Prenda Law Tries To Dismiss Case After Being Accused Of Directly Violating Judge's Orders

from the these-guys-again? dept

We've been covering a number of stories about copyright trolling law firm Prenda Law lately, and each time, we're somewhat amazed at their really brazen attempts to abuse the court process to basically get information which they can then use to pressure people into paying Prenda not to be sued over copyright infringement. Some of the more amazing cases we've highlighted include the one in Florida where the judge accused Prenda of fraud on the court after a court hearing that was worthy of a comedic movie. And then there's the ongoing questions about the mysterious Alan Cooper who may or may not be Prenda founder, John Steele's, housekeeper, rather than an actual executive running a firm that Prenda is representing. Oh, and let's not forget Prenda's big bag of tricks in another set of cases. Basically, every time Prenda Law / John Steele pop up, it's not long before serious questions follow.

So... here we go again. The site DieTrollDie has the story of a Prenda case in Colorado against one William Cisa and "1385 "joint tortfeasors." Basically, Prenda is trying to get information on 1,386 people... from whom they will then demand settlements. Unfortunately, the judge in that case initially allowed "discovery" to go forward, allowing Prenda to get some info on all of those people. Eventually, the magistrate judge realized that something sketchy was going on and reversed the order on discovery and killed the outstanding subpoenas to ISPs for info. The magistrate judge, Kathleen Tafoya, also made it clear to Prenda not to contact anyone whose info it had received:

Insofar as any personal identifying information of the non-party “joint tortfeasors” has already been provided to Plaintiff from the “joint tortfeasors’” ISPs, Plaintiff is prohibited from further communicating with these subscribers.

Sounds good... except that the anonymous person behind DieTrollDie noticed that a lawyer hired by Prenda, Timothy Anderson, had been filing lawsuits for Prenda in Virginia -- including some against the people associated with the IP addresses uncovered in the Cisa case. And, remember, the CO court made it clear that Prenda is prohibited from communicating with those people... and yet it's filing lawsuits.

The person behind DTD sent an email to the court alerting it to this likely violation of Judge Tafoya's order... and soon after that Anderson sought to dismiss the Cisa case entirely, without bothering to respond to the claims of violating the order. Whether or not the judge decides to do something about this, I imagine that the judges in the cases in Virginia may be informed about the background here...

Filed Under: copyright trolls, john steele, prenda, tim anderson, william cisa
Companies: prenda, prenda law

If TekSavvy Won't Oppose Copyright Trolls Who Want Customer Info, Who Will?

from the privacy-before-piracy dept

We recently covered the latest attempt by Voltage Pictures to identify alleged Canadian filesharers in order to launch one of their infamous copyright shakedown schemes. Rather than target one of the big ISPs, they made a list of thousands of IP addresses from TekSavvy, an independent service provider, and sought a court order forcing them to identify the users behind the addresses. TekSavvy has been admirably transparent and communicative about the issue, and was clear from the start that it would not release any information without a court order. On Monday, the court granted TekSavvy's request to adjourn until January so it could notify its customers and give them a chance to oppose the motion that would reveal their identities. However, TekSavvy has also been very clear about one thing: it won't be opposing the motion itself, and it's left a lot of customers and commentators wondering why.

Nobody would expect TekSavvy to personally defend each customer against accusations of infringement, and the company's statements so far seem to hinge on that idea as the reason it's not going to oppose Voltage's request in court. On the surface that might seem reasonable, but in fact it sidesteps the real issue: TekSavvy may not be responsible for its users' defence against infringement lawsuits, but it is responsible for protecting its users' privacy—and there are plenty of serious privacy issues with Voltage's motion that need to be addressed long before we get to the point of determining the actual guilt or innocence of individual users.

This isn't hypothetical. Howard Knopf explains the key legal comparison in this case—a 2004 attempt by BMG to get information on a mere 29 users from much larger ISPs. Not only did the ISPs oppose the motion, they won, and established important precedents in doing so.

Despite Teksavvy’s openness concerning this issue, questions are still bound to arise why Teksavvy is not actually opposing this disclosure motion in 2012, as Shaw and Telus actively and successfully did in 2004, with Bell and Rogers taking a similar if less vigorous position. In this regard, it is interesting to compare Voltage’s material with the BMG et al material filed in 2004 that was rejected by the Federal Court and Federal Court of Appeal at that time as inadequate in a very comparable situation, as a result of which we now have clear and binding appellate case law.

...

The law about all of this was clearly laid out by the Federal Court of Appeal in 2005. Here is a very balanced discussion of this presented by myself and one of my worthy opponents in that case, Richard Naiberg. The key criteria for potential success in a disclosure motion such as this is that there must be substantial, admissible, non-hearsay, and reliable evidence in the form of affidavit material and at least a bona fide case.

A key intervener in that case was the Canadian Internet Policy & Public Interest Clinic, which fought hard for the privacy of the Doe defendants. CIPPIC also sent a letter to the court regarding this recent Voltage motion, requesting the adjournment that was granted Monday. That letter focused heavily on the factors established in the BMG case, and when you run through those factors, you begin to see why this is a privacy issue before it's an infringement issue. The court's disclosure test was designed to ensure that customer info isn't released without a solid reason—and perhaps the most important requirement is that there be a bona fide claim, further clarified as a true intent to pursue further action based on the disclosure, and no ulterior motive. When it comes to a shakedown operation like Voltage's, everyone knows that the exact opposite is true, and CIPPIC's letter (pdf) cites the company's past (while explaining precisely what a "copyright troll" is) to make this point:

On the question of bona fides, the plaintiff has identified literally thousands of John Does and Jane Does. BMG v. Doe involved only 29 potential defendants. It is worth asking the plaintiff if it holds a bond fide intent to bring 2000 actions for copyright infringement. As will be noted below, this plaintiff has a track record in the United States of demanding subscriber data of internet service providers for the purposes of demanding exorbitant payments to settle under threat of litigation, with no bona fide intent to prosecute such litigation. In CIPPIC’s view, this scheme does not meet the requirements of the need to show a bona fide claim, but instead is evidence of another purpose.

