Welp, it looks like another bad day for Team Prenda. The law firm that went around uploading its own porn films and then shaking down people on the internet has had a bad few years in terms of courts blasting them for abusing the court system and ordering them to pay up for all sorts of awful things. Every few weeks it seems like we read about another loss for John Steele and Paul Hansmeier (the third "partner" in this mess, Paul Duffy, passed away). The latest is not only a pretty big hit, it's also a complete "own goal" by Team Prenda. This one wasn't in one of their crappy shakedown lawsuits where a defendant hit back. No, this was in the case where Prenda tried to sue all of its critics for defamation in both Illinois and Florida. The Florida case, filed by John Steele, was quickly dismissed once Steele realized it broke all kinds of rules. But the Illinois cases moved forward. There was some bouncing around between state and federal court, before the case was dismissed and some sanctions were added.
There's been some back and forth since then, but after the defendants, Alan Cooper and Paul Godfread, filed an anti-SLAPP against Prenda, and asked for sanctions, the court has now said that Prenda needs to pay up big time. You may recall that Cooper was a guy that Steele had take care of his vacation home in Minnesota, but whose signature Steele then forged on copyright transfer documents. Godfread was Cooper's lawyer, who brought all this out. The lawsuit against them (and a bunch of John Does) was a complete joke from the beginning. And despite Duffy insisting it had nothing whatsoever to do with Cooper saying that Prenda had forged his signature, that's what it was obviously about. Anyway, like so many Prenda things, this one backfired in a big, big way. To the tune of $674,206.94.
There are the original sanctions of $11,758.20 we mentioned above. Then there are attorneys' costs and fees for $162,448.74. And, finally, for good measure, Judge John Darrah tacked on $500,000 in punitive damages. Of course, whether or not Cooper and Goodfread will actually get paid is an open question. Duffy, as you may recall, is dead. And the other major members of Team Prenda, John Steele and Paul Hansmeier have been hit left and right with other judgments. Hansmeier declared bankruptcy and recently lost his law license. Steele's facing disciplinary action in Illinois, last we checked, and of course, lots of people are still waiting for the FBI. So, it's unclear how much they'll actually collect, but it's another case where Team Prenda's own hubris backfired amazingly. As Paul Hansmeier liked to say, "welcome to the big leagues."
It has been almost exactly two years since Judge Otis Wright released his blistering opinion of Prenda Law and the guys behind it, John Steele, Paul Hansmeier and Paul Duffy ("Team Prenda"). There have been various fights here and there since then, but the specific appeal in that case was finally heard yesterday and you can (and should) watch the whole damn thing (which runs almost exactly an hour and a half -- though if you're short on time, you can skip the Morgan Pietz part, and just focus on the first and last parts involving Team Prenda's lawyer, Daniel Voelker).
If you follow a lot of appellate case or Supreme Court cases, you should know that it's generally not a good idea to read too much into any particular line of questioning, or even to assume which way judges are leaning. In this case, however, it would be nothing short of shocking if Team Prenda comes out of this story "winning" -- though, in an astounding bit of what appears to be cluelessness, Voelker said that Team Prenda would be perfectly happy having part of the case sent back to the lower court for criminal contempt sanctions. The three-judge panel seemed so shocked by this, that they asked him if he was sure, and one judge, Judge Tallman, pointed out:
"Do you understand that the maximum penalty for contempt is life imprisonment?"
In short, Team Prenda's own lawyer not only seemed completely unprepared and out of his depth in the hearing, he ended up arguing that rather than just pay $250,000, his clients would prefer to face criminal charges with the chance of life in prison (though, admittedly, such a sentence would be highly unlikely). From all indications, all three judges seem prepared to give Team Prenda what their lawyer appeared to be claiming they wanted.
There were many guffaw-worthy moments throughout the arguments, including Judge Tallman asking about the infamous Alan Cooper forgery, and Voelker playing really dumb, leading Tallman to ask if the "tooth fairy" made the document appear. Judge Tallman also repeatedly pointed out, in disbelief, that Voelker could assert that his clients had no idea how the document got forged when Cooper was Steele's "gardener" (actually housekeeper, but close enough).
All three of the judges seemed well aware of what Team Prenda was up to and how nefarious copyright trolling is. Judge Pregerson, who is 91 years old, talked about how his clerks explained to him how BitTorrent works, and then pretty clearly detailed how Team Prenda (and other copyright trolls) abuse the court system to "extort" settlements from end users. He concludes his description by saying, "Now that is just an ingenious... crooked, extortionate operation." Later he said, "They used our court system for illegal purposes -- to extort money." At least one of the other judges, Judge Nguyen referred to copyright trolling as "extortion" as well. The judges didn't refer to Prenda as a company or a law firm, but rather an "operation." It was a complete bloodbath. The judges also seemed well aware of other Prenda proceedings elsewhere in the country as well.
