Copyright Troll Malibu Media Demands Comcast Tell It What Content Subscribers Accessed Online

from the chutzpah dept

Remember Malibu Media? That's the copyright troll that has run into some trouble with some of its lawsuits lately and may be in for even more trouble. In November, we noted that they had very aggressively tried to argue that Verizon should shut up and hand over private info on subscribers after Verizon had pushed back on some subpoenas. It sounds like Malibu recently tried the same thing with Comcast... and Comcast has hit back hard. What's incredible is that the lawyers for Malibu Media are so clumsy or sloppy that they didn't even remove Verizon's name from the request. Comcast lawyers wasted little time in highlighting the many problems with Malibu Media's demands:

As a preliminary matter, there are several confusing elements in the Subpoenas that affect Comcast's approach to responding. First, the two 2088 Subpoenas instruct Comcast to designate the person(s) "who are the most knowledgeable about the subject matter categories set forth in Exhibit though there is no "Exhibit A" appended to either of the two Subpoenas that Comcast received in that case. There are, as identified elsewhere in those Subpoenas, "Schedules A and B" but no "Exhibit A." Moreover, the Schedule A attached to the Subpoenas does not set forth any subject matter categories, but rather identifies documents requested for production. Conversely, Schedule B sets forth subject matter categories. We accordingly assume that there is no "Exhibit A" and that the reference to Exhibit A (or Schedule A) with respect to subject matter categories should be "Schedule B" However, if there is an Exhibit A that happens to be left out, or this assumption is otherwise misplaced, please notify us immediately.

Second, the three Subpoenas' Schedules A and refer to "Verizon Internet Services" and to documents pertaining to Verizon (and, thus, not to Comcast). Of course, Comcast would not have any documents relating to Verizon or its Internet Services, nor could there be any person(s) at Comcast knowledgeable about such Verizon documents. We assume these references to Verizon were intended to identify Comcast, and respond below accordingly. But if that is incorrect, there would be no documents produced, and no deponent identified, for the separate reason that Comcast would not have any responsive material(s) or information related to Verizon records.

Of course, it's not just because of stupid mistakes by Malibu Media's lawyers that Comcast is standing up against the troll. Apparently the subpoenas are asking for a hell of a lot of info, including details about individuals' internet usage, which Comcast reasonably finds to be excessive.

More substantively, Comcast may not provide to any third party documents or information that include a subscriber's personally identifiable information without first ensuring compliance with the requirements of Section 631(c) of the Communications Act, 47 U.S.C. 551(c). That Section generally prohibits cable operators from disclosing such information without the subscriber's express written consent, and also imposes an affirmative obligation on a cable operator to "take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator." Id. 551(c)(1). Section 631(c)(2) provides three exceptions to the general ban on disclosing PII without the subscribers' express consent. Only one is applicable to your requests as you have not included any signed consents from the subscribers. Specifically, Section 631(c)(2)(B) states that disclosure is permitted "pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed."

We note that at a prior stage of this case you obtained a court order authorizing disclosure of PII for the individuals identified and named in Schedules A and to the Subpoenas. Indeed, the information gained in response to that earlier order allowed such identification of the subscribers in the present Subpoenas. But that court order only authorized disclosure of subscriber names and addresses, and MAC addresses. Schedules A and B to the present Subpoenas call for a great deal more than names and addresses; rather, they seek PII relating (among other things) to the DMCA record(s) for the identified subscribers, the identified subscribers' internet bandwidth usage, specific content watched or accessed by the subscribers, and bills and invoices relating to use of the service, which in turn would reveal the identified subscribers' viewing habits, service selections, costs paid, and other sensitive information. Moreover, some of the documents you seek also concern Comcast confidential and proprietary information on the operation of Comcast's network, and other document requests refer to subscriber service usage that Comcast does not track or monitor.

The letter goes on to note additional problems with Malibu Media's demands that someone from Comcast show up in court. It amazes me how some of these copyright trolls act at times, and their assumptions that big companies like Verizon and Comcast don't have lawyers.

