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Team Prenda Shows Up In Court, Pleads The Fifth... Angry Judge Ends Hearing In 12 Minutes

from the extinction-level-event dept

Tue, Apr 2nd 2013 10:50am — Mike Masnick

Well that happened much faster than expected. While Judge Otis Wright apparently had cleared his entire schedule today for the Prenda hearing, the actual hearing lasted all of 12 (count 'em) minutes, with Judge Wright declaring "we're done" before storming out. We'll have a more detailed writeup from Ken White, who was in the courtroom, shortly, but here's a quick summary of what happened. Unlike last time, everyone actually showed up (well, except for the imaginary Alan Cooper of AF Holdings who does not appear to exist) and promptly pleaded the fifth.

From various reports from inside the courtroom, it appears that the Judge asked various questions and was not at all pleased with the decision by Team Prenda to clam up, noting that he would "draw reasonable inferences" from the "facts as I know them." Judge Wright's attempts to find out more information to support or rebut the facts as he knows them apparently did not go well. He asked about Alan Cooper, and got not response. He asked about who made the decision to not disclose to the court Prenda's financial interests in the outcome, and was told by the lawyer representing Prenda that "there's no evidence" that this was the case, which only upset the judge more. He asked the lawyer if she had even read Hansmeier's deposition. It didn't take the judge long to decide this was a waste of time, and based on his statements, it appears he's convinced that Prenda was up to no good, and will rule accordingly.

That's the quick nuts and bolts. Ken White is busy at work on a deeper dive analysis, which we'll post when ready. His short summary on what to expect? "Holy shit" and that this is an "extinction-level event" for Prenda. Stay tuned for more...

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Filed Under: alan cooper, brett gibbs, john steele, mark lutz, otis wright, paul hansmeier, paul duffy, peter hansmeier
Companies: af holdings, ingenuity 13, livewire holdings, prenda, prenda law

61 Comments

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yaga (profile), 2 Apr 2013 @ 10:53am

Now this is popcorn worth...
Extinction level event? Will the judge just summarily execute them all? Stay tuned!
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Zos (profile), 2 Apr 2013 @ 10:54am

i have to admit, the phrase "extinction level event" in this case get all my troll juices flowing.

i need to get more popcorn.
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Glen, 2 Apr 2013 @ 10:55am

Dammit....I had a whole tub of popcorn ready. I'll have to get more for when a decision is made.
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pixelation, 2 Apr 2013 @ 10:56am

Love it
"Extinction level event" Great name. I picture a large comet named Wright aimed at Prenda hq...
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Vidiot (profile), 2 Apr 2013 @ 10:57am

Re: Now this is popcorn worth...
Screw the "insightful" button... I want a "thumbs up" button!
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MPHinPgh (profile), 2 Apr 2013 @ 11:02am

Wow
I'm not a lawyer, and I certainly don't understand all the technical details of what happened today. I remember an article/video regarding taking the fifth, and how it can't be construed as an admission of guilt. So where does that leave us? Other than Judge Wright being apocalyptically cross with Dumb, Dumber and Holy-Shit-Are-You-Stupid, what have we accomplished?

I'm told our best hope is that the gang is turned over to the DoJ, the Bar, etc. I can only hope that the DoJ can quit chasing alleged infringers long enough to pay attention to these assclowns.

I really was hoping for something more.
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Vhalidictes, 2 Apr 2013 @ 11:10am

In the Beginning...
There won't be much that can be done in this particular case; Sanctions aren't going to be eyebrow-raising.

The problems for Prenda are just starting, though. Being this publicly stupid is going to leave a lot of fallout, and apparently they managed to make it personal for this judge.
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Noah Callaway, 2 Apr 2013 @ 11:11am

Re: Wow
Ken White has a good rundown of the options available to him: http://www.popehat.com/2013/03/31/as-prendas-next-big-day-approaches-what-could-judge-wright-do/

Most of these options are still applicable in light of the parties involved pleading the fifth amendment. Pleading the fifth is probably a wise thing to do in light of possible future criminal actions. However, the pleading probably hurts their current civil case.

