Archive for December, 2011

Happy holidays! I wish you love. According to one guy, whose existence made this world a better place, it’s all you need. It’s a common mistake to think that the opposite of love is hatred. Hatred is like a spice, a healthy dose of anger is OK and even necessary when dealing with those who threaten our peace and livelihoods, just don’t let hatred and anger take you over. Drink socially, hate socially. Don’t get addicted.

The real opposite to love is fear: these two concepts don’t mix in any proportions. So the first and foremost thing I wish you is to fight and kill your own fear. It is easier than it seems at the moment of a predatory assault, the moment when a trolls’ victim opens an envelope and finds veiled lies, ridiculous threats and frivolous demands.

Extortionists induce fear — this is a part of their “business,” and they are very skillful at that. Since fear shortens lives, copyright trolls have committed much worse crimes than extortion. Look, they have been trying to scare more than 250,000 people into paying, and if fear that their victim experiences shortens his or her life by a mere day (very conservative estimate!), then they have already collectively murdered more than 10 people. Think about it.

As for me, I’m going to continue shedding light on these blackmailers and murderers in a hope that their Halloween scary letters — like the one embedded below — will make people react with disgust rather than fear.

Thank you all for being strong and considerate. So far this blog has generated more than 2,500 comments, and I did not witness anything but intelligence, insight, respect to others, and desire to help. Isn’t it too much for “pirates,” trolls?

Oh messy and enjoyable Christmas shopping! Wise shoppers buy more than they need in order to show nice things they bought to their significant others and return unapproved items to the store later, after their hangovers are properly cured.

Paul Duffy (Prenda Law) continues to shop for judges using the same approach. I wrote about Duffy’s judge shopping spree in DC four days ago, and I couldn’t suppress a chuckle when I read forum comments this morning.

Yesterday Paul Duffy filed three new troll cases in the Northern District of Illinois:

 

The latter case was assigned to… honorable Milton I. Shadur (no introduction necessary). You don’t have to be a fortune teller to accurately guess what happened after this assignment:

  • 12/21/2011 CASE ASSIGNED to the Honorable Milton I. Shadur. Designated as Magistrate Judge the Honorable Sheila M. Finnegan.
  • 12/21/2011 NOTICE of Voluntary Dismissal by First Time Videos LLC of Action Without Prejudice (Duffy, Paul)

 

This looks like a farce. Will anyone stop these comedians?

Remember how John Steele was ridiculed by judge Shadur after his two troll cases in a row were assigned to a judge who once said that this divorce-lawyer-turned-copyright-hound “abused the litigation system in more than one way”?

It seems that attorney John Steele (“Steele”) might be well advised to stay away from Las Vegas or other casinos, because his current filing on behalf of plaintiff Boy Racer, Inc. has—despite odds in the range of 25 to 1—been assigned at random to the calendar of this District Court, which had previously been the recipient of another random assignment of a Steele-filed action (that one being CP Productions, Inc. v. Does 1-300, No. 10 C 6255). This Court had ended up dismissing the CP Productions action for the reasons stated in its February 7, 2011 memorandum order and its February 24, 2011 memorandum opinion and order, which (among other reasons) rejected attorney Steele’s effort to shoot first and identify his targets later.

Now we witness how Paul Duffy, Steele’s apprentice, follows in his master’s steps. Duffy was no luckier with his DC cases than Steele was in Chicago. His debut lawsuit was assigned to judge Bates, who (unlike many other judges) paid attention to anonymous motions and strongly suspected that the court was used as a front end for a brazen scam, so he ordered Does to go forward and speak out their frustrations under seal, protecting them from premature harassment. Subpoenas to ISPs were stayed.


Federal judge
Robert Leon Wilkins

In his next two cases Duffy was even less fortunate: the first one was assigned to judge Robert Wilkins, known for his strong opposition to “fishing expeditions” — lumping together defendants from many jurisdictions. So what did Paul Duffy do? He simply dismissed the entire suit immediately after learning to which judge this case was assigned: the case was filed on 11/15, dismissed on 11/18. The second one was assigned to… judge Wilkins again. I was curiously watching… And what do you think? This case was dismissed on Friday: this time it took 9 days: a record! Surprised? I’m not.

