Evan Stone Appeals Judicial Slapdown And Sanctions For Ethics Violations

from the this-won't-end-well dept

Last month, a court smacked down copyright troll lawyer Evan Stone, who had been caught sending out subpoenas to identify those he was suing, even after the judge had ordered him to wait until he could rule on the matter. This was a big, big deal, because it was a clear abuse of Stone's subpoena power as a lawyer -- especially since the judge recognized that the entire purpose of the lawsuit was to identify individuals in order to send "pay up" threat letters. The judge ordered Stone to pay a $10,000 sanction, alert other courts where he had cases pending, and to pay the legal fees of Public Citizen and the EFF, who represented the defendants in the case.

You might think that Stone would learn when it's appropriate to stop digging. But he hasn't. Instead, as That Anonymous Coward alerts us, Stone has appealed the ruling (pdf, and embedded below). There aren't many details, just notice of the appeal:

Notice is hereby given that Evan Stone, a subject of a sanctions motion filed by attorneys ad litem after termination of their ad litem appointment, appeals now to the United States Court of Appeals for the Fifth Circuit from the sanctions order entered September 9, 2011 (Dkt. 17), which finally disposes of the only remaining issue in this case.

While brief, it suggests he's arguing that because the motion for sanctions was filed after he tried to weasel his way out of the case, they were improper. Remember, Stone filed (petulantly) to drop the case just days after he was alerted by Public Citizen lawyers that they'd discovered he was sending out subpoenas despite the judge's order. Pretending that dismissing the case lets him off the hook isn't likely to play well in court.

Filed Under: copyright, evan stone, sanctions, subpoenas

Shame On Weebly For Revealing Info On Anonymous User It Promised Not To Reveal

from the gotta-trust-your-ISP dept

We've already written about some of the questionable activities by the lawyer hired by the Thomas Cooley law school in its lawsuit against some former students who have become anonymous critics. However, that same blog post from Paul Alan Levy also spent time discussing behavior on the part of Weebly, the service provider who coughed up the identifying information requested by Cooley's lawyer, despite first promising not to reveal the information at all, and later promising not to reveal if it received information on a motion to quash within a certain time frame. Even with all of that, when the second subpoena came in... Weebly handed over the info, well before the promised deadline it had provided the lawyer for the defendant.

Levy contacted Weebly's CEO, who gave a variety of reasons why they handed over this info, despite promising not to:

Weebly’s first point to me was that its email to Hermann saying that he could consider the subpoena “squashed at this point” really wasn’t intended to make any commitments — Hermann has been writing “over and over” about keeping his client’s identity private, and “I had no idea what he was talking about, so I said it’s ‘squashed for now’ just so he’d leave me alone.”

Weebly also said that after it got the California subpoena, it told Hermann that he would actually need to get a ruling from the judge quashing that subpoena no later than August 22, or it would have to obey the subpoena. I have two problems with that — first, even the subpoena did not require compliance until August 25, and the information was furnished on August 17. But more important, Weebly’s stance falls well short of the industry standard. In our experience, responsible ISP’s, such as Google, and Yahoo!, and Twitter, will simply insist to parties sending them subpoenas that they won’t comply with subpoenas to identify users if a motion to quash is filed within a given period, normally about two weeks.

Weebly also told me that the disclosure was made in part because Hermann gave shifting stories about whether the subpoena would be issued by a Michigan court or a California court. I found that argument unconvincing. Hermann was plainly uncertain about the actual subpoena documents, but I could not find the shifting accounts. And in any event, should discomfort with the Doe’s lawyer be a reason to shed the Doe’s privacy?

Next, Weebly said that its disclosures didn’t really matter because it did not provide the customer’s actual name, just an email address and various IP addresses. This is not the first ISP that has rationalized subpoena compliance on such grounds. I have got that line from Wikipedia twice, for example. But this case shows why the argument is delusional. The Doe was a former student at plaintiff law school, and the same email address that he gave Weebly was one that he has used while in law school. Thus, when plaintiff got the email address it was able to identify the Doe, and in fact it named the Doe in its amended complaint and cited his name throughout its opposition to the motion to quash.