...

the applicant has in the past engaged in similar mass litigation in the United States. The applicant’s business model for such litigation has earned it the label of “copyright troll”. Trolls’ business model involves alleging that consumers are liable for copyright infringement, and demanding compensation under threat of litigation. The compensation demanded invariably grossly exceeds the damages a troll might expect if the troll were to actually litigate and obtain judgement and a damages award. However, such compensation does not typically exceed the cost to a defendant of defending the action. Enough defendants will choose to pay rather than defend to make the scheme profitable to the troll. The troll typically never litigates through to a judgement, since the costs of doing so would render the scheme as a whole less profitable. The troll’s business model, thus, is an arbitrage game, exploiting judicial resources to leverage defendants’ fear and the costs of defending into a revenue stream. And, of course, no part of these revenues finds its way back to the court to offset costs borne by the taxpayer as the judiciary plays its inadvertent role in this scheme. In CIPPIC’s view, such a purpose is improper and bars the applicant from establishing a bona fide claim.

Not only that, as the letter notes, Voltage's motion accuses the users of commercial infringement—a much higher bar carrying much higher potential fines. This accusation seems completely unsupported by the evidence (which amounts to little more than "these IP addresses were connected to BitTorrent swarms") and even less likely to qualify as a bona fide claim.

Since we've been seeing lots and lots and lots of US judges slamming copyright trolling operations and dumping their cases, there's clearly an opportunity here for Canadian courts to smack down this practice before it gets off the ground—or re-assert their earlier smackdown, anyway. But the only way that can happen is if someone actually opposes Voltage's request (CIPPIC's letter was just supporting a delay). TekSavvy is still insisting it won't be them; CIPPIC might seem the logical candidate, and I'm sure they'll do what they can, but it's unclear how much they will be allowed to intervene if none of the directly-involved parties put up a fight. The only other option is the customers themselves, once TekSavvy notifies them—but, of course, the whole point of this scheme in the first place is that most people can't afford to take on a complex legal battle.

So will Voltage waltz right past the clearly-established test for the disclosure of private information? If TekSavvy doesn't do anything, they just might.

Filed Under: canada, copyright trolls, isps, privacy
Companies: teksavvy, voltage

Making The Case For Why John Steele And Prenda Law Deserve To Be Sanctioned

from the fraud-on-the-court dept

Last week we had the incredible story of the comedy routine that copyright troll John Steele and Prenda Law tried to pull on a courtroom in Florida, leading to the case being dismissed and the judge planning to dig deeper into the potential "fraud on the court." If you have not read that post and accompanying transcript do so now. It is one of the funniest things ever to come out of a courtroom.

And, of course, it's not over yet. The defense attorney in the case, Graham Syfert, who has been getting pretty good at exposing bad behavior by Steele and Prenda, has filed a motion asking for sanctions, and it's a good one. You can see it here or read the embedded version below. Syfert kicks it off by showing, in massive detail, that the letter from Paul Duffy -- claiming to be the sole principle of Prenda Law -- denying any involvement in the case is likely bogus on multiple levels.

Mr. Duffy’s signature is on the subpoena issued out of the United States District Court for the Northern District of Illinois, relating to Civil action 1:12-CV-20920-PAS in the Southern District of Florida. (See attached Exhibit “B”) This subpoena revealed the name of the internet subscriber with the IP address of 96.254.186.43, and produced the name of the Defendant to Prenda Law, Inc., at 161 N. Clark St. Suite 3200, Chicago IL 60601, the same address listed on the letter where Paul Duffy stated that he did not represent anyone involved in this case.

Further, Mr. Duffy has made appearances in Sunlust v. Does 1-75, 12-CV-1546 (N.D. Ill.), Sunlust v. Sadiq Majid, 12-CV-07868 (N.D. Ill.), and Sunlust v. Norbert Weitendorf, 12-CV-07826 (N.D. Ill.) and possibly other Sunlust matters.

The website www.wefightpiracy.com is the website of Prenda Law, Inc., lists Paul Duffy as the principal, and lists the work product that is the complaint in this matter as their own, stating “Below is a sample of individuals who chose to litigate the matter and are currently in court over their alleged infringment” and then listing the name of the Defendant, along with a link to the complaint in this matter. The complaint is held on Prenda Law’s website at http://www.wefightpiracy.com/userfiles/Nguyen%20(FL).pdf and the website reports an address of 161 N. Clark Ste. 3200.

Yeah. That last one is pretty damning. And, as of the moment I'm writing this, that link is still on Prenda's list of cases. A quick screenshot: When you claim that you aren't associated with a case, you probably shouldn't put the case up on your website listing "recent cases" that your firm has been involved in.

Of course, Syfert then turns his attention to John Steele, noting that Duffy's claims of not being involved might actually be true if John Steele -- who is not licensed to practice law in Florida and has already been warned by the Florida Bar about this issue -- is actually running the show, potentially even to the point of writing the "letter" that Duffy supposedly sent:

There is only one possible way that the letter is true, and filled with candor, and that would be if John Steele was using Paul Duffy as a “face attorney” using his identity to litigate, and therefore Paul Duffy doesn’t truly represent any Sunlust client. Another option is that that the letter was not even sent from Paul Duffy, and that it was created by John Steele, and was sent without with or without Paul Duffy’s permission.

