Team Prenda Loses In Default Judgment; Ruling Clearly Names Steele, Duffy And Hansmseier As Prenda Law

from the and-another-arrow-comes-in dept

Team Prenda is taking hits from pretty much every direction these days. The latest is that, in yet another AF Holdings case, this time in Massachusetts, Prenda had been told to put up a bond of $60,000, which it appears to have ignored. The court has now signed off on a default judgment ruling. Basically this just adds to the pile of money that Team Prenda owes. But a key point here is in the footnote:

As noted in the supporting memorandum, AF Holdings has been found to be an alias of Prenda Law, Inc. and its principals -- John Steele, Paul Duffy and Paul Hansmeier.

Steele and Hansmeier keep trying to claim they have absolutely nothing to do with Prenda, and Steele argues that he's got nothing to do with AF Holdings. Having more courts officially note that AF Holding is really Prenda, and Prenda really is Steele, Duffy and Hansmeier, is going to make their argument more and more difficult going forward.

Of course, as if on cue, in a different case, Paul Duffy is now arguing strenuously that it's unfair to lump Prenda Law in with Steele and Hansmeier or to connect it with AF Holdings. Of course, sooner or later, Duffy is going to realize that if he keeps making this argument, he's actually hanging himself out to dry, almost certainly leading up to Steele and Hansmeier quickly tossing Duffy under the bus when the opportunity permits (one assumes soon after they're done doing the same to Mark Lutz).

Filed Under: default judgment, john steele, mark lutz, paul duffy, paul hansmeier
Companies: af holdings, prenda, prenda law

Crazy: Judge Grants Copyright Troll Maximum Statutory Damages In Default Case

from the don't-ignore-cases dept

We've talked plenty of times about issues with "default judgments" in lawsuits. Generally speaking, if the party being sued doesn't show up, judges will usually grant the plaintiff's claim, and issue a default judgment in their favor. The thing is, courts don't have to issue default judgments, but many courts act as if they do. Even then, the courts have significant power in then determining what the awards are in those cases. So while it's not surprising that a court issued a default judgment against someone in a copyright trolling case where the person (Gerald Glover) chose not to respond to the lawsuit, it's somewhat ridiculous that the judge then granted the maximum statutory damages of $150,000 for the claimed copyright infringement (plus another $1425 in fees and costs). As you probably know, statutory damages for copyright range from $750 to $30,000 per work infringed (not per infringement...), but then also allow for the court to increase it up to a maximum of $150,000 in the case where a copyright holder has proven that the infringement was willful.

Given that, it's somewhat troubling that the court awarded the absolute maximum here. It's unclear how there is proof of willful infringement. The complaint against Glover just makes general allegation of using BitTorrent to download and share the copyright-covered work, but does nothing to show willful infringement. I recognize that judges will often rubber stamp motions for default judgment, but can't they at least take the minimum amount of time necessary to note if the awarded amount is proper?

While the DieTrollDie site (which alerted us to this story) notes that it's unlikely that the copyright holder CP Productions will actually see any money from Glover, what's much more worrisome is that other copyright trolls will point to this default ruling as proof that simple downloading can get you hit with a $150,000 judgment (skipping over the fact that it's a default judgment).

Filed Under: copyright, copyright trolls, default judgment, statutory damages
Companies: cp productions

Revenge Porn Magnate Gets Hit With $250,000 Defamation Claim

from the bam dept

While we've had a few stories about the "revenge porn" website "IsAnybodyDown," that site was really just a copycat of one of the most popular "revenge porn" websites, called "Is Anyone Up." Back in 2011, On The Media did an interview with Hunter Moore, the creator of Is Anyone Up, in which you learn what a swell human being he is (i.e., not at all). A few months later, however, Moore shut down the site and claimed he was turning over a new leaf. It later came out that he actually sold the domain (but not the content of the site) to a company called ViaView, which ran the anti-bullying website Bullyville. ViaView's President, James McGibney, had apparently been talking to Moore for a while, trying to get him to shut down the site. After buying the domain, McGibney had traffic routed to the Bullyville site.

Months later, for unclear reasons, Moore started going after McGibney and Bullyville online, claiming that McGibney was a pedophile, had failed to report child porn images, and was guilty of a variety of other charges. He also stated, strongly, that he intended to have sex with McGibney's wife. In response, McGibney sued Moore for defamation, represented by Marc Randazza, who has made it something of a personal mission to go after "revenge porn" sites (in case you're unaware, such sites solicit naked photos of people, often from ex-lovers, and then post them online, sometimes with contact info).