Weebly’s final explanation to me struck me as the real reason, and it was perhaps the worst part of the explanation. Huffaker said, the subpoena came in on a day when I was out of the office, we have a small staff, we work long hours, we don’t have a lawyer on staff, we don’t get many subpoenas, and we strongly resist requests to remove material at the request of the targets of its customers’ criticism. All of this is understandable, and much of it praiseworthy, but to my mind, protecting customers’ privacy is also important, and if an ISP doesn’t have a lawyer, it has a responsibility to inform itself of the law governing subpoenas to identify customers and of the industry standard on responding to subpoenas. Moreover, although legal representation can be expensive, Public Citizen often represents smaller ISP’s pro bono in opposing subpoenas when the plaintiff does not meet the Dendrite test. Indeed, California has made it easy to fund the defense against subpoenas in these cases by passing a SLAPP-like law providing for awards of attorney fees; and Hermann made a point of suggesting that angle. Weebly says that it cares about protecting its customers, but it is hard to take those protestations seriously. Potential customers of Weebly, beware.

This may seem harsh on a small service provider like Weebly, and it's recognizable that it's tough for service providers to keep up on every law that they have to deal with, but if you're in the business of providing websites, it's important to know some basic laws concerning free speech and privacy.

And Weebly isn't just some mom-and-pop ISP as you might get from Levy's writeup. The company is funded by Sequoia Capital, considered one of the top 5 (if not the top) venture capital firms out there, went through the famous YCombinator program, and has other famous investors including Ron Conway, Mike Maples, Aydein Senkut and Paul Buchheit. In other words, this is a company that has both the resources and the connections to get the proper legal help when it receives a subpoena (questionable or legit), and never should have revealed this info -- especially after promising not to.

That said, companies do make mistakes. One would hope that Weebly's response in this case will be to apologize for handing over the info without properly allowing the court to consider the motion to quash, and will (1) make its policies much clearer and (2) make sure that its entire staff is familiar with how to deal with such subpoenas in the future. Hopefully this is a lesson for the company.

Filed Under: anonymity, privacy, subpoenas
Companies: weebly

Copyright Troll Evan Stone Sanctioned For More Than $10k For Sending Subpoenas When Court Said To Wait

from the ouch dept

You may recall that the somewhat brash copyright trolling lawyer, Evan Stone, got into a bit of legal hot water earlier this year, in a case for porn producer Mick Haig. Stone had been trying to follow in the footsteps of other copyright trolls who shake down people for money by filing a John Doe lawsuit against them, but the entire purpose of the lawsuit is to find out who they are to send them "settlement offers," for much less than it would cost to mount a defense. In one of Stone's lawsuit, the judge had, quite reasonably, asked Public Citizen and EFF to act as the Does' attorneys prior to their identification, for the sake of seeing whether or not revealing their info was proper. As part of that, the judge had ordered Stone not to send any subpoenas to get identifying info until after the court had ruled whether or not that was proper.

And yet, Stone sent the subpoenas anyway, and began identifying individuals, even though the court was still determining if it was proper to allow this.

In response to being called on this huge ethics violation, Stone petulantly dropped the case and blamed the judge for bringing in Public Citizen and the EFF -- while basically ignoring the massive ethics violation and questions raised about whether or not he had received settlements from people whose identity he wasn't supposed to know yet. Public Citizen and the EFF asked for sanctions against Stone in response to this.

And, boy, did they get sanctions. Both Public Citizen and the EFF have blog posts about it -- and both suggest that you're best off just reading the ruling (pdf) by Judge David Godbey which is also embedded below.

The key points: the judge slams Stone and orders him to pay $10,000 in sanctions, take remedial steps (including filing the court order in every ongoing proceeding in which he represents a party) and pay the legal fees of Public Citizen and the EFF. He also needs to reveal if anyone he sent a settlement letter to paid up -- which would suggest he'll have to pay back that money too. While the ruling runs through the whole thing, this paragraph from the ruling both summarizes what happens and makes it clear that the court is not pleased:

To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed the Ad Litems to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision. All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions.

The court also notes, "Stone’s representation to the Court that it should grant his motion so he could serve subpoenas, when in fact he had already done so, treads perilously close to violating a lawyer’s duty of candor to the Court."

From there, the court goes on to attack Stone's "substanceless" explanation for his actions, noting, "this court deals in facts, not counterfactuals." Ouch. It also dings Stone for arguing that his actions were okay because most courts approve such requests for discovery:

This argument also fails. Discovery proceeds in “normal fashion” according to the Rules of Civil Procedure. They provide that no discovery of any kind takes place prior to a Rule 26(f) conference unless the Court orders otherwise. Although Stone might believe that motions like the Discovery Motion are mere formalities and that courts routinely grant them, that misapprehension provides no basis for proceeding with preconference discovery without court order. The only “highly irregular” activity here is Stone’s disregard of the Rules and the Court’s orders, which would have constituted sanctionable conduct even if the Court eventually had granted the Discovery Motion.

Filed Under: copyright, evan stone, sanctions, subpoenas

The Info Law Enforcement Gets When They Subpoena Facebook

from the your-friends-in-the-government dept

With the US government looking for software that will let them manage fake profiles on social networks, in order to "infiltrate" groups, you might have forgotten that they can also take the easy way out and issue a subpoena. While Julian Assange is certainly being hyperbolic with his claims that "Facebook... is the most appalling spying machine that has ever been invented," it is worth remembering that the US government can access all sorts of info from Facebook. The Next Web has a the details of what kind of info Facebook provides law enforcement on the receipt of a valid subpoena. Of course, this certainly doesn't mean Facebook is handing over this kind of info willy-nilly (this isn't AT&T we're talking about here...). Also, none of this is a huge surprise, but just a reminder that Facebook likely has a lot of info about you, and when put together, could allow the government to collect a pretty detailed dossier on certain aspects of your life:

Once Facebook has the form submitted, they will then prepare an archive for the police to review. That archive will include the following.

• User ID number
• Email address
• Date and Time of your account’s creation
• The most recent logins, usually the last 2-3 days
• Your phone number, if you registered it
• Profile contact info
• Mini-feed
• Status update history
• Shares
• Notes
• Wall posts
• Friends list
• Groups list
• Future and past events
• Videos
• Photos
• Private messages
• IP logs (computers and locations you logged in from)

You’ll notice that this list includes just about everything that you’ve posted to Facebook. In addition, it also includes a list of your Friends, which you didn’t technically add to Facebook yourself.

Again, there's nothing surprising here, but when laid out directly, it may make some people realize that relying so much on a third party like Facebook to manage such a large part of your life also opens yourself up to certain risks.

Filed Under: info, law enforcement, subpoenas
Companies: facebook

P2P Shakedown Lawyers Apparently Still Sending Subpoenas To Get Info On Defendants Who Had Cases Dismissed

from the there's-an-ethical-issue-here dept

About a month ago, we pointed out an effort by an anonymous concerned citizen who has been tracking the massive increase in these P2P file sharing shakedown lawsuits, that are all about sending "pre-settlement" letters and getting people to pay up, rather than really taking all these people to court. So far, the courts have been pretty good about dumping many of the cases that involved thousands of defendants, noting that it makes little sense to put them all together in a single case. The person who made that epic spreadsheet is continuing to keep it updated, and it shows about 110,000 people sued: Of course, what this also shows is that approximately 40,000 defendants have been dropped from these cases, mainly after judges pointed out how bogus it was to join so many defendants into single cases. However, the EFF is noting that it's received reports that some of the law firms involved in these schemes may still be sending subpoenas to defendants already dismissed from cases. Similar to Evan Stone's sending subpoenas before a judge had okayed it, this suggests a massive breach of legal ethics. Sending a subpoena on someone that a judge has already dismissed from the case? That seems like a strategy for trouble.

Filed Under: ethics, file sharing, lawyers, shakedown, subpoenas

Public Citizen & EFF Plan To Continue Pursuing Evan Stone Over Questionable Subpoenas

from the keeping-it-going dept

We recently wrote about the odd situation in which mass copyright letter sender lawyer Evan Stone hastily, but petulantly, dropped a case, after the lawyers representing the defendants (from Public Citizen and the EFF) noticed that he appeared to have totally ignored the fact that the court had not allowed him to issue subpoenas, and had gone ahead and issued them anyway. Rather than respond to any of the questions that Public Citizen lawyer Paul Alan Levy asked Stone, he just dropped the case. Levy has now put up a blog post digging into the details, including why this move was more or less an admission by Stone that he'd made a huge mistake. The key point, though, is that Public Citizen and EFF appear to be planning to continue to pursue the motion to make sure that Stone did not contact any of those sued directly.

But there are some oddities here -- he claims that as a result of our filing, he has lost the opportunity to take discovery; does that mean that he believes our arguments are meritorious, and hence that his motion should be denied? After all, the judge ordered the ISP's to preserve identifying information for the Does, so it is not as if that information was going to disappear while he was waiting for a decision. And previously he claimed that these were 670 people who had seriously damaged his client by obtaining its copyrighted product illegally and then re-distributing it illegally. If his client has been injured, why has he dismissed the claims with prejudice, which means not only the client cannot bring suit in a proper jurisdiction but also that the Does are now prevailing parties who are entitled to seek an award of attorney fees under the Copyright Act?

My guess is that this is all about Evan Stone and not at all about his client. Stone's business model depends on easy settlements in the four figures, and he must have recognized that a win would not come easily. In my view, it is also fair to read the dismissal as an admission of our argument that he has no claim for fees and statutory damages. Thus, the litigation of the case on the assumption that he could use the threat of litigation to demand four figure settlements was no longer possible, and Stone may just have been unwilling to continue to represent his client without that possibility. Moreover, it seems likely that Stone worried about the possibility of a sanctions motion, and about having to answer questions incident to that motion about his communications with the ISPs and with the Does, and that he dismissed with prejudice in an effort to cut off such inquiries. The very fact that he is dodging the questions makes me worry that he may have already made some profits from our clients for which he does not want to be accountable. What he may not have recognized is that dismissal of a case not only sets up a motion for attorney fees, but does not deprive the court of jurisdiction to consider sanctions. And because we have an obligation to protect our Doe clients, we are going to have to pursue such a motion until we are satisfied that none of them has been abused.

Levy also highlights a bigger point, which is that more judges when confronted with these mass infringement lawsuits should act like the judge in this case did, and not just rubberstamp subpoenas for identifying information:

The larger lesson is that, no matter how clearly meritorious the plaintiff's claim may be from a first review of an ex parte motion for early discovery, more judges should emulate Judge Godbey and Judge MacKenzie by deferring a ruling on the motion for leave to take immediate discovery until there has been an opportunity for consideration and adversary litigation. Judging from the panicked calls that my EFF colleagues and I received after the notices of subpoena went out, the mere receipt of notices of subpoena alarmed a number of innocent people until they got word that the ISP's were going to hold off on production. The mere need to decide on a short schedule whether to respond to a subpoena may be harmful, and sad to say there are ISP's out there who just assume when they receive a subpoena that their clients are likely criminals who should be identified as soon as possible (I'll have more to say soon about the scoundrels at Bluehost). Judges should demand some evidence of wrongdoing before they allow discovery to identify the alleged wrongdoers, and if they are not sure of their ability to evaluate the papers in their own chambers, they should consider appointing pro bono counsel to respond to the motion.

Demanding this sort of inquiry does not protect those whose online conduct is tortious, because plaintiffs with valid claims have little difficulty making the showings that are demanded under the Dendrite standard, especially in copyright suits over downloading. But it holds out the prospect of protecting some innocent people.

Hopefully more judges will agree.

Filed Under: copyright, evan stone, file sharing, subpoenas
Companies: eff, public citizen

Mass Copyright Lawsuit Lawyer Petulantly Drops Lawsuit After Called Out For Apparent Ethics Violations

from the nice-try dept

One of the lawyers who has been at the forefront of filing many of those massive P2P infringement cases for porn producers, with the intent of getting people to pay up "pre-settlement" fees to avoid an actual trial (and being accused publicly of downloading porn), Evan Stone, keeps running into problems. Stone, who apparently only became a lawyer a few months ago, seems to have pushed his luck in yet another case, not expecting lawyers on the other side who might recognize what was going on. However, Public Citizen and the EFF, acting as lawyers for those being sued, discovered that Stone had sent subpoenas to ISPs seeking the identity of file sharers even though the judge in the case had not yet determined if such subpoenas would be allowed.

It appears that, as in other similar cases, Stone filed a bunch of John Doe lawsuits on behalf of a porn producer, in this case Mick Haig Productions. Public Citizen and EFF were appointed to defend those sued while the court determined if the overall lawsuit was appropriate. While the court was still considering the question of the legitimacy of the lawsuit and any subpoenas attached to it, Stone apparently just went ahead and sent subpoenas to various ISPs demanding the identity of those accused of file sharing. After discovering this, Paul Alan Levy wrote Stone a letter (pdf) pointing out that this was a serious ethical breach. The full letter is embedded below and it's a must read, but here's just a snippet:

Inquiring further, I was able to obtain a copy of the subpoena that you sent to Comcast and of your cover letter, which concealed from Comcast the fact that Judge Godbey had never granted you permission to serve subpoenas in this case. Inquiring still further of other major ISP's, we have learned that you have served other subpoenas in the case, that the date required by one of the notices of subpoena for a response to avoid identification is January 31, and that some ISP's have provided you with identifying information.

We are very disturbed by this information. Because the rules of procedure to not allow you to take discover at this phase of the lawsuit without express judicial permission, the subpoenas that you have issued to the ISP's that we have been able to contact to date essentially misrepresented that discovery was open in the case, and gave you access to information to which you are not entitled. It is, as well, arguably a serious abuse of process that may be independently actionable. Given the fact that your standard practice is to send settlement demand letters to Does once they are identified, we must acknowledge the possibility that you have been communicating with our clients. Yet, because those clients are represented by counsel (until the disposition of the discovery motion), your contacting them directly would be a serious violation of legal ethics, because we have never given you permission to contact our clients.

The full letter not only asks him to withdraw the subpoenas, but also to provide Public Citizen and the EFF with the details of the subpoenas issued, apparently for the purpose of asking the court to sanction Stone for his apparent abuses.

Stone, perhaps realizing he was in a bit of trouble, responded by dismissing the lawsuits. Though he did so somewhat petulantly. His filing is also included below, but in it he mocks Public Citizen and the EFF, and complains that the court appointed them in the first place, claiming they are "renowned for defending internet piracy and.. for their general disregard for intellectual property law." He also mocks their response to his original motion as "absurd." Of course, in all the childish lashing out, he never seems to mention the fact that he subpoenaed info from ISPs almost certainly in violation of the rules of procedure. Instead, he just claims that the process is taking too long, so the plaintiff "feels it has lost any meaningful opportunity to pursue justice in this matter." That's a pretty laughable statement.

Of course, now the question is whether or not Public Citizen and the EFF will continue to seek relief from the court for Stone's actions.