A quick and dirty forensic examination of the PDF document, as sent by email by “Angela Van Hammel” of Prenda Law, reports that the PDF document was created by a computer user by the name of Kerry Eckenrode (the maiden name of John Steele’s wife) and was created by “Steele Law Firm.” Exhibit “C” attached gives the simple properties of this document and evidences that it was created on 11/20/2012 even though it is dated the 11/18/2012. It is possible that John Steele created the letter at the request of Paul Duffy, but it is unlikely that it was ever presented to Mr. Duffy for his approval, as he would know of his representation in the Sunlust matters.

It is unlikely that Paul Duffy would own or use a computer associated with John Steele’s wife, which would bear the the name of John Steele’s Illinois family law practice (a relatively new creation, post-Prenda Law and post-Steele Hansmeier). Regardless of whether it was created at the behest of Paul Duffy or John Steele was given carte blanche to create the document, it is common for John Steele to create documents and send emails with other attorney’s names to serve his own agenda, with or without their knowledge. When counsel filed his second bar complaint against John Steele, it was for the impersonation of a Florida attorney via e-mail. John Steele’s slippery and wily traits always resulted in insufficient evidence to prove this Mr. Syfert’s claims to the Florida Bar. The loyalty John Steele mysteriously engenders in those around him results in lies to protect him, and therefore insufficient evidence to show that he is violating his affidavit of no UPL attached as Exhibit D.

It goes on to note that Syfert himself, in Chicago to see a Cubs game, stopped by Prenda's offices asking to see Duffy, and the security folks had no idea who he was talking about. But when he asked about John Steele, the guards immediately knew who he was talking about. That would seem odd if Duffy is really running Prenda, as he claims. Furthermore, he notes that every time people try to contact Duffy, Steele seems to call them back. Syfert also notes how Steele's own actions in this particular case seem just a bit odd if he's really got nothing to do with the case:

John Steele wanted to make very clear that although Mark Lutz was looking to him for assistance that he had nothing to do with the case or with Prenda Law. In his Forbes interview, Mr. Steele is filing 20 lawsuits a month with hopes to increase to 300 and he is raking in millions for his efforts. Before this Court, his demeanor is that he is essentially retired, just a fan of bittorrent litigation, in town from Miami or from Chicago, because civil motion arguments as interesting as to him as a Cubs game. He projects that he is a passing acquaintance of Mr. Duffy, and has nothing to do with the case, but has the knowledge to allege that the principals of the Plaintiff were in India (even though that was also a lie). He also knew the correct pronunciation of one of the principals of Sunlust Pictures.

Then there's a second filing about sanctions, this time targeted at Matthew Wasinger, who really only played a bit role in the original hearing -- in that he was the lawyer who had, very briefly, represented Sunlust/Prenda in the case, but had asked to be removed from the case. He did not show up at the court that day, pissing off the judge who had not actually released him from the case. He later filed an apology, saying that he got mixed up, but the judge still considered sanctioning him. Syfert's motion there is interesting, in that he suggests that, in lieu of monetary sanctions, Wasinger should have to answer a number of questions about Prenda/Steele.

It is the hope of Defendant’s counsel and Defendant, by this motion, that a similar line of questioning to the one presented by the Court to Mr. Torres would clarify Mr. Wasinger’s position in this case. By requiring answers to these questions, Defendants counsel hopes that the responses serve as a warning to other potential “local counsel” representatives of Prenda Law to caution themselves in representing Plaintiffs in Federal Court without a reasonable disclosure of the facts surrounding the cases that they are accepting and ability to adequately protect the interest of their clients.

He then lists out fourteen questions, similar (though not identical) to the ones asked by the court of Torres in the hearing.

A few days after this was filed, Wasinger responded to the motion by again apologizing profusely and making a compelling case that his failure to appear was unintentional (since Jonathan Torres had been approved to replace him in a bunch of other cases, and there were indications he was appearing in this case as well). He also notes that his absence did not likely harm the case, seeing as his answers to the questions Torres answered would have been basically the same (i.e., he signed onto this case, not realizing what a clusterfuck it was, or what kind of confusing mess Prenda had gotten him into).

In response to Syfert's request to substitute answering questions for any monetary sanctions, Wasinger seems happy to help nail Prenda and warn others, but he wants to make sure that if he answers the questions, he won't still be on the hook for monetary sanctions.

The undersigned is willing to answer the questions set forth by Mr. Syfert in his Motion upon Order by the Court and a finding of this Court that answers to these questions would not violate any potential ethical duty to Sunlust Pictures. The undersigned would truthfully answer any questions as directed by the Court under oath. However, the undersigned is concerned about Mr. Syfert's request to leave open the possibility of a $500.00 monetary sanction if he is not satisfied with the answers. Since the answers would be provided under oath, it is respectfully requested that the Court denies this request.

And, finally, he once again asks to be removed as the attorney for Sunlust.

I expect there will still be plenty of entertainment value as this case moves forward. So far, the only thing that has happened is that the judge responded to Torres initial motion to be added as counsel and his near immediate request to be removed. Amusingly, she denied the motion to substitute as counsel, given that he's also asked to be removed, and then denies the request to be removed as moot. I'm sure the next few filings should be even more entertaining.