Basically, the judges seemed not just aware of, but very convinced by the evidence against Prenda's copyright trolling practices. Much of the opening part of the arguments consisted of the judges asking Voelker about those facts -- and Voelker dodging every one of those questions or responding that he didn't know, and then going back to procedural questions. The three-judge panel all found this completely unconvincing, and even where they were willing to grant potential procedural problems (mainly with the punitive sanctions on top of attorneys' fees), noted that if they rejected those, at the very least they were likely to (as mentioned above) just send the case back for criminal proceedings, which almost certainly would leave Team Prenda even worse off. Voelker's standard response: "They want their day in court." It sounds like they might get it.
There were two other really amazing tidbits, both from Judge Pregerson. First, right after describing the whole copyright trolling mess and (as noted above) calling it a "crooked, extortionate operation," he noted how historic this case was and how badly it was going to reflect on Voelker, even suggesting that Voelker may be implicated directly as well:
Pregerson: This is going to be written about for years and years, and you're probably going to be part of the story. They all will be. I don't know where this is going to end up. If they really want to have a trial on this... are you sure they want that?
Voelker: Absolutely your honor! They want a trial...
Pregerson: Is that what you want?
Voelker: Your honor, what I want is irrelevant. I'm just an appellate attorney. I'm not...
Pregerson: Well, you may be involved in this.
Voelker: I'm sorry your honor?
Pregerson: You may be involved!
Voelker: I don't believe so, your honor, with all due respect. I'm just the attorney.
And then that leads into this astounding bit of courtroom drama:
Pregerson: And you're a great lawyer.
Voelker: I really appreciate that.
Pregerson: That's what your ad says when you go on the internet, right? I wonder how many "super lawyers" there are in this country?
Voelker: There are a lot of them.
Pregerson: There are a lot of them. And a lot of them is BS too.
Ouch. It appears that Pregerson wasn't joking around either. From Voelker's website:
Either way, I can't see how the hearing could have gone much worse for Prenda.
If you want another recap from someone who knows a hell of a lot more about how epically bad this went for Prenda, check out Popehat's take, which includes this:
I have never seen an oral argument go so badly for an advocate. The judges were immersed in the details of the record and plainly convinced that Prenda was a criminal operation that merited some sort of sanction. They clearly viewed the case not in isolation, but as part of a series of cases involving Prenda across the country — most of which are turning out very badly for Prenda. It seemed clear that they believed that Judge Wright had the power to impose some sort of sanctions, and that the record supported his doing so.
I know that many of the Prenda watchers among our readers here keep wondering how it is that Team Prenda is not yet in jail. There are a lot of reasons for that, frankly, but their appeal in the 9th Circuit may actually lead them much closer to being in jail, in part because their own lawyer effectively said that's what they wanted.
Remember Alan Cooper? This was the housekeeper for some cabins owned by John Steele, one of the lawyers behind Prenda Law, who suddenly found his name and (falsified) signature on a number of documents related to Prenda Law's copyright trolling shakedowns. Unhappy with this situation, Cooper sued John Steele and Prenda Law. In response, Prenda Law, Paul Duffy and John Steele all sued back... for defamation. Specifically, they filed three separate lawsuits, all against Alan Cooper, his lawyer Paul Godfread and a bunch of anonymous internet commenters. John Steele quickly dropped his lawsuit (apparently there were some serious procedural problems with it in Florida), but Duffy kept both his personal lawsuit and Prenda's lawsuit going -- despite the fact that the lawsuits were clearly crazy.
There was some back and forth as Duffy tried (and failed) to keep the lawsuits in state court (where crazy lawsuits tend to have a better chance), and last year the lawsuit that was technically filed by "Prenda" resulted in sanctions against Duffy. The lawsuit filed by Duffy himself, facing the same judge (John Darrah) has now been tossed out as well, siding with Cooper/Godfread over their claims that the lawsuit violated Minnesota's anti-SLAPP law. Darrah points out, in his analysis that Duffy appears to have just given up on the case, ignoring multiple requests by the court to present his arguments:
Plaintiffs have been given several chances at producing evidence to show that Godfread and Cooper’s statements are not entitled to immunity. The renewed motion to dismiss pursuant to the anti-SLAPP act was filed on October 30, 2014. Plaintiffs were given until
December 1, 2014, to respond but did not do so. The ruling date was scheduled for
February 17, 2015. On February 12, 2015, Plaintiffs were given until February 19, 2015 to respond but, again, did not do so. Throughout this case and the companion case, 14-cv-4391, Prenda and Duffy have ignored clear court orders and failed to fully brief motions. Plaintiffs have not produced clear and convincing evidence that Godfread and Cooper’s statements are not entitled to immunity. Therefore, Godfread and Cooper’s statements in the Minnesota lawsuit must be found to be immune from suit.
