Archive for August, 2011


Ira M. Siegel

Ira Siegel is one of the most sinister and cynical figures on the copyright trolling arena. He participates in setting up shameless honeypot schemes to profit from alleged copyright infringement and his lawsuits list thousands of Does.

One of the cases this troll filed last year was “On the Cheap v. Does 1-5011”. The latest developments on this case are summarized by E-ttorney at Law™ Stewart Kellar in his blog: he wrote this post in anticipation of today’s hearing by the magistrate judge who had ordered Mr. Siegel to show a cause why his case shouldn’t be dismissed on the grounds of improper joinder and wrong jurisdiction. And today’s hearing was very interesting as expected.

Stewart Kellar did a fantastic job reporting real-time from the courtroom via Twitter — see the copy of the transcript below.

Judge Zimmerman was skeptical and visibly annoyed — not good news for the troll. But the resulting order has exceeded my expectations: among other things, judge Zimmerman has ordered to disclose the total amount plaintiff had received in settlements from any of the doe defendants. The reply is expected by August 31. Plaintiff has also been ordered to provide a copy of any form letter it had sent to any doe defendant offering a settlement:

To the best of my knowledge, this is the first time a judge forces a troll to disclose the extortion details. In other words, the troll was ordered to show up in the bright spot of light, and this is great: trolls’ fear of light is even stronger than their lust for money.

Twitter report by @ettorneyatlaw (Stewart Kellar)

Date: August 24, 2011
Case No: C 10-04472 BZ
Case Name: ON THE CHEAP LLC v. DOES 1-5011
Plaintiff Attorney(s): Ira Siegel
Defendant Attorney(s): for Amicus: Corynne McSherry

  • At the On The Cheap Order to Show Cause hearing. Ira Siegel is here as well as Corynne McSherry from EFF. Updates to come.
  • The On the Cheap hearing is starting. Ira Siegel and Corynne McSherry and Julie Samuels from EFF approach.
  • Judge Zimmerman is “concerned about how this case is developing, or not developing.”
  • Zimmerman has read “decisions from other courts that trouble me” and Does that have filed here raise questions.
  • Zimmerman asks the publication date of the registered copyrighted work, methods of distribution.
  • Siegel says film has been sold and is for sale. Judge heard from some of his colleagues that some films have been created just to be shared
  • Siegel “takes umbrage” that Judge Zimmerman is insinuating that this strategy is a front to share films online and sue people for it.
  • Zimmerman points out that a substantial portion of the alleged downloads happened before the copyright registration.
  • Siegel says his clients engaged Copyright Enforcement Group (Dunlap, Grubb, and Weaver) to log the IPs. Clarification: yesterday I mistakenly said Copyright Enforcement Group was Dunlap, Grubb & Weaver (USCG). They are not, DGW is not CEG AFAIK
  • Judge Zimmerman asks why the Northern District was chosen when both Siegel and Client are in LA.
  • Siegel says “based on our math” venue is proper. Zimmerman says, let’s do the math.
  • Siegel reads from a card to insult EFF as wanting “freedom from the tyranny of having to pay for content.”
  • Zimmerman brings up copyrightability of the film and whether it is a Constitutional “useful art.”
  • Siegel says to Judge Zimmerman that he intends to name defendants in October. Zimmerman asks about the form demand letters.
  • Judge wants know how a torrent swarm subjects one to jurisdiction. Siegel says being on a swarm subjects people to jurisdiction nationwide.
  • Siegel says everyone knows that most adult films are made in California. Judge Zimmerman questions that notion.
  • Zimmerman is very skeptical about Siegel wanting to conduct jx discovery on 5011 defendants.
  • Zimmerman is concerned about Siegel holding IP Address holder liable for anything that happens on their account.
  • Siegel says discovery will be complete by September and will name people by October. Will dismiss many outside of California.
  • Zimmerman asks “how would you feel” if you were being accused and don’t know if and when you’ll be named?
  • Siegel compares torrent downloading to “flash mob violence.” Says if people say they didn’t do it but say someone else did, he will sue them
  • Judge Zimmerman asks if any Circuit has ruled on these cases. Ms. McSherry says these cases aren’t filed intending to bring them to trial.
  • Judge Zimmerman says this looks like an effort to extract settlements from as many people as you can. Siegel says “this is not fair.”
  • Zimmerman has a problem saying it is purposeful availment of every state by being on a torrent. He is more troubled by jurisdiction motions
  • Zimmerman has a problem with Siegel’s basis for jurisdiction, wonders aloud whether it is subject to Rule 11.
  • Zimmerman wants to know “what happens now?” Why hasn’t anyone been served? Is concerned about improper joinder, jurisdiction and managing it
  • Zimmerman: “how do I fit 5000 defendants into my courtroom.” Siegel says he’s trying to figure out which ones to sue and where by October.
  • Siegel says “I don’t believe a class action in this type of case is appropriate.” Judge Zimmerman thinks Siegel sees the problems here.
  • Siegel says this Court “should wait to see who we sue come October.” Zimmerman says each defendant is entitled to a 7 hour depo of plaintiff
  • Zimmerman has never had subpoenas that have been out for so long. “Why don’t you just dismiss this case and bring it again when you’re ready
  • Siegel: if we name 100 here, it’s one thing if we name 5000 it’s another. Let us use our wisdom to decide who to sue.
  • Zimmerman has a problem with arguing that joinder and jurisdiction issues are premature. Says Siegel is being oxy-moronic by saying…
  • “The more unmanageable I make these cases, the more time the Court should give me to figure out what I’m going to do.”
  • Judge is bothered by the notion that Courts are being used as collection agencies. Not sure what is “just, speedy, and efficient” about this
  • Siegel says “when we have our list of defendants and the Court sees what we are doing, then they can judge it…
  • Please don’t put any hurdles in front of us yet, wait until October.”
  • Judge Zimmerman takes this case under submission.
  • @Prod_By_BLACKK Judge Zimmerman will Rule sometime [hopefully] before October. He seemed skeptical about the case and could maybe dismiss it