Moore failed to officially respond to the lawsuit, despite being served and apparently making it clear he was aware of the lawsuit on Twitter. In response, the judge ruled in favor of McGibney on default judgment, and also ordered Moore to pay $250,000 in damages, along with legal fees. Of course, getting Moore to actually pay may be difficult, but Randazza has a history of going after the assets of those who refuse to pay out in such cases.

Filed Under: bullyville, defamation, default judgment, hunter moore, in anyone up, james mcgibney, marc randazza, revenge porn
Companies: viaview

Copyright Trolling For Dummies: Wiley Gets Default Judgment

from the books-not-to-buy dept

A little over a year ago, we noted that large publishing house John Wiley (also the plaintiff in the Kirtsaeng case that seeks to wipe out First Sale rights on many goods) was jumping into the copyright trolling game by suing a bunch of people for supposedly sharing digital copies of the company's "For Dummies" books online (though unlike other trolls, at least Wiley tried to target people who were actually in the same jurisdiction: New York). In typical copyright trolling fashion, the company was seeking that people pay up, but a few apparently ignored the whole thing, leading Wiley to score a default judgment against them. Default judgments are generally meaningless in terms of having a wider impact. It's what happens when the defendant ignores the lawsuit, and most courts just give the plaintiff everything they want (though they don't have to) and leave it to the plaintiff to figure out a way to collect.

In this case, the court has issued default judgments against Tammy Roberts and Fred Burgos. It looks like the case went more or along the lines of how copyright trolls would like: the judge allowed the subpoenas, and a few months later, Wiley amended the complaint to name names based on what it learned from the subpoenas issued to ISPs. And... just before anything else was scheduled to happen Wiley magically dismissed most of the defendants (meaning they paid up). The two exceptions were Burgos and Rogers. Wiley insists it properly served both of them, and they both ignored it -- and now the court says they need to pay $7,000 -- split up as $5,000 for copyright infringement and $2,000 for trademark infringement. This is exactly what Wiley asked for. The judge just took what they asked for and accepted it, which is unfortunately common in default judgment cases.

The trademark claim here seems especially bizarre and it's unfortunate that the judge just granted the default judgment. For it to be a trademark infringement, there needs to be a "use in commerce," and it's unclear how posting something online could be seen as a use in commerce if there was no commercial aspect to it. In the grand scheme of things, these rulings mean very little, since they're default judgments, but they'll likely be used by copyright trolls to try to justify their own actions going forward.

Filed Under: copyright, copyright trolling, default judgment, for dummies, trademark
Companies: john wiley

BitTorrent Uploader Ordered To Pay $1.5 Million After Not Showing Up In Court

from the default-judgment dept

Torrentfreak has the story of a default judgment against someone for infringement of some porn videos, in which Kywan Fisher has been ordered to pay $1.5 million for uploading 10 movies. Default judgments are basically what happens when the other party doesn't show up in court. Many judges will then enter a judgment against them, more or less accepting everything that the plaintiff says and asks for. Courts don't have to accept the plaintiff's claims in default judgment cases, but too many judges just rubberstamp such requests, and that seems to be the case here.

Unfortunately, copyright trolls will now use this ruling to threaten more people into paying up. They'll ignore that the facts here are a bit different than ordinary cases. Here, beyond it being a default judgment, the copyright holder, Flava Works (whose name you might recognize from another case where they haven't fared well) has additional evidence against Fisher. Apparently Flava Works watermarks files that paying customers access. In this case, Fisher was a paying customer who then took the works -- with watermarks intact -- and posted them online for others to download. So, there's significantly more evidence against Fisher, beyond just an IP address.

Even so, it's a bit disappointing that the judge simply accepted what Flava Works asked for in terms of the award. Flava Works justification for the $1.5 million figure is tremendously disingenuous:

Plaintiff seeks statutory damages for willful infringement of $1,500,000 for the willful infringements of 10 videos that were downloaded 3,449 times. Exhibit “E”. Defendant caused 3,449 infringements of the Plaintiff’s videos. Plaintiff is seeking the maximum statutory damages of $150,000 per infringement. $150,000 times 3,449 infringements is over $517,000,000. Thus, Plaintiff, Flava Works, Inc.’s request for an award of $1,500,000 is very reasonable.

