Archive for January, 2012

“Standing up to a bully, whether some blowhard attorney, or an 8th grader feels good.Try it sometime.”
John Lawrence Steele, from “Even Attorneys Can Be Bullies”, 2008


Steven Yuen

This event is long overdue. We all are aware of Dmitry Shirokov’s class action lawsuit against Dunlap, Grubb and Weaver handled by Booth Sweet LLP, but I did not know about any other offense against copyright trolls… until today. So far, the anti-troll community was purely defensive in courts. The tide may switch its direction soon, and this event is a good omen. We have been hearing that “enough is enough” for too long. Finally, a concrete action has taken place.

One of the Prenda Law’s victims, Liuxia Wong, filed a lawsuit against Hard Drive Productions with the help of one of the best IP attorneys from the California section of the EFF Subpoena defense list, Steven Yuen (an experienced IP litigator, not a divorce lawyer.)

I want to break the news quickly, so I will not do too much analysis of the complaint at this time, but it is a fun read, even a better mood-booster than Steele’s insults to EFF I talked about yesterday. Enjoy.

One last thought before you dive into the pure bliss of reading such a heartwarming text… Righthaven fell apart not by itself, and not even because of “good” or “wise” judges. Messing with wrong people is what predicated its downfall, messing with people who have dignity and do not succumb to frivolous threats, who are ready to fight back.

Exhibits: 1, 2, 3, 4.

What I think would be particularly interesting (and effective) is if Does from across the country began filing similar cases when they received the threatening letters. It’s risky, but Prenda would have to scramble to find attorneys in the 45 states that they are currently threatening people and without licensed attorneys. Something like a Declaratory Judgment day, where Does from all over the country file simultaneously. That would have an effect!

Update 1

02/06/2012

It seems that Brett Gibbs, an eccentric copyright troll, the only Prenda Law’s representative in increasingly anti-troll California, will be defending this case. These guys are so greedy… they hesitate to spend a tiny fraction of the money they extorted from alleged file-sharers on an attorney that could match Mr. Yuen! Or simply they are arrogant and detached from reality… I don’t know. A motion to dismiss amended complaint that was filed yesterday is weak to say the least.

Here is the analysis from the comment section I totally agree with (Raul is of the most active commenters, and his contributions are always up to the point):

The improper venue argument that Gibbs makes is weak in that he is asserting that all copyright infringement actions are governed by Section 1400(a) of the Copyright Act. However this is not a copyright infringement action but one requesting declaratory relief as to the defendants’ agents/employees improper conduct and misrepresentations in the context of a previous and pending copyright infringement action.

Likewise his argument that there is no case or controversy between the parties is also less than compelling because he is arguing that there can be no case or controversy until HDP sues Ms Wong. Again this is not true because even if HDP does not have a case or controversy with Ms. Wong it does not mean that she cannot have a case or controversy with HDP and its agents/employees for their improper conduct and misrepresentations.

Gibb’s last argument is also without merit in that he asserts that Ms. Wong’s lawsuit is duplicative of an earlier filed lawsuit by HDP in which she can assert these claims in the event she gets sued. Wrong; she cannot assert (counterclaim) these claims (improper conduct and misrepresentations) against HDP’s agents/employees because they are not named plaintiffs in the prior HDP lawsuit.

Watch Mr. Yuen maul this pathetic dog of a motion in his opposition papers.

and

One of the problems with Gibbs representing Hard Drive Productions in this lawsuit is that he has an obvious conflict of interest being that he is one of the “John Doe” co-defendants who is alleged to have engaged in improper conduct and made misrepresentations of law and fact to Ms. Wong. An objective attorney might very well advise HDP to consider instituting a third-party action against Gibb and his gang for, among other things, a declaration that these agents/employees were acting outside the scope of their agency/employment.

and

Gibbs representing HDP and the ethical (if not procedural and legal) problems down the road. Ms. Wong’s complaint was, in my opinion, drafted in such a way so as to preclude Gibbs and his gang from answering it insofar as it made the self-dealing/conflict of interest issues central to the lawsuit so that only a moron (IMHO) would represent himself and HDP without the Judge and the Bar Association taking note. But, as we have seen, they have done exactly that… Wow!

Update 2

02/22/2012

As expected, Steven Yuen crashed Gibbs’ silly arguments. Gibb’s claim that “there is no case of controversy” received the following reply:

Hard Drive‘s $3,000 settlement demand to Mrs. Wong is the equivalent of the 3,000 pound elephant in the room that Hard Drive never mentions in its moving papers.

Update 2

02/28/2012

Mr. Yuen discharged the second barrel: another (very similar) lawsuit was filed against the same pornographers (and Prenda). DieTrollDie is covering it. Same claims and a new one: defamation (Prenda Law website used to list 25 individual complaints under the “Top Pirates” header, removed later).

News coverage

Thanks to enigmax (TorrentFreak: You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists) for spreading the news and linking to this post.

Arstechnica: Can porn be copyrighted? One file-sharing defendant says no.

Prenda Law’s opposition to amicus curiae brief filed by EFF in Hard Drive Production v. Does 1-1495 case deserves a separate post. It is so amusingly detached from reality, that I had to drink a couple of shots just to gain some kind of consciousness after reading this crap.

It seems that this “masterpiece” has been written by John Steele well in advance and is made of nothing but a series of insults to EFF, without the slightest attempt to address a single issue raised in the brief.

Enjoy the entire document, or scroll down to see the “best of best” quotes (some have my comments in cursive).

The EFF is opposed to any effective enforcement and litigation of intellectual property law, which seeks a platform by which to advance its agenda.

The EFF’s arguments have been considered and rejected by courts nationwide, including within this District [citation needed – except the only one you provided — quoting a former RIAA lobbyist Beryl Howell, who should have removed herself from all copyright cases due to the obvious conflict of interests, but failed to do so]

The EFF is an anti-intellectual property group, which appears in the present action merely in order to obstruct or delay Plaintiff’s copyright infringement litigation. [“we don’t want delays, we want a list of names to pass it to our goon Mark Lutz so he would start his extortion phone calls!”]

…the EFF’s proposed participation as amicus curiae is precisely the kind of “attempt[] to inject interest-group politics” into litigation…

The EFF’s crusade continues, despite their lack of success, not out of any concern for proper application of the law.

…the EFF is a group with a deep disdain for both intellectual property law and for the law generally… [wow, just wow]

The EFF Is a Radical Special-Interest Group Generally Opposed to Any Effective Or Efficient Enforcement of Intellectual Property Law

This mission is radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights.

…their history of advocating lawlessness on the Internet suggests that their purpose is not to help this Court administer justice, but to hinder and obstruct the process…

Further, the EFF alleges no direct interest in any litigation which [sic] might be affected by the outcome of the present case [what litigation, scumbags? You are not interested in litigation, only in extortion, it’s common knowledge already: stop pretending]

One question that has tortured me for a while, so I’m taking the occasion to ask you: you trolls like to use the phrase “intellectual property”… so I ask you: what exactly is “intellectual” in cheap porno flicks?

It is actually good news, guys. A reply that includes absolutely nothing but insults sounds like a beaten dog barking. I clearly see the shaking tail between its rear legs.

Pingbacks

Thanks to

for spreading the news and linking to this post.

It is strange even to me that I did not cover this eventful case in a separate post, although it was quite a buzz about it in the comments section.

This case was filed by the troll lawsuit factory Prenda Law. I briefly mentioned it when I introduced a troll Paul Duffy, John Steele’s puppet (Steele pretends to be “retired”, although no one doubts that he is the puppet master.)

Brief history of the case

2011-09-27. The case is filed in a toll-friendly DC district, and it was assigned to a district judge John D. Bates.

2011-11-02. Judge Bates, reading numerous motions to quash the subpoena, seemingly smells the stink this lawsuit exudes and stays the subpoena. One of the predatory features of copyright trolling cases is a Catch-22 situation: court rules require signing motions, i.e. revealing defendants’ names, while the very purpose of such motions is to prevent releasing the names. Judge Bates tries to solve this puzzle and orders Does to file motions under seal; he promises not to reveal movants’ names even if their motions would be eventually denied. This order filled every putative defendant with hope, and an avalanche of motions ensued.

2011-11-16. The case was reassigned to magistrate judge John M. Facciola, and this event raised some brows and created huge discomfort. Rob Cashman wrote a post about it suggesting political games — that judge Bates was removed against his will rather than voluntary referred the case to Facciola.

During the rest of November many experienced attorneys appear on the case. John Michels of a reputable law firm Lewis Brisbois Bisgaard & Smith LLP appears on behalf of all the Does 1-1,495, but he did not file any motion as of today.

2011-12-21. Judge Facciola betrays Does’ hopes and issues an order that undoes Bates’ promise. According to this order, no one is allowed to file either anonymously or under seal. All the previously filed and sealed motions would be either unsealed or withdrawn.

The worst part of this order is the fact that the motions would be unsealed by default, if a filer does not request withdrawal. Although ISPs were tasked with notifying all the Does, it is not enough: it is not implausible that some Doe would miss this order, and as such would be betrayed by the court. Unfortunately situation like this is not hypothetical: I witnessed a defendant indeed miss that order and panicked a day before the deadline.

This order was negatively accepted by many IP law experts: for example, read an Elliot Alderman’s guest post on the Eric Goldman’s blog.

2011-12-02. Despite the obvious danger of being selectively targeted later, four brave souls decide to go forward and file motions under their real names (1,2,3,4).

2011-12-23. In a similar case (Open Mind Solutions v. Does 1-565: same trolls, same judge) ISP Cablevision refuses to provide names based on the unclear wording of the subpoena. Duffy complains and suggests amending the subpoena order to remove any ambiguity. Instead of simply signing a prepared order, Facciola threatens ISP with sanctions — heavy-handed to say the least. Some people suggest corruption. There is no proof, and I find it hard to believe, but Facciola’s actions indeed look bad, as if he goes an extra mile to please trolls.

2012-01-05. Steele (I use Steele/Prenda/Duffy interchangeably: multiple monickers — same gang) is forced to file replies to those four motions (good: more time trolls waste writing oppositions — less time is left to inflict damage on society — less lucrative the entire trolling “business” is.) In those replies trolls argue that Does were not allowed to file motions to quash, because they are not the parties against which the subpoena was issued; that ISPs are the ones who should file such motions. Kafkaesque situation deepens.

2012-01-11. In a similar case mentioned above attorney Julie A. LaVan files an excellent motion to quash — worth reading and borrowing ideas from.

2012-01-25. Judge Facciola, in some cases assigned to him, issues memorandums questioning jurisdiction and venue. Strangely, no such memorandum was issued in this case.

2012-01-30. Finally! EFF files an amicus curiae brief:

Of course this is not a victory yet: I will update this post as new events happen.

Update 1

Ha! Prenda opposes, calling EFF “Radical interest group”. What kind of interest, trolls? Huh? I know that you are the interest group, and your interest is money and money only; blinded by greed, you are not concerned that you ruin jobs and families, seed hate.

Also, the timing of this is suspicious — opposition filed the same day as the brief? As if someone has tipped Prenda. Who? Good question. Update: commenters suggest that the entire opposition was written in advance, in premonition of inevitable EFF or ACLU intervention.

The only remaining IO Group’s eDonkey2000 infringement case, IO Group v. Antonio Almeida, was dismissed with prejudice yesterday:

We will never know if any money changed hands as a result of this dismissal, I hope not, or at least not too much. Marc Randazza never misses a chance to brag about huge settlements he “won”, which appear bogus when one gives a closer look at the dismissal documents¹.

I wish all the best to Antonio.

Sperlein is still active in his extortion business, he filed a bunch of cases in Eastern Disctrict of California recently, this time representing another plaintiff, Celestial Inc. I have a completely different set of wishes to him.


¹ “Defendant has an opportunity to reduce the amount payable to Plaintiff if Defendant ceases any further content theft (whether the Plaintiff’s content or anyone else’s), and if he makes regular payments toward the judgment on a schedule that will be agreed upon by the parties in a separate agreement.” — and this “agreement” never sees the light of day…


Andrew Crossley

Half a year ago I wrote about the sanctions imposed on Davenport Lyons’ solicitors. Today I woke up to read some huge yet anticipated news: one of the most famous proto-trolls, Andrew Crossley of ACS:Law was suspended for 2 years by UK’s Solicitor Disciplinary Tribunal.

Although, unfortunately, this feast of common sense does not take place here in the US, I hope that this sanctioning will send shivers down domestic trolls’ spines, especially since Mr. Crossley’s suspension was not the worst of his foes. In addition to that, he went bankrupt, and his reputation was completely destroyed. We do not see similar outcomes in the US at this time, because the speculative invoicing scam started in Great Britain much earlier, and giving the similarities between the British and the US judicial systems, the end of copyright trolling legal plague in the US is inevitable, in my opinion: we will get there sooner or later.

Meanwhile stay strong, educate yourself, and do not feed the trolls. Some settlements are inevitable: I understand that a teacher accused of downloading teen porn is risking too much even if he is innocent. Yet if you settle just out of irrational fear and do not make any effort to educate yourself and understand that trolls simply bluff, and that in 99% of cases they cannot do anything to you beyond harassment, settling is a bad service to society.

The news has been already widely covered, so I better stop here and let you read these reviews:

 

Also, I’d like to use this opportunity to send regards to our British brothers-in-arms, who diligently covered and accelerated ASC:Law’s downfall:

 

For the reference, here are the charges vs. Andrew Crossley brought by SDT:

  1. Allowed his independence to be compromised;
  2. Acted contrary to the best interests of his clients;
  3. Acted in a way that was likely to diminish the trust the public places in him or in the legal profession;
  4. Entered into arrangements to receive contingency fees for work done in prosecuting or defending contentious proceedings before the Courts of England and Wales except as permitted by statute or the common law;
  5. Acted where there was a conflict of interest in circumstances not permitted, in particular because there was a conflict with those of his clients;
  6. Used his position as a Solicitor to take or attempt to take unfair advantage of other persons being recipients of letters of claim either for his own benefit or for the benefit of his clients;

I do not believe that the UK and the US judicial systems are significantly different: at least some of these charges should be applicable to our domestic crooks (and some additional charges — not implausible at all). Pity we do not have a central authority like Solicitors Disciplinary Tribunal here, though there are some authorities that oversight attorneys’ conduct. Here is one for Illinois. I urge everyone to find similar organizations in states where trolls are licensed and overwhelm those organizations with complaints.

Update

02/24/12

The Solicitors Disciplinary Tribunal’s judgement is now published:

Copyright troll of the week
There are well known big name villains in the speculative invoicing (a.k.a. copyright trolling) arena: Steele/Prenda, Ira Siegel, Thomas Dunlap/DGW, and so on. There are many online resources that discuss their disgusting “business model” (which is practