Bogus Defamation Lawsuit Using Fake Plaintiff And Defendant Challenged By Public Citizen

from the managing-reputations-right-into-the-ground dept

More evidence has surfaced that the online reputation management business is shady as all hell. Previously, we've covered the use of fake websites used to generate bogus DMCA takedowns by copy-pasting negative reviews in full and claiming these were the original works of bogus contributors by backdating the posts. We've also covered the even shadier and more legally-dubious tactic of filing bogus lawsuits -- using both fake plaintiffs and fake defendants -- to obtain court orders to delist negative reviews, bypassing the site where they're actually hosted in attempts to force Google, Yahoo, Bing, et al. to make them vanish from search results.

Paul Alan Levy of Public Citizen -- thanks to the investigative skills of FIRE employee/Popehat contributor Adam Steinbaugh -- has uncovered another bogus libel lawsuit targeting negative reviews and comments. The standard M.O. is in effect. "Plaintiff" magically locates person behind anonymous review and gets them to sign a retraction. This legal paperwork never makes its way to the site where the review is actually hosted, however. The court order obtained through bogus means is instead served to search engines, resulting in the desired effect: the vanishing of negative content.

This follows closely on the heels of a bogus lawsuit in which the person whose name appears as a plaintiff claimed to have no input in the legal proceedings. While the jury (not the courtroom one) is still out on those claims, in this case it's been confirmed that the supposed plaintiff had nothing to do with the lawsuit containing his apparently forged signature.

After I wrote about the Patel case, I heard privately from Adam Steinbaugh, who sent me copies of some papers he had located on the ECF site of the US District Court for the District of Rhode Island – a complaint along with a “consent motion” and a proposed “consent order,” also signed by a pro se plaintiff and defendant, that contained some awkward phrasings that are suspiciously similar to the language in the Patel v. Chan papers. This time, though, instead of directing that the order be sent to the site hosting the comments – this time, the "Get Out of Debt Guy" web site, a blog about the debt relief industry which has a policy of not removing comments, preferring that the poster make a public retraction — the “consent order” provided that it was to be provided to Google and other search engines so that the entire article (which was not alleged to have anything tortious) could be removed from search engine databases.

Levy happens to know the owner of the site indirectly targeted by the bogus lawsuit. Steve "Get Out of Debt Guy" Rhode reached out to the supposed plaintiff in the lawsuit, Bradley Smith. Smith claims the signature on the lawsuit is not his own.

In addition, the defendant -- located mysteriously swiftly by the apparently fake "Bradley Smith" -- is also a fraud. There's no indication the person named in the lawsuit -- "Deborah Garcia" -- had anything to do with the negative comments targeted. Somehow, "Bradley Smith," acting on his own without the benefit of compelled discovery, managed to locate the person behind the comments and obtain her signature on a proposed consent order. Even more magically, the supposed commenter resides in a state with a very long statute of limitations.

Among other things, anonymous comments said nothing about Bradley Smith, although the blog article to which they were posted criticized Smith's company. Another oddity – neither of the URL’s that the “consent order” called on Google to delist was the article to which the comments were posted, although one of them featured comments supposedly received from “Bradley Smith” (whose authenticity Rhode had contested in these comments) And then there was the name of the defendant – the articles were posted using generic pseudonyms, yet plaintiff had apparently managed to identify the commenter by some mysterious means, and by some coincidence both comments had the same author, and she happened to be located in Rhode Island, where the statute of limitations for defamation is three years!

Unfortunately for whoever's behind this bogus lawsuit, Steve Rhode was able to determine the information claimed in the filing was bogus.

Garcia’s supposed residence also justified claiming diversity jurisdiction, yet the blog host could tell that the IP addresses for both comments were in California; and the address listed on the documents for Garcia does not exist.