I’m not a specialist in legal ethics and court rules, but from the common sense perspective, the mechanism of randomly assigning judges to cases makes a lot of sense as a safeguard against tendentiousness. If “shopping” for judges is not a sanctionable conduct, I would be disappointed. As Mike Masnick wrote a couple of months ago,

With so many lawyers jumping into the copyright trolling game lately, using the same basic blueprint (if only they’d sue each other for infringement!), it would be nice if we could get a higher court to issue a bright line rule that said such a joining of totally unrelated parties is totally improper. That could cut off this whole shakedown game quickly. But until we get that, these copyright trolling operations will just continue forum shopping, hoping to find a judge who isn’t hip to how they’re just using the judicial system as a way to force people into paying money.

By the way, anyone still believes that these scumbags are “fighting piracy”?

Update

5/14/2012
DieTrollDie reports that at least one of these lawsuits reemerged in Texas by Prenda’s goon Douglas McIntyre: it’s slightly different, more sleaziness is added (trying to present it as a lawsuit against a single Doe but listing pages and pages of co-conspirators), but the IP addresses are reused.

5/29/2012
Comcast notices blatant judge shopping and refuses to hand out customers’ info. Now Sleele emerges from under the bridge trying to compel Comcast to betray its customers.

Rob Cashman posts news and insight regarding this drama.

6/26/2012
Judge Wilkins rules: denies Prenda’s motion to compel, only allowing Prenda to get location (state and city) of each accused subscriber: Pyrrhic victory: this information is openly available via geolocation tools.

Note Judge Wilkins’s awareness about all Prenda’s deeds: he even mentions a counter-suit (Abrahams v. Hard Drive Productions, Inc., No. 3:12-1006) and extortion letters. We’ve been watching each Prenda’s step, and trolls did not like it, but when a federal judge hints that he watches too, it should send some shivers down scumbags’ spines.

Raul adds a few initial impressions:

  1. The judge has given to the ISPs a roadmap should they elect to contest Prenda’s other pending subpoenas and succeed.
  2. The judge has cleverly pointed to a “new” ground for Does to move to quash: abuse of Rule 45.
  3. The judge has shoved Prenda’s abusive subpoena practices up its collective ass.
  4. The judge has pointed out that Prenda’s legal theory of civil conspiracy (“borrowed” from Randazza) is bullshit and is preempted by the Copyright Act and it’s venue provision. This ought to be useful for any Doe caught up in just about any Prenda lawsuit (LMC, CP Productions, Sunlust, etc.).

I am sure I missed a few thing but those are the highlights. What the judge did not mention is how Rule 41 will now come into play, DTD did a post about this in May. Basically if you are named in two voluntarily dismissed lawsuits, it operates as an adjudication in your favor meaning trolls cannot sue you a third time. Prenda is now in a Catch-22 position as it will have to dismiss Millenium II Does if they do not reside in TX, but if they do that, Rule 41 bars a third lawsuit.

Troll of the week


Frederic Abramson

Frederic Abramson is a well-known attorney from New York. He has a popular law blog “New York Business Law,” almost 4000 followers on Twitter, many of whom are famous journalists and legal experts. He is not a friend of the sleazy con artist Kenneth Ford, but there is something common between these two: they are both copyright trolls. Frederic Abramson filed at least one mass bittorent lawsuit on behalf of K-Beech (a porn outfit run by a convicted criminals’ goon Kevin Beechum, but it is another long story).

Last week I followed @fredabramson on Twitter and added him to my “Tweeting copyright trolls” list. Today I discovered that he blocked me from following — a funny way to hide something on the Internet. I wouldn’t bother writing about him when there are more urgent topics to address (Prenda Law’s ongoing assaults, for instance). But I respect the law. Streisand law in particular. So I had a sudden desire to make sure that anyone searching for Mr. Abramson’s name on Google will find this site on the first page of the search results.