Filed Under: copyright trolls, florida, fraud on the court, graham syfert, john steele, mark lutz, matthew wasinger, paul duffy, prenda law
Companies: prenda law, sunlust

John Steele's Property Caretaker Intervenes In Copyright Trolling Case, Alleging Identity Theft

from the prenda-law-comedy dept

Remember the comedy routine that really was a copyright troll court hearing involving notorious copyright troll lawyer John Steele and a bunch of lawyers who all denied representing the plaintiff? We hoped that people would take that transcript and turn it into a movie, and now, apparently, we may have Act II. Ars Technica and Fight Copyright Trolls both have the odd story of a man named Alan Cooper, who just happens to be employed by John Steele... but as a "caretaker" for some property Steele owns in Minnesota. And, well, I'll let his lawyer explain the details:

My client had for several years acted as a caretaker for a Minnesota property owned by an attorney by the name of John Steele. When visiting his property, Steele had on numerous occasions bragged to my client about a plan involving massive copyright legislation in multiple jurisdictions. He also specifically instructed my client to contact him if anyone asked about various corporations, that Cooper was to call him. When Cooper confronted Steele about that, Steele told him not to worry about it. Needless to say, my client was suspicious, but did not know what to make of this situation. Upon learning about the many lawsuits filed by AF Holdings and learning that AF Holdings has a CEO with an identical name he began to investigate further, eventually prompting him to retain counsel.

[...] When investigating this matter and calling the number listed on the wefightpiracy.com website, I confirmed that Steele is currently "of counsel" with Prenda Law. I called and emailed local counsel, Michael Dugas to give notice of representation and find out if there was in fact a different Alan Cooper with AF Holdings. Within an hour of giving notice to Prenda Law and local counsel of my representation, Steele himself called my client several times in a row and asked if he had been talking to attorneys in Minnesota. Because I had not yet heard from from attorneys Dugas or Steele, I looked for an alternative phone number for attorney Dugas and found a different number than the one that appears on the pleading.... Calling that number, I heard a voicemail message which said "Prenda Law." I again left a message, but have received no response. Because I have no response from Dugas or Steele, and because Steele has contacted my client, my suspicious are now increased.

Today, I receved an email from another attorney at Prenda Law, Paul Duffy, suggesting that their client, AF Holdings, probably would not volunteer information. I reasserted my request to confirm that there was another Alan Cooper at AF Holdings. Shortly before sending this letter, Duffy emailed me again and said that I should not contact his office again.

My client would like certainty that his identify is not being used without his knowledge and against his will as the would be CEO of AF Holdings, LLC or as a manager of Ingenuity13, LLC....

This letter was sent to the court on a few different cases involving these companies. In at least one, the judge apparently didn't think this mattered. After saying that it was "reviewed by the court," the judge also said "the court will take no action on this request." In the other cases, the lawyer for AF Holdings, Michael Dugas wrote a response which does not attempt to clarify the situation, but instead basically tells the judge it's false and not to worry about it:

I write to respond to the November 29, 2012 letter filed with the Court by Attorney Paul Godfread. In his letter, Attorney Godfread accuses AF Holdings LLC of being a sham corporation and fraudulently holding his client out as its CEO. Both of these accusations are categorically false.

Attorney Paul Godfread filed an identical letter in a similar case currently pending before the Honorable Judge Joan N. Erickson. In a text entry, the Court indicated it reviewed the letter and “will take no action on [Attorney Godfread’s] request.” Plaintiff respectfully requests that the Court reach similar decision. By way of separate action, Plaintiff will address Attorney Godfread’s egregious behavior.

Note that the letter leaves out the important part. You know, the part where they say that the "Alan Cooper" on these documents is a different Alan Cooper. It seems like that would help settle manners, especially if the initial claims were false.

Filed Under: alan cooper, copyright trolls, identity theft, john steele
Companies: af holdings, ingenuity13, prenda law

Porn Copyright Trolls Argue That Verizon Should Be Held In Contempt Of Court For Trying To Protect Its Users

from the privacy-schmivacy,-we're-trolling dept

Three of the bigger porn copyright trolls out there, Patrick Collins, Malibu Media and Third Degree Films, have teamed up to make a court filing arguing that Verizon should be held in contempt of court for failing to cough up the names of account holders based on the trolls' list of IP addresses. As you're probably aware by now, hundreds of thousands of people have been "sued" by copyright trolls, but not actually taken to court. The strategy is just to file a lawsuit and force ISPs to identify account holders, then bombard those account holders with threatening letters (and calls and emails) saying that they will be sued if they don't pay up (often a few thousand dollars). Verizon, like many other ISPs, has fought back against these demands for info on a variety of grounds -- including improper joinder (i.e., that the cases improperly lump together multiple people who had nothing to do with one another in an attempt to keep costs to the trolls down). These claims of improper joinder have been somewhat effective in getting a lot of these cases thrown out -- but usually those claims are raised by the account holders themselves, rather than the ISPs.

These three trolls have teamed up to argue that Verizon should shut up and hand over the names, claiming that it has no standing to object, given that it's not a party in the case. They also claim that even if Verizon can argue misjoinder, the argument is not valid (which is laughable considering how many courts have agreed that it's perfectly valid). Then they try to chop down every other argument from Verizon -- who actually has a really strong history of protecting subscribers against copyright threats. In fact, the trolls use this history against Verizon -- claiming that their victory nearly a decade ago, against the RIAA's attempt to use subpoenas to identify users without filing a lawsuit, shows that as long as they've filed lawsuits, they should have a free pass to identify the account holders named.

