Calling Out Copyright Troll Mathew Higbee

from the copyright-trollin'-trollin'-trollin' dept

Over the last few months, I've been hearing an awful lot about a copyright trolling operation that goes by the name Higbee and Associates. We had written about them years back when they (incredibly) threatened Something Awful for using a photo in a movie review (which was clear fair use). A few months back we wrote about them again when they (you guessed it) threatened Something Awful again over someone in its forums hotlinking a picture of Hitler that was actually hosted on Imgur.

While that's all we've written about the firm on Techdirt, Higbee's name keeps coming up in other conversations -- among copyright lawyers who have been seeing a massive increase in Higbee demand letters, and even from some friends who have received such letters (which nearly always involve clearly bogus threats). One thing that has happened over and over with Higbee claims that I've been privy to is that they are over unregistered images, meaning that Higbee is unlikely to actually be able to sue over those images, and even if they could, it wouldn't be for statutory damages. And yet, the threat letters tend to allude to statutory damages are part of the scare tactic.

Public Citizen's Paul Levy has apparently seen enough of Higbee and Associates and their trolling activity that he's done a pretty thorough investigation of Higbee's activities and written up a long description calling out many of the sketchy practices of the firm and its principal, Mathew Higbee:

Either in concert with a specialized search firm or using his own firm’s software, this firm patrols the Internet looking for graphics (especially photographs) that have been copied improperly from online sources. The firm then sends a demand letter bearing Higbee's signature, threatening to seek up to $150,000 in statutory damages as well as attorney fees unless the target of the letter promptly agrees to pay a specified amount. Deploying a tactic that is all too familiar from the depredations of Evan Stone and Prenda Law, the specified amount is low enough – usually in the low four figures, but I have seen high three figures —that it is not likely to be cost-effective for the target to hire a knowledgeable copyright lawyer to litigate an infringement lawsuit, even if the claim is bunk or, at least, if there is good reason to believe that the claim can easily be defended. The letter encloses a document identifying the allegedly infringing use as well as the online location where the work was found; another document that purports to authorize the firm to represent the copyright holder in seeking damages in connection with the work; a proposed “settlement agreement”; and a credit card payment form. If the target of the letter does not respond, or responds without agreeing to pay, then the Higbee firm increases the pressure: a non-lawyer who calls herself a “claim resolution specialist” sends an email warning that the claim is going to be “escalated to the attorneys,” at which point “[t]claim gets more stressful and expensive,” and an assurance that “my goal is to not let that happen to you.”

The documents linked above all relate to a single Higbee demand to a single target, but I have seen a number of other demand letters and ensuing emails from this firm, and spoken to several other copyright lawyers who have helped clients respond to Higbee’s blustering and threats, and it appears to me that these are pretty standard exemplars. Indeed, when I was reaching out to some other copyright lawyers to try to get their sense of some of the documents I was reviewing, a number of them guessed that it was Higbee based only on what I said I wanted to ask about, based on work they had done for their clients trying to address his threats against them. Plainly, this is a copyright troll with an outsized reputation.

Levy took on a client who had received one such letter from Higbee and noticed a bunch of problems with Higbee's standard practices:

More than six years later, on January 2, 2019, Mathew Higbee sent HUFF his demand letter, accompanied by the other documents described above. Several things jumped out at me. First, instead of reciting that the copyright in the photograph had been registered, and either attaching the registration or at least citing the registration number, the letter recited the photo’s “PicRights Claim Number” – a matter of utterly no consequence for the recipient of the demand. The registration number, by contrast, is far more significant in this context, because, for most copyrighted works (the exception is discussed below), a copyright holder cannot bring suit for infringement until the copyright has been registered, and regardless of the exception, a copyright holder cannot seek statutory damages or attorney fees for infringements that take place before registration, or even for infringements that continue after registration unless the copyright was registered promptly after the work was first published. Because this photograph appeared in the New York Times within a day after the photo was taken, and more than six years before the demand letter was sent, a failure to register would have meant that the letter’s warning about statutory damages and attorney fees was an empty bluff meant to intimidate.

Second, the letter was plainly a boilerplate form, containing somewhat stilted language that was poorly adapted to the specifics of HUFF’s claimed infringement. For example, the letter varies back and forth between referring to the recipient in the second and third person singular, suggests that HUFF might have its wages garnished, warns of action against “the business owner,” and refers to “the attached exhibits” even though only one exhibit was attached. Indeed, the “representation agreement” that was provided along with the demand letter, purporting to show that Agence France-Presse, PicRights and a European version of PicRights had authorized Higbee to pursue claims on its behalf about HUFF’s alleged infringement with respect to this specific photograph, did not identify the photograph but simply indicated that Higbee was handling “a copyright infringement matter.”

Third, the exhibit revealed Higbee’s recognition that the “infringing location” for the copyrighted work was not HUFF’s own web site but rather the web site of the New York Times which, presumably had licensed the photograph (I was able to confirm that assumption by contacting the Times’ legal department). And the Court of Appeals for the Ninth Circuit has decided, in Perfect 10 v. Amazon, that Google does not infringe a photographer’s copyright by including images in its search results, because American copyright law does not prevent the “framing” of deep-linked images that actually sit on the server of a party that is entitled to display the photograph and serve copies of the image to visiting viewers; it is only displaying and distributing from the defendant’s own server that violates the copyright laws (the “server test”).