Filed Under: copyright troll, fishing expedition, personal information
Companies: comcast, malibu media

Prenda's Latest Bag Of Tricks: Getting Info On IP Addresses By Any Means Necessary

from the these-guys-won't-stop dept

The latest in the long and growing list of wacky moves by the Prenda Law copyright trolling team once again hints at the same thing: these guys think that they've outwitted the law and will use every loophole they can possibly think of to do one thing: get the identities of people associated with IP addresses in order to send them "settlement" letters and phone calls. From all of Prenda / John Steele's actions to date, that appears to be all they care about. Get identities and then pressure into settling in any way possible. The company has tried all sorts of tricks -- and many of them are exactly that: tricks. As you go down the list of stories associated with Steele, you see more and more cases of really questionable behavior, with courts across the country calling him or Prenda out on the behavior.

The latest "trick" is really incredibly brazen, and involves a variety of different tricks all mixed into one. As the federal courts have gotten better at recognizing "copyright trolling" and properly finding the behavior reprehensible, Steele has tried a few tricks to get cases into state courts, such as using an ancient part of Florida's state law known as a "pure bill of discovery." The latest move, however, started out in a Cook County court in Illinois, where Prenda filed cases "Guava v. Skyler" and "Arte De Oaxaca v. Stacey Mullen" in which they sought to get discovery on a bunch of IP addresses using a couple of tricks to make it easier.

First, Guava doesn't actually hold the copyrights in question, so it can't file a copyright case (also, they can't file a copyright claim in a non-federal court since copyright is mostly covered by federal law) -- which is the situation that eventually got Righthaven in so much trouble. So, they filed under the CFAA -- the Computer Fraud and Abuse Act. You may recall this law as one we've written about frequently, mainly for the ways that it's been abused to go after people doing something someone didn't like on a computer, when no other laws could be made to stick.

In these cases, the plaintiff would allege that a single defendant (Skyler or Mullen) along with "co-conspirators" had "breached plaintiff's security systems." This is trick number two. Rather than name everyone they're going after in a single lawsuit and face problems of misjoinder as in copyright trolling cases, they just claim that there are co-conspirators, who they hope to learn about during discovery. In other words, the "trick" here is not actually naming the people as defendants initially (which would make it easier for them to defend themselves), but arguing that they need to go through the process of having ISPs cough up their identifying info as part of the basic "discovery" process to even figure out if they're co-conspirators.

But how are they claiming this is a CFAA issue? That's trick number three. According to Steele:

Guava owns protected computers, but the files stored in that computers contain copyrighted stuff, and the copyrights belong to a third company. Guava goes after people because of hacking, but that third company, which also happens to be our client, may say: look, this IP address infringed our copyright, so we may decide to go after the same IP for copyright infringement.

In other words, this is a copyright case in disguise, and they're arguing that accessing copyrighted materials on a computer is a form of hacking.

I'm not ready to call the next part a "trick" but the judge in the Guava case certainly appears to suspect that there's a third trick, which is that the lawyer defending the defendants, Adam Urbanczyk, agrees to allow the process of discovery to move forward. The judge found this to be odd and, according to FightCopyrightTrolls, specifically asked John Steele and Urbanczyk if they "were in bed together" in allowing the discovery to move forward. That's because another lawyer entered the picture, Erin Russell, who had filed motions to quash on behalf of some of the supposed "co-conspirators," arguing that the whole thing was a sham and the "true purpose" of the whole thing was "to leverage settlements from identified subscribers, without ever naming them as defendants." In response, the judge wisely put the kibosh on the discovery process -- stopping existing subpoenas, forbidding new subpoenas and asking for more info.

Steele, in response, pulls out the next trick, arguing (in part) that Russell's motion should be ignored because the people she's representing aren't actually defendants. Remember how they're just named as "co-conspirators" rather than actual defendants? The idea is to use that to pretend that they can't even defend themselves until after their info has been revealed!

Then we move on to the next trick. After that hearing and before the ensuing hearing where the judge was to delve into more details, Steele / Prenda withdrew the subpoenas for all of the co-conspirators who were being represented by Russell. Because of this, her motion to quash the subpoenas was correctly ruled moot.

But, of course, that's not the end. So we move on to the next trick, which is that Guava / Prenda then sued all of the same people in ten different federal district courts. Yes, they basically filed identical lawsuits in ten different courts, all asking for discovery on the same exact list of 34 IP addresses. Fight Copyright Trolls lists out all of the cases (and the lawyers representing Prenda in each case):

• Alabama: Curtis Hussey (Guava LLC v. John Doe, ALSD 12-cv-00678).
• California: Brett Gibbs (Guava LLC v. Doe, CAED 12-cv-02514).
• District of Columbia: Paul Duffy (GUAVA, LLC v. JOHN DOE, DCD 12-cv-01661).
• Illinois: Paul Duffy (Guava, LLC v. Does 1-5, ILND 12-cv-08000).
• Michigan: Jonathan Tappan (Guava, LLC v. Doe, MIED 12-cv-14441).
• Georgia: Jacques Nzaire (GUAVA LLC v. DOE, GAMD 12-cv-00398).
• Arizona: Steven Goodhue (Guava LLC v. Unknown Party, AZD 12-cv-02158).
• Ohio: Rod Mastandrea (GUAVA LLC v. Doe, OHND 12-cv-02512).
• Massachusetts: Daniel Ruggiero (Guava, LLC v. Doe, MAD 12-cv-11880).
• Connecticut: Daniel Ruggiero (Guava, LLC v. Doe, CTD 12-cv-01435).

Basically: a total shotgun approach. The attempt to sneak through discovery without even naming the IP addresses as defendants failed in Cook County, so just file repeat federal lawsuits everywhere they can think of, perhaps hoping / figuring that at least one of the judges would agree to discovery, leading to the identities associated with those 34 IP addresses being passed over. (Also, as an aside, FCT notes that in what appears to be a moment of sloppiness, in at least one of the complaints, Prenda slips up and notes that it's really a copyright case, despite elsewhere pretending that these kinds of cases aren't about copyright at all). Talk about jurisdiction shopping!

Steele, apparently, then bragged about this particular trick on both Twitter and in blog comments, in which he mocks Russell, suggesting that her clients must be angry because rather than be a mere "co-conspirator" in the original case, they're now defendants in federal cases around the country. He also bragged that some of those account holders were now "begging to settle" and angry at Russell for not letting them know that they could be sued.

Following this, three of the defendants in Massachusetts hit back hard, alerting the judge to the shenanigans that Prenda was pulling in filing identical cases all over the place, and asking the court to not only put a stop to the proceedings, but also asking for Guava to have to pay their costs and to withdraw the subpoenas it issued in all of the duplicate and related cases.

The Complaint Guava filed in this Court is based on and includes substantially identical factual and legal claims to those Guava raised in Illinois. To defend the Illinois action, Defendants retained counsel and filed motions to dismiss and to quash subpoenas issued by Guava. One day after the Illinois court stayed the subpoenas and scheduled a hearing on the motions, Guava withdrew its claims against Defendants and opened this action. Guava then duplicated this action in nine other federal courts, without notifying this Court of the prior or concurrent related cases, and set out to issue new versions of the subpoenas, seeking the same information about Defendants.

In other words: Prenda is basically filing the same thing against the same people in a ton of different places, hoping one court, somewhere actually lets it go through. The filing from the defendants notes that it's proper to awards costs (including attorney's fees) when refiling a previously dismissed claim.

The filing also notes that Guava / Prenda appear to be engaged in "vexatious litigation tactics":

Guava’s bad faith litigation tactics are precisely the kind of vexatious conduct that Rule 41(d) was designed to prevent.... Guava admits that it initiated its new claims against only those Does who filed motions to dismiss and quash in Guava I, precisely because they did so. “[B]ecause the Movants attempted to act and raise arguments as though they were defendants in this case, Plaintiff granted their wishes and initiated separate litigation against them in which they will now be actual defendants.” ... “The scattershot litigation strategy of plaintiff’s counsel -- filing identical lawsuits nationwide and forcing defendants to defend the same action in various jurisdictions -- is certainly questionable.” Kerner v. Cult Awareness Network.... Sanctions under 18 U.S.C. § 1927 may be warranted by evidence of “bad faith in choosing a multiple-district litigation strategy.” Id. Guava provided sufficient evidence of bad faith by filing multiple duplicative federal actions in apparent retaliation against Defendants for having defended themselves in the prior action.

Many other aspects of Guava’s litigation strategy can only be described as vexatious. In this action, Guava claims to be pursuing a single John Doe defendant with three different IP addresses. Before filing the Complaint in this action, Guava admitted it had “used publicly available reverse-lookup databases on the Internet to determine what ISP issued the IP addresses and the putative location of those IP addresses.” ... However, freely available online geolocation tools list two of Defendants’ IP addresses in different regions of metro Boston (Somerville and Brighton), while the third is in western Massachusetts (Chicopee). Those same geolocation tools identify the three Defendants’ IP addresses as having been assigned by two different Internet service providers, both of which Guava subpoenaed in pursuit of an allegedly single defendant. Because they are different people, Defendants filed their motions in Guava I on different dates. Thus, Guava had no reason to believe that the three individuals it calls “Defendant” are the same person, and Guava’s deceptive pleading has needlessly added to the complexity of Defendants’ responses.

Guava’s bad faith tactics have further complicated Defendants’ defense. Guava chose to file complaints that sound in copyright without pleading copyright infringement as a cause of action.8 Though the Complaint alleges CFAA violations and various common law claims, it repeatedly references an implicit copyright claim...

It goes on to highlight where in the various cases they repeatedly refer to copyright-related claims, such as "the exclusive right," and thus (similar to Righthaven), they argue that Guava is using "tactical chicanery in misstating its claims." And, of course, such claims should be pre-empted by federal copyright law, since that's what they're really suing about while trying to avoid it officially being a copyright case -- probably for the sake of not easily "connecting" it to copyright trolling cases that have received so much bad publicity (and dismissals from judges).

That appears to be the state of things so far. It will be worth watching how the judge responds (and how some of the other courts who have the related cases deal with the same issues). However, all of this smacks of the same old story with John Steele and Prenda: lawyers who think they're so smart that they've outwitted the system through a whole series of loopholes, all intended to avoid the fate of some of the straight copyright trolling cases. Given the details, however, hopefully a court will rightfully smack them down for abusing the courts in this manner.

Filed Under: copyright, copyright troll, john steele
Companies: guava, prenda law

Anti-Piracy Company Seeks Patent On Automated Copyright Trolling

from the copyrights-and-patents-together dept

Via TorrentFreak we learn of a patent application from Robert Steele, of Digital Rights Corp., seeking to patent a system to basically automate copyright trolling. It's an application that was just published, so it's really meaningless. Who knows if the USPTO will approve it, but the patent is pretty simple. Here's the key claim:

A system for resolving an act of copyright infringement, comprising: an infringement module configured to identify an infringing computer, wherein the infringing computer includes a computer associated with an infringement event; an identification module configured to identify an ISP associated with the infringing computer; a notification module configured to notify the ISP that the infringing computer is associated with the infringement event; a receiving module configured to receive a redirected request for access to Internet content, wherein the request for Internet content has been redirected by the ISP; and a generation module configured to generate a redirect webpage, wherein the redirect webpage includes a link associated with a settlement webpage that includes a settlement offer to resolve the infringement event.

This seems ridiculously broad, as do so many software-focused patents these days. Of course, if the patent did get awarded, it would be interesting to see what happened next. Would copyright maximalist copyright trolls start complaining about too much enforcement on the patent side?

Filed Under: copyright troll, patent
Companies: digital rights corp

Prenda Law Accused Of Trying To Start Over Again Under A New Name

from the when-your-name-becomes-toxic... dept

We've written a few times about Prenda Law and John Steele lately -- including some of the trouble that Prenda is running into for doing things like being accused of fraud on the court after a crazy hearing in which Prenda denied being associated with the case, despite hiring lawyers and having John Steele present (while trying to deny any role). And then, of course, there are the still open questions about whether or not Prenda set up a shell company by signing, as CEO, the name of a guy who John Steele hired to take care of some property.

For those who have been following these cases, you know that Prenda Law was actually John Steele's "new" firm, after his previous firm Steele Hansmeier was dissolved. Of course, that happened soon after a judge told Steele to stop filing copyright trolling lawsuits.

Given the increasing hot water that Prenda looks to be in, along with the fact that lawyers in other Prenda cases across the country are now alerting judges to Prenda's questionable behavior, the site FightCopyrightTrolls is suggesting that Steele and his crew of copyright trolling lawyers are trying to set up yet another new firm, called the Anti-Piracy Law Group. The evidence is compelling. The group has put up a website at "wefightpiracy.org" -- quite similar to Prenda's existing "wefightpiracy.com." And, that new page, in the fine print, admits that it's Prenda. It also includes a page of sample cases that are Prenda cases -- including the now infamous Tuan Nguyen in Florida, which resulted in that "fraud on the court" issue. FightCopyrightTrolls notes that this new "Anti Piracy Law Group" is already sending out "settlement" letters, using the same address as Prenda Law. Once again, watching Steele and his friends do what they do, you get the feeling that they think they're smarter than everyone else, and one step ahead of everyone else. Given the events of the last few months, it seems that he's getting closer and closer to being informed that his theory is incorrect.

Filed Under: copyright troll, john steele, prenda
Companies: anti-piracy law group, prenda, prenda law

TorrentFreak Pulls The Switcheroo On Copyright Troll That Cited Them In Threat Letters

from the trolling-the-trolls dept

Torrentfreak notes that Prenda Law, one of the more well known copyright trolls out there these days, which has run into a series of skeptical judges lately, has been using a Torrentfreak article in its recent threat letters. The article in question is one we wrote about as well, concerning a default judgment against someone who didn't just share some random works, but had a specific watermark on the files that corresponded to his account. Of course, in the threat letter, all of the additional context about much greater evidence and a variety of other factors that made this case unique aren't mentioned at all.

Feeling that was unfair, Torrentfreak changed that page to something that Prenda might not appreciate:

We redirected the URL referenced by Prenda to a page with information about these mass-BitTorrent lawsuits.

So, instead of being scared by an article about a $1.5 million judgment, Internet bill payers can inform themselves about the steps they can take to respond to the settlement letter.

The page in question explains that increasingly judges are condemning the practices of copyright trolls, and that many mass lawsuits have been thrown out. Just recently a judge designated Prenda's ways as a “bad faith effort,” and dismissed one of their mass-BitTorrent lawsuits.

In addition to some much-needed balance we also included links to attorneys who are familiar with these lawsuits, plus links to other useful resources.

Trolling the trolls. Unfortunately, it's unlikely to have too much of an impact. It's doubtful that Prenda expects too many people to actually go read the article. They just want the basic "be afraid, settle now!" message to get through.

Filed Under: copyright, copyright troll
Companies: prenda, torrentfreak

Porn Copyright Troll's New Tactic: Maybe Public Humiliation Will Magically Make People Pay

from the well,-that's-one-strategy dept

It's no secret that the real strategy of many of the porn companies who have turned into copyright trolls is to use public shame into the game as a way to pressure people into settling. As per usual, these companies almost never follow through on actual lawsuits against people. They do just enough to get ISPs to cough up identifying information and threaten to file the lawsuit. In some cases, the threat of having to fight a lawsuit is enough to make people settle (even if they're innocent). However, often enough, it seems that the companies know that merely the possible embarrassment from publicly claiming someone downloaded porn will make them settle. It seems that one German copyright troll, Urmann and Colleagues (U+C) is skipping the legal middleman, and is just going to start posting information it's collected on people it accuses of infringement directly on its website, hoping this will create incentives to pay up, without the company having to go through any actual legal process. Of course, threatening to expose information about you unless you pay up, sure sounds an awful lot like extortion...

The article also notes that some legal experts believe that this move will violate Germany's (somewhat strict) privacy laws. Either way, U+C claims that it has a list of 150,000 people who it wants to pay up. I actually wonder if a list quite that large actually makes it counterproductive. When you're in the company of so many people, perhaps it's not quite so embarrassing... Of course, given that, perhaps it's not surprising that U+C has indicated elsewhere that it's going to be releasing the info in drips and drabs, and will be targeting those who have the most to lose if it's exposed that they were downloading hardcore porn.

According to comments an Urmann insider made to Wochenblatt, the law firm is planning to target the most vulnerable people first – those with IP addresses registered to churches, police stations and – quite unbelievably – the embassies of Arab countries.

How nice of them.

Filed Under: copyright troll, germany, humiliation, publicity
Companies: u+c, urmann and colleagues

Copyright Troll Claims Sanctions Against Him Are 'Bulls**t' And He's Going To Keep Sending Questionable Subpoenas

from the good-luck-with-that dept

After losing again for significant ethical lapses in sending subpoenas to identify individuals he was trying to shake down for payments -- at the same time the court had ordered him to wait for a fair hearing on whether those individuals could protect their anonymity -- Evan Stone apparently still does not realize the seriousness of what he did. In an interview with Ars Technica, he appeared both dismissive and defiant of the ruling against him, for which he owes tens of thousands of dollars:

“They just punted, and said you waived your arguments, so we have to affirm,” he told Ars Friday morning. “I'm ready for someone to take this up, this issue of copyright subpoenas in the Fifth Circuit. That's really the bigger issue. I'm just going to move on from this whole sanction thing. I think it's bullshit and I think it shouldn't have happened. I’d rather move on with my life than be right. That's what I’m going to do. We're going to do some more copyright subpoenas, and we're going to bring them before the district and see if they are accepted or denied and then bring them before the Fifth Circuit.”

This is an interesting revisionist history. First off, that's not quite what the court said. It did note that, through Stone's own incompetence as a lawyer, he waived any significant arguments against the sanctions, but that did not minimize the court's serious concerns about Stone blatantly defying its clearly-stated requirement of first holding a hearing to see if the anonymity of the users could or should be protected. Remember, the appeals court didn't just "punt," it also stated:

We conclude, however, that no miscarriage of justice will result from the sanctions imposed as a result of Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders. Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars--a tactic that he has employed all across the state and that has been replicated by others across the country.

To pretend this is merely punting because of Stone's own failings as a lawyer underplays both how he screwed up in handling his own appeal, as well as the court's concerns with Stone's ethical lapses that resulted in the sanctions in the first place.

That he's going back to sending out subpoenas and pretending that what just happened to him is no big deal is somewhat stunning. Of course, what's even more stunning is that anyone would hire Stone to do more copyright trolling. Whatever you think of the practice, Stone has clearly demonstrated -- and been told by a court -- that he's not doing it right. Why would anyone hire that guy to do the same thing again?

Stone also apparently tried to pin the blame on Verizon for the mess that he's in. Again, in his discussion with Cyrus Farivar at Ars:

But beyond his questionable legal tactics, Stone lamented the fact that larger ISPs, like Verizon, (against whom he filed a subpoena in late May 2012 over a pirated work of anime in an ongoing case) fight him “tooth and nail,” while smaller ISPs simply “cough up the user information.”

And, he argues, Verizon isn’t protecting their users out of principle or out of an interest in legal fairness, but rather to protect their highest-paying customers, which, according to Stone, are pirates.

That's a pretty obnoxious statement and there's not much support for it in real life. Verizon protecting its users' privacy against lawyers trying to identify them for a trolling operation isn't about protecting revenue, it's about protecting individuals' basic rights against bogus legal threats and people who abuse the court system as a business model.

Filed Under: copyright troll, ethics, evan stone, sanctions
Companies: verizon

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

from the a-litany-of-failures dept

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

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

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

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

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

Time to stop digging.

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

Class Action Racketeering Lawsuit Filed Against Copyright Trolling Porn Companies

from the tough-slog dept

The latest news in the world of copyright-trolling porn companies is that one of the people that the porn world tried to shake down with a trolling attempt has hit back with a racketeering lawsuit, which she's trying to turn into a class action. The woman, Jennifer Barker, received a call from someone claiming to work for a law firm (though, in the lawsuit, Barker says she actually works for a third party) demanding a "settlement" payment to avoid being named in one of the lawsuits in Florida (the new favorite for copyright trolls due to some oddities in the law). The caller, like many copyright-trolling porn attempts, played up the fact that it would be embarrassing to be named in a lawsuit for downloading porn. Barker claims she never downloaded the porn and has no clue what BitTorrent is, and -- quite reasonably -- felt that she was being extorted.