The really amusing part is the trolls' response to Verizon's point that the trolls have failed to show that the discovery would be used for the "proper purpose" of litigation. That's because it won't be. Everyone knows that the information will be used to try to force people into settling, and not to file lawsuits. But the trolls claim this is just dandy:

To the contrary, and as argued above, the “purpose” of the discovery is entirely proper: to obtain information identifying unknown Doe Defendants infringing Plaintiffs’ copyrights “in order to consider whether to name and serve them as defendants.”

Note the careful choice of words. They don't say that they're asking for discovery in order to actually sue, but to "consider" whether or not to sue. Meaning, of course, that they're extremely unlikely to file an actual lawsuit and are more likely to threaten account holders to demand a settlement. Hopefully the court sees through these attempts by these trolls to force discovery where it's clearly not appropriate.

Filed Under: bittorrent, contempt of court, copyright trolls, joinder, porn, privacy
Companies: malibu media, patrick collins, third degree films, verizon

Is Malibu Media About To Become The Righthaven Of Porn Trolls?

from the drop-the-bomb dept

Last month we wrote about an interesting case in which a judge effectively called the bluff of Malibu Media, a copyright trolling operation that has filed 365 lawsuits, targeting about 6,000 people. And, of course, it's never taken a single one to an actual trial, because that does not appear to be the goal. Instead, it's all about getting people to settle, and it sounds like Malibu has been successful on that front. In the case we mentioned last month, the judge made it clear that he wanted Malibu Media to actually go through a trial, and highlighted four defendants who had claimed innocence, and wanted to use those as a "bellwether" trial, to effectively test Malibu's theories. The judge, Michael Baylson, was pretty clear that he would not be happy if Malibu Media tried to squeeze out of the case.

At the beginning of the month, Malibu filed its "amended complaint" against the "John Does" in question, which gave up on some of the arguments in the original complaint and instead focused on direct infringement claims -- while also expanding the number of works infringed.

Yesterday, the Does hit back. It's interesting to note that they've signed up Marc Randazza (along with Jordan Rushie) to help them, as Randazza has both been on the other side of some porn copyright trolling cases and was also the lawyer largely responsible for bringing down the famed copyright trolling operation Righthaven. His work with porn studios to take part in similar cases has resulted in some worries of ulterior motives in taking on John Does in other cases, though that seems to be a bit paranoid.

Either way, the Does hit back hard. They're throwing the kitchen sink at Malibu Media. Among other things, they're claiming that the decision to expand the case to other possible infringements is ridiculous since the defendants use dynamic IP addresses, and Malibu is basing the other infringements on the same IP, but a totally different date or time. Also: the defendants claim that Malibu initially argued that all of the Does needed to be lumped together in a single lawsuit because they represented a "swarm" and as such had to be tried together. Except, in the amended complaint, they move away from that completely (no surprise, since the judge carved out just these few defendants). However, the defendants point out the inconsistency:

When considering litigating the “swarm theory,” Malibu was faced with the prospect of dozens of defendants, joined in their common defense against the plaintiff, with an initial seeder who very well may have had a license to publish the works to BitTorrent or elsewhere. When push came to shove, Malibu decided to dismiss more than eighty percent of the defendants it initially sued, despite its prior claims that the cases were brought against unified “swarms.” Malibu apparently thought better of the swarm theory, and decided to reduce the number of defendants. However, Malibu cannot properly abandon its foundational theory and still leave the case against Doe 13 intact. The swarm theory of liability relies upon a “swarm” of defendants and renders these now-dropped defendants indispensable to the action. Without even an allegation against the initial seeder, we have no idea whether Malibu itself seeded the relevant files. As Malibu does freely distribute the relevant films, it is entirely possible, if not most likely, that the initial seeder had permission to distribute the files via BitTorrent. If he or she did not, it is entirely likely that a participant in the swarm, from whom Doe 13 received the file, may have had such permission. Malibu’s omissions speak loudly in favor of dismissal. Unless Malibu re-joins these previous defendants, including the initial seeder, the Court must dismiss the action against Doe 13, who is by Malibu’s own theory incapable of according Plaintiff full and complete relief.

That paragraph has footnotes to point out that the company Malibu was using to obtain IP addresses, IPP (formerly Guardaley -- remember them?) is accused of actually seeding the files in the first place, which would suggest the copies were authorized. Of course, it's worth noting that Randazza, when on the other side of these cases, has used the swarm argument in the past.

Either way, that's just the warmup for the problems with the amended complaint. There's also a few other problems -- such as that it doesn't appear that Malibu legitimately owned the copyright in question. Oops. First, there's the fact that the filmmaker argued that the key film was a "work for hire" made for Malibu. Except, Malibu only came into existence in early 2011 and the movie was made years earlier. Malibu claimed this was an oversight in the registration process and then sought to register the copyrights properly just recently. However, again there are problems, as the assignment from the filmmaker failed to assign the specific rights under Section 106 of the Copyright Act, which are what you need if you want to sue. This was the critical defect in the Righthaven cases, in that they pretended to assign those rights, but it was in name only since the original copyright holder really retained all the key rights provided under Section 106. Furthermore, the defendants argue that the assignment statement does not really qualify as an assignment, and is, at best, a license.

In this case, the Assignment contains no provision of any exclusive rights from Field to Malibu Media. The assignment is silent as to what, if any, rights Field has within the films. Rather than transferring any discernible exclusive rights under Section 106 to Malibu Media, Mr. Field has executed what is essentially a quit-claim deed to Malibu Media, giving Plaintiff a jumble of unidentified rights (or perhaps none at all) that, on the face of the assignment, do not include the rights required to sustain an infringement action: exclusive rights under Section 106. Absent any indication that Field possessed full, undivided interest in the copyrighted works or exclusive rights therein, there is no basis on the face of the assignment for finding that Malibu Media acquired any exclusive rights and nothing in the assignment addresses past infringement.