Levy goes into great detail about his interactions with Higbee that are well worth reading. I will only post a snippet here, but I recommend going through and reading the whole thing. Levy first told Higbee that he planned to go to court ahead of Higbee and file for declaratory judgment of non-infringement, and suddenly Higbee started throwing everything he could at the wall:

What followed was a rapid retreat by Higbee, accompanied by some truculence while, at the same time, he signaled his recognition both that he had no basis for seeking any monetary relief for his client, and that I knew that he hadn’t a leg to stand on. First, he sent me an email on February 1, dropping PicRights as a client, insisting that he had a viable basis for suing on the image (while implicitly admitting that his client had not registered the copyright), and implicitly dropping as well the demand for $1775; instead, he asked me to make “some reasonable offer” comparable to the cost of filing a federal court complaint ($400) as well as service costs (which would have been free under the waiver of service procedure”). The redacted email address on the cc line was my client’s email, violating his ethical obligations given that the client was represented by counsel. (In a separate email chain, Higbee tried to excuse this violation by claiming that he had no idea I was a lawyer, but I found that statement less than credible, particularly considering that I know of at least one other situation in which his firm made contact with a party after an attorney contacted the Higbee firm on the party's behalf in in response to the demand. Higbee also asked me how a lawyer not belonging to the California Bar could help a California client in a copyright matter. The mere fact that he thought he had to make this point told me how desperate he was getting to avoid the merits).

Levy also details another case, in which another recipient of a Higbee letter tried to take Higbee (not Higbee's client) to small claims court, and Higbee then dragged the case into federal court while at the same time insisting he had closed the case:

In the meantime, I learned about some astonishing developments regarding a demand letter that Higbee had made to a community college professor named Claudia Eckelmann relating to the inclusion of a cartoon in the online syllabus that she had provided for her students’ edification. She responded to Higbee’s demand letter and subsequent bullying emails by filing a complaint against Higbee’s firremoving the state-court proceeding to federal court, asserting both that the court had subject-matter jurisdiction because the dispute was really about copyright infringement (Higbee seems to have ignored the rule that, for a removal to be proper, federal jurisdiction has to be shown on the face of the state-court complaint, and the state complaint does not make clear whether Eckelmann seeks a declaration of non-infringement or a judgment under state unfair business practices law). Indeed, his notice implicitly suggests, at the same time, that there was no case or controversy because, given Eckelmann’s recalcitrance, his firm had decided to “close” the case. Of course, if there was no case or controversy there would be no Article III jurisdiction to hear the removed case.

There's a lot more in the post, but it pretty thoroughly demonstrates the sketchy nature of many Higbee letters, which appear designed to do little more than just get people to pay up over exaggerated claims. Somewhat incredibly, Levy got one of the people who work for Higbee to be a lot more honest about the situation than Higbee himself. Of course, this only occurred after Higbee claimed the case was "closed" and yet his employee was still demanding money...

The HUFF matter would have ended with Higbee’s statement to me that he had “closed" the case, as he claimed to have done with respect to Eckelmann, except that, a couple of days later, I received this remarkable email from one of Higbee’s "claims resolution specialisists," Rebecca Alvarado. Here she was, AFTER her boss had "closed the case," responding to my initial email to Higbee on behalf of HUFF, and warning that, despite my points, the “fact is there is a copyright claim on the table” and that she was “willing to work with me to see that the claim is resolved.” She gave me her direct line, so I called her to find out just what resolution she had in mind, as well as what she might tell me about the nature of the firm’s practice.

The call was enlightening. Unlike Higbee, who never directly responded to my question about whether the copyright was reg..., defensively, that the demand letter did not say that statutory damages would be sought, but only that these might be “possible” in some circumstances. She told me that her client was only seeking actual damages, in terms of the lost licensing fee — but she could not tell me what that licensing fee was (so, how could she “resolve” the copyright claim?). And she admitted that her firm’s business model involves paying its clients a fractional share of the moneys that they wring out of their victims. She told me that she did not know what the fraction was, but Higbee told Fast Company that clients who came to him through a no-longer-existing service called “Copypants” received 50% of the financial gain. Moreover, he boasted as well that some 75% to 80% of the targets who receive his demand letters pay him without having to be taken to court.

I recognize that photographers who hire Higbee may think they're getting in on some new revenue stream, but when that comes at the expense of ethically dubious shakedowns, they might want to think twice.

Meanwhile, Higbee has shown up in the comments to Levy's post to "defend" himself by insisting that everything his firm does is totally aboveboard, and sometimes things just fall through the cracks in deciding who to send shakedown letters to (that would be more convincing if we didn't keep seeing more and more of them from Higbee, with nearly all of them being questionable):

Our clients choose which cases we pursue. Generally, our clients choose to have us only pursue unauthorized use of their work by persons or entities that provide or promote goods or services for a fee, generate ad revenue, or solicit contributions. We never intentionally pursue private non-commercial infringements. That being said, often times it is difficult to accurately assess an infringer based on the limited information available, especially when the natural tendency of most websites is to make the entity look bigger and more successful than it is. Whenever we discover a case is outside our firm’s or our client’s enforcement parameters, we close it (even if offers to settle have been received) and take any necessary steps to prevent similar errors in the future.

While this may be true in some cases, in at least a few cases I'm aware of (including the SomethingAwful cases), I find this nearly impossible to believe. And, of course, we've heard similar pleadings from the likes of earlier copyright trolls like John Steele of Prenda and Evan Stone. Higbee is building up a reputation and it's not a particularly good one.

