Accused Pirate Tries For Attorney's Fees After Copyright Troll Attempts To Run Away From Discovery

from the more-of-this-please dept

When we talk about the scourge that is copyright troll operations, and the wide path of legal destruction they've caused throughout the world, it can be easy to lose sight of just how precarious a business model it can be for the trolls. Loathe as any writer should be to engage in cliche, it is simply true that the best response to shut down this kind of non-litigious bullying is to simply punch back. After all, it is quite clear at this point that the last thing these trolling operations want as a response to their lawsuit-threat letters is for any actual lawsuit to be conducted. More specific to this story is how Guardaley, the shady German company that appears to setup shell operations throughout the world and cultivate law firms to enforce its operations, all too often forgets to bring any actual evidence to the courtroom when it does show up there and which otherwise does everything it can to stay out of the courtroom altogether.

Again, bullies will tend to back down when you fight back against them. But backing down doesn't have to be the end of the story, as demonstrated by one Utah man that received a copyright trolling threat letter from an outfit called Criminal Productions (super on the nose, there, guys...), immediately lawyered up, and demanded that discovery begin.

This was the case when Darren Brinkley was sued in a Utah federal court last year. In a complaint filed by Criminal Productions, he and 31 others were accused of illegally sharing a copy of the movie Criminal. Brinkley denied these claims and rejected the settlement offer but the film company still didn’t back off.

While Criminal Productions initially refused to let the case go, recently it voluntarily dismissed the case. According to Brinkley’s lawyers, the film company dropped the case like a hot potato when it discovered that the defendant was attempting to look into its business.

“As expected, when Plaintiff realized a Motion to Compel discovery was in draft, Criminal sought voluntary dismissal of both its affirmative claims and Brinkley’s counterclaims, which this Court granted, with prejudice, on July 6, 2018.”

Such a move should make it very obvious just what type of ethics Criminal Productions engages in to so plainly scramble to avoid any type of discovery process into its practices or techniques. There must be quite a treasure trove of information to be discovered to cause the bully to run away so completely. As the post notes, Criminal Productions is a special purpose entity (SPE), which is basically used to shield the fact that this is all being done by a known copyright troll. Guardaley appears to be the main suspect in this case.

But, if these trolls are allowed to simply run away from any individual who chooses to fight back, that doesn't serve as much of a deterrent for their behavior. Brinkley's demand that Criminal Productions pay his attorney's fees, on the other hand, serves that function nicely.

Brinkley’s attorneys see this as a typical example of “cut and run” litigation, and argue that Criminal Productions must pay their client’s legal bill.

“These tactics should at minimum require that Defendant Brinkley be made whole for Plaintiff’s filing of litigation it clearly had no intention of pursuing and that may have had no basis in the first instance. This is the very definition of ‘cut and run’ litigation,” the motion reads.

The defendant requests compensation for the attorneys’ fees and costs to the tune of $62,818.35, providing a detailed accounting of the costs it made.

We need more of this. Much more, in fact. If, suddenly, the risk calculus for anyone engaging in copyright trolling practices had to include the potential of handing five figures over to the wrongly accused it attempted to bilk money from, perhaps we'd finally see this monstrous practice go away.

Filed Under: attorney's fees, copyright, copyright trolling, darren brinkley, false accusation
Companies: criminal productions

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

from the the-receding-wave dept

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

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

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

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

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

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

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

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

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

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

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

News.com Prevents Falsely Accused Grandmother Of Getting Kicked Off The Internet By The MPAA

from the but-who-will-protect-anyone-else? dept

One of the problems we've had with the whole "three strikes" concept that would kick people off the internet due to accusations, not convictions, of file sharing, is the fact that we hear all the time about innocent users accused of file sharing. Greg Sandoval, over at News.com recently came across a grandmother who was falsely accused multiple times of file sharing, and her ISP, Qwest, was threatening to kick her off the internet. We had not heard that Qwest had signed on with a "three strikes" program, so it's a bit of news that it's one of the companies who will accept bogus accusations. Not only that, but Qwest even told her that no other provider would grant her service because Qwest would let those other service providers "know her name and what she did." Thanks, Qwest!

The problem, of course, was that Cathi Paradiso didn't share any of the movies or TV shows she was accused of sharing, and she works from home as a recruiter -- so losing her internet access would be devastating. But the only way she got Qwest to back down was because Sandoval and News.com became interested in the story and convinced Qwest to look deeper. But if Paradiso hadn't been able to draw attention to herself from the press, she would have had no recourse. There was no one she could appeal to, and no official process to respond to the bogus claims of Hollywood. She got lucky that News.com was willing to pick up her story and contact Qwest, but what about anyone else threatened with bogus notices? Meanwhile, BayTSP, the company whose "evidence" has been shown to be flimsy and easily falsified in the past, stands by accusing her of file sharing, saying it was her own fault for having an open WiFi network, suggesting there's something inherently wrong with sharing your WiFi. Yes, the company stands by its false accusation. Nice company.

Filed Under: due process, false accusation, file sharing, three strikes
Companies: baytsp, qwest