Even more unfortunately for the entity behind the bogus, apparently forged filing, Public Citizen has chosen to pick up the case. It's attempting to intervene on behalf of Steve Rhode -- not just because the filing is clearly bogus, but also because the plaintiff (whoever that actually is) may have taken advantage of an extra-long statute of limitations, but overlooked a more critical factor.

As it turns out, assuming that the choice of Rhode Island as the venue may well have motivated by its unusually long limitations period for defamation claims, choosing to sue there was a colossal blunder in a different respect: like California, where Bradley Smith lives and whose anti-SLAPP statute is well-known, Rhode Island has a tough anti-SLAPP statute.   Today we have entered the Rhode Island case to help the Get Out of Debt Guy retain its access to search engine listings as a way of telling consumers about useful information on its web site. Thus, in addition to moving for leave to intervene and to vacate the judgment, we have moved to dismiss the complaint citing the anti-SLAPP provisions, which include an award of attorney fees. It seems to me that the facts here are sufficiently egregious that sanctions may be warranted on an inherent power or bad faith litigation theory.

The upshot -- so far -- is that Google is taking a bit more skeptical look at court orders telling it to delist content even though it's not named as a defendant in the lawsuit. The other upshot is that Levy and others are getting closer to identifying the entities behind this extremely shady misuse of the court system to clean up online reputations.

Filed Under: bradley smith, court order, defamation, fake lawsuits, paul levy, reputation management, scams, steve rhodes
Companies: public citizen

Privacy Groups Want The Government To Investigate Google Over The NSA's Hacking

from the really-now? dept

The Electronic Privacy Information Center (EPIC) has this unfortunate habit of making absolutely insane arguments that really destroy its credibility elsewhere. At times it does good work in responding to egregious violations of privacy, but at times it just makes itself look like a total kook organization -- such as when it sued the FTC for not investigating Google over EPIC's ridiculously bizarre claims of privacy violations just because Google changed its privacy policy. EPIC is never one to let go, and its latest self-defeating strategy is to demand the FTC investigate Google and Yahoo... for letting the NSA hack their data centers.

As was widely discussed last month, the NSA had found a backdoor way to effectively hack into the networks that connect Google and Yahoo's data centers, allowing the NSA to pull down all sorts of data, without either company knowing about it. It seems quite reasonable to go after the NSA and the US government about this, but in the twisted mind of EPIC, this is a violation of Google's privacy policy. I'm not joking. EPIC, along with a number of other privacy groups (some of whom focus nearly their entire efforts on trying to make Google less useful) have sent a ridiculous letter to the FTC. It points out that the FTC has previously ordered these companies to "adopt comprehensive privacy programs," and then argues that those privacy programs have been violated because of the NSA hacks.

These companies have represented that user data is only disclosed to law enforcement subject to a lawful process. But there is every reason now to believe that millions of consumer records were unlawfully obtained by the National Security Agency. Of course, once the records are in possession of these firms there is nothing that users can do to limit the subsequent improper release or avoid the misuse. And there is clearly no benefit to users in the improper and unlawful disclosure of their personal information.

[....] Finally, the Commission should pursue this investigation because it routinely holds itself out as the defender of consumer privacy in the United States. It is inconceivable that when faced with the most significant breach of consumer data in U.S. history, the Commission could ignore the consequences for consumer privacy.

Talk about taking a blame the victim approach. EPIC, CDD, Consumer Watchdog, Privacy Rights Clearinghouse, Consumer Federation of America, Public Citizen (?!?) and the Privacy Times, who all signed onto this letter look ridiculous. They're saying that the FTC needs to investigate Google and Yahoo for violations of their privacy policies, because the NSA hacked into their data centers. Go after the NSA and the rest of the US government for doing that. But blaming the companies who didn't even know about this isn't just ridiculous, it's counterproductive.

These groups are so focused on trying to do anything to attack Google that they're making the situation worse. Based on this kind of ridiculous attack, pretty much any company is now better off making their privacy policies worse. The crux of EPIC's stupid argument is that this violates their privacy policies. You know the best way to avoid that? Change your privacy policy so that revealing as much information as possible isn't a violation. Furthermore, blaming the hacking victims for the hack takes the attention away from where it belongs: on the NSA and the administration for doing this in the first place.