Filed Under: copyright, copyright troll, mathew higbee, shakedown

Glass-Tongued Copyright Troll Thinks Google, Popehat, and Boing Boing Are Engaged In 'Black Hat Seo'

from the what-a-maroon dept

After taking a hiatus from issuing bogus DMCA takedowns against this site, self-proclaimed poet "Shaun Shane" is back at it. The harassment of anyone who dares to publish a certain poem of Shane's -- the one about tongues made of glass -- is a (possibly) Texas-based cottage industry. The harassment continues to this day, but not much of it is directed at Google. Most of Shane's "work" is done over at Twitter, where tweets are greeted with takedown requests.

Presumably, this had led to an immeasurable increase in books sales for Shane. I mean, an unauthorized tweet = 1 lost sale, if I'm not mistaken. Whatever the case is, Shane is back to abusing the DMCA process for something that neither looks like fun nor for profit. Shane has issued several bogus takedown requests over the past couple of months.

Some are normal takedown requests targeting any place that has reproduced his poem. These are fine, but only by comparison. In other requests, targeting TorrentFreak, Boing Boing, Popehat, and Techdirt, some very interesting theories are being advanced. (But not respected. No one is being delisted for the imaginary crimes against IP that Shane has pitched to Google.)

This notice argues contributory infringement, claiming the posting of the poem in full somehow "encourages criminal infringement." That's as sane as the notices get. From there, all bets are off.

This one, targeting a Techdirt URL, attempts to fashion a defamation claim out of thin air (and all without once using the word "defamation").

The reported Url violates Title 28 U.S. Code § 4101 by making the false statement that I do not know the Director John Waters . I have know and been with friends with him since 1984. I was formal film student of his from 1985-86. I acted in the film "Reckless Eyeballs" directed by him. To prove these facts I will provide you with the phone number and email John Waters so you may verify these facts from him directly.

"Reckless Eyeballs" is mentioned on John Waters' Wikipedia page. But there are no links supporting it and it has "this film featured the poet Shaun Shane as the lead" appended to it for no apparent reason. Oh, wait. There's a very apparent reason. The IP address that added the edit traces back to Pearland, Texas, one of "Shaun Shane's" stomping grounds. So, make of that what you will. (And chances are you will make "Shaun Shane did not appear in a John Waters short" of it.)

Another notice, sent April 15, attempts to fashion a conspiracy theory out of Google juice.

I am the Author Shaun Shane, someone is using Bots to artificially raise the reported Url's ranking in Google search results beyond what Google's search algorithm has naturally assigned it and are engaging in "black Seo".

Apparently Shane realized there's no such thing as "black Seo" as the DMCA notices sent the following day attempt to amend that error.

I am the Author Shaun Shane. Someone is using Bots for the reported Url to artificially raise it's rank in Google search results and beyond what Googles search algorithm would naturally assign it and is engaging in Black Hat Seo.

This is better but still stupid. At least we have "Black Hat Seo" instead of "black Seo" to work with, but there's nothing artificial about these search engine rankings. The sites targeted by these notices are all high-ranking sites: Boing Boing, Popehat, Techdirt and… um… I guess, Twitter. (A Popehat tweet is also targeted.)

Welcome back, Shaun. The world is a little duller without you around. We await your newest conspiracy theory about SEO black magic and defamation that dare not speak its name. Meanwhile, we've been given another "anomaly" to file away with the hundreds of others in the annals of DMCA abuse.

Filed Under: black hat seo, copyright, copyright troll, dmca, poetry, shaun shane, takedowns
Companies: boing boing, google, popehat, techdirt

Court Orders Copyright Troll To Post $10,000 Bond After He Lied About His Client's Licensing Agreement

from the dope-on-a-rope dept

Richard Liebowitz of Liebowitz Law Firm has had a bad couple of weeks in court. Unfortunately for him, as one of the most prolific copyright trolls, that's kind of where he makes his home. According to two recent orders handed down by two different judges, Liebowitz has filed more than 500 copyright cases in the Southern District of New York alone over the last two years, most often representing photographers.

Booth Sweet LLP -- which has gone head-to-head with other copyright trolls -- pointed out the most recent loss Liebowitz has suffered. His lawsuit is still ongoing, but the court has ordered him to post a $10,000 bond to cover the legal fees he'll be responsible for if he loses. And if a judge is ordering a bond, it's likely because the judge expects the lawsuit to end badly for the person ordered to front the cash.

The order [PDF] is an entertaining read for people who detest copyright trolls. (Hey! Welcome to Techdirt!) Liebowitz is suing Hearst Communications over the publication of a photo he says belongs to his client, Ray Reynolds. Reynolds claims he gave the photo to the Trump campaign but expressly forbade its release to anyone else. The photo was given to Elle magazine to accompany an article about Melania Trump. Reynolds sued, and apparently chose poorly when it came to representation.

It's nothing but bad news for the prolific troll. The order begins with a recounting of Liebowitz's lies/omissions/failures.

The complaint in this action alleged that the defendant published plaintiff’s photograph without a license or plaintiff’s permission. It did not reveal that the plaintiff had in fact provided the photograph to the Campaign.

At the initial conference held on December 8, when asked how the defendant could have gotten the photograph, Mr. Liebowitz did not explain that the plaintiff had actually given the photograph to the Campaign. Instead, he speculated that Hearst may have taken the photograph from an article that the plaintiff had licensed to publish the photograph.

That's already a bad start, but a footnote makes it even worse.

Mr. Liebowitz failed to appear at the pretrial conference scheduled for December 1, despite being required as principal trial counsel to appear at the conference. Instead, without seeking prior permission to do so, Mr. Liebowitz sent an associate.