Last week all the Does except Doe #10 were dismissed from this case.

On August 11, 2011, the Court directed Plaintiff to decide whether to name S.P. as a Defendant and that, if it chose to do so, to amend its complaint within seven days of August 11, 2011. The Court warned Plaintiff that, if it failed to respond, its claims against Doe 10 would be dismissed for failure to prosecute.

G. Sperlein decided not to sue the remaining defendant at this time and let this case collapse by ignoring the deadline.

As time passes, and the public awareness and outrage are growing, it is becoming less and less likely that Sperlein would dare filing a new lawsuit against Doe #10. Although it is possible in theory (the dismissal was without prejudice), it is just does not make any sense:

  • It is hard to believe that a Doe who fought (and therefore is well informed) can be coerced to pay.
  • Winning such case is also impossible, especially in light of new discoveries about the “evidence” extortionists possess.

As I stated in the FAQ,

An outcome of a motion [to quash a subpoena] is uncertain – it is really depends on the judge, and since it costs virtually nothing to you, it is worth trying. Even if you don’t succeed, your effort is not in vain: judges’ awareness of this scam grows, and if the judge on your case receives many motions like yours, he may change his initial opinion on the matter. In addition, trolls normally write and file an opposition to every motion; therefore they spend their time. And more of a troll’s time is wasted, less time he has to inflict damage to the society.

On August 19th a motion based on Sy Ableman’s template was granted, and Steele’s case “Boy Racer v. Does 1-60” was dismissed without prejudice. Maybe it is a small victory, but during the times when case law regarding mass filesharing lawsuits is being created, any victory is significant.

Thumbs up to judge Illston. Thumbs up to the anonymous filer: just think about how many victims you saved from distress simply by not being lazy and submissive. I don’t necessarily believe in reincarnation, but it is difficult to dismiss a broad concept of Karma: I’m sure you’ve improved yours. As for trolls, they are doomed to be reborn as helminths, no doubt.

I updated the FAQ page. I want to distill and put together all the knowledge I collected during the last months. I will eventually slow down my activity: there are too many interesting things to do in this world, much more interesting than fighting with scumbags. This is not a final version of the FAQ, so your input is appreciated, as always.

Please note that I’m not a lawyer, therefore I can give you an advice, although of course it will never be a legal advice. One of the major treasuries every human being possesses is the ability to think critically. It is tempting to follow a recommendation without thinking twice, but I encourage you to use this site only as a single resource in the ocean of common sense. Think for yourself, do your research, never turn off your sense of humor, and always heed these words written in large friendly letters:

DO NOT PANIC

US District Judge Claudia Wilken issued an order regarding the case “IO group v. Does 1-138”. She had severed and dismissed without prejudice all the Does except Doe #10, who had earlier filed a motion to dismiss for lack of personal jurisdiction.

In this order the judge also denied the motion to dismiss arguing that it is not possible to know if the filer is a party of the lawsuit before that filer is explicitly named, which is clearly a Catch-22 situation.

Although the judge made a right decision to dismiss misjoined defendants, and I praise her for that, with Doe #10, who remains on the case, she basically played along the troll’s ways and punished the one who fought. This alone creates significant chilling effect on any opposition to unethical copyright trolling business, strengthening extortionists’ impudence. It is fair to note, however, that judge Wilken did not pioneer this type of decision.

I still think that filing a motion to quash/dismiss does make sense: 1) there is a small chance that a judge had already made up his mind and is just waiting for an excuse to dismiss the case (for example, judge Shadur in Illinois dismissed copyright troll John Steele’s case in March); 2) many Does filing motions simultaneously create tons of additional work for plaintiff, which is always good: more troll’s time is wasted, less time he has for damaging the society; 3) this delays the progress of the case and buys you time to think about your situation and look how similar cases are progressing.

Yet I don’t recommend revealing any part of your identity in such motion: IP address, location, initials, etc. A protective order (even if granted, which is not likely to happen) does not actually protect – your initials and location are still must be publicized.

So I’m worried about Doe #10: given Sperlein’s history of vindictive lawsuits, the chance of pursuing this victim is high.

Also it seems that the judge did not bother to browse through the case history. Even looking only at the titles of filings, it is impossible to miss the fact that Verizon had already betrayed its customers and coughed out their identities: there is no way that selective dismissals of multiple Does could happen prior to the extortion phase of a predatory lawsuit. So for the judge ordering Verizon to stop revealing names after the names were revealed months ago looks troubling and unprofessional.

Below is the comment to my recent post “Why you shouldn’t talk plaintiff’s lawyer” submitted by a blog’s reader and contributor (DieTrollDie). The cake analogy was so good that I decided to post the entire comment here.

Thank you for the video. Wow, that really takes me back. My previous career was in criminal investigations and so much of what was said on both sides is true. I did like what the cop at the end — that he doesn’t target innocent people. That is one thing that differs from the Trolls. For the police, they are charged to prove or disprove an allegation. The Trolls do not care. They don’t care if someone used your Internet connect (without your permission) or that your WiFi was “Open.” All they care about is getting you to pay the “settlement” agreement and keeping your mouth shut on their tactics. Proving or disproving that you actually did illegally download copyright protected material is not something they want to do. Don’t let someone tell you they are protecting the rights of the copyright owners. The settlement letters and telephone calls are only used to get your money. The Trolls do have the same opinion as the cop, in that “your client is stupid,” or that “the registered IP owner is stupid.” And both are correct. I don’t say that to be mean to all the people who have paid the Trolls, but let’s be honest. If this wasn’t the case, the Trolls wouldn’t be making so much money. The Trolls are not running a full and thorough investigation. Money and greed motivated their business model.

Let’s do some simple math — Case against 300 Does; Trolls have an estimated settlement return rate of 50% (Unk, just an est.); Say $2,500 per settlement; 150 X 2500 = $375,000; Split that with the original owners; Go party; Start more case and repeat the cycle. You get the picture.

The bottom line as the professor stated — Don’t talk to the Police (or Troll). It will do you NO good. The Troll doesn’t care and will only try to use it against you. If it goes to court (doubtful), there will be time enough to get your information out and prevent being abused or taken advantage of.

When I was a new investigator, I had an instructor liken running an investigation to making a cake. To make the cake, it took many different ingredients (part) and steps to reach the conclusion (finished cake). One of the last steps is often the interview of the suspect. If you got the suspect to admit to the crime(s), that was the icing on the cake. Point being that if you case (cake) was already good; the confession was the sweet topping that ONLY added to it. If a person refused to talk, the cake was still good and a prosecutor could still use it. I like my cake with icing, but I will still eat it without it. My point to the “Cake” story is the Trolls do not have even a basic simple cake built for any of their cases. What they do have is the information that an IP address allegedly illegally downloaded copyright protected material. As far as the cake building goes, the IP address they have obtained is akin to having a bag of flour. The Trolls know that having one ingredient (IP address) does not make a cake (solid case). So instead of gathering the remaining ingredients and taking the proper steps to make the cake (proving their case), they send out a settlement letter to the IP owner. This is where the message in the video is key – “Don’t talk to the Trolls; It will do you NO good.” Right now the Trolls have nothing; If you talk to them, they may obtain something to help their case.