Given that the FTC and the NSA are both a part of the administration, it's not impossible to imagine a scenario where the only ones actually punished for hacking into these data centers are Google and Yahoo, while the NSA gets away with the whole thing. Is that really what these organizations want? EPIC, CDD and Consumer Watchdog in particular like to set themselves up as "defending consumers." But they're doing the opposite here. They're inevitably making life worse for consumers. Hopefully, as it has in the past, the FTC sees through these ridiculous arguments.

Filed Under: datacenters, ftc, infiltration, nsa hacking, nsa surveillance, privacy, privacy policies
Companies: consumer federation of america, consumer watchdog, epic, google, privacy rights clearinghouse, privacy times, public citizen, yahoo

Appeal Over Former RIAA Lobbyist Judge Allowing Prenda To Get Info On Over 1,000 John Does Moves Forward

from the doesn't-that-look-silly-now dept

You may recall Judge Beryl Howell, the former RIAA lobbyist who helped author the DMCA, and also went against a very large number of other judges dealing with copyright trolling lawsuits by ruling that it was perfectly fine to lump over 1,000 John Doe defendants into a single lawsuit and then get discovery on them for the purpose of shaking them down for payment. While so many other courts have ruled that such lumping together is an abuse of the legal system in misjoining unrelated parties, Howell not only stuck to her guns, but then proceeded to blame ISPs for copyright trolls, suggesting that if they just did more to crack down on infringing, trolls wouldn't be a problem.

What you may not remember is that the key case in which Howell did this happens to be a case involving... you guessed it... AF Holdings and its "law firm" Prenda Law. Oh, and the "copyright assignment" that AF Holdings is using for this case was one of those supposedly signed by... Alan Cooper. While Judge Howell may be well served to pay attention to Judge Otis Wright in California and his actual investigation into Prenda/AF Holdings/Alan Cooper, the case is out of her hands for now, as the various ISPs who have the info in this particular case have appealed Howell's ruling and the EFF, ACLU, Public Citizen and Public Knowledge have stepped in as well with additional arguments in an amicus brief.

Both briefs are well worth reading, though you might be surprised that the amicus brief is probably the more reserved of the two. The ISPs who took part include: Bright House, Cox, Verizon, AT&T and Comcast -- with most of them (Verizon and Comcast being the exceptions) not even providing service in the jurisdiction of the district court: Washington DC. Comcast joining in is interesting, given that they own NBC, but we'll leave that aside for now. To put it mildly, the ISPs think the appeals court should put an end to these kinds of cases, noting that a majority of other courts have refused to allow joinder on so many defendants, and have blocked the discovery process. It points out, of course, that these cases are almost never taken to court, but are usually just used to reveal names and then offer settlement demands. Specifically, they feel that Howell made a pretty big legal mistake, in that a showing of "good cause" is required for discovery, and Howell ignored that.

The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.

The ISPs also, quite reasonably, point out that if mass joinder and discovery is allowed in this case, the trolls will descend on the DC Circuit courts in a mass forum shopping situation:

The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.

The ISPs also go through, in detail, the accusations against Team Prenda, and the claims of Alan Cooper. As it notes:

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.

The EFF/ACLU/PK/PC filing is more focused on the specific errors in Howell's ruling, concerning the "good faith" standard for discovery and the mass joinder of over 1,000 people. They also point out the jurisdiction problems of the defendants who are clearly outside the jurisdiction of a DC court -- and the fact that these cases rarely end up in actual lawsuits means that the question of proper venue will not be "cured" later. Finally, the brief argues that Howell ignored key First Amendment issues concerning revealing anonymous internet users, and the higher standard for them to be revealed. This argument wasn't made by the ISPs, so we'll focus on that one here. It points to the key Dendrite standard we've discussed many times before concerning the revealing of anonymous users. This does not mean that you cannot identify those accused of copyright infringement, but rather that you can't go on a random fishing expedition to get names, as many copyright trolls have done.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”).