That was concerning the statements in Cooper's original lawsuit. How about the online commenters? Duffy doesn't fare well here either. As everyone pointed out at the time the lawsuit was filed, the comments of various anonymous online commenters were clearly statements of opinion, and thus not defamatory:
The Internet statements cited in Plaintiffs’ Complaint are opinions that do not contain an objectively verifiable assertion. Therefore, the statements are not libel per se but nonactionable opinions. Defendants’ Motion to Dismiss Counts I, II, III, and IV is granted without prejudice as to Defendants John Does 1-10.
Judge Darrah also rejects the claims of "false light" pointing out that such a claim requires "actual malice" and Duffy didn't even bother to show how any statements involved actual malice. Darrah also rejects the claims of "civil conspiracy" and "tortious interference" noting that Duffy made "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." In other words: just because you say it, it doesn't make it so, Duffy.
Consider Duffy's weak attempt into intimidation through defamation lawsuits a failed endeavor.
Today, Judge Darrah in the Northern District of Illinois granted yet another sanctions award against copyright troll Prenda Law. Paul Godfread and Alan Cooper have been awarded $11,758.20 as reimbursement for a portion of the fees they have spent on attorneys in defending themselves against Prenda’s defamation lawsuit.
The Court awarded the sanctions under both Federal Rule of Civil Procedure 11 as well as its inherent power to sanction provided in 28 U.S.C. § 1927. In the Court’s own words, the sanctions award was “[b]ased on Prenda’s misrepresentations in this Court” and the Defendants’ incurred fees were “occasioned by the misconduct of Prenda Law and Paul A. Duffy in this Court.”
According to the American Intellectual Property Law Association’s 2013 Report of the Economic Survey, intellectual property attorneys based in Chicago and Boston within the first quartile bill $400 per hour, in line with the amount billed by Defendants’ counsel, who are based in Chicago and Boston. (Dkt. No. 61, Ex. B.) Yet, Prenda argues that this rate is “exorbitant” because Defendants’ attorney Erin Russell is not registered before the United States Patent and Trademark Office and, therefore, not an intellectual property attorney.
"Apropos of what," Judge Darrah doesn't even bother asking.
Prenda cites no law supporting this contention, and its claim of exorbitant rates fails.
Prenda also argued that some of the fees incurred were "self-inflicted" and not the direct result of its bogus lawsuit/endless dicking around. Darrah dismantles this argument as well.
The basis of Prenda’s mitigation argument is that Defendants chose not to trust Prenda to withdraw its motion to remand. Defendants’ failure to trust Prenda was not unreasonable, given Prenda’s vigorous defense of its motion to remand on the same day it filed its motion to withdraw the motion. In any event, Defendants’ response to Prenda’s motion to remand was sufficiently quick and efficient. Not only did Defendants file their response within six days, they filed it on the same day that Prenda presented its motion to withdraw. Prenda’s opposition with respect to Defendants’ fees being self-inflicted or avoidable is denied.
Prenda did manage to come out of this in slightly better shape than it could have. Darrah only awarded the attorney's fees racked up in his court, not including anything that occurred in a separate court in 2013. That decision cut the awarded amount roughly in half.
This appears to be the final moments for Prenda Law, a sordid episode of legal abuse that is ending with lots of (gavel) banging and (Prenda partner) whimpering.
As we've been covering the Prenda debacle for years, there was still the one big "victory" it had, in which a DC district court judge ruled that randomly lumping together over a thousand unrelated "Does" was perfectly legitimate, something most other courts had found to be inappropriate. Of course, people quickly figured out that the judge who found in favor of this bizarre joinder ruling, had only recently been appointed to the bench, having previously been an RIAA lobbyist, and who, years earlier, had helped write the DMCA as a Congressional staffer.
That case made its way slowly through the appeals process, and earlier today, the DC Circuit appeals court overturned the ruling, highlighting a bunch of Prenda's bad behavior, but (perhaps more importantly) pointing out that the subpoenas for information on these 1,000+ Does was clearly inappropriate, first because almost none of the Does appeared to live in Washington DC, and thus were outside the court's jurisdiction. Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC was pretty damning here:
Federal Rules of Civil Procedure 45 and
26 set forth the relevant considerations. Rule 45(d)(3)(A)
requires a district court to “quash or modify a subpoena that
. . . subjects a person to undue burden.” If a subpoena compels
disclosure of information that is not properly discoverable,
then the burden it imposes, however slight, is necessarily
undue: why require a party to produce information the
requesting party has no right to obtain?
And, here, the court certainly finds the discovery attempts to be "undue," because AF Holdings/Prenda could show no good faith belief that they were going after information relevant to a lawsuit in that court.