The court then recounts the facts. The photos are registered with the copyright office. The plaintiff asserts he gave them to the Trump Campaign for it to use for campaign-related stuff. Hearst maintains the Trump Campaign gave Elle the photo to use with the Melania Trump article. As the court points out, this would appear to be in line with the photographer's demands: the photo was used in an article put together with the assistance of the Trump Campaign. No violation of any contract, oral or written. And there appears to be no contract of any sort. Just the photographer's claim Elle engaged in copyright infringement by using it on its website. Having nothing in writing will make this case almost impossible to win. The court quotes from copyright law:

All grants of exclusive rights in a copyright must be made in writing.

The court doesn't say the plaintiff has no chance of winning this suit. But it does say the chances of him winning the suit are barely above zero.

Although he was not forthcoming in either the complaint or when first addressing the Court at the initial pretrial conference, Mr. Liebowitz understood before filing this lawsuit that the plaintiff gave the photograph to the Campaign for its use and that the photograph had been used in a story with which the Campaign was obviously cooperating. Among other things, Mrs. Trump is quoted in the article. There is no indication in the record that Mr. Liebowitz has ever learned of any explicit or even implied agreement between the plaintiff and the Campaign that restricted the Campaign’s use of the photograph in any way. His client only claims that he did not intend to allow the Campaign to share the photograph, but has provided no evidence of an agreement to that effect between him and the Campaign. If Mr. Liebowitz had spoken with defense counsel before filing this action, he would have had occasion to consider all of the facts recited above and to consider whether it was appropriate to sue Hearst at all, or whether he should sue not only Hearst but also the Campaign.

The court notes the 500 cases Liebowitz has filed in this court over the last two years. It also notes his recent sanctioning by this court (more on that in a minute). It then points out several of his cases have been dismissed for being frivolous. On top of that, the court says it's not the only court that has required Liebowitz to pay up front for impending lawsuit losses.

Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action.

Hearst wanted a $105,000 bond. The judge trims it down to 10% of this demand, noting Liebowitz's self-declared insolvency.

The plaintiff asserts that he lives paycheck to paycheck and cannot pay a bond.

(Maybe don't take all your cases on contingency.)

Of course, the court has no reason to believe this assertion, considering Liebowitz's past performance.

Given the plaintiff’s impecuniosity, the immediate imposition of bond in an amount limited to $10,000 is appropriate. The defendant will be given an opportunity to take discovery of the plaintiff’s financial condition and the parties will be heard as to whether any additional bond requirement should be imposed in this case.

Then it smacks him one more time before signing off.

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits. Further, the failure to include the Campaign as part of this suit, or to even mention the plaintiff’s relationship with the Campaign in the complaint, will inevitably increase the cost of litigation.

As noted in this decision, Liebowitz has been sanctioned by SDNY courts previously. Via The Trademark Blog, here's Liebowitz being threatened with yet another sanctioning by an SDNY judge. This order [PDF] was handed down less than a month ago and it stems from the plaintiff voluntarily dropping the lawsuit as soon as the defendant filed a motion to dismiss.

It starts out -- like the one above -- with a footnote detailing Liebowitz's failure to comply with rules he's surely familiar with, given the large number of lawsuits he's filed in this district.

The notice of the initial pretrial conference contains explicit language that the plaintiff is to “notify all attorneys in this action by serving upon each of them a copy of” the notice and the Court’s individual practices. The plaintiff is “to file proof of such notice with the Court.” The plaintiff failed to comply with this notice; the electronic case filing system (“ECF”) contains no entry indicating that the plaintiff duly served defendant’s counsel with the notice. This is not the first such failure on the part of plaintiff’s counsel before this Court and other courts in this district.

Then the court notes the lawsuit -- filed in New York against a small Idaho publication -- contains nothing indicating this court should have jurisdiction to hear the case. The defendant's motion to dismiss on these grounds prompted a quick withdrawal of the lawsuit. The court finds this suspicious, but declines to award legal fees to the defendant.

Here, the plaintiff voluntarily dismissed his claims after the defendant served a Rule 68 offer and filed a motion to dismiss for lack of personal jurisdiction. In opposition to this motion for fees, the plaintiff does not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district. Based on the record before the Court, it appears that the filing in this district was “frivolous, unreasonable, or groundless.” CRST, 136 S.Ct. at 1652 (citation omitted). Plaintiff’s counsel, Richard Liebowitz, is a known copyright “troll,” filing over 500 cases in this district alone in the past twenty-four months. Thus, whether or not an attorney’s fee award could be properly awarded against the plaintiff under Section 505, such an award against plaintiff’s counsel may be appropriate in an exercise of this Court’s inherent power.

No fee shift, but there's a warning suggesting Liebowitz could be on the hook for fees in the future, especially if he decides to keep dumping cases into this district.

In an exercise of this Court’s discretion it declines to award fees on this occasion. If Mr. Liebowitz files any other action in this district against a defendant over whom there is no nonfrivolous basis to find that there is personal jurisdiction, the outcome may be different.

Nothing seems to have slowed Liebowitz's troll but perhaps back-to-back bench slaps might, especially if the lawyer is so broke he can't rub two settlements together. Someone working on contingency with a horrendous court track record probably doesn't have tons of cash to front to keep his speculative invoicing racket afloat.

Filed Under: bond, copyright, copyright troll, lies, ray reynolds, richard liebowitz
Companies: hearst

Judge Halts Copyright Troll's Lawsuit Against A Now-Deceased Elderly Man With Dementia And An IP Address

from the stop-stop-he's-already-dead dept

Stories about copyright trolls issuing questionable settlement demands and lawsuits using laughably flimsy evidence with no regard to mitigating circumstances are somewhat common around here. The most egregious cases range from trolls sending threat letters to the elderly to flat out suing the innocent. This sort of thing is essentially inherent in a business model that closely apes an extortion ring, and here's another quintessential example of that.