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.

It will be interesting not only to see how the appeals court deals with it... but also Prenda's argument, since they seem to be getting more and more wacky lately.

Filed Under: appeal, beryl howell, copyright trolls, discovery, joinder
Companies: aclu, af holdings, at&t, bright house, comcast, cox, eff, prenda, prenda law, public citizen, public knowledge, riaa, verizon

Latest TPP Round Locks Out Public Interest Groups Who Flew To New Zealand; Gives Them 15 Minutes Of Access

from the shameful dept

The various government bodies negotiating the Trans Pacific Partnership (TPP) have been criticized repeatedly for their lack of transparency. In the last few negotiating meetings, they've tried to respond to this by arguing that they allowed public interest / civil society groups various ways to meet with and interact with the delegates. For the most part, this interaction was way too limited, but it was something. However, for the latest negotiating round in New Zealand, it appears that these groups have been almost entirely excluded. Representatives from a bunch of groups fighting for the public interest -- including EFF, KEI, OpenMedia.ca, Public Citizen and others flew all the way to New Zealand... only to be barred from the premises where the negotiations are being held, save for a brief 15 minute session for each on one day of the 10 day negotiation.

Academics, experts, consumer groups, Internet freedom organizations, libraries, educational institutions, patients and access to medicines groups have flown a long way from around the world to Auckland, New Zealand, to engage with delegates in the 15th round of Trans-Pacific Partnership negotiations.

For the first time, however, we have been locked out of the entire venue, except for a single day out of the 10 days of negotiations. This not only alienates us as members of public interest groups, but also the hundreds of thousands of innovators, educators, patients, students, and Internet users who have sent messages to government representatives expressing their concerns with the TPP. All of us oppose the complete unjustifiable secrecy around the negotiations, but more importantly, the IP provisions that could potentially threaten our rights, and innovation.

These new physical restrictions on us are reflective of the ongoing lack of transparency that has plagued the TPP negotiations from the very beginning.

This is really shameful behavior on the part of the New Zealand hosts.

Filed Under: civil society, new zealand, public interest, tpp
Companies: eff, kei, public citizen

The USPTO's Reality Distortion Field: Web Filter Blocks Critics Like EFF, Welcomes Maximalist Lobbyists

from the but-techdirt's-available dept

Updated: At 5pm ET, the USPTO called Jamie to say that a contractor had set this up, and after reviewing their policies, they had stopped blocking such sites...

Well this is bizarre. Jamie Love from KEI was over at the US Patent and Trademark Office (USPTO) for a meeting about "global negotiations on intellectual property and access to medicine." The meeting itself was held in a room that it uses for the USPTO's Global Intellectual Property Academy (GIPA), and there is free WiFi for people to use. Love tried to log onto his own website... and found that it was being blocked as a "political/activist group."

Access Denied (content_filter_denied)

Your request was denied because this URL contains content that is categorized as: "Political/Activist Groups" which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL.

For assistance, contact USPTO OCIO IT Service Desk. (io-proxy4)

Love then checked a bunch of other sites... and noticed a rather distressing pattern. For public interest groups who advocate that the existing copyright/patent system is broken, the websites were all blocked. ACLU, EFF, Public Knowledge, Public Citizen, CDT... all blocked. However, if you're a lobbyist for maximalism? No problem! MPAA, RIAA, IIPA, IPI, PHRMA, BSA... come on through. They do allow Creative Commons. Thankfully (for us, at least), they don't seem to block blogs that talk about this stuff. Techdirt is allowed, as are things like BoingBoing, Groklaw and Larry Lessig and Michael Geist's blogs. Though, oddly, a bunch of political sites (DailyKos, TPM, RedState, Rush Limgaugh's site) are blocked.

It may be an "over active" filter -- but it does seem particularly disturbing that all those groups who fight for the public's rights on the very issues the USPTO is dealing with on a regular basis have their sites completely blocked.

Filed Under: advocacy, uspto, web filter
Companies: aclu, bsa, cdt, eff, iipa, ipi, kei, mpaa, phrma, public citizen, public knowledge, riaa

Just Because You Don't Like What People Say About You, Doesn't Mean You Get To Sue For Defamation

from the nuisance dept

We've written plenty of times about public interest organization Public Citizen, mainly concerning efforts by its litigation group to protect those who have been sued in bogus lawsuits that would impact the internet's openness. However, every so often Public Citizen itself gets sued. Late last week, it revealed all of the details of a defamation lawsuit filed against it, concerning its letter to the FDA arguing that a certain product -- the LipoTron -- was being illegally marketed and promoted.

One of the organizations mentioned in the letter took exception to the claims in the letter and discussion on the web, and sent a cease-and-desist arguing that the claims were defamatory. In response, Public Citizen sent back a long letter backing up all of its claims (and also noting that they had never named the principal in the company, Mark Durante, so having him claim defamation personally didn't make much sense). This is the point where it makes sense to give up, but Durante's company, Advanced Aesthetic Concepts LP, sued anyway for libel, and asked the court for a temporary restraining order (TRO). When Public Citizen signed up a top local lawyer in Texas, pointed to Texas' new anti-SLAPP law (which would allow them to seek lawyers' fees), and told the lawyer that they were prepared to show up in court to contest the TRO, they were told that the case against them would be dropped.

At the very least, this yet again highlights the value of good anti-SLAPP laws in protecting those who are sued. But, once again we're amazed at how many people seem to think that filing defamation lawsuits in situations like this could possibly bring about a good result. In this case, all it's serving to do is call significantly more attention to the original claims that Public Citizen made in its original letter to the FDA (and then backed up in the legal filings).

Filed Under: defamation, fda, lipotron, marketing, medical devices, nuisance
Companies: advanced aesthetic concepts, public citizen

Copyright Troll Evan Stone Loses Again; Sanctions Upheld For 'Staggering Chutzpah' In Abusing Subpoena Powers

from the a-litany-of-failures dept

We've covered the story of copyright troll lawyer Evan Stone for a while now. He was one of a group of lawyers who jumped into the copyright trolling business a few years ago, figuring it was easy money to get info on people based on IP addresses, and then demand they pay up to avoid lawsuits. While these cases have been littered with highly questionable behavior by various trolling lawyers, Stone took it to new levels. In one of Stone's cases, the judge -- already suspicious of the whole scheme -- appointed both Public Citizen and EFF to defend the (still anonymous) accused Does against being revealed. While this was going on, Stone was told not to subpoena identifying info. So, Public Citizen and EFF were somewhat shocked when they heard from some of the accused, claiming that Stone had, in fact, subpoenaed their info. After confronting him, Stone tried to get out of the case by dismissing it. Of course, while doing so, he directly insulted the judge and attacked Public Citizen and EFF, claiming he was dropping the case due to the delay in time it was taking (ignoring the serious ethical violations).

Public Citizen and EFF reasonably sought sanctions against Stone for such egregious behavior. Sanctions are pretty extreme, and rarely sought and even more rarely granted. You generally have to do something completely over the top and unethical to have sanctions imposed. The court realized that Stone's actions were not just over the line by were barely in the same time zone as the line, and granted sanctions. The court was pretty clear and direct in slamming Stone, noting that it "rarely has encountered a more textbook example of conduct deserving of sanctions."

Stone appealed, but was found in contempt by the district court for failing to obey the sanctions, and ordered to pay legal fees. Stone, once again, appealed the whole thing -- and in a new ruling, the appeals court not only details the litany of both ethical and procedural misdeeds by Stone (including completely failing to follow the basic process of appealing such a decision), but reaffirms the sanctions against Stone. Basically, everything Stone does makes things worse. He now owes even more money and there's an appeals court ruling that highlights his basic failings even in handling the appeal itself. Here's just a snippet.

On appeal, Stone argues that the sanctions cannot be justified under Rules 26 and 45 or under Federal Rule of Civil Procedure 11 or the inherent power of the district court. He also contends that the attorneys ad litem lacked standing to bring the sanctions motion and are not the proper recipients of the attorneys’ fees awarded by the district court. Stone raises this last argument for the first time on appeal and raised the other arguments for the first time in his untimely motion in the district court to stay sanctions pending appeal, which was filed after this appeal was initiated. None of these arguments, thus, was preserved for purposes of appeal, nor does Stone contend they were. Accordingly, all the issues Stone raises on appeal have been waived....

Nonetheless, Stone asserted, at oral argument and for the first time, that this court can consider his arguments because his appeal is one of “extraordinary circumstances,” involving only “pure question[s] of law [in which] a miscarriage of justice would result from our failure to consider [them].” .... We conclude, however, that no miscarriage of justice will result from the sanctions imposed as a result of Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders. Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars--a tactic that he has employed all across the state and that has been replicated by others across the country.

Time to stop digging.

Filed Under: copyright troll, evan stone, sanctions
Companies: eff, public citizen

Channeling That Anti-SOPA Energy Into Getting Important DMCA Exemptions

from the sign-up-now dept

We've talked a bunch of times about the (somewhat ridiculous) process by which the public gets a shot, once every three years, to beg the US Copyright Office to throw the public a bone and grant "exemptions" to the ridiculous DMCA anti-circumvention clause. This process is completely backwards. The anti-circumvention clause is a disaster that should be dumped completely. It goes against the basic principles of fair use and leads to all sorts of ridiculous situations. The fact that the public needs to beg for fair use rights seems pretty crazy. Either way, it's that time again, and the EFF looks to be taking some of that fervent anti-SOPA (and now, anti-ACTA) energy and channeling some of it into convincing the Copyright Office to take these exemptions seriously. They've set up two sites:

• Jailbreaking Is Not A Crime
• Rip. Mix. Make.

Each site lets you sign on to an open letter to the head of the US Copyright Office, and hopefully, finally get the Copyright Office to recognize that there are other constituents beyond the legacy entertainment industry players.... It's sad and ridiculous that the public has to beg for its own fair use rights every few years, but if it must happen, we might as well channel some of that interest and excitement into the system under which we live today. The more impact that can be made there... the more likely it is that a proactive effort in the future will actually make a difference.

Filed Under: copyright, dmca, exemptions
Companies: eff, public citizen

Court Finds Copyright Trolling Lawyer Evan Stone In Contempt; Orders Him To Pay Attorneys' Fees

from the another-one-bites-the-dust dept

Remember Evan Stone? He's one of a "new breed" of copyright trolling lawyers, who has been trying to sue large groups of John Does based on IP addresses, claiming they infringed on a client's work. Of course, the end game of these lawsuits is not to actually take these people to court, but to find out who they are, send them a nastygram... with an offer to "settle," and then get as many people to settle as possible. It's basically a way to use the court system to force lots of people to give you money. Thankfully, the courts have been cracking down on many of the more egregious players in these games. Evan Stone was one of the earlier players in this space in the US, but one who made a pretty big mistake last year while representing porn producer Mick Haig. One of his cases came before a judge who recognized how sketchy these lawsuits were, and told Stone that he couldn't subpoena for the Does' identities just yet, and in the meantime, he asked Public Citizen and EFF to represent the interests of the still anonymous users. Amazingly, Stone sent the subpoenas anyway. The appointed lawyers discovered this when they heard from one of the Does in question. When they confronted Stone about it, he dropped the case in the most petulant manner possible (basically whining about the judge appointing these meddlesome lawyers who kept him from getting his way).

In response, the lawyers at Public Citizen and EFF filed for sanctions against Stone... which they got, to the tune of $10,000. Stone, of course, appealed.

However, as you can see below, the court isn't buying it (not one bit). Not only does the court order him to pay attorneys' fees to Public Citizen and EFF (basically the $22,000 the lawyers asked for, though the court gets there through very slightly different math), but even more interestingly, the court also finds Stone in contempt and is requiring that he pay $500 per day until he pays the attorneys' fees owed...

Filed Under: contempt, copyright, evan stone, sanctions, subpoenas, trolling
Companies: eff, public citizen

Public Citizen & EFF File For Sanctions Against Anti-P2P Lawyer Evan Stone

from the due-process dept

Remember Evan Stone? The anti-P2P lawyer (not the porn actor), who has been filing a ton of mass infringement lawsuits on behalf of porn companies. Like all of these lawsuits, the real intent is to frighten people into paying up prior to any trial. It's using the judicial system as a business model. In one of the lawsuits Stone filed for Mick Haig Productions, the judge wisely asked Public Citizen and EFF to act as counsel for the John Does who had been sued, to represent their interests before allowing Stone to move forward with the discovery process (which would allow him to subpoena ISPs to get the names associated with various IP addresses). Public Citizen and EFF filed motions concerning some of the problems with the overall case and the judge refused to allow discovery while considering those motions. However, Paul Levy at Public Citizen discovered that Stone had gone ahead and sent out subpoenas anyway, and some ISPs had already started turning over the info.

As Levy noted in a letter to Stone, this appeared to be a gross violation of legal ethics. A couple days after receiving this letter, Stone dropped the case with a petulant letter to the judge, blaming the judge for appointing lawyers who actually stood up for their clients' rights, rather than rolling over and allowing discovery. However, in the initial letter, Levy also asked Stone to provide details on all of the subpoenas that he issued, along with the cover letters to ISPs and details of any other communication with those ISPs. Finally, he wanted to know if anyone whose identity had been revealed through these questionable means had paid up and how much they had paid.

It turns out that Stone has refused to respond to these requests (including multiple phone calls to try to reach him), obviously hoping that Public Citizen and EFF would go away. Knowing Paul Levy, he's not the sort of person who gives up easily. Public Citizen and EFF have now filed a motion with the court asking the court to order Stone to provide this info, and then, once the info is provided, to determine whether the fault is Stone's or his clients, and to then either order attorneys' fees, sanctions or both. I've included the motion below, but here's the key part:

Mr. Stone surreptitiously issued unauthorized subpoenas to an unknown number of internet service providers ("ISPs"), demanding the disclosure of the identities of anonymous Defendants so that he could pressure the alleged downloaders of pornography into settlement. Incredibly, months later Mr. Stone participated in the briefing of the very question of whether he should be allowed to issue discovery... all the while allowing ISPs to process the improperly issued subpoenas. Plaintiff's counsel's behavior demonstrates blatant contempt for the rule of law and the authority of this Court.

Moreover, the full extent of Mr. Stone's actions is not yet known because he refuses to meet and confer. Accordingly, rather than requesting a specific form of relief, Defendants instead ask this Court to order Mr. Stone to fully account for his actions so that the Court and Defendants can be made aware of the harm inflicted and so that they may respond accordingly. Once the Court has ascertained the full extent of Mr. Stone's actions, and the extent to which his client should properly bear responsibility for his actions ostensibly performed on his client's behalf, the Court can then decide whether an award of attorney's fees under 17 U.S.C. § 505, discovery sanctions under the Federal Rules, or some other relief is appropriate. Defendants ask this Court to impose some sanction for Mr. Stone's conduct to send a message that should hardly be necessary: abusing the Court's authority to improperly investigate and push settlements onto litigation opponents will not be tolerated.

Filed Under: discovery, evan stone, process, sanctions
Companies: eff, mick haig productions, public citizen