Then they point out that even if the assignment is proper, it still doesn't help Malibu, because it is not clear when the assignment was made. And, under the law, while you can transfer the right to sue (along with other exclusive rights) for past infringements, that needs to be expressly stated in the assignment. That's not the case here.

Then there are other issues concerning the "swarm" argument. The defendants point out that if they were being sued as part of a swarm, the total awards across all the defendants can't surpass the maximum statutory rate. Yet with a bunch of defendants having settled, it's possible that Malibu has already been "made whole."

Malibu has already recovered significant funds in connection with the infringements alleged in the Amended Complaint. Prejudice against Does #6 and #19 before this action was set for a bellwether. (Dkt. Nos. 16 and 17). Presumably, this was because Malibu received adequate settlements from these defendants. In fact, Malibu may have received doubly-adequate settlements from them – in which case Malibu is now triple-dipping by seeking damages that have already been satisfied by third parties Malibu intentionally kept out of this litigation.

Because the swarm is global in scope, and the Plaintiff has likely already been made whole by other undisclosed swarm members, nothing short of full disclosure and setoff would allow Doe #13 to evaluate Plaintiff’s ability to bring this action that it repeatedly claims to be based on the uploading and downloading the exact same file. Since the Plaintiff seeks statutory damages, if the Plaintiff has already collected the statutory maximum for this work from other defendants, then the Plaintiff must stop visiting the well. Malibu filed Notices of Voluntarily Dismissal with

Thought they were done? Not yet. They also claim that Malibu is abusing subpoena powers outside of what was alleged in the complaint. In the amended filing, Malibu notes that its "partner" in identifying infringement, IPP, passed along the info that at least one of the Does has been accused by another IPP customer of infringement as well. As the defendants point out, that's completely irrelevant to the case at hand:

Nucorp, Ltd. is not a party to this action or any other action against Doe #13, and this allegation is scandalous and impertinent. Furthermore, set forth in more detail below, adding allegation also violated two court orders forbidding Malibu from abusing its subpoena power for purposes outside of what was alleged in the Complaint. Accordingly, Paragraph 53 and Exhibit “F” of the Amended Complaint should be struck .

In one of the other Motions to Dismiss, questions are also raised about whether or not Malibu has the proper and necessary licenses to do business in Pennsylvania where the lawsuit was filed.

There's more, but you get the idea. It certainly looks like some are trying to give Malibu the Righthaven treatment. And we all remember how that went...

Filed Under: copyright, copyright infringement, copyright trolls, marc randazza, swarm
Companies: malibu media, righthaven

Yet Another Judge Blasts Copyright Trolling Operation

from the down-goes-another-one dept

While copyright trolling cases keep popping up, it's become quite impressive how many courts are dumping such cases often while slamming the trolls' strategy. It's now happened again. A judge in Massachusetts has called out a troll for its "lack of interest in actually litigating." The case involves porn company Patrick Collins, Inc., which has been involved in a ton of these trolling cases -- including some of those linked above -- along with another company, Discount Video Center, represented by the same lawyer.

The full ruling (pdf) is worth reading. Basically, the judge (like many others) is completely onto Patrick Collins and the fact that it wants to use the court system as a part of its business model rather than for a legitimate judicial purpose. After noting that in an ordinary case against an unknown defendant, the purpose of seeking early discovery is to find out how to amend a lawsuit to include an actual named defendant. But here, the company seems to have no interest of doing such an amended filing since, instead, it just wants contact info to send out "pay up settlement" letters.

Ordinarily, a Plaintiff suing a John Doe Defendant would seek narrow discovery ex parte in order to identify the Doe Defendant for purposes of filing a motion to amend the Complaint to name the Doe, followed by service of the Complaint. The Plaintiffs in these cases evidence no interest in such a pursuit. They have not proposed a discovery plan aimed at identifying the infringers they have sued. Rather, the Plaintiffs request that the Court order disclosure of the third-party subscribers' names so that the Plaintiffs might settle or dismiss their cases on an informal basis. The discovery they seek cannot provide the Plaintiffs with sufficient information to identify the Doe Defendants. Nor have the Plaintiffs requested leave in their submissions to take depositions, either orally or upon written questions – the only discovery mechanism available to Plaintiff under the Federal Rules of Civil Procedure when seeking information from third parties, as is the case here....

... the omission of any written request for depositions in the Plaintiffs' renewed motions for discovery speaks volumes about the Plaintiffs' lack of interest in actually litigating these cases. That the Plaintiffs' counsel now assert a willingness to take depositions if that is the only option ... only confirms that the Plaintiffs' interest in litigating the cases, or in following the governing law, arises only in response to the Court's express command.

Not only have Plaintiffs failed to articulate a discovery plan that would lead to identifying the infringers they have sued, but the Plaintiffs cannot even articulate the specific information they need or require in order to identify the infringers (or, to determine that such identification is not reasonably possible).

Yeah, the judge isn't pleased. He explains that their plan to get the names and then "figure out the rest" through settlement letters "is unacceptable." Also not good for Patrick Collins -- back in July, its lawyer had told the court that it would be filing actual lawsuits against individuals the following week... but "no such lawsuits against individual defendants were subsequently filed." In other words, the company was misrepresenting its intentions to the court -- a big no-no.