As stated in this forum, if you are formally names in a legal matter, do not ignore the Trolls. If you ignore them at that point, the Trolls may obtain a default judgment against you. Make them “prove” their allegations and show you their “Cake.” I bet it tastes like “crap!”

John Doe

Embedded is an excellent lecture by a law professor explaining why you should never talk to police. Why am I posting it and how is it related to the topic of this blog? I see a great similarity between police’s and copyright trolls’ methods of provoking self-incriminating statements by deception.

Imagine that you wanted to download a different file and were fooled by the file name. You may think that explaining this fact to a troll will result in dismissal; but you are wrong: all you are doing is admitting the guilt, and you may be still liable for unwillful infringement (up to $30,000 per work per infringement). As Sperlein scoffed at Mayra Gonzales’ letter,

…I don’t think that someone searching for stolen content but simply got the wrong stolen content is going to prove they are an innocent infringer…

On the other hand, if you are silent, it is trolls’ duty to prove their allegations, and given the quality of evidence they have plus growing awareness about their extortion scheme, it is extremely hard for them to do.

Followup

DieTrollDie’s input:

A couple of forum pages ago I wrote about the NJ lawyers who were investigated by SEC for security fraud. These lawyers are Sperlein’s proxies suing Carlos Somoza for copyright infringement on behalf of the IO Group, a gay hardcore pornography producer and copyright bully.

Nothing happened on this case since it was filed in the beginning of May, but a couple of days ago defendant wrote a letter to the court:

Note that some of these scam artists live in million dollar houses and drive BMW’s, yet greedy and cynical beyond imagination. Let this guy go, scumbags!

If you are not angry after reading this letter, you probably have very thick skin. I don’t, and therefore I better stop here, otherwise I’m risking speaking out not the best part of myself and later regret it.

A couple of weeks ago I published the Motion to Quash or Modify Subpoena template that this blog’s reader, Sy Ableman, created. Yesterday he emailed an updated version with the following explanation:

Hi Jane,

I’ve gotten quite a few emails from people who have used my motion to quash template, and I’ve also read responses from Steele Hansmeier that readers have forwarded me.

Some funny bits in their responses, such as “The list of permissible grounds for quashing or modifying a subpoena does not include ad hominem attacks See Fed. R. Civ. P 45…” in reference to the part in my motion about their abuse of the litigation system, which I didn’t even write. It came from a decision I quoted, that was written by a federal judge who presided over one of their BitTorrent lawsuits.

One thing made me want update my Motion to Quash template. The responses always claim that the BitTorrent protocol behaves in a different way than the other filesharing protocols used in earlier cases which were severed for misjoinder. This simply isn’t true. As I mention in my updated motion to quash:

… the analysis [does not] change because the BitTorrent protocol works by taking small fragments of a work from multiple people in order to assemble a copy. Nearly all of the older protocols in the aforementioned cases work in this fashion. Kazaa, eDonkey and various Gnutella clients (e.g., LimeWire) have incorporated multisource/swarming downloads since 2002.

I’ve also added some more lines to the list of BitTorrent cases severed for misjoinder, and some additional quotes from judges who have denied SH’s discovery.

I would like to encourage your readers, in the comments section of where you post this, to add cases and quotes from judges which I did not include.

Sy Ableman

Thank you, Sy Ableman!

Click to open or download the updated document: MOTION TO QUASH OR MODIFY SUBPOENA (updated).

(If your word processor does not understand Open Office format, let me know: I’ll convert and upload this document in other formats.)

Also, I think it will be helpful to see trolls’ responses to motions based on this template, so defendants could modify their motions accordingly. Please point me to those responses, and I will fetch them from Pacer, upload to Scribd and post the links here.

Intermission

Posted: August 3, 2011 by SJD in Not so serious
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