Except... Flava Works is being misleading. The statute on statutory damages (17 USC 504) makes it clear that statutory damages are to be awarded per work, not per infringement. So the whole point about 3,449 infringements and a possible award of $517 million is way outside of what the law actually says is allowed. Yes, others have tried this "per infringement" argument rather than "per work" before, most memorably in the Limewire case, where the judge outright rejected that request, noting that statutory damages are to be awarded per work infringed, not per infringement. In the end, the court in this case goes with $1.5 million, which is the upper bound for what it can really provide as statutory damages, so it doesn't appear that the court went beyond what was allowed, but hopefully it wasn't influenced by that ridiculous $517 million claim into thinking that $1.5 million "is very reasonable."

In all likelihood, as often happens, the fact that it was a default judgment situation led the judge to just go with $1.5 million -- the maximum possible amount under the law. The problem, of course, is that this number isn't "very reasonable" at all. It's way way out of line with the action. Even if we grant that 3,449 people downloaded the work, and each would have paid, say, $20 otherwise (to choose an arbitrarily high number) we're still talking less than $70,000. And that's even assuming that everyone who downloaded would have bought at such a ridiculously high price -- an obviously laughable assertion. In other words, while statutory damages don't need to relate to actual damages, it's not difficult to look at this and think that the award is still ridiculous, even if you feel that there's sufficient evidence to suggest Fisher did break the law.

And, once again, we're left with a situation that creates even less respect for copyright law. From the (one-sided) evidence presented by Flava Works, it certainly seems much more likely that Fisher broke the law, and as such I don't think there's any issue with him losing the lawsuit (though, as a default judgment we have no idea if he has a legitimate defense). But a $1.5 million award just seems so out of proportion to reality that the court really ought to have gone with something slightly more reasonable. Not that Flava Works will ever collect from Fisher, but it's doubtful anyone really cares about that. The whole point of this is to get the judgment on the books so that Flava Works and others can now use it on tons of others.

Filed Under: bittorrent, copyright trolls, default judgment, statutory damages, uploads
Companies: flava works

Craigslist Trying To Destroy The Life Of Someone Who Made Posting To Craigslist Easier

from the and-harming-their-own-defense-at-the-same-time dept

Two years ago, we wrote about a lawsuit by Craigslist that we classified as dumb. It was against a company called Red Trumpet who provided a service to make posting to Craigslist a bit easier. Craigslist's obvious reason for filing the lawsuit was that it was upset about the increasing amount of spam on the site, some of which uses such tools. We understand and appreciate Craigslists' efforts to keep spam off the site, but attacking third party software and service providers on questionable theories is fraught with dangers... especially for Craigslist.

After all, this is the exact same Craigslist who keeps getting accused of being liable for prostitution ads on its site. And for years, Craigslist has correctly responded that it is not legally responsible for the actions of their users -- a position we support and agree with. Thus, it seems strange and dangerous for Craigslist to then make the exact opposite argument back at other service providers. It's the kind of thing that's going to come up in a court case sooner or later.

That was the biggest problem with the lawsuit, but there were three other problems with it, including what seemed like extremely questionable uses of copyright law, trademark law and the ever-popular anti-hacking law, the Computer Fraud and Abuse Act. Here's what we wrote about all three at the time of the Red Trumpet lawsuit:

Craigslist is making a really weak DMCA claim here. It's claiming that its various anti-spam technologies (captchas, phone verification, etc.) act as "technological protection measures" that Red Trumpet is circumventing... and thus running afoul of the DMCA's anti-circumvention rules. But the circumvention has nothing to do with violating Craigslist's "copyright," though the lawsuit makes a half-hearted attempt to claim that it does.

Then, there's the trademark claims. There are a few different ones, but it argues that Red Trumpet is violating Craigslist's trademark by mentioning Craigslist on its website and in its ads. While again, you can see why this is annoying to Craigslist, if the company is accurately describing services it provides (the ability to post on Craigslist) it's difficult to see the "confusion" being caused. The ad in question doesn't appear to imply any endorsement at all by Craigslist. And, does Craigslist really want to open up a can of worms concerning trademarks being used in ads? After all, there must be a ton of posts on Craigslist that mention trademarks.

Finally, there's Craigslist claiming that Red Trumpet violates the Computer Fraud and Abuse Act by accessing its site despite violating its terms of use. Does this sound familiar? It's the same argument that was used to try to punish Lori Drew, and was recently tossed out by a judge. Basically, it's claiming that if you happen to violate the terms of use of a site, and then still access the site, you've effectively "hacked" into the site. This is a really bad reading of the law, which is why it was good that the Drew ruling got tossed out. So why is Craigslist trying to re-establish that as a rule?