There is one document in the abovementioned case, where a victim states an interesting fact:

Defendant spoke with a representative for Plaintiff in an attempt to prove Defendant’s innocence and avoid having to file the instant motion. Towards this end, Plaintiff was offered any and all evidence of Defendant’s (including Defendant’s computer to show that the required software was never on the computer, Defendant’s employment records showing Defendant’s whereabouts, sworn declarations, etc), but Plaintiff was not interested.

No comments necessary — as if it was a revelation! We know that trolls are not interested in truth, but rather in filling their pockets with money extorted from their victims. Anyone targeted in copyright trolling scam, who took time to educate himself, has already been transformed from being scared to “pissed off”. It’s your turn to run, trolls, but remember: you can’t hide — Internet is watching.

Update

As the first comment (the power of the Internet!) to this article says, Frederic Abramson has filed at least seven troll bittorrent lawsuits, all involving either Patrick Collins or K-Beech:

Update 2

12/20/11

As I anticipated, searching for “Frederic Abramson” in Google yields this post on the first page of the search results (at least today). This is the power of Internet: many crooks use Internet to do their shady business, but when the light clashes with the dark, the light always prevails. The only two weapons I personally utilize against copyright trolls are truth and publicity — they are the most powerful weapons by far.

Update 3

02/22/12

Below is a forum comment. I did not validate the claims myself, but assuming that the allegations are supported by the facts, some legal action should be taken here. Also it will be shame not to use this information in a defendant’s motion, just make sure you buy those masterpieces and compare them.

K-Beech is claiming in these lawsuits that hundreds of John Does unlawfully infringed upon their DVD entitled “Gang Bang Virgins” for which they recently obtained a copyright on 10-24-2011 (Registration number PA00017579630) but the lawsuits, by and large, were instituted before the copyright registration.

However, Gang Bang Virgins is scene by scene identical to an earlier pornographic DVD entitled Grand Slam, which was produced by a company called Combat Zone who applied for and obtained a copyright for it on 6-14-2006 (Registration number PA0001332187) which is over 5 years prior to K-Beech’s registration for the same DVD albeit under a different title. You can compare the two movies (warning: not work-safe!):

Grand Slam
Gang Bang Virgins

If this is true it would invalidate K-Beech’s recently obtained copyright and quite possibly open K-Beech and its counsel to criminal and/or civil sanctions for fraud/copyright misuse.

Today magistrate judge Maria-Elena James has put (hopefully) the last nail in the coffin of monstrous p2p infringement lawsuits. She dismissed both of Ira Siegel’s cases in her docket, 13:11-cv-02766 Patrick Collins, Inc. v. Does 1-2590 and 3:11-cv-02770 New Sensations, Inc v. Does 1-1474.

It all started on December 1st, when Judge James ordered Ira Siegel to answer some uncomfortable questions about the case status, because he did not name a single defendant in violation of the 120-day rule. Almost immediately after that she issued another order, this time questioning the Court’s jurisdiction over the majority of putative defendants. Remembering how Ira Siegel disregarded judge Zimmerman’s order to disclose how much money he extorted from Does, I did not have any illusion that Mr. Siegel would comply this time, so it was no surprise when instead of

  • Conducting a search to obtain geographic information about the IP Addresses listed in its Complaint and thereafter provide the Court with the location for each IP Address¹;
  • Voluntarily dismiss without prejudice out-of-jurisdiction defendants (or to show good cause as to why it has a good faith belief that jurisdiction exists and venue is proper as to each individual Doe Defendant).

 

Ira Siegel had audacity to ask the Court

  • To allow the ISPs to comply with the subpoenas;
  • To allow Plaintiff and those potential Doe defendants who desire to settle their claims to reach settlements;
  • To postpone any requirements that Plaintiff name and/or dismiss any potential Doe defendants until February 20, 2012.