It all started when Venice PI sued a man for being part of a torrent swarm offering the movie Once Upon a Time in Venice. The judge in the case has put the proceedings on hold, noting rather harshly that Venice PI's evidence sucks, and that the man in question had severe enough dementia that his family says he couldn't even have operated a computer as described in the lawsuit and, at age 91, has died.

The man’s wife informed a federal court in Seattle that he passed away recently, at the respectable age of 91. While age doesn’t prove innocence, the widow also mentioned that her husband suffered from dementia and was both mentally and physically incapable of operating a computer at the time of the alleged offense.

These circumstances raised doubt with US District Court Judge Thomas Zilly, who brought them up in a recent order (citations omitted).

“In two different cases, plaintiff sued the same, now deceased, defendant, namely Wilbur Miller. Mr. Miller’s widow submitted a declaration indicating that, for about five years prior to his death at the age of 91, Mr. Miller suffered from dementia and was both mentally and physically incapable of operating a computer."

Oops. Still, the condition of the copyright troll's victim wasn't the topic which received Judy Zilly's harshest criticism. That distinction goes to the quality and quantity of evidence Venice PI produced in its lawsuit. The Judge notes that this evidence amounts essentially to nothing more than an IP address. He then goes on to suggest that any tracking of IP addresses that pointed to Mr. Miller being a torrent-y type of guy should have its accuracy immediately questioned. Beyond that, the judge indicated that Venice PI can't use that IP address to try to find, you know, actual evidence.

Moreover, plaintiff may not, based solely on IP addresses, launch a fishing expedition aimed at coercing individuals into either admitting to copyright infringement or pointing a finger at family members, friends, tenants, or neighbors.

To that end, lawyers for Venice PI are barred from having any contact with Miller's family or any other unnamed defendant in this case. In addition, Zilly is demanding any other evidence the plaintiff's can produce -- likely none --, as well as information on how IP addresses in bittorrent swarms might be spoofed. The judge goes on to say that if no further evidence can be presented, the claims will be dismissed with prejudice.

It's simply great to see a court get this so correct in a copyright troll case. Too often trolls are allowed to skate by in presenting evidence that isn't evidence at all, with no ground given to the sort of mitigating testimony offered by Miller's widow. That Venice IP hasn't dismissed their case against the now-deceased man is an added stain on its trollish soul.

Filed Under: copyright, copyright troll, dementia, elderly

Copyright Troll Carl Crowell Ups The Ante: Now Demands Accused Pirates Hand Over Their Hard Drives

from the nope dept

Carl Crowell is a special kind of copyright troll who has graced our pages in the past. The lawyer who worked with Voltage Pictures and whose tactics were underhanded enough to warrant a lawsuit from his former business partner and for a federal judge to setup a pro bono legal team for the targets of his trolling threat letters, Crowell has always operated at the far end of the spectrum when it comes to copyright trolls. That said, a recent demand he made of someone he accused of pirating the film Mechanic: Resurrection takes things a step further by simply demanding the accused turn over his computer upon accusation.

Bill Sheldon mostly uses his personal computer, a Hewlett-Packard Envy laptop, to watch how-to videos for car repairs so he can make an extra buck now and then by fixing a neighbor's radiator. So Sheldon, a 55-year-old Portlander, was surprised in early April when he was sued for copyright infringement for allegedly using BitTorrent software to illegally download a movie called Mechanic: Resurrection—a Jason Statham flick he says he'd never heard of before seeing the title on the court papers. He soon received an even bigger surprise. On April 28, a second letter arrived, asking Sheldon to hand over his computer's hard drive for testing.

Sheldon refused and adamantly insisted he's never heard of either the film or the term "bittorrent" before. Instead, he was afforded a pro bono lawyer, who was mandated to only work for three hours on his case, but who instead chose to stay on once he saw that Crowell had demanded that Sheldon turn over his personal and private property for review.

"There's no judicial oversight of what [Crowell] can and cannot do with the hard drives," says Perriguey. "There's no order to destroy the data or to keep it safe. He's getting access to people's highly private and personal information, including legally protected health information."

Crowell says he asked for Sheldon's computer only to make sure he had stopped illegally downloading movies.

"I have neither the time nor the interest to review the personal information that might be on a party's computer," Crowell says.

Which is, of course, entirely besides the point. And, it should be noted, taking Crowell at his word after he has spent the better part of the decade being a factory for settlement threat letters built on flimsy evidence and fear doesn't seem like a reasonable course of action, either. Whatever you think of Crowell and his copyright trolling ways, there are proper and improper tactics to use in a copyright infringement case. Demanding the receipt of private property that almost certainly contains highly private information about what is merely an accused copyright infringer is plainly bonkers. It's worth repeating at this point that it isn't only Crowell's victims crying foul, but also those on the other side who have worked with him on his copyright efforts.

James S. Davis, a former law school classmate of Crowell's who helped him bring dozens of copyright cases in California, sued Crowell in July for allegedly misleading him about the legitimacy of his cases. His suit alleges Crowell has not done enough to prove the cases have merit or even that his clients own the right to sue for copyright infringement.

Nicholas Ranallo, Davis' attorney, says Crowell's cases use scare tactics to drive defendants into settlements.

