what other attorneys he could sanction under Rule 11 and his own inherent authority depends on a tedious discussion too long for this post; suffice it to say that he might conclude that he can sanction supervisory attorneys with Prenda Law.

Judge Wright's terrifying comment aside, his ability to jail people before him for contempt is quite limited when they have not been charged with a crime by the executive. That, too, is a discussion too complex for this post. But Judge Wright might well refer the case to the U.S. Attorney's Office for criminal prosecution if he concludes that criminal contempt or fraud has occurred. Such referrals tend to get immediate and intense attention. Moreover, if Judge Wright finds misconduct, he could refer the matter to various state bars.

In the meantime, I'm curious if anyone can pinpoint the moment at which John Steele/Prenda Law surpassed Righthaven in the Hall of Fame for the Spectacular Self-Destruction of Copyright Trolls.

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Filed Under: brett gibbs, john steele, ken white, otis wright, prenda, prenda law, sanctions
Companies: prenda, prenda law

27 Comments

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Allen Harkleroad (profile), 6 Mar 2013 @ 1:30pm

Great...
Love the post, but you gave the idjits at Pretenda (pun intended) useful excuses to not appear... LOL!
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Anonymous Coward, 6 Mar 2013 @ 1:50pm

i think this has all been started by Steele and he found some willing participants to aid in his scam. although willing participants they were all clearly stupid as well and/or very easily duped. perhaps the thought of working 'on behalf of' a section of the entertainment industries gave them, like others before them, the feeling of invulnerability. seems like they were wrong on all counts, shit is going to hit fan and Steele is gonna get his share, if not more. ah! what a shame!!
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Trails (profile), 6 Mar 2013 @ 1:53pm

Popehat's Article Definitely worth a read!
The details give a sense of epic-ness. It's like standing on the shore and seeing an approaching 2 story wave.

This is gonna be... awesome!
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Anonymous Coward, 6 Mar 2013 @ 1:56pm

Firms like Righthaven and Prenda do far more to undermine any legitimacy to copyright than anything "piracy" could ever do.

When your business model relies on extortion, even if you can find a fanciful legal methodology to make your extortion (and what they do IS extortion, even without the large leaps in logic the try to use to equate infringement to actual theft) appear legit, your entire argument loses a lot of validity as far as most people are concerned.
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Jessie (profile), 6 Mar 2013 @ 2:05pm

Time
I would think that given a possible fraud, the judge would be making this such a tight deadline to prevent Prenda from having time to find someone named Alan Cooper and getting him to play along as THE Alan Cooper. Because even if they found an Alan Cooper, they would have to have time to get him up to speed and get enough of a paper trail to pass him off.

I'm more than half expecting bench warrants to come out of this. I wonder if anybody is trying to set up a live blog for this? I'd watch.
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Matthew (profile), 6 Mar 2013 @ 2:14pm

I think we're pretty much all in agreement here...
I think we're pretty much all in agreement here right?

Pass the popcorn!
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Internet Zen Master (profile), 6 Mar 2013 @ 2:16pm

Enough Euphemisms Mike
Just come out and say what everyone's thinking:

Monday's looking to be a legalese bloodbath, and at this point Prenda, especially Brett Gibbs in particular, looks right and proper fucked (to use the technical phrase).

The Zen Master says, "Someone get the popcorn ready. This should be good."
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- Ninja (profile), 7 Mar 2013 @ 2:01am
  
  Re: Enough Euphemisms Mike
  Oh please.
  
  It actually leaves out some of the history and details that suggest Prenda/John Steele/others have been acting with something less than good faith.
  
  I see this extreme euphemism as some pretty directed sarcasm, it's downright hilarious ;)
  
  Still, I hear the Master and obey. Popcorn has been stockpiled!
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DannyB (profile), 6 Mar 2013 @ 2:20pm

From TFA . . .
You can't get rid of a federal judge because he rules against you. Prenda Law's motion tries to do just that, arguing that Judge Wright should be disqualified because of a series of rulings in copyright cases in which he questioned Prenda Law's requests to identify subscribers and because of his suggestion that Prenda Law's model may rely on coercion.

That last part tells me that Judge Wright and Prenda have danced before and the judge has had enough. This is not their first go around.

That is what explains what PopeHat describes:
This level of judicial initiative in early discovery matters is quite unusual.
and
most discovery issues are resolved by Magistrate Judges . . . Magistrate Judges do the less glamorous work
and
But here, a district judge � black-robed, with a lifetime tenure, appointed by the President and confirmed by the Senate � is getting involved in very specific discovery issues.
That Judge Wright has previously issued a series of rulings in copyright cases against Prenda explains everything.
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Crashoverride (profile), 6 Mar 2013 @ 2:30pm

Why doesn't the judge just order the so called Alan Cooper to appear in court.... after all it's being argued that it's under his direction and orders to pursue a legal recourse. So this so called Alan Cooper has a vested interest in the lawsuit proceeding... if he really exists.