Filed Under: copyright, evan stone, process, subpoenas
Companies: eff, mick haig, public citizen

Judge Says No To Hurt Locker Subpoenas

from the follow-the-rules,-guys dept

Last month, we noted that at least one ISP, Midcontinent Communications, was actually fighting the mass subpoenas from US Copyright Group in its attempt to demand money from people associated with IP addresses that allegedly shared the movie Hurt Locker. It looks like the judge has, indeed, quashed the subpoenas, noting a series of procedural problems with them (notably, these are mostly the same procedural problems with the subpoena recently sent to us). This doesn't mean that things are over, as US Copyright Group can try to follow the rules next time around, but it should be a reminder to companies that just because you receive a subpoena, it doesn't mean you just have to roll over and hand over information. You have every right to make sure that it's within what the law allows.

Filed Under: hurt locker, quashed, subpoenas
Companies: midcontinent communications, us copyright group

Hurt Locker Subpoenas Arrive With New Language... And Higher Demands

from the the-$400-oscar-bounty dept

Well, it took a while, but US Copyright Group (really DC law firm Dunlap, Grubb & Weaver) have finally gotten around to getting subpoenas out to ISPs in the Hurt Locker lawsuit. While that lawsuit was filed months ago, the subpoenas just went out, in part, because of the fight in another of USCG's lawsuits over certain aspects of the threat letters. That ended with a requirement for USCG to work with groups like the EFF to come up with more informative threat letters. The results don't look all that more reasonable, but it does note that those accused have the right to try to fight the subpoena, and removes the misleading threat of a $150,000 penalty hanging over their heads. Of course, being just slightly more honest has its cost. The pre-settlement fee demanded has been increased from $2,500 to $2,900 this time around.

Separately, in Greg Sandoval's article, he talks to Cindy Cohn from the EFF who notes that they're hearing from a lot more people on the receiving end of USCG lawsuits who have no idea what it's all about and aren't BitTorrent users at all. That happened with the RIAA lawsuits as well, but apparently at a much lower rate. This certainly calls into serious question the techniques that USCG is using to identify file sharers and to make sure they're not suing innocent people. Of course, when you look at the economics of it all, to USCG it really doesn't matter. When it makes mistakes, the actual likelihood of getting in trouble for it times the likely cost of such a mistake is so low as to make the incentive such that there's little reason to care about false positives. Yet, on the flip side, the cost of defending yourself against a bogus threat from USCG is certainly going to be more than $2,900 in almost every case. As Cohn notes:

"When it comes to copyright," Cohn said "the law is set up so that truth, whether someone actually violated the law or not, takes a back seat to financial considerations."

And, really, that's what's so nefarious about this whole process. The incentives are totally screwed up. USCG has no incentive to weed out the false positives, and the innocent folks threatened have powerful economic incentives to just pay up. It's still not "extortion," in that USCG can claim to have a legitimate legal basis for the demands, but it certainly comes damn close in practice.

Filed Under: copyright, hurt locker, pre-settlement letters, subpoenas
Companies: us copyright group

Another ISP Fighting US Copyright Group Subpoenas; Why Aren't More ISPs Protecting Your Privacy?

from the unfortunate dept

With US Copyright Group filing tens of thousands of lawsuits against people accused of sharing movies like Hurt Locker online, we've been disappointed that many ISPs don't seem willing to stand up for their subscribers' rights, and are willing to hand over names without a thought. Time Warner Cable fought the subpoenas, but its main concern was the volume, not the concept. However, a small ISP in South Dakota, Midcontinent Communications is also asking for the subpoenas to be quashed, noting that its privacy policies say that it cannot hand out customer information to third parties without a court order. It also questions how it can be covered by the jurisdiction of a Washington DC court.

Bravo to Midcontinent Communications for actually standing up for its users. But, the real story here is why other ISPs are not doing this? This should be how pretty much any ISP responds to questionable subpoenas of this nature.

Filed Under: copyright, isps, privacy, subpoenas
Companies: midcontinent communications, time warner cable, us copyright group