It seems to me that when every side of an issue thinks you're doing something wrong, you probably are. For Sheldon's case, Crowell attempted to drop the case, suddenly proclaiming that he believed Sheldon was telling the truth. But he refused to pay Sheldon's legal fees for what was apparently a self-admitted frivolous case. And so the case goes on as Sheldon tries to get his piece of justice.

Filed Under: bill sheldon, carl crowell, copyright, copyright troll, hard drives

Copyright Troll Insists Septuagenarian Is An Enormous Copyright Infringer, Then Runs Away After Backlash

from the facepalm dept

Update, April 2020: The lawyer in question, Kerry Culpepper, has just informed us that a roommate of Harding, Gary Graham, "admitted to being behind the infringement," and has since agreed to pay the movie studios for his infringement.

For the evil scourge of copyright trolls out there, it must be true that one of the most problematic aspects of their business model is that they can't actually choose their victims. When all the trolls have to go on in order to target their extortionist settlement letters is an IP address, they can't possibly know much about who is on the other side of that IP address. IP addresses, as it turns out, are shitty identifiers in both directions. That, I assume, is how you get the attorney for a film studio sending a threat letter to a 72 year old man in Hawaii, claiming that he is one of the greatest copyright pirates on the planet with an odd taste in bad contemporary action films.

In Hawaii, a recent target of a copyright trolling expedition claims to be innocent, and he’s taken his case to the local press. The 72-year-old John J. Harding doesn’t fit the typical profile of a prolific pirate, but that’s exactly what a movie company has accused him of being.

In June, Harding received a letter from local attorney Kerry Culpepper, who works for the rightsholders of movies such as ‘Mechanic: Resurrection’ and ‘Once Upon a Time in Venice.’ The letter accused the 72-year-old of downloading a movie and also listed over 1,000 other downloads that were tied to his IP-address. Harding was understandably shocked by the threat and says he never downloads anything.

And he means anything, legally or otherwise. Instead, Harding insists he uses his computer for the same thing I imagine most folks his age use it: email, news, and some casual gaming. Harding isn't particularly shy about voicing his innocence either, nor is his couching it any moderate language.

“I know definitely that I’m not guilty and my wife is not guilty. So what’s going on? Did somebody hack us? Is somebody out there actively hacking us? How they do that and go about doing that, I have no idea."

Telling this story to the press was probably a smart move, getting attention paid to his case. Somewhat predictably, once the media tuned in to this story, Culpepper reached out to Harding and informed him that he would be dismissing him from any proceedings or legal action.

Attorney Kerry Culpepper informed TorrentFreak that he already sent a letter to Harding’s family about his intention to dismiss them. The attorney says that he doesn’t use “the Prenda strategy” to try to extract nuisance settlements from innocent people.

Except that this only brings up more questions. We can start with the obvious one: why did Culpepper agree to dismiss Harding? What makes his case different than all of the others? It cannot simply be his age. The Elderly are capable of infringing copyright, after all, and if all of the evidence against Harding equates to the evidence against younger targets of these letters, his age alone shouldn't be the difference maker. Except that of course it is. What this dismissal does is highlight the laughable idea that the authors of these settlement offers have any real evidence against the recipients at all. If they did, this evidence could not be defeated by someone simply shouting, "But I'm just so old!"

And yet the threat letters go out, embarrassing miscalculations and mistargets and all. It's probably long past due that we had some legal clarity on the legal value of IP addresses as evidence of infringement.

Filed Under: copyright, copyright troll, john harding, kerry culpepper, shakedown

Copyright Troll Sues Tor Exit Node, Gets Partial Win

from the spray-and-pray(ers-for-relief) dept

Copyright trolls still labor under the (deliberate) misconception that an IP address is a person. Sometimes judges allow it. Sometimes judges remind them not to conflate the two. And sometimes -- well, maybe just this once -- the IP address being sued is actually a Tor exit node, evidence of nothing. (h/t Raul)

In an opinion handed down by Judge Michael Simon, the person Dallas Buyers Club is suing for infringement will be subject to adverse jury instructions thanks to the Tor exit node DBC sued. The order refers to alleged evidence spoliation by the defendant, who shut down his exit node after being sued. The defendant has (correctly) pointed out "Evidence of what?" because it's highly unlikely his node would cough up any usable identifying information about infringers utilizing the node.

All DBC had was an IP address, and it wasn't linked to the defendant -- at least not in terms of it being his personal computer.

The internet protocol ("IP") address identified by Plaintiff as infringing on Plaintiff's movie is an IP address associated with a one of Defendant's servers. Defendant operated this server as a virtual machine ("VM"). Using VM technology, Defendant migrated information from his old multiple servers onto two servers operating as VMs. One of these is the physical machine associated with the allegedly infringing IP address ("Infringing Machine").

On the Infringing Machine, Defendant installed Tor Network software and created a "Tor Node," which facilitates use of the Tor Network by end users by routing information through Defendant's machine. Also on this machine were VMs for two email servers. The Infringing Machine had two hard drives, which were mirrored. Defendant did not use the Infringing Machine as a personal computer and did not attach any personal computer to this machine. The Infringing Machine was located on a server rack.

It wasn't until 10 months after the original filing that DBC finally submitted an amended complaint actually naming a human defendant (along with his business "Integrity Computer Services"). Prior to being served himself, the defendant learned of the lawsuit and participated in some discovery conferences. At two points between the lawsuit's filing and his appearance at the conferences, the defendant attempted to fix his malfunctioning RAID system by deploying a utility that basically wiped everything off the drives. He left the Tor node running and moved anything related to his personal business off the server.