I hadn't followed the case very closely after that, but it looks like the company eventually settled with Craigslist.

What I hadn't realized was that Craigslist had actually filed a bunch of similar, equally questionable, lawsuits against others. One of those others is a guy named Paul Hubert, who wrote some software that made it easier to manage your Craigslist postings. We've been in touch with Mr. Hubert... who did not find out that he was being sued at all, until months after the court already ruled in a default judgment against him. Default judgments happen when someone doesn't respond, but if you're never informed of the lawsuit, it's pretty difficult to respond at all. Hubert insists that he was never served, and the first he heard of the lawsuit was a couple months after the default judgment (for over $1.2 million) when someone tried to collect it from him.

Hubert makes it clear that his software was designed for legitimate uses of Craigslist, for those who needed better management tools. In fact, he makes it clear that he left out and/or disabled certain features if he realized they might be attractive to spammers. For example, after noticing that the Craigslist Personals section was hit with a lot of spam, and realizing that such a category probably wouldn't need such a management system, he blocked the software from posting to that category. Hubert claims that in 2007 Craig Newmark himself reached out to Hubert to ask for some details about the software. Hubert says that the emails were "encouraging" and never once did Newmark suggest any concerns or problems with the software, let alone ask Hubert to stop offering it. Hubert also notes that after running into more issues with spammers trying to use his software, he shut down the whole thing at the end of 2008.

Hubert, who is unemployed, is reasonably perplexed and upset about the whole thing. He never knew about the lawsuit, was never asked to stop offering his software (which he did anyway), and is now being told he has to pay $1.2 million which he doesn't have. He claims that the lawyer trying to collect the money has told him that Craigslist wants to "make an example" of him.

I'm greatly troubled by Craigslist's actions here. Having dealt with Craig and Jim Buckmaster a few times in the past, I reached out to them about this, and asked for any comment. It's been a couple days and no response has been forthcoming from either. From the profile page of lawyer Brian Hennessy, who appears to have represented Craigslist in both of the cases discussed here, it appears that Craigslist actually has filed a lot of other, similar cases.

I have to say that I'm pretty disappointed that Craigslist would do this. The company has usually represented a lot of the good of Silicon Valley, and to use questionable legal theories to attack various companies -- especially theories that are likely to come back to haunt Craigslist itself -- is just a bad idea. To then take it further and go after this guy who was never served and never even asked to stop -- and then pressing him for $1.2 million he doesn't have -- just feels downright shameful.

Filed Under: cfaa, copyright, default judgment, paul hubert, secondary liability, trademark
Companies: craigslist

Former RIAA Lobbyist, Now Judge, Says Lowest Possible Statutory Damages For Single Case Of Infringement Is $3,430

from the punishment-does-not-fit-the-crime dept

Remember Judge Beryl Howell? She's one of the only judges who's received one of these copyright troll cases involving hundreds, if not thousands, of totally unrelated John Does in a single case to refuse to sever the unrelated defendants (and bizarrely tried to claim it was to their benefit to be sued together). It only later came out that Howell was very recently an official lobbyist for the RIAA. At the very least, that calls into question her objectivity on copyright cases.

Anyway, late last week, Judge Howell also made an interesting ruling in one of US Copyright Group's cases, involving the movie Call of the Wild. Like her earlier ruling, this one will have many more copyright trolls filing cases in her district, hoping to get a judge so amenable to the arguments of copyright trolls. The ruling was a default judgment, meaning that the guy being sued simply did not respond to being sued (a dumb move). Of course, with a default judgment, the court still has some leeway in ordering what kind of award is given, and in this case, Judge Howell has apparently decided that the absolute minimum anyone could pay if found in default on a copyright case is not the $200 for innocent infringers, nor the $750 amount that is the official minimum listed in the law... but, rather $3,430, which is the $750 amount plus another $2,680 in lawyer's fees. That's a bit strange since it's not all that common to award attorney's fees in such cases, and considering that US Copyright Group is a factory of sorts, pumping out tons of these cases, and suing tens of thousands of individuals without much effort to ascertain the legitimacy of the lawsuits, it's difficult to see how it could have cost them that much at all.

Still, have no fear that this particular default judgment will be waved around by USCG and others in their shakedown letters to people who are being pressured into paying up.