It doesn't end there. The judge calls out Discount Video Center for seeking to "harass" a defendant and also engaging in judge shopping:

With respect to John Doe No. 22..., the Plaintiff Discount Video has stated an intent to dismiss Doe No. 22 from the pending action and file a new, separate individual complaint against this Doe, even though it does not know the identity of the infringer. Such an action smacks of an bad faith effort to harass the third-party subscriber by causing him or her to expend further legal fees in a brand new action, which would merely repeat all that has occurred to date. The Federal Rules specifically address this situation and authorize an award of fees and costs.... The course of action the Plaintiff has stated it intends to pursue also suggests an improper effort to engage in judge shopping and evidences a disregard for the Court's limited public resources.

Finally, the judge calls the plaintiffs out on the settlement letters they sent, noting that they falsely claim that the account holder has been sued, rather than the actual infringers, who may not be the same.

Finally, the Plaintiffs have repeatedly said one thing and done another. The Plaintiffs plainly sued only the infringers in these actions. Yet the Plaintiffs proposed and served notices upon the subscribers informing them they had been sued. The Plaintiffs' counsel stated to the Court that in his opinion, subscribers are "always going to . . . be secondarily liable "..., but he also stated that he would not assert secondary liability claims against subscribers as such claims would not pass muster under Rule 11.3

Now, the Plaintiffs have filed lawsuits against subscribers asserting secondary liability on the theory that, upon information and belief, discovery will reveal the subscribers to have known of the infringement via their account, or, that discovery will show the subscribers to be the parent of an unemancipated minor between the ages of 7 and 18.... While those cases are not before the undersigned (though some are before the district judges assigned to the captioned cases), the Court may permissibly consider them in assessing the reliability and veracity of counsel's statements. The Plaintiffs' counsel has also repeatedly said to the undersigned, and to other judicial officers of this Court, that he intends to litigate the claims he has brought. Yet to date, counsel has sued well in excess of one thousand Doe Defendants in this District, and as far as the Court is aware, he has never served a Complaint upon a single individual defendant.

What's amazing is that these rulings keep happening... and such cases keep getting filed as these trolls keep hoping to get a sympathetic (or clueless) judge to let them go through.

Filed Under: copyright, copyright trolls, judges
Companies: patrick collins

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

Copyright Troll John Steele May Be A Lawyer, But He Doesn't Seem To Know Much About The Law

from the every-pull-quote-lowers-IQ-by-10% dept

Copyright troll to the (porn) stars John Steele is no stranger to the pages of Techdirt. His m.o. combines the subtlety of a Mafia shakedown with the careful targeting of a Publishers' Clearinghouse mass mailing. Simply put, Steele tracks IP addresses, then leans on the court system to get ISPs to cough up names and physical addresses of alleged infringers to whom he sends letters full of vague legal threats and potentially embarrassing porn titles.

For a guy with a dubious legal strategy and an ever-growing list of judges who aren't willing to humor his fishing expeditions, he sure talks a big game. Confidence can be an admirable trait, but generally not when it's combined with a Lionel Hutz-esque grasp of any legal matter outside the "shakedown letter" arena.

On the subject of IP addresses not actually equaling a person, Steele offers up this non sequitur:

“Just because wrong person arrested for murder doesn’t mean murder shouldn’t be a crime.”

Innocent people getting arrested for crimes they didn't commit happens way more often than it should. It doesn't nullify the criminal act. It just punishes the wrong person while allowing the guilty party to roam free. There are very real consequences to "arresting the wrong person." Lives get ruined. Civil suits are filed. Careers end. Thousands, if not millions of dollars, are paid out to the victims. And at no point does any normal human suggest that criminal activity should be legalized in order to prevent the innocent from being accused.

If anything, false accusations generally lead toward calls for better investigative work and punishment of those responsible for the miscarriage of justice. However, if Steele falsely accuses someone, he'll likely just move on to the next name on the list. After all, he's got thousands of other targets. Whatever collateral damage results from a porn shakedown is just a problem for the falsely accused to deal with. It's highly unlikely that Steele will ever have to write out a large settlement check to any innocents caught in the crossfire. He may be dealing with some judicial setbacks here and there but, for the most part, he seems to be operating without fear of reprisal.

Steele expounds further on the IP address issue, attempting to tackle the "open wi-fi" issue :

“Don’t let people commit criminal acts on your network,” he says. “If you lend your gun to someone who commits a crime, you’re responsible.”

Wrong. Completely wrong. A person cannot be held criminally responsible for the actions of others, no matter whose weapon it is. With the right lawyer, it's conceivable that the weapon lender might find himself on the losing end of a civil lawsuit (like a wrongful death suit, for example), but these are two very different things. I'm sure Steele feels an open wi-fi connection makes someone an accessory to the illegal act, if not actually aiding and abetting. But the legal stipulations tied to these charges require evidence that the person lending the weapon knew that it would be used in the commission of a crime, or actively aided in the criminal activity. At the very most, lending out a gun would violate the conditions of your permit, which is hardly the same as handing someone a gun/wi-fi connection and inviting them to do bad things.

As much as Steele (and other copyright trolls) would like to believe that not securing your wi-fi should be considered at the very least "negligent," if not actually making the accused responsible for the actions of others, the courts aren't willing to entertain this argument. The latest rejection, courtesy of the California district courts, points out that "negligence" requires a "duty to protect," and your average internet user simply does not have the legal responsibility to protect porn producers from acts of infringement.