Here, we think it quite obvious that AF Holdings could
not possibly have had a good faith belief that it could
successfully sue the overwhelming majority of the 1,058 John
Doe defendants in this district. AF Holdings concedes that
under the District of Columbia’s long-arm statute, which
along with the Due Process Clause governs this question... the only conceivable way that
personal jurisdiction might properly be exercised over these
Doe defendants is if they are residents of the District of
Columbia or at least downloaded the copyrighted work in the
District.... But AF Holdings
has made absolutely no effort to limit its suit or its discovery
efforts to those defendants who might live or have
downloaded Popular Demand in the District of Columbia.
Instead, it sought to subpoena Internet service providers that
provide no service at all in the District. As Duffy reluctantly
conceded at oral argument, AF Holdings could have no
legitimate reason for objecting to the court’s quashing the
subpoenas directed at these providers.... Even for those providers that do serve the District of
Columbia, AF Holdings’s discovery demands were overbroad
because it made no attempt to limit its inquiry to those
subscribers who might actually be located in the District. It
could have easily done so using what are known as
geolocation services, which enable anyone to estimate the
location of Internet users based on their IP addresses. Such
services cost very little or are even free.
The court notes that Prenda's failure to do even the most basic things to limit discovery raises questions about its motives:
Given AF Holdings’s
failure to take even these minimal steps, we cannot escape the
conclusion that it sought the vast majority of this information
for reasons unrelated to its pursuit of this particular lawsuit.... . Indeed, Duffy essentially admitted as much at
oral argument, stating that if, as appears to be the case, 399 of
Comcast’s 400 identified subscribers were found to live
outside the District, “the 399 likely wouldn’t be named as
defendants in this case.”
The court then checks in on the big question of "joinder" -- and whether or not it's appropriate to lump together over 1,000 totally unrelated individuals in one of these copyright trolling lawsuits. Like most courts to date, but unlike Judge Howell, the appeals court sees how problematic this is.
We are unconvinced. For purposes of this case, we may
assume that two individuals who participate in the same
swarm at the same time are part of the same series of
transactions within the meaning of Rule 20(a)(2). In that
circumstance, the individuals might well be actively sharing a
file with one another, uploading and downloading pieces of
the copyrighted work from the other members of the swarm.
But AF Holdings has provided no reason to think that the
Doe defendants it named in this lawsuit were ever
participating in the same swarm at the same time. Instead, it
has simply set forth snapshots of a precise moment in which
each of these 1,058 Does allegedly shared the copyrighted
work—snapshots that span a period of nearly five months.
Two individuals who downloaded the same file five months
apart are exceedingly unlikely to have had any interaction
with one another whatsoever. Their only relationship is that
they used the same protocol to access the same work. To
paraphrase an analogy offered by amicus counsel at oral
argument, two BitTorrent users who download the same file
months apart are like two individuals who play at the same
blackjack table at different times. They may have won the
same amount of money, employed the same strategy, and
perhaps even played with the same dealer, but they have still
engaged in entirely separate transactions.... We therefore agree with
those district courts that have concluded that the mere fact
that two defendants accessed the same file through BitTorrent
provides an insufficient basis for joinder.
It's nice to see that the court picked up on many of the amicus arguments made by EFF, ACLU, Public Knowledge and Public Citizen.
Oh, and, in case you're wondering about all the other stuff, such as the Alan Cooper forgery, the court notes those allegations, while saying they are unrelated to the issues here, but, at the very end, in sending the case back to the district court, tosses this in:
Accordingly, we vacate the district court’s order and
remand for further proceedings consistent with this opinion.
We leave it to the district court to determine what sanctions, if
any, are warranted for AF Holdings’s use of a possible
forgery in support of its claim.
For months now, we've been covering how Prenda had been losing pretty much every one of its legal fights concerning its fraudulent copyright trolling practices. I guess it was bound to happen sooner or later, but Team Prenda has bounced back with an actual victory. You may recall that one of the (many) key Prenda cases was taking place in Minnesota, where magistrate judge Franklin Noel, becoming aware of what was happening with Prenda in other courts had reopened a bunch of Prenda (via AF Holdings) cases in Minnesota to explore if Team Prenda had committed fraud upon the court. Noel dug in, demanding actual answers to various questions that Team Prenda had avoided in other cases, eventually ruling against Team Prenda and (importantly) ordering the law firm to pay back all the settlement money it had taken in via those cases.
Well, it appears that's all for nothing now. Judge Joan Ericksen has apparently stepped in to put magistrate judge Noel in his place, pointing out that he went way beyond what a magistrate judge is allowed to do and then actually siding with Prenda lawyer Paul Hansmeier in saying that the fact that team Prenda forged Alan Cooper's signatures on the copyright assignment isn't fraud on the court... and, in fact, saying that it basically doesn't matter at all. First, as to a mere magistrate judge sniffing out these problems, judge Ericksen isn't having any of it:
AF Holdings consistently objected to the
magistrate judge’s authority to determine whether it had committed a fraud on the Court.