Seriously just order the guy to appear. I don't see why he cannot be compelled or even subpoenaed???
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- That One Guy (profile), 6 Mar 2013 @ 3:25pm
  
  Re:
  He has actually, here's the list of the people that have been ordered to show up:
  
  1) The following persons are hereby ORDERED to appear on March 11, 2013, at 1:30 p.m.:
  a) John Steele, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;
  b) Paul Hansmeier, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;
  c) Paul Duffy, of Prenda Law, Inc.;
  d) Angela Van Den Hemel, of Prenda Law, Inc.;
  e) Mark Lutz, CEO of AF Holdings LLC and Ingenuity 13 LLC;
  f) Alan Cooper, of AF Holdings LLC;
  g) Peter Hansemeier of 6881 Forensics, LLC; and
  h) Alan Cooper, of 2170 Highway 47 North, Isle, MN 56342.
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- Anonymous Coward, 6 Mar 2013 @ 11:49pm
  
  Re:
  That happened.
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ralph, 6 Mar 2013 @ 2:38pm

Who is the real criminal
I look at these copyright trolls, at Chris Dodd and the MPAA, at Cary Sherman of the RIAA, at Comcast.

Then I look at TPB.

Who has a respectable ethos? The first group is just about money and nothing more.

TPB actually stands for something. You can argue about its content, but they have a moral code, damn it. The first group consists of nothing but snakes.

It's ironic, isn't it?
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- That Anonymous Coward (profile), 6 Mar 2013 @ 6:45pm
  
  Re: Who is the real criminal
  ITS LIKE RAAAAAAAAAAAAAAAIN on your wedding day....
  Its a free ride when you've already paid...
  Its like a pissed of Judge that you just couldn't shake...
  who would of thought... it figures....
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Doug D, 6 Mar 2013 @ 3:06pm

It's almost...
It's almost like "anti-copyright troll fan-service" at this point.
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Anonymous Monkey (profile), 6 Mar 2013 @ 3:35pm

At the fully packed courtroom theater ...
"Popcorn! Get your popcorn!"
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Jay (profile), 6 Mar 2013 @ 4:21pm

Music to listen to...
Okay this seriously needs some epic music that captures the feeling of being cornered. I just love how everyone could see this coming but it still failed to prevent them from creating a copyright train wreck.

So here's my proposal for music for Monday:

Phoenix Wright has the best music so far but I'm open to suggestions.
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- That Anonymous Coward (profile), 6 Mar 2013 @ 6:48pm
  
  Re: Music to listen to...
  The Call Me Maybe Head Like a Hole mashup thats been going around works for me...
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- That One Guy (profile), 6 Mar 2013 @ 7:29pm
  
  Re: Music to listen to...
  Considering how insane the proceedings have been so far, and how crazy they are likely to get, I'd lean more towards the Benny Hill theme song 'Yakety Sax'.
  
  http://www.youtube.com/watch?v=ZnHmskwqCCQ
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  - G Thompson (profile), 6 Mar 2013 @ 8:36pm
    
    Re: Re: Music to listen to...
    Well it will most likely go for a few hrs so why not a song that can be repeated over and over until the hearing is finalised, and gives the absolute best response to what has now happened to Prenda
    
    Warning: G Thompson is not responsible for this song getting in your head and staying there
    
    http://www.youtube.com/watch?v=NGu1YlXHVFM
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    - Lurker Keith, 6 Mar 2013 @ 9:06pm
      
      Re: Re: Re: Music to listen to...
      I'd like to suggest a descriptive song.
      
      Something appropriately by a parodiest.
      
      Something fun.
      
      Sorry, this probably is an ear worm most of you have heard at some point.
      
      Though, it is one many of us probably wouldn't mind listening to on repeat (though, probably for a predefined time limit).
      
      Oh, nearly forgot to mention is has a tangential relation to Eric Idle, who I feel is associated w/ a show that this thing could've appeared on. Bogus points if you get both references.
      
      I give you...
      
      Dare to Be Stupid
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Anonymous Coward, 6 Mar 2013 @ 4:26pm

I'm expecting awesome since its Judge Otis Wright. He is certainly doing right by the people on this.
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Anonymous Coward, 6 Mar 2013 @ 7:34pm

It is a little unfair you you to ask non-lawyers to comment on the likes of John Steele/Prenda Law and Righthaven given their perchance to file whimsical lawsuits against commentators who spit on sidewalks. But wait, there are no sidewalks, and even if there were that would not stop them as the show must go on with every more daring acts on the high and dangerous trapeze.
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G Thompson (profile), 6 Mar 2013 @ 7:53pm

In the meantime, I'm curious if anyone can pinpoint the moment at which John Steele/Prenda Law surpassed Righthaven

This is like asking what is Reality and what isn't. Its the Cave paradox that Plato first postulated.

Or for those of a more physics and not metaphysical bent

Think of a Box, place Prenda and Righthaven in the box.
Seal the box.
Insert a random Judge with a huge freakin stick into the box.
Does Righthaven get beaten over the head first by the judge or Prenda? Who really knows... or cares ;)

Basically the best solution is to take out the judge, seal the box and let Righthaven and Prenda bask in their own pestilence where no one can ever see them again.
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That Anonymous Coward (profile), 7 Mar 2013 @ 12:44am

I just have this image of all of them showing up wearing t-shirts with arrows pointing at each other that say 'HE DID IT'.
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- Ninja (profile), 7 Mar 2013 @ 2:23am
  
  Re:
  Justice-league-style, with that epic song in the background. Thank you for the laughs!
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DannyB (profile), 7 Mar 2013 @ 5:30am

epically disastrous
From TFA...
What will happen now? Here's what I expect:
1. Some individuals object jurisdiction . . . epically disastrous . . .
2. Some could appear assert fifth ammendment . . .
3. Some could assert exigent circumstances . . .
4. Some could show up and answer Judge Wright's questions
I'll take epically disasterous for $1000 please Alex.
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