On Comcast refusing to turn over subscriber information:

“It’s a business decision for them. They don’t want to lose their clients. But if you step into shoes of your subscribers, you become responsible. Comcast is sheltering people so they can make money."

Wrong again. ISPs are not responsible for the actions of their customers. This is more wishful thinking from copyright trolls who wish to hold someone, anyone, responsible for their clients' woes. ISPs can certainly attempt to regulate their customers' internet usage (if they don't mind angering those customers) and, as the "Six Strikes" plan draws closer, it appears they're going to do exactly that. But under no circumstance should Comcast be held responsible for supplying the connection that allowed John Q. IPAddress to torrent some porn. Not only that, but the accusation that Comcast shelters file sharers in order to "make money" has no factual basis. It's a myth that copyright maximalists draw on again and again, assuming that internet users only pay for a connection in order to pirate content and would instantly disconnect their service if piracy was no longer an option.

“At least my wife loves me."

Well, bully for you, John. Do you suppose she'd love you as much if a threatening letter appeared out of the ether accusing you (perhaps falsely) of downloading a variety of pornographic titles? Would that make any unwelcome waves? Because if you, in any small way, feel that indiscriminately accusing people of downloading porn and relying on the threat of public shaming to expedite payment might possibly be damaging the personal relationships of others, maybe, just maybe, your chosen line of "work" is more "problem" than "solution."

Filed Under: copyright, copyright trolls, john steele

Another Judge Blasts Copyright Trolls

from the swarms dept

We've been seeing more and more judges reacting negatively to copyright trolls. What's interesting is that they seem to be getting more aggressive in their statements against the trolls, and it seems clear that fewer judges are falling for their antics. The latest is from Judge Harold Baer in the Southern District of New York, who you could say is not impressed by some copyright trolling cases that have ended up in his court, coming from Media Products and Patrick Collins. He had allowed for expedited discovery, which is what copyright trolls want, but it seems quite clear that Baer regrets that decision and now seeks to reverse it. Expedited discovery basically gives the trolls what they want: it lets them subpoena ISPs to find out contact info of users based on the IP addresses they've collected. From that point on, they have no intention of ever proceeding with the actual lawsuit. They just want to start pressuring people into "settling."

Judge Baer clearly understands what's going on here. He notes early on the very serious potential problem of IP addresses not being particularly good identifiers of who has done the actual infringement:

Particularly troubling for courts is the high probability of misidentified Doe defendants (who may be the bill-payer for the IP address but not the actual infringer) settling a case for fear of the disclosure of the allegations against them or of the high costs of litigation.

He notes that he's not ready to "wade into" the question of whether or not joinder is appropriate, especially in cases where all of the IP addresses are part of the same BitTorrent swarm, but he is clearly worried about a different kind of "swarm":

Ironically, there are swarms on both sides, for copyright locusts have descended on the federal courts, exacting low-cost settlements from embarrassed John Does and then moving on to the next District

Yes, Judge Baer seems familiar with the M.O. of these trolls, and how they've effectively been "run out of" other districts after judges realized what they were up to. In fact, he quotes a ruling in the Central District of California approvingly:

... the federal courts are not flexible enough to be shaped into "cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that [Plaintiffs have] no intention of bringing to trial."

He also worries that the plaintiffs have already pressured defendants into settling, noting "that some Doe defendants have already been voluntarily dismissed at this early stage in the litigation." For that reason, he's decided that joining all the cases together at this stage is inappropriate, and has (like many other courts) severed and dismissed all but one Doe.

He then goes back to talk about his overall concerns with how copyright trolling is a troubling development, and quotes a bunch of other cases from other district courts around the country:

The Plaintiffs' tactic, if left unchecked, could turn copyright protection on its head. Congress intended to incentivize the creation of useful arts by providing a statutory right and a means of enforcement that would reward authors for their labors, hardly the Plaintiffs' strategy here.... In the BitTorrent pornography cases, settlements are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls. Severing the Doe defendants does not destroy the incentive to prosecute infringers who use peer-to-peer protocols; it merely restores the balance that Congress intended, not to mention that it ensures that courts receive the filing fees that Plaintiffs otherwise avoid.

And one final point, since he already allowed for discovery, he wants the plaintiffs to destroy the info, and if he finds out that they pursue those people anyway, it sounds like there may be trouble:

Plaintiffs shall not contact any Doe defendant who does not remain in this or a subsequently-filed case, and any pending settlement not with John Doe 1 in each named case shall immediately cease. If after 14 days Plaintiffs have not reinstituted cases against the remaining Doe defendants, Plaintiffs shall destroy whatever personal information they presently have for those defendants and shall not use the information for any purpose. Ifany Doe defendant no longer named in a case is contacted following entry ofthis Order, I encourage them to contact the Court.

Elsewhere, he orders the plaintiffs to pass along this order to all the ISPs they've subpoenaed, and to have them distribute it to all the people in question, so (hopefully) they understand to contact the court if the plaintiffs violate the order and continue to go after them.

One really good thing here: Judge Baer clearly spent time looking into these cases, and seeing just how common they are and what's happening in them. Above, we've already noted that he cited a few such cases -- but in a footnote that takes up about half the page, he goes on to name a whole bunch of them, noting that "this is but a sample" and pointing out:

It is difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.

Hopefully other judges are beginning to recognize the same thing. It seems clear that more and more judges are putting these cases into the proper context, understanding what's really happening and how the copyright trolls are abusing the court system as a part of a business model, rather than for any legitimate legal reason.

Filed Under: copyright, copyright trolls, extortion, harold baer, joinder
Companies: media products, patrick collins