Judge James was rightfully angry. She did not swallow Ira’s insult to her intelligence and dismissed both cases outright:

After this order, as well as other judge’s ones, it is not conceivable that any troll would attempt to lump together IP addresses from all over the USA, at least in the Northern District of California.

What next?

Rob Cashman expects Ira Siegel to follow John Steele’s path and file smaller cases in other states using proxy law firms. I second this prediction.

Lumping together thousands of Does, many of whom are innocent, will flourish in Florida state courts until the “pure bill of discovery” loophole is patched, The era of monstrous cross-jurisdiction shake-down lawsuits in federal courts is likely over.

Our fight is far from being over. Trolls adapt by filing smaller cases in proper jurisdictions, we should adapt too. Although those smaller cases enable trolls to avoid jurisdiction and (to some extent) joinder issues, the basic ethical flaw has not changed: even cases against carefully picked single defendants are still nothing more than extortion.


¹ Update: Actually Ira Siegel has provided this information.

The following was initially meant to be an update to my post about a series of painful punches Ira Siegel received from judge Maria-Elena James, but I already wrote four updates — seems that the cases assigned to Maria-Elena James will be among the key cases in the history of the rise and fall of US copyright trolls.

An advocacy group Digital Rights Foundation filed an amicus curiae brief in the Patrick Collins v. Does 1-2,590 case. The main point of this brief is the fact that Ira Siegel (just like many other trolls) basically deceived the Court. “Deception” is not only telling explicit lies, but also concealing important relevant information that most likely would alter judges’ decisions.

According to this brief, Ira Siegel withheld information about the geographic location of putative defendants. It proves beyond any doubt that Mr. Siegel knew that the majority of IP addresses his sleazy “forensic” enterprise had collected were outside of the Court jurisdiction.

Indeed, it is not plausible that plaintiff was honestly ignorant about the fact that an IP address can be mapped to a location with astonishing accuracy. Almost a year ago I wrote in my motion (which was ignored at that time):

Plaintiff’s Counsel claims (Docket 26, p.6, line 9¹) that if an IP address is dynamic, the location of the subscriber can’t be determined.

I believe Mr. Sperlein knows the locations, but decided not to disclose his findings in his complaint because the location distribution (almost two thirds of IP addresses are outside California) would definitely raise jurisdiction questions. If this is the case, Plaintiff’s Counsel deliberately concealed important information from the Court. Given that Plaintiff’s goal is threatening unsophisticated Does regardless of their locations in order to coerce settlements, this concealment makes much sense to Plaintiff, but is obviously unethical.

Kudos to guys from Digital Rights Foundation! They say that

Amicus also intends on filing briefs with other Courts involving mass Does to demonstrate and present such facts that in some cases, not even 1% of Does originate within the state of where the civil action complaint was filed.

Music to my ears.


¹[Gill Sperlein] “In the first instance, the anonymous filer has not provided evidence that one can accurately determine the location of an ip address.”

Reading recent comments, I noticed very-very troubling development regarding subpoenas to BrightHouse ISP obtained by John Steele. So far various providers that received subpoenas from porno studios and their lawyers were considerate enough to provide subscribers, whose information was being sought, with as much information as possible, including a copy of a subpoena they received, or at least the case number.

But the message from NeuStar, BrightHouse’s contractor, who manages various issues including legal ones, did not include any information about the lawsuit in question, stated that they have no clue about the underlying lawsuit and, the worst thing, they suggested contacting Steele.

Here is the message from NeuStar, posted by its recipient:

IP Address xx.xx.xx.xx on xx/xx/xx xx:xx:xx

Dear BrightHouse Networks Customer: Neustar is the designated agent of BrightHouse Networks authorized to respond to subpoenas, search warrants, and court orders for the production of subscriber records. It is the policy of BrightHouse Networks to notify a subscriber that a subpoena has been received for the subscriber’s records. Accordingly, please be advised that on 10/25/2011 a C6ivil Proceeding Subpoena Request was received from John Steele, Attorney for Plaintiff Phone # (312)-880-9160.