Filed Under: beryl howell, copyright, default judgment, statutory damages

Case That Righthaven Had 'Won' By Default Now Dismissed For Lack Of Standing

from the down-goes-another-one dept

It's getting a bit repetitive to note just how many times copyright troll Righthaven is losing these days, even as it's entertaining to watch. But this latest loss -- its seventh so far -- is even more interesting, because it's a dismissal of a case that Righthaven already thought it had "won." The case involved Righthaven suing a guy named Bill Hyatt... who totally ignored the lawsuit. As can happen in such situations, a court clerk simply entered a default judgment against Hyatt. Righthaven seized upon this opportunity to then ask the court (as it did in each of its lawsuits) for more than just a monetary award: it asked for his domain. We had noted how silly it was for Righthaven to always demand the domains of those it sued, as there's no such remedy in copyright law, but here it thought it could put one over on the court. As we noted back in February, the Media Bloggers Association stepped into the case and filed an amicus brief (via Marc Randazza) questioning Righthaven's claims. And, now, beyond just not getting the domain, the judge has decided to dismiss the whole case for lack of standing, since (once again) the judge has realized that Righthaven doesn't actually hold the copyright it claims to hold. Ah Righthaven. These days, it can't even win a case when the other side doesn't even show up.

Filed Under: copyright, default judgment, standing
Companies: righthaven, stephens media

US Porn Company Wins Default Judgment Against File Sharer In Canada; Guy Told To Pay $64k

from the suing-fans-is-not-a-business-model dept

Suing fans is not a business model. And yet, so many companies still do it. We've written a few times about porn producer Corbin Fisher/Liberty Media, who has become a very aggressive supporter of mass lawsuits against fans who it accuses of sharing its works. This is a dumb business strategy. The company, obviously, thinks it will reduce infringement, but I can't fathom how it thinks this will get anyone to ever want to purchase from the company again. Perhaps it thinks it can stay in business through legal fees collected. For example, it sued some guy in Canada for sharing two of its movies, and since he didn't come to the US (though he had sent a letter) to defend himself, the court granted a default ruling in favor of the company, though (thankfully) it disagreed with the company's ridiculous assertion that merely using BitTorrent proves willful infringement. There are some who believe that a default judgment (when the defendant doesn't show up), means that the plaintiff always wins. It doesn't need to work that way, and we have seen courts actually rule against plaintiffs even under such circumstances though it's incredibly rare. Still, the end result is that the court has ordered the guy to pay nearly $64,000.

Filed Under: canada, copyright, default judgment, movies
Companies: corbin fisher, liberty media

ACS:Law's Epic Failure In Trying To Take File Sharing Cases To Court

from the impressively-bad dept

One of the key jokes concerning ACS:Law, the shakedown legal outfit in the UK which sends "pay up or we'll sue" letters to those it claims infringed on one of its clients' copyrights, is that it's never actually taken anyone to court. Apparently, the firm thought it was finally time to fix that -- and tried to carefully pick defendants who simply wouldn't respond, in the hopes of getting an easy default judgment, which it could then tout as proof that it would take people to court -- and that people would be found guilty. Unfortunately, it appears that just about everything in that plan failed. First of all, ACS:Law brought the suit with a front company, Media C.A.T, rather than with the actual copyright holder. You can't do that. On top of that, the judge found all sorts of problems with the cases, including the fact that it wasn't clear all the defendants were actually served and notified of the lawsuit. But the key part, was that the judge slammed ACS:Law for lying and claiming that simply letting others use your network connection to infringe is restricted. The judge said that's not what the law says:

"The plea that 'allowing' others to infringe is itself an act restricted by s16 (1)(a) and 17 of the 1988 Act is simply wrong," noted Judge Birss. "The term used by those sections of the Act is 'authorising' and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties."

Judge Birss later noted: "A key part of the plea of infringement rests on an assertion [by ACS:Law] that 'allowing' others to infringe is itself an infringing act, when it is not."

Another amusing bit is that the judge noted how odd it was that in the requested injunctions with the lawsuits, the injunction was not to have the individuals stop infringing on those copyrights -- which is the standard request. Of course, that seems to be a rather straightforward admission that ACS:Law isn't trying to reduce infringement at all. Either way, the judge rejected all of the requests for default judgment. This is pretty stunning, because getting default judgments often seems like it's only a formality. And ACS:Law couldn't even do that right...

Filed Under: copyright, default judgment, uk
Companies: acs:law, media c.a.t.