DBC claimed this was done to destroy evidence. The defendant countered, explaining it was highly unlikely a Tor exit node would produce usable information. (He had also offered to shut down the node to "amicably resolve" the lawsuit by ending the alleged infringement his node was supposedly "allowing" to happen.)

The Court finds credible Defendant's statements that he genuinely believed that his hard drives would not contain any information that would identify or provide relevant data relating to the alleged infringement, based on his understanding of how Tor Nodes operate. Defendant explained his understanding and the basis for it in detail.

The Court also finds instructive the unique facts of this case. The Infringing Machine was not a personal computer from which all data was wiped with after-market software. The Infringing Machine was a Tor Node that routed information for other end users around the world. As Defendant points out, it is questionable that he had a motive to deceive the Court by wiping information that may or may not have identified some unknown user somewhere in the world.

Despite this, the court has decided to sanction the defendant for not preserving what may have been completely useless data. It won't go as far as DBC wants it to (the troll asked for a default judgment in its favor) but it won't help the defendant much if this case goes to trial.

Accordingly, the Court orders that the jury shall be instructed as follows:

Defendant John Huszar has failed to preserve computer hard drives that may have contained evidence relevant to this case. You may presume that the lost evidence was favorable to Plaintiff. Whether this finding is important to you in reaching a verdict in this case is for you to decide.

A partial win for the speculative invoicing team at DBC. If this case goes to trial, the defendant starts with a strike against him when the jury goes to deliberate. Perhaps the jury will see the case for what it is: a copyright troll suing a Tor exit node because it can't be bothered to go after those actually committing infringement. Then again, the discussion of RAID controllers, IP address-cloaking efforts, and other technical details may become "evidence" the defendant had "something to hide." "Normal" computer users don't run Tor exit nodes or multiple servers, and when the facts seem weird and ungainly, they tend to work against the person deploying them.

Filed Under: copyright, copyright troll, dallas buyers club, exit node, ip address, tor
Companies: dbc

Copyright Trolls Overplay Their Hand In Finland, Bringing A Government Microscope To Their Practices

from the oops dept

Copyright trolls operate on a precarious edge.They have to find enough people willing to fall for their threat settlement letters to be profitable, while at the same time not causing enough of a stir to be noticed by the general public or risk backlash. Quite often, copyright trolls do indeed cross this line. It's not all that often, however, that they cross it in spectacular fashion.

Yet that appears to be exactly what they've done in Finland, where so many internet account holders have been sent threat letters that both local law enforcement groups and the national government have been forced to respond.

HS estimates that as many as 60,000 people could be in line to receive cash demands similar to the one detailed above. They come from Hedman Partners, the Helsinki law firm that’s been involved in copyright trolling cases in Finland for the past couple of years. Based on a 2,200 euro settlement, the cash involved is potentially enormous. For every hundred cases settled, the law firm reportedly pockets 130,000 euros for “monitoring costs”, with 90,000 euros going to the rightsholders.

Due to the scale of the problem, complaints from letter recipients are now being reported to various local authorities. After receiving dozens of complaints from bewildered Internet account holders, police were forced to issue a statement last Friday.

That statement from the police essentially amounted to stating that there was no criminal aspect to any of this, that it was instead a civil matter, and could the public please stop inundating them with calls about it, please? It's not surprising that the police were called, however, as these types of threat letters are typically constructed in a manner that might lead the reader to assume there are criminal penalties that could be levied against them. It also seems that many of the bewildered account holders had contacted the police to make a claim of fraud against the copyright troll, a claim the police decided not to pursue.

But the Finnish government might, it seems.

With the police backing away from any involvement, expectations have now fallen on the government to tackle the problem. Thankfully for those involved, the Ministry of Education and Culture appears to be taking the matter seriously and has promised an investigation.

“It is not intended that our legislation should be used for milking [the public],” said ‎Government Counsellor Anna Vuopala. “It seems that it is appropriate for the Ministry to convene the parties involved in order to find out whether the law is being complied with in all respects,” she said.

This is probably the worst case scenario for a copyright troll: creating enough of a fervor with the public to warrant a look-see from the public officials beholden to that public for votes. Specifically, the government is going to examine whether Finnish ISPs are following the law that requires them to hand over account holder information if piracy occurs on an account to a "significant degree." It seems that some of the settlement letters are going to account holders that have, at most, engaged in something of a one-off case of filesharing. Whatever the definition of the laughably vague term "significant degree" might be, it certainly seems obvious that such a degree can't be a single instance.

A crackdown on copyright trolling may now be on the menu, all because the trolls overplayed their hand.

Filed Under: copyright, copyright troll, finland
Companies: hedman partners

Prenda's Paul Hansmeier Now Under FBI Investigation For His ADA Lawsuits

from the lawyer-working-on-fraud-hat-trick dept

The wheels of justice have turned to the point where Team Prenda copyright trolling efforts have netted John Steele and Paul Hansmeier federal indictments. The list of charges the pair face is ugly: mail fraud, wire fraud, conspiracy to commit money laundering, and suborning perjury.

After Prenda's many copyright lawsuits fell apart, Paul Hansmeier decided to start trolling small, local businesses with ADA lawsuits, hoping to turn what little legal expertise he has into profitable settlements. During this time, Hansmeier was also facing the dismantling of an attempted bankruptcy filing -- one that very much looked like an attempt to avoid paying judgments resulting from Prenda's years of bullshit. To avoid having his assets turned over to creditors, Hansmeier engaged in some creative accounting, like handing off money to a newly-formed trust and... dumping cash into a cardboard box.