BrightHouse Networks will comply with this subpoena on 12/13/2011 unless we receive legal documents that delay or terminate the process on or before 12/12/2011.BrightHouse Networks is not a party to this lawsuit and has no information about the basis for the subpoena. Any questions you may have about the subpoena itself should be referred to John Steele, Attorney for Plaintiff, Phone # (312)-830-9160.

If you have a need to contact Neustar about this letter or our procedure, please contact Trevor Gray at (571)-434-3439.To better enable us to provide prompt assistance, please refer to case # xxxxxx when calling.

Sincerely, Trevor Gray Authorized Agent for Custodian of Records BrightHouse Networks If you would like to authorize the release of your records immediately, please sign in the space provided below and fax this page to us at (571) 434-3401.

This is brutal. Any service provider that treats their customers like this does not deserve to be in the services business. I and active members of the community explained dozens and dozens of times why talking to a troll lawyer is a very bad idea. I don’t worry much about those who discovered this site and read posts and discussions. However, I fear that those who received such a message may have rushed to the phone and called Steele instead of trying to do a research (and inevitably finding this, DieTrollDie’s or any other resource explaining the situation).

Those who are innocent usually never consider the possibility of trouble and think that they have nothing to fear, hence nothing to hide. Unfortunately they are very wrong: there are people out there who abuse social norms for their own monetary gain. I don’t think that any of those who called that dreadful number took any effort to mask their own. As a result, Steele got what he wanted — the information he sought via subpoena, delivered by the victim himself, weeks before ISP’s self-imposed deadline.

In addition, Steele most likely tried to provoke self-incriminating statements: this is not so difficult to do. This society is based on trust and dignity. People usually don’t expect to be trapped, and that’s why con artists get what they want in many cases. This is yet another irreparable harm trolls inflict on our society: they erode the social norms based on initial trust and push people to be suspicious to any stranger.

So, if you received a message from your provider that advises you to contact plaintiff’s counsel,

DON’T EVEN THINK ABOUT HEEDING THIS “ADVICE”:

 

DO NOT CALL JOHN STEELE!

 

I will update this post as new information emerges (check this article or follow me on Twitter). I’m trying to research if this kind of “considerate” notification breaches any laws or rules of conduct. I suspect they do. And the reason for such a dreadful conduct may be sloppiness at best, and conspiracy at worst.

Meanwhile I urge those who received this message from BrightHouse/Neustar, to call Trevor Gray at (571) 434-3401 and demand more information; demand copies of any documentation received or produced in relation with this incident.

And please disseminate this information to help potential victims, who are ignorant about the copyright trolling scam.

“Reason obeys itself; and ignorance submits to whatever is dictated to it.” Thomas Paine.

 

Remember how judge Zimmerman asked troll Ira Siegel uncomfortable (for a troll) questions? Siegel refused to answer those questions: I was surprised and disappointed that Judge Zimmerman did not slap the troll with sanctions for such a blatant disobedience.

Today Maria-Elena James, a judge from San Francisco, ordered Ira Siegel to answer different but still uncomfortable (for a troll) questions. She asked him to provide the following information:

  1. Each Doe Defendant listed separately by number and IP address;
  2. The Doe Defendant’s ISP;
  3. The date on which Plaintiff served the order granting discovery on the ISP;
  4. The date on which the ISP served the subpoena on the Doe Defendant;
  5. Whether the ISP has provided the Doe Defendant’s identifying information and, if provided, the date on which it was provided to Plaintiff;
  6. If Plaintiff has obtained the Doe Defendant’s identifying information, an explanation as to why the defendant has not been named and why no proof of service has been filed, as well as why the
  7. Court should not dismiss the defendant pursuant to Federal Rule of Civil Procedure 4(m); and
  8. If Plaintiff has obtained the Doe Defendant’s identifying information and the location is outside of the Northern District of California, why the Court should not dismiss the Doe Defendant for lack of jurisdiction and/or improper venue.


