Strike 3's Lawyer Sanctioned By Court, Excuses His Actions By Claiming He Can't Make Technology Work

from the strike-1 dept

When it comes to the art of copyright trolling, part of that art necessarily pretends that all potential victims of the trolling effort are assumed to be masters of both technology and copyright law, such that they are both responsible for what goes on with their internet connections and that no action they take could possibly be a forgivable accident. These assumptions operate across the victim spectrum without regard to the the victim being of advanced age or incredibly young, or even whether the victim is sick or lacks the mental capacity to carry out the supposed infringement. The assumption in just about every case is that the accused is fully responsible.

Which is the standard that then should be applied to Strike 3 Holding's lawyer, Lincoln Bandlow, who had to go to court to explain why he and his firm failed to provide a status update on 25 cases, despite the court ordering he do so, and was forced to explain why he thinks the court shouldn't just sanction him. Barlow attempts to explain this all away as a simple matter of he and his firm not being able to make their technology work.

The most recent sanctions hearing in Sacramento came as a result of Bandlow and Strike 3 failing to provide a status report related to at least 15 cases within a 45-day period. On Jan. 2, Magistrate Judge Carolyn Delaney ordered Strike 3 to explain why it shouldn’t be sanctioned $250 for missing those deadlines. At least 25 Strike 3 cases are at issue on Wednesday, according to a search of Strike 3’s court dockets.

Bandlow said in court filings that Strike 3 failed to file the status reports because it had “encountered issues with its calendaring procedure” for cases in U.S. District Court for the Eastern District of California. He also said the filing mistakes were in part due to a lack of staff during the holidays and an inability to receive emails from the court.

In a separate interview, Bandlow complained that this whole issue is ridiculous, since he claims that in his copyright trolling cases there would be very little about which to update the court after a mere 45 days. He also blamed the failure to provide these status updates on his firm's spam filter. The claim is, apparently, that the firm's spam filter blocked several emails from this specific court. In addition, he and his firm also had issues using this specific court's docketing software.

None of which, mind you, would have been valid excuses were this one of Bandlow's copyright cases. You can practically hear one of Strike 3's victims proclaiming that they weren't sure how to set up proper security on their wireless access point to make sure others couldn't come along and use it to infringe. It's obvious how that argument would play to Bandlow's ears were it to be made.

It's also worth noting that this particular lawyer aand this particular law firm are not the typical copyright trolling outfits. Fox Rothschild is an enormous firm, employing more than 900 attorneys. Barlow is a higher-up at the firm. With the resources afforded to this lawyer at this firm, blaming technology for not meeting court-mandated deadlines is laughable. And, yet, here he is blaming his inability to whitelist the court's email server as the reason he should not be sanctioned for not following the court's orders.

Well, that and the ridiculous claim by Bandlow that he's already sanctioned himself.

Bandlow voluntarily dismissed the cases in which he missed a deadline and told the court he would not file new cases in the Eastern District of California until he was able to fix the technical problems he was experiencing with the court.

“In essence, we’ve sort of sanctioned ourselves in a weird way because that is $400 per filing, and all of that is down the drain,” Bandlow said.

It takes a lot to make me cry and this doesn't quite reach that bar. And it didn't meet the court's bar either, apparently as the decision came down to sanction Barlow despite his excuses and despite the voluntary dismissal of the cases in question.

In light of Mr. Bandlow’s representations at the hearing, the court recognizes that his bad faith is not the most egregious kind. The court believes that Mr. Bandlow’s apologies are sincere. At the same time, the fact remains that Mr. Bandlow delayed and disrupted the litigation here by willfully ignoring, and thereby disobeying, explicit orders and warnings from the court—conduct that is unacceptable from any attorney, let alone one with over twenty-five years of experience. See Chambers, 501 U.S. at 46. Therefore, for the foregoing reasons, the court determines that it is appropriate to impose monetary sanctions on plaintiff’s counsel, Lincoln D. Bandlow, but in a lesser amount than originally contemplated.

The sanctions only amount to $750. Still, this is the first time Barlow has ever been sanctioned by a court and it only happened once he decided to get into the trolling bed with a porn company infamous for copyright trolling. Perhaps that will serve as some kind of a warning for other attorneys out there.

Filed Under: copyright, copyright trolling, lincoln bandlow, porn trolling, sanctions
Companies: fox rothschild, strike 3, strike 3 holdings

Federal Courts Aren't ATMs, Angry Judge Reminds Copyright Troll

from the fully-justified-verbal-abuse dept

I will never tire of judges handing down benchslaps to IP trolls. Perhaps I'll never tire of it because it just doesn't happen often enough. Or perhaps it cannot happen often enough, given the sheer amount of troll litigation judges preside over. Not every dismissed case can be given the court's full attention. But this opinion, from Judge Royce Lamberth, should certainly get Strike 3 Holding's attention.

The brutal nine-page opinion [PDF] opens with this caustic appraisal of the porn company's business model. (h/t Eric Goldman)

Strike 3 is [...] a copyright troll. Its swarms of lawyers hound people who allegedly watch their content through Bittorrent, an online service enabling anonymous users to share videos despite their copyright protection. Since Bittorrent masks users' identities, Strike 3 can only identify an infringing Internet protocol (IP) address, using geolocation technology to trace that address to a jurisdiction. This method is famously flawed: virtual private networks and onion routing spoof IP addresses (for good and ill); routers and other devices are unsecured; malware cracks passwords and opens backdoors; multiple people (family, roommates, guests, neighbors, etc.) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another. [...]

Simply put, inferring the person who pays the cable bill illegally downloaded a specific file is even less trustworthy than inferring they watched a specific TV Show. But in many cases, the method is enough to force the Internet service provider (ISP) to unmask the IP address's subscriber. And once the ISP outs the subscriber, permitting them to be served as the defendant, any future Google search of their name will turn up associations with the websites Vixen, Blacked, Tushy, and Blacked Raw. The first two are awkward enough, but the latter two cater to even more singular tastes.

The court goes on to point out it isn't copyright law that vindicates the plaintiff but rather "the law of large numbers." Strike 3 has filed 1,849 copyright infringement lawsuits across the nation (according to Judge Lamberth's count), resulting in an untold number of settlements. And that's all this really is: another attempt to force someone, anyone, to cough up some money rather than face off in court. As Judge Lamberth notes, copyright trolls "consume 58%" of the federal court system's copyright lawsuit docket. They're a burden on the courts and a burden on the public. Judge Lamberth calls Strike 3 on its copious bullshit:

These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don't seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: fie a deluge of complaints; ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.

Rather than be an accomplice in Strike 3's shady game, Judge Lamberth denies its request for discovery. Without further discovery, Strike 3 can't serve anyone with a lawsuit, which will prevent Strike 3 from refiling in this court at least, even with a dismissal without prejudice that leaves that door open.

No copyright troll is going to try to keep a case alive in Lamberth's court, not after this damning summation of their collective efforts:

Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion. It treats this Court not as a citadel of justice, but as an ATM.

This will limit Strike 3's litigation in this particular jurisdiction. But that's what venue shopping is for. At least defendants have another opinion to quote when fighting back against trolls like Strike 3.

Filed Under: atm, copyright, copyright trolls, extortion, royce lamberth, shakedown
Companies: fox rothschild, strike 3