While the pleading itself can't be construed as an admission of guilt, it's clear that the judge is currently under the impression that improper actions have been taken by the Prenda team. The OSCs are an opportunity for the Prenda team to explain why these actions weren't improper. By taking the fifth, they are waiving the opportunity to "clear their names". By missing this opportunity to clear the air, they hurt their civil case.

So it's not pleading the fifth that damages them; it's the failure to say anything that clears up the air.
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BentFranklin (profile), 2 Apr 2013 @ 11:12am

Re: Wow
It does not admit guilt, but neither does it add anything from their point of view to the body of evidence and now the judge will make his ruling based on the evidence at hand.
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Mike Uchima (profile), 2 Apr 2013 @ 11:13am

Re: Wow
5th only applies in criminal cases, not civil.

Which makes it all the more strange that they pled the 5th, unless criminal activity has indeed occurred.
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Atkray (profile), 2 Apr 2013 @ 11:13am

Re: Wow
It was like a boxing match. You hope for it to go the distance with the two competitors beating each other mercilessly, but when one scores a knockout on the first punch you feel somewhat cheated.

Then upon reflection you realize that someone should not have been in the ring.
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Noah Callaway, 2 Apr 2013 @ 11:19am

Re: Re: Wow
My understanding is that the fifth can be plead in a civil action, if it's possible that the testimony could be interpreted in a way that would lead to a future criminal action.

So, if in a civil action a lawyer asked me if I had committed some felony, I could plead the fifth amendment to avoid answering the question.
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JustMe (profile), 2 Apr 2013 @ 11:24am

@Mike Uchima
Good point, I'm not sure what to make of it.
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Anonymous Coward, 2 Apr 2013 @ 11:28am

Oh my.
It's. It's so sweet. So delicious. Wonderful, wonderful anticipation. *various slurping noises*
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Lurker Keith, 2 Apr 2013 @ 11:32am

*facepalm*
Prenda does realize the Judge was being nice, & giving them one last chance to explain why they look like criminals, right?

I can't see how this won't be directed to both Bars & the DoJ for investigation.

You'd think people already hopping on one leg from shooting their own feet wouldn't take a saw & cut the other one off...

Well, unless having no feet is better than the alternative.
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Edward Teach, 2 Apr 2013 @ 11:37am

Re: In the Beginning...
Belay the hopes for fallout, mate.

If we've learned anything from watching The SCO Group vs Novell and IBM, and the various Microsoft Follies, it's that the aristocrats never really get punished. The Prenda scurvy dogs made some money, they were lawyers, so they'll get off relatively lightly. I wager only smallish monetary penalties, and a few dismissals with prejudice. No disbarment, no gaol time, not every suit will even get dismissed. Even judges have to earn a living somehow.
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Anonymous Coward, 2 Apr 2013 @ 11:38am

Fif!
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Trails (profile), 2 Apr 2013 @ 11:44am

Re: Wow
In civil cases inferences can be drawn from pleading the fifth by the defendant. Per wikipedia:

While defendants are entitled to assert that right, there are consequences to the assertion of the Fifth Amendment in a civil action.
The Supreme Court has held that �the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.� Baxter v. Palmigiano, �[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, �Silence is often evidence of the most persuasive character.�� Failure to contest an assertion...is considered evidence of acquiescence...if it would have been natural under the circumstances to object to the assertion in question.��

Not sure how this applies to parties in a show cause order though. Anyway, looks like Judge Wright feels he has sufficient evidence anyways, just wanted to have given them a shot at explaining the evidence.
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jackn, 2 Apr 2013 @ 11:49am

They got away with it!

They were smart to stay together. Get a few of them away from steel or haensewhatever, and the details may spill.

I might model some operation after their organization. I just gotta work on feeling so superior to everyone else.

Ill bet it will be at least a year before they feel anything (if ever).
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doe, 2 Apr 2013 @ 11:50am

Re: Wow
That's in criminal proceedings, this is a civil, which allows the judge to infer the answer to the civil case and sanctions sitting in front of him.
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Internet Zen Master (profile), 2 Apr 2013 @ 11:52am

Re: Re: Now this is popcorn worth...
I second this.

There's no doubt in my mind that Judge Wright was extremely tempted to throw the book at Prenda, followed by chucking his gavel at John Steele's head.

This just keeps getting better and better.
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AB (profile), 2 Apr 2013 @ 11:55am

I have absolutely no question in my mind that they have willfully committed criminal actions. Perhaps they have finally decided to simply shut up since anything they say could lead to an easier conviction.

As it stands that conviction currently depends on the outcome of an investigation, and unfortunately the DOJ will not take this very seriously since no large corporations were affected.

It sucks, but they may even end up getting away with most of their crimes. Again I must emphasize that the only people harmed by their actions were ordinary citizens, whose well being do not hold much weight. Recent history has repeatedly shown substantial legal favoritism for the rights of the corporation over those of the individual. Cynical as that may sound it is also the sad reality.

Still, it's been a lot of fun watching this all unfold, and watching the bad guys suffer even a little. Justice may be an illusion, but it's a nice illusion. :)
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AB (profile), 2 Apr 2013 @ 12:02pm

That's odd, where are all the trolls? shouldn't they be here defending their heroes from this horrible injustice?
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Anonymous Coward, 2 Apr 2013 @ 12:10pm

Re:
I can't recall anyone defending Prenda. Ever.
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Anonymous Coward, 2 Apr 2013 @ 12:11pm

This was my favorite. Laughed out loud at work.

Adam Steinbaugh
‏@goodreverend
"Who made decision not to disclose to the court that the firm has financial interest in the outcome?" "There's no evidence of that"

DaveCA, Esq ‏@DaveCA 2h
@goodreverend Did they at least try the Kenobi hand wave while attempting that?
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Anonymous Coward, 2 Apr 2013 @ 12:20pm

Re: Re: Re: Now this is popcorn worth...
Tempted? I think right now he's just looking for the biggest, heaviest book he can find to throw at them.
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Digdug (profile), 2 Apr 2013 @ 12:24pm

Re:
There's remarkably little to troll in this story. They showed up, pleaded the fifth, and the hearing ended. There's no opinion piece and no other discussion really. It'd be like someone calling the sky red. While I'm certain some people might actually be stupid enough to try I'm pretty sure the average troll can figure out when to shut up.
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Glen, 2 Apr 2013 @ 12:25pm

Re: Re: Re: Re: Now this is popcorn worth...
Seeing the tweet where Ken@Popehat described the judge as "incandescently angry" made my day.
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AB (profile), 2 Apr 2013 @ 12:36pm

Re: Re:
If you check prior Prenda-related articles you will find ACs claiming this all about pirate apologists hating the hard-working pro-copyright people.
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AB (profile), 2 Apr 2013 @ 12:40pm

Re: Re:
hehe You're probably right, I admit to having an extremely low opinion of them. Maybe they really are less obsessive then that.
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Anonymous Coward, 2 Apr 2013 @ 12:44pm

Re: Wow
This is clear-cut contempt of court. They'll get what's coming to them.
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Anonymous Coward, 2 Apr 2013 @ 12:46pm

i have no idea how severe the punishment is that can be meted out on these ass hats, but however severe it is wont be severe enough. i sincerely hope they have to do some serious jail time, just as they would have expected anyone else, situation reversed, to do! it would perhaps also discourage others from trying the same game in the future and also maybe get the fucking prats (Congress!) that made up the laws these are supposed to be following, in order to enable their buddies in the entertainment industries to get more money for doing nothing and get people jailed for doing almost nothing, from doing anything similar again! i doubt it though, as that would need a modicum of sense!!
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Stuart Gray, 2 Apr 2013 @ 12:49pm

Re: *facepalm*
I think the problem here is that they have put themselves in a position where if they speak they can either lie in a situation that will be caught or and prosecuted or they can speak truth and incriminate themselves in a criminal hearing.

So they shut the fuck up.

they are done.
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stryx, 2 Apr 2013 @ 12:57pm

Was Lionel Hutz their new lawyer?

Mr. Simpson, this is the most blatant case of fraudulent advertising since my suit against the film, "The Never-Ending Story".
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PRMan, 2 Apr 2013 @ 1:05pm

Re: *facepalm*
The agony of de-feet...
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That One Guy (profile), 2 Apr 2013 @ 1:06pm

Re: Re: In the Beginning...
Oh they could end up actually being punished, the system does from time to time actually go after those breaking the laws/rules blatantly enough, just to preserve the illusion that such people and groups are actually held to the same standards as regular people.
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Anonymous Coward, 2 Apr 2013 @ 1:09pm

I love this judge more and more every time I hear about him.
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technomage (profile), 2 Apr 2013 @ 1:16pm

It's up on Popehat: http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take-the-fifth-rather-than-answer-judge-wrig hts-questions/
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Anonymous Coward, 2 Apr 2013 @ 1:49pm

Re: Re: Re: Wow
Which leads to Wright almost being forced to turn over the case to criminal court... I agree that Prenda did the right thing here for their own sake, but I am also 99% sure that there is enough evidence for a criminal investigation for several accounts of "creative bending of reality".
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Anonymous Coward, 2 Apr 2013 @ 2:07pm

Re: Re: Re:
I have. They didn't.
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DannyB (profile), 2 Apr 2013 @ 2:09pm

Re: Re: Re: Re: Now this is popcorn worth...
> Tempted? I think right now he's just looking for the
> biggest, heaviest book he can find to throw at them.

I hope it is the bricks and mortar kind rather than an e-book.
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BentFranklin (profile), 2 Apr 2013 @ 2:13pm

I keep hearing the concept that lawyers shouldn't have financial interest in the awards. But I also know that there are often contingent fees. Also, in-house attorneys can represent their employers. Can someone explain the difference?
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Anonymous Coward, 2 Apr 2013 @ 2:22pm

Re: Re: Re: Re: Re: Now this is popcorn worth...
They still make books out of brink or mortar? Awesome!
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Anonymous Coward, 2 Apr 2013 @ 2:30pm

Re:
Contingent fees are still technically paid by the client, they just have an agreement that they don't owe anything to them unless they win and the money comes out of what the client wins. And in-house attorneys are not supposed to have any decision making process in the companies that they represent. They are merely employees which is not really that different than an attorney hired by an individual except that they get a steady paycheck from them at less of an hourly rate. However the issue of control over the client is part of the big problem here. They companies that are the "clients" of Prenda are controlled by the same lawyers representing them and as it has unfolded they have been lying to the court on top of that to try to keep it covered up.
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Anonymous Coward, 2 Apr 2013 @ 2:43pm

Re: Re:
Or at least they are suppose to divulge that fact beforehand which they obviously didn't do.
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Wally (profile), 2 Apr 2013 @ 3:04pm

Re: Re: Re:
I think they got scared away at the fact that the people they work for are getting in severe trouble at this point. Prenda's loss in its case as a "representative" of AF Holdings sets huge precedents against using IP addresses to specifically identify individuals for copyright infringement regardless of how it was done.

It should be noted that there were several e-mails implicating that John Steel was wanting to make a quick buck from copyright trolling on the same grounds as the MPAA or the RIAA would have. The fact that they did this for various pornography companies is just one step below how the lengths and level that the MPAA and RIAA will gather that same information on a person.
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Wally (profile), 2 Apr 2013 @ 3:06pm

Re: Re:
The only trolling I could imagine seeing is that which is bestowed upon Prenda law itself from readers who have followed the case ;-)
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Anonymous Coward, 2 Apr 2013 @ 3:08pm

And now to get the IRS involved, because I doubt anyone at Prenda Law was paying taxes on their illegally obtained and extorted money......

The 5th you can't plead, when the taxman makes ya bleed....
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That Anonymous Coward (profile), 2 Apr 2013 @ 3:09pm

*applies a little more polish to the 'If their reputation could not be any worse' sign*
I'm feeling so much better about the defamation suits.

Its fun they showed up, but was anyone expecting anything more?

They wanted to stand up and explain how this was all just a big misunderstanding and walk out without dealing with the actual issues.

They are big time lawyers and they are totally correct, trust them. This is the same plan they have followed in every single mass doe copyright case they have filed. We totally know they are guilty and can prove it, so just let us have the names. Ask us no questions about the silly "facts" other people are demanding we address. Yes our system can identify actual infringers, rather than a single IP address assigned to someone who might not even have been using it at the time. Just let us pursue account holders because they are responsible, even if we can't tell you what actual machine was using the connection at the time.

It is a pity that this wasn't more explosive, I would love to have seen this shatter and allow everyone they ever got money from, ever called, ever sent threatening letters to have the ability to sue them.
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Anonymous Coward, 2 Apr 2013 @ 3:11pm

Re: Re: Re: Re:
Psssh if the MPAA and RIAA had their way, making porn would count as a "license-required public performance" and would incur fees....

No, I'm sorry Mr Bigwhopper and Susie Melons, each insertion/removal counts as a separate performance...pay up or we'll cut-off your access...
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Anonymous Monkey (profile), 2 Apr 2013 @ 3:19pm

Re: Now this is popcorn worth...
"extinction-level-event"

Ummm... BOOM!!!

o_o
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Anonymous Coward, 2 Apr 2013 @ 6:00pm

Nice going, Chicken Joe. This is the best that glorious defenders of copyright have to offer? Too damn funny.
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Anonymous Coward, 2 Apr 2013 @ 8:27pm

Re:
The reason no copyright advocates chime in to defend Prenda is that they are sleazy opportunists bent on exploiting the law for their own financial gain.

Unlike the piracy apologists who will stoop to defend every greasy sleaze-weasel who exploits copyright for personal enrichment, most of us on this side of the debate don't cheer for human garbage no matter which side of the street they grift on.

You should try it some time.
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That Anonymous Coward (profile), 2 Apr 2013 @ 8:47pm

Re: Re:
"personal enrichment"... where the record labels in Canada pocketed money for years as they committed commercial copyright infringement against artists. When caught it was an "oversight", paying the artists is very important... and when faced with paying what they demand the public pay in the same situation it was unfair to them and they settled the 6 billion for 54 millionish... and one label sued an insurance company to make them pay their portion of the settlement.

So personal enrichment is bad, but wholesale commercial infringement should be forgiven.
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Anonymous Coward, 2 Apr 2013 @ 9:54pm

Re: Re:
In other words, we shouldn't expect any cheering for copyright enforcement? Good to know. It's hilarious that each and every example of copyright enforcement that comes to light has to involve some legally iffy portion of law. After all, if the law's on your side why all the hush-hush and weaseling and whining?

But don't worry. I hear a judge in the US is frowning rather considerably on Prenda's claims of "IP address = person". Now who was it who proudly and boldly claimed that with the advent of six strikes, SOPA was virtually reborn? Have fun mucking with six strikes when your investigative technologies come under unprecedented levels of scrutiny - never mind the fact that some of them have already have been outlawed and in legal trouble in their own country.

The reason why no one on your side is commenting is that these jokers managed to blow your business models wide open, after trying to bite off far more than they could chew, and you'll have to pick up the mess they left behind.
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Anonymous Coward, 2 Apr 2013 @ 9:59pm

Re: Re:
I'll give you a hint. It starts with "out", and ends with "of the blue".
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Hephaestus (profile), 3 Apr 2013 @ 12:36am

Re: Re: Now this is popcorn worth...
Screw the insightful or thumbs up button, what I want is a ...

Lethal injection button for these idiots.
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BentFranklin (profile), 3 Apr 2013 @ 1:42pm

Re: Re: Re:
Thanks.
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RyanNerd (profile), 7 Apr 2013 @ 6:29am

This is like a football game then
Measuring from the time that the ball is snapped to the time that the ball is no longer in play the average pro football game lasts about 12 minutes.

The rest is taken up by huddles, time outs and beer commercials.

So Prenda is like pro football players. Getting paid millions for doing essentially nothing.

Only worse since pro football players do not typically extort money (unless you consider paying hundreds of dollars for statium tickets extortion).
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Duncan Byers, 9 Apr 2013 @ 12:18pm

Steele/Hansmeier/etc. etc.
What happened is this - Judge Wright already had made up his mind as to what was going to happen to them (although maybe not the extent of the sanctions); he was just giving them an opportunity to convince him otherwise. Instead, they just gave him more ammunition. He's got a LOT of leeway in what, exactly, he can sanction them for. He's also got the option of referring the matter to the U.S. Attorney for criminal investigation.

Either way, as Joe Mullen said in his comments on April 2, "Judge Smash."
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Anonymous Coward, 8 Dec 2013 @ 8:58pm

Re: Re:
average_joe just hates is when due process is enforced.
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