Hansmeier's ADA lawsuits weren't particularly successful and his efforts were beginning to attract judicial scrutiny. Worse, it appears the lawsuits have also attracted the attention of the FBI, which means Hansmeier could soon be facing a second set of indictments.

Jennifer L. Urban, an attorney for DSA [Disability Support Alliance], said in court filings that the nonprofit was a victim of a crime perpetrated by Smith and Hansmeier, his former attorney.

Urban wrote that the DSA filed criminal complaints with the Burnsville Police Department against Smith and another former DSA director, Aaron Dalton, over a series of cash withdrawals earlier this year. A Burnsville detective helped DSA retrieve $4,400 that Dalton was captured on camera taking out of an ATM but was unable to recover $6,900 withdrawn by Smith, Urban said.

The FBI, meanwhile, notified Urban in October that DSA was a possible victim of a federal crime. She wrote Wednesday that DSA is “cooperating with the ongoing federal criminal investigation/prosecution of Paul Hansmeier.”

During the short period Hansmeier was in the ADA trolling business, he filed nearly 100 lawsuits against Minnesota small businesses. Some settlements were obtained, but not nearly as many as Hansmeier would have hoped. His law license was suspended this fall, which meant his trolling efforts have to continue without his assistance. Someone who helped Hansmeier hide money from creditors is now the new face of Minnesota ADA trolling.

His wife, Padraigin Browne, picked up his pending disability access lawsuits — including the CCRE federal suit — and has since filed a number of her own.

Apparently, Hansmeier has more cash on hand -- and has helped others similarly situated in the ADA trolling business.

DSA Board Chair Eric Wong hired Urban’s firm late last year, partly to investigate suspected internal theft. The investigation revealed the theft by Smith and Dalton but also that Hansmeier helped four DSA directors — Smith, Dalton, Zachary Hillesheim and Melanie Davis — steal settlement proceeds from litigation efforts, according to Urban.

She said the investigation also revealed that Hansmeier got $312,218 — more than 70 percent of the revenue generated by DSA litigation — from July 2014 to June 2016 despite never litigating a case to a verdict and being awarded attorney’s fees or invoicing DSA for payment.

A letter [PDF] from the FBI to Jennifer Urban of the DSA confirms the investigation. The letter informs her of her rights as a victim and cautions that investigations are often lengthy and not easily resolved. But the good news is that another set of justice wheels are grinding, however slowly. And at the end of the grind is a lawyer who never found a way to turn his law degree into an honest living.

Filed Under: ada, ada troll, copyright troll, fbi, investigation, paul hansmeier

Copyright Troll Ordered To Pay $17k To 'Pirate' It Falsely Accused

from the the-receding-wave dept

There is a beautiful passage in Hunter S. Thompson's otherwise largely overrated book, Fear and Loathing In Las Vegas, that always stuck out to me. Speaking on the anti-war and free-love movements of the sixties, he writes:

There was no point in fighting—on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave. . . .So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high-water mark—that place where the wave finally broke and rolled back.

This idea of a positive movement cresting like a wave before rolling back fits other narratives as well, and not all of them positive. Whatever despair might be felt for Thompson's cause receding back into the ocean might transform into joy as we might be watching something similar happen to the scourge that are copyright trolls. They too crashed onto the scene a decade or so ago like a wave, rolling over the legal systems of many nations and drowning them and the public with lawsuits, legal notices, and threats. But perhaps that wave has also crested, given the recent actions taken by ISPs to protect their customers, by courts that have begun casting narrow glances in the trolls' direction, and by the fall of several of the more notable copyright trolls entirely.

But the real sign that things on the matter have taken a turn has always been when the copyright trolls begin facing a price for their actions. That too seems to be beginning, at least in the case of one falsely accused "pirate" who has been awarded $17k to cover his legal ordeal. The lawsuit had been over the downloading of an Adam Sandler movie at a foster care home.

The defendant in question, Thomas Gonzales, operates an adult foster care home where several people had access to the Internet. The filmmakers were aware of this and during a hearing their counsel admitted that any guest could have downloaded the film. Still, the filmmakers decided to move their case ahead, and for this decision they may now have to pay. After the case was dismissed, the wrongfully accused ‘pirate’ asked to be compensated for the fees he incurred during his defense.

In a findings and recommendations filing published last Friday (pdf), Magistrate Judge Stacie Beckerman concludes that the filmmakers went too far.

Within the opinion itself, the court noted that it agreed with Gonzales' claim that the whole point of these legal threats by the copyright troll was to extract large settlements before the trial had actually begun, which meant that the troll would levy the harshest accusations in order to make its settlement offers appear reasonable by comparison. This, despite the facts that would make the accusations clearly silly.

The Court shares Gonzales’ concern that Plaintiff is motivated, at least in large part, by extracting large settlements from individual consumers prior to any meaningful litigation. On balance, the Court has concerns about the motivation behind Plaintiff’s overaggressive litigation of this case and other cases, and that factor weighs in favor of fee shifting.

Compensating Gonzales will encourage future defendants with valid defenses to litigate those defenses, even if the litigation is expensive. Conversely, and perhaps more importantly, awarding fees to Gonzales should deter Plaintiff in the future from continuing its overaggressive pursuit of alleged infringers without a reasonable factual basis.

In those last two lines, you can clearly see a court that is entirely fed up with having its docket filled with actions brought by copyright trolls. If other courts take up the cause, the possibility of financial penalty to bringing spurious copyright suits might finally roll back the wave, as it were. That would be a huge win for the practice of justice on matters of copyright.

Filed Under: adam sandler, copyright, copyright troll, false accusation, thomas gonzales
Companies: cobbler