The magistrate judge had no such authority. See Reddick v. White, 456 F. App’x 191,
193 (4th Cir. 2011) (per curiam) (“A motion for sanctions under the district court’s
‘inherent’ power is not a pretrial matter under § 636(B)(1)(a). Magistrate judges have no
inherent Article III powers—they have only those powers vested in them by Congress.
Congress has not created statutory authorization for magistrate judges to exercise
inherent Article III powers.”
Furthermore, Ericksen points out that, as a magistrate judge, Noel can't really make an order like he did (which is likely accurate), but instead can just make a recommendation for a "real" judge like Ericksen to review. And Ericksen just doesn't seem concerned about the forgery, lying and other shenanigans from Team Prenda.
Cooper’s signatures
were immaterial to the decision that granted AF Holdings expedited discovery.... AF Holdings’ submission of the agreements with
Cooper’s signatures—legitimate or not, authorized or not—to evince the transfer of the
copyrights to AF Holdings did not amount to a fraud on the Court.
It's somewhat disappointing to see a court not all that concerned that an effort that involved forgery is really no big deal, especially when it was about copyright trolling, a practice of abusing the court system to hound people into paying up to avoid having to fight a lawsuit.
That's unfortunate, but given how many other courts have ruled on Prenda's efforts and the multiple referrals to state bars, DOJ and others, I would imagine that this is merely a slight and brief reprieve for Team Prenda.
Remember back when Prenda sued everyone for defamation? The lawsuit targeted Alan Cooper (whose name multiple courts have now said Prenda forged) and his lawyer, Paul Godfread (while insisting the lawsuit was unrelated to the lawsuits Cooper brought against them), but also went after a bunch of blog commenters for anonymous comments they claimed were defamatory. Prenda even tried to subpoena Automattic (makers of Wordpress) to get the IP address of pretty much everyone who visited either fightcopyrighttrolls.com or dietrolldie.com. That subpoena failed. As did the lawsuit. Badly.
U.S. District Judge John Darrah at a brief status hearing today granted the motion for sanctions that defendants Paul Godfread and Alan Cooper filed this past fall against Prenda and Paul Duffy, who served as the firm’s sole officer before it dissolved and now serves as its attorney in the matter.
There's still some effort to go, as the lawyers for Godfread and Cooper, Erin Russell and Jason Sweet (whose names you may recognize for other work they've done bringing down Prenda) have to submit an itemized fee list, followed by Duffy's response, and then the follow up response from Russell/Sweet. A hearing will then be held in June, meaning there's still plenty of time. However, it looks like another lump sum will be added to Prenda's large and growing tab.
And here we go again. In yet another Prenda court case, Team Prenda has lost big. These are the cases in Minnesota that were reopened earlier this year, after the court became aware of Judge Wright's ruling in California, showing how Paul Hansmeier, John Steele, Paul Duffy and Mark Lutz appeared to be engaged in fraud on the court. In August, the magistrate judge assigned to review the cases, Franklin Noel, started demanding real answers to questions -- answers which never came.
Instead, we got a hearing in Minnesota that revealed some explosive new info, while Mark Lutz disappeared never to be heard from again. While Hansmseier and Duffy were never able to produce Lutz or answers to Judge Noel's questions, they did try to get Judge Noel kicked off the case.
None of the above strategies worked. At all. Judge Noel today not only rejected the request to pull him off the case, but also slammed Team Prenda, yet again, ordered them to pay back all the settlement money they got from the specific cases involved and then referred the case to law enforcement to look into the activities of Hansmeier, Steele, Duffy and Lutz. While he notes there are other issues being dealt with elsewhere, the main focus of Noel's inquiry was the legitimacy of Alan Cooper's signature -- and Judge Noel concludes, as have multiple other courts, that Cooper did not sign the document. And he's pretty thorough about it. He notes that AF Holdings, the shell company in question here, "failed to meet its burden of proving the authenticity of the copyright-assignment agreements."
Even more specifically, Judge Noel says that he thinks Steele lied on the stand:
Based upon Cooper’s side of these two conversations, Steele testified that it was his
“understanding that he [Cooper] had given authority to Mark and his people if he
wasn’t available, that he could sign the various documents as long as he understood
what the document related to . . . .” Finding Steele’s testimony
regarding his “understanding” of an agreement between Cooper and Lutz to be
vague, the Court asked directly, “Did you hear Mr. Cooper give Mr. Lutz authority
or permission to sign his name to documents?” Steele replied “yes.”
The Court expressly disbelieves Steele’s testimony in this regard.
Noel goes on to point out that AF Holdings failed to produce an officer of the company who was "capable of testifying to the authenticity of each copyright-assignment agreement." He doesn't make much of Lutz's not appearance (and subsequent disappearance) other than mentioning that Lutz did not appear.
In the end, the court finds that fraud was committed on the court and orders the return of all the settlement money and the payment of attorneys' fees, which should add some more to the top of what Duffy, Hansmeier and Steele have on their ever-growing tab. The court also notes that it would be a waste of its time to "untangle the relationship between Hansmeier, Steele, Duffy, Dugas, Lutz and Prenda Law, on the one hand--and the Plaintiff AF Holdings, LLC., on the other." Instead, "such investigation can more effectively be conducted by federal law enforcement...." While it's likely federal law enforcement was already looking into all of this after Judge Wright alerted them to the case, having another judge make a similar recommendation can't hurt (well, unless you're Team Prenda. Then it hurts).
John Steele just can't stop digging. The alleged (and confirmed by multiple courts) mastermind behind Prenda Law's copyright (and CFAA) trolling efforts is likely headed for a world of trouble after Brett Gibbs, a lawyer who used to work for him, finally coughed up incredibly compelling evidence that Steele (and partner Paul Hansmeier) were the people behind Prenda Law -- despite multiple denials of that claim. However, as that was coming out, it appears Steele was busy trying to get himself out of the lawsuit that Alan Cooper brought many months ago, concerning Steele allegedly signing Cooper's name on various legal documents. Steele has now asked the court to dismiss the lawsuit.
For many months, there's been all sorts of bluster from Steele (and others on Team Prenda) suggesting that Cooper's claims were totally bogus and that "the truth will come out" at some point. In other cases, there have been attacks on Cooper's credibility, arguing that he had mental problems and was on medication, that he'd acted in unstable ways. Furthermore, in a variety of cases, Steele argued, often in conflicting ways, that Cooper either really had signed the documents or that he'd somehow given Mark Lutz permission to sign the documents for him. The contradictions made his claims not particularly credible in the first place.
So, now that he's actually filing to dismiss the lawsuit, does he argue that Cooper actually signed the documents? Or that he knew all about the documents even if someone else signed them? No. Instead, he basically argues that Alan Cooper is a very common name and maybe it's coincidental that Cooper's name was on the documents -- and thus, there has been no "invasion of privacy." Yes, it's hard to believe, after everything else claimed that this is Steele's strategy, but as we've seen before, he often seems to think he can talk his way out of everything, even if his other statements totally contradict what he now claims. The filing is really quite incredible.
First, Steele attempts to misrepresent Minnesota common law concerning invasion of privacy. First, he points out that the law is "limited" such that it doesn't apply to incidental mentions of someone:
The
value
of
the
plaintiffs
name
is
not
appropriated
by
mere
mention
of
it,
or
by
reference
to
it
in
connection
with
legitimate
mention
of
his
public
activities;
nor
is
the
value
of
his
likeness
appropriated
when
it
is
published
for
purposes
other
than
taking
advantage
of
his
reputation,
prestige,
or
other
value
associated
with
him,
for
purposes
of
publicity.
No
one
has
the
right
to
object
merely
because
his
name
or
his
appearance
is
brought
before
the
public,
since
neither
is
in
any
way
a
private
matter
and
both
are
open
to
public
observation.
It
is
only
when
the
publicity
is
given
for
the
purpose
of
appropriating
to
the
defendant's
benefit
the
commercial
or
other
values
associated
with
the
name
or
the
likeness
that
the
right
of
privacy
is
invaded.
Of course, all of that is sensible law. It's not an invasion of privacy to merely mention someone's name or to talk about their public activities. But that's not what is alleged to have happened here. The accusation is that Steele forged Cooper's signature on legal documents. To pretend that's the equivalent of a mere mentioning of Cooper is ridiculous. From there, Steele argues that the signature is just a "coincidental" signature of someone named Alan Cooper, and since it might not even be this Cooper, it doesn't rely on his "persona," but is rather "a coincidental use of the same name."
Plaintiff
alleges
that
Defendants
used
the
name
"Alan
Cooper"
without
his
express
permission,
but
he
does
not
allege
that
Defendants'
use
of
the
name
leveraged
Plaintiff's
"reputation,
prestige,
social
or
commercial
standing,
public
interest
or
other
values
of
the
plaintiff's
name
or
likeness." Indeed,
Plaintiff's
own
allegations
express
uncertainty
over
whether
he
is
even
the
"Alan
Cooper"
referenced
in
the
allegedly-offending
documents.
(See
Compl.
91
41)
("Defendants
have
never
identified
another
person
by
the
name
of
Alan
Cooper
who
could
plausibly
have
signed
the
documents
shown
as
Exhibit
A
or
Exhibit
B.")
The
reason
why
Plaintiff
is
uncertain
whether
he
is
the
"Alan
Cooper"
referenced
in
Plaintiff's
documents
is
the
very
same
reason
why
his
claim
must
fail:
nothing
in
the
documents
containing
the
name
"Alan
Cooper"
is
linked
to
or
otherwise
leverages
the
qualities
of
Plaintiff's
persona.
Plaintiff
does
not
allege
otherwise.
Plaintiff
has
no
exclusive
right
to
the
use
of
the
generic
name
"Alan
Cooper."
Otherwise,
any
person
who
signed
a
document,
"Alan
Cooper"--that
is,
even
someone
whose
legal
name
was
Alan
Cooper--could
be
liable
for
invading
Plaintiff's
privacy.
The
Court
should
dismiss
Plaintiff's
Count
I
with
prejudice.
The chutzpah it takes to file something like that with the court is rather stunning. He's not denying that he signed Alan Cooper's name. He's just arguing that it's not a violation of Alan Cooper's privacy because Alan Cooper is a common name. That takes balls. Of course, if it really was just some other Alan Cooper, then that's got to come back to bite Steele as well. After all, in the Navasca deposition by Paul Hansmeier, Hansmeier stated that Steele had been the one who got Alan Cooper's signature. And, when Judge Wright ordered "the real Alan Cooper" to appear in his court room, the only one who showed was the one who's now suing Steele. At no point has Steele previously indicated that there was another Alan Cooper, yet now he's trying to get out of this case by shrugging it off and saying it could be any Alan Cooper? Damn. He really does seem to think that everyone else in the world is dumb.
Steele further attacks Cooper's other claims by arguing that it couldn't be a deceptive trade practice because Cooper doesn't show what trade his name was involved in and because Cooper fails to show who was deceived. So, argument number two from Steele: signing someone else's name to a legal document in a court isn't deceptive if no one can be shown to be deceived.
Steele then attacks Cooper's claims that "Prenda Law, Inc., is a mere instrumentality of Steele." And that "Prenda Law, Inc.'s existence was a mere facade for individual dealings of Steele." Steele argues that since there is no allegation that supports those conclusions, the claims must be dismissed. I'm guessing he wrote this part prior to Brett Gibbs' filing, because I imagine that allegation supporting those conclusions rather strongly, complete with spreadsheet evidence, will show up rather quickly. Steele further argues that Cooper failed to show any documents where Steele represented that Alan Cooper was an officer of AF Holdings or Ingenuity 13. Apparently, the signed copyright assignments have completely slipped his mind?
At this point, this particular legal case is more of a sideshow to the other ones (along with the rapidly increasing probability that Steele and Hansmeier may soon have to deal with criminal investigations). But it's yet another glimpse into the mind of John Steele, where his statements indicate, yet again, that if he just keeps talking, maybe he'll talk himself out of the corner he's clearly been backed into.
When we last left Team Prenda, they were dealing with the fallout from the Perry Mason-like moment in court in which Alan Cooper -- who has accused Prenda's John Steele of forging his name/identity on multiple occasions -- revealed that he first found out about his signature on copyright assignment documents from John Steele's mother-in-law, Kim Eckenrode. In response, the best that John Steele and Paul Hansmeier could say in response was (1) she's "religious" and (2) she spends a lot of time reading the popular anti-troll websites DieTrollDie and FightCopyrightTrolls. Late last week, Hansmeier filed a declaration from Eckenrode along with a memorandum that tries to support Team Prenda's position and to (once again) attack Alan Cooper's credibility. Unfortunately, as with so many Prenda filings, once you get past the surface story, everything else falls apart. Quickly.
First off, they claim that Cooper has been trying to hide the involvement of Eckenrode, because this would somehow undermine Cooper's argument:
There is a very
simple reason why Mr. Cooper, his financial benefactors at the Electronic Frontier Foundation, and
his putative attorney, Paul Godfread, fought to avoid revealing Ms. Eckenrode’s identity. They knew that the moment Mr. Cooper revealed Ms. Eckenrode’s identity, Ms. Eckenrode would be contacted by Plaintiff to learn her side of the story.
Well, yes. But, uh, considering that Eckenrode is Steele's mother-in-law and supposedly reads all those sites, um, then wouldn't she have mentioned to Steele at some earlier point how she had texted Cooper about his signature? In all that time, she never brought it up? Really? That seems difficult to believe.
Either way, the filing suggests that Eckenrode's affidavit undermines Cooper's claims, but that doesn't appear to be true. In it, she claims that she didn't just text Cooper out of the blue, but rather she had seen a mention of Cooper on one of the sites (DTD or FCT, though she doesn't specify which...) and had told her own husband about it. Sooner after, Cooper had called her husband to discuss having shot a deer (they apparently spoke a few times about hunting). The husband mentioned Ms. Eckenrode's comments to Cooper, who asked to be sent the articles:
On or about November 15, 2012 Alan called and spoke
to my husband about a deer he had shot on John's property
the week before. My husband told Alan that I read a recent
article in one of the above-mentioned websites and noticed
that the name Alan Cooper was used in conjunction with a
company called AF Holdings. Alan asked me to send what I
had seen on those websites to him, and I did.
That still doesn't change the fact that this is how Cooper first found out about the documents where his signature appears to have been forged (and which courts have ruled were forged). And, in fact, later in the affidavit, Cooper appears to respond to Eckenrode to say that it's "not my signature."
On September 30, 2013, I learned that Alan had
testified before the Honorable Judge Noel in Minnesota that
I had sent Alan a text for the purpose of notifying Alan that
his name was being used in connection with adult content
companies. This is not accurate. I sent the text to notify
Alan that I had discovered a document online signed 'Alan
Cooper', and to ask if he thought it could possibly be the one
he had discussed with my husband when we were in
Minnesota. Alan indicated "That's me" and "not my
signature."
That still doesn't seem to contradict the story, so I'm not entirely clear why Hansmeier appears to be doing some sort of victory dance about how this changes everything. Again, it's difficult to believe that nowhere in the past year since Cooper first went public with this that Eckenrode never bothered to mention this exchange to Steele if Cooper was supposedly completely misrepresenting things. Also, in the memorandum, Hansmeier claims that Cooper confirmed that the documents were the ones he had discussed in the past. But that's not what Eckenrode's affidavit says. It says he said "that's me" and "not my signature." By which he could certainly mean that it's obviously "him" that is supposedly signing the documents, but it wasn't his signature. In short: it would support his story. He recognizes that someone at Prenda is trying to use his identity (hence: "that's me") to forge his signature ("not my signature"). Yet in the filing, Hansmeier instead claims that "The purpose of the text message was to ask Mr. Cooper if the documents referenced on the blogs were the ones he had referenced in Minnesota. Mr. Cooper confirmed that they were." Except it's not clear he really did that.
There are some other oddities in the story as well. For example, last week in court, Steele apparently almost broke down on the stand claiming that he got out of the trolling business after seeing an image of his home, his child and a gun, with people asking what kind of bullets to use to kill Steele. That claim raised significant skepticism from multiple observers of Team Prenda's actions, because no one can recall ever seeing anything even remotely like that on a site. Eckenrode, however, claims a similar thing -- again without a single specific:
On one occasion, I saw an article on one of the above
websites showing pictures of the home where John and his
family lived. This was very disturbing to me. I asked the
people running the website to please take that information
off their website because I was afraid for my family's safety.
On another occasion, the websites had posted 3 picture of
my daughter and had posts slandering her. I was disturbed
and hurt by the disrespect shown my family and
communicated such. I also asked that to be removed.
Why would she not name the sites in question? I'm not saying this didn't happen, because it very well might have. But, it does seem odd that neither Steele nor his mother-in-law seem to state what site this actually happened on. And, if Eckenrode asked for the image to be removed, then there should be a record of that somewhere.
Also, as in the past, Team Prenda likes to claim that anti-troll blogs are "pro-piracy," which is just silly. Oh yeah, and calling Cooper's lawyer, Paul Godfread, his "putative" attorney is just really childish.
And then there's the usual ridiculous attack on the EFF, again falsely claiming that they were Cooper's "financial benefactors" merely because EFF paid for Cooper's trip to court when Judge Wright ordered him to be there. And then going off on this little anti-EFF rant:
The overriding mission of the EFF has been to shield the Internet from effective
regulation--"defending it from the intrusion of territorial government." Jack L.
Goldsmith & Tim Wu, Who Controls the Internet?: Illusions of a Borderless World .... This mission is radical, quasi-anarchist, and intrinsically opposed to any effective
enforcement of intellectual property rights. Purporting to speak on behalf of
"Cyberspace," a co-founder of the EFF (who presently serves on its Board of Directors)
has warned the "Governments of the Industrial World" that "[y]our legal concepts of
property, expression, identity, movement, and context do not apply to us." John Perry
Barlow, A Declaration of the Independence of Cyberspace
Quoting John Perry Barlow out of context may seem like fun, but it really just makes you look confused and silly. Also, misrepresenting EFF and trying to smear them with claims like "quasi-anarchist" may win points in certain circles, but one expects judges to see through that kind of baseless confused rhetoric. If anything, it just highlights the lack of real arguments from Hansmeier and Team Prenda. EFF is pretty well respected on these issues -- even among those who disagree with them. Launching an insult barrage against the organization only raises more questions about those raising such silly claims.