From the lawsuit:

Ms. Hansen demanded that Ms. Barker pay money to settle the lawsuit or she would be identified publicly as having downloaded pornography and would be subject to hundreds of thousands of dollars as a judgment if the suit went forward because there were multiple downloads. Numerous individuals on the Internet report receiving a phone call from the same telephone number as that provided by Ms. Hansen to Ms. Barker with a demand that they pay money to settle a lawsuit against them.

Ms. Barker refused to pay any money because she did not know what BitTorrent was and had never downloaded any pornography from the Internet. On information and belief, many other members of the class have paid sums of money in settlement with the pornography purveyors even though they had never downloaded any pornography from the Internet, and certainly had never unlawfully downloaded any pornography from the Internet.

Subsequently, Ms. Hansen and others associated with her called Ms. Barker's place of employment and left messages on the voicemail to which several of Ms. Barker's co-workers also had access and continued to contact Ms. Barker on her personal telephone. Class members have been subjected to the same or similar treatment.

This is hardly the first attempt to use racketeering/RICO laws to counter copyright shakedowns, but to date, most have not been very effective. There is the ongoing lawsuit by Dmitriy Shirokov against US Copyright Group and its parent company Dunlap, Grubb & Weaver, but that was a really fact-specific case, involving the fact that the copyright holder (Uwe Boll) had failed to register the copyright in question in the US in a timely manner, leading to some specific legal questions.

There were also similar attempts to bring a class action racketeering case against the RIAA for its own practice of suing end users for allegedly making works available on file sharing networks. Those lawsuits flopped pretty badly, though.

Again, the case seems to allege some pretty specific facts that potentially could distinguish it from those other ones in the past, though it seems like a pretty massive longshot. The filing focuses on the use of the telephone to seek the money, claiming that it was "wire transmission in a scheme or artifice to attempt to fraudulently obtain money from another" under the law. But, that's actually a pretty high bar to meet, and the porn companies can and will argue that they weren't trying to "fraudulently" obtain money, but legitimately do so. I'd be surprised if the courts allowed this one to go very far.

Filed Under: bittorrent, copyright troll, jennifer barker, porn, racketeering, shakedown

When Even Comcast Is Refusing To Identify Those Accused Of Infringement...

from the copyright-trolls-gone-too-far dept

We've seen various ISPs push back (mostly successfully) on attempts by copyright trolls to lump together hundreds, or even thousands, of separate IP addresses into a single lawsuit for the sake of being able to subpoena identities (and then send threatening "settlement" demand letters). But, still, it's a bit of a surprise to see Comcast get into the game as well, filing a motion with a district court arguing that it shouldn't have to provide such info in response to subpoenas from various copyright trolls. Yes, Comcast has the same basic argument as other ISPs... but Comcast is also the owner of NBC Universal, who is very much on the other side of this issue, and has been one of the strongest copyright maximalists out there. So it's a bit surprising to see them using an argument that, in theory, could come back to make NBC Universal's life more difficult whenever it goes after people for allegedly infringing on its works online. In fact, Comcast argues pretty strongly against copyright trolling in the filing:

Plaintiffs should not be allowed to profit from unfair litigation tactics whereby they use the offices of the Court as an inexpensive means to gain Doe defendants’ personal information and coerce “settlements” from them. It is evident in these cases – and the multitude of cases filed by plaintiffs and other pornographers represented by their counsel – that plaintiffs have no interest in actually litigating their claims against the Doe defendants, but simply seek to use the Court and its subpoena powers to obtain sufficient information to shake down the Doe defendants. The Federal Rules require the Court to deny discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). This case requires such relief.

Now, of course, NBC Universal hasn't gone all the way to the level of pure trolling and forcing settlements out of people, but I've yet to see a single situation where the lawyers at NBC Universal were willing to support anything that might make it more difficult for them to go after people for infringement. Perhaps now that they're under the Comcast umbrella NBC Universal will have to tone down its aggressiveness on these issues?

Filed Under: copyright troll, isp, shakedown
Companies: comcast, nbc universal