Magistrate judge
Maria-Elena James

So far judge Maria-Elena James has been denying each and every motion to quash or dismiss the subpoena.

She is in the camp of judges that agree with trolls that joinder is proper, but she seemingly did not make up her mind about the jurisdiction issue, although she has hinted that once named, a defendant will be able to contest the personal jurisdiction successfully.

I have mixed feelings about Maria-Elena James, and it’s the case not only with me, but also with many attorneys who worked with her previously. I believe that Maria-Elena James is a polite, yet indecisive judge, she is afraid of doing something unconventional even if there is no established case law for mass copyright infringement cases, so even though it is clear that copyright trolls will inevitably fall miserably earlier or later, don’t expect judge James to be at the forefront of the war against this kind of lawsuit abuse. Nonetheless, her last order is encouraging. She indicated that she understands what’s going on with all these mass p2p lawsuits, but again, she is reluctant to voice her disapproval of trolls and to call trolls’ methods as they are supposed to be called: extortion.

Ira Siegel is given 7 days to reply. Will he show his disrespect to the Court once again?

Update

Maria-Elena James issued a similar order in another, nearly identical, Ira Siegel’s case, New Sensations, Inc v. Does 1 – 1474.

What’s interesting about this case, is that one of the motions to quash the subpoena (Document 60, 11/28/11) is filed by Jason Sweet, an attorney from Booth Sweet, LLP — the guys who currently litigate a class action lawsuit against DGW, the father of all US copyright trolls. I admire these guys — intelligent, humble and artsy. Jason worked as a writer for a decade, and it shows: the motion is extremely easy to read, yet it is highly professional from the legal standpoint. I’m 90% sure that this rather surprising Maria-Elena James’s order is triggered by Jason Sweet’s motion, although the motion itself was denied using the same unconvincing, clueless template.

I see judge’s order as a face-saving move: granting a motion just because it was filed by an attorney, while denying pro se motions, would be wrong. And this way, while all the motions were denied, the order language suggests that all out-of-district defendants (and maybe each and every one — if Ira Siegel disregards the order) will be dismissed soon.

Update 2

12/02/11

It seems that Maria-Elena James has ordered not just Ira Siegel to answer these tough (for a troll) questions, but each and every troll, whose case was assigned to her. This is very-very good. Steele bragged in the comments section today (this is not an unusual behavior for an insecure person), but I don’t know if he was aware that his cases are affected as well, for example this one.

Update 3

12/07/11

So… We have an order today. No comments necessary. Enjoy:

Update 4

12/08/11

Ira Siegel attempted to amend the order’s language, but his application was denied. Mr. Siegel suggested adding a draft of the notice he would send to putative defendants, and he couldn’t avoid including some indirect threats.

‘A letter offering you an opportunity to settle your alleged liability in connection with the above-identified case was previously sent to you.

‘Since then, the Court in this case has issued an Order regarding its concern regarding jurisdiction and venue issues. A copy of that Order is included with this letter. A number of Doe defendants, perhaps including you, may be dismissed without prejudice from this case. Until the Court decides those jurisdiction and venue issues or until the Doe number associated with you is dismissed without prejudice from this case, whichever occurs first, you are not required to do anything.

‘However, you may still determine that it is in your best interests to resolve this matter by settlement now. You, of course, may consult with your own attorney.

‘In any event, if you decide that you do not want to settle at this time, we repeat that you are not required to do anything until the Court decides those jurisdiction and venue issues or until the Doe number associated with you is dismissed without prejudice from this case, whichever occurs first.

Asking a judge to add the spirit of an extortion letter (“However, you may still determine that it is in your best interests to resolve this matter by settlement now”) to a court order, so it would look like the judge herself said those words, is an insult to judges’ intelligence and to the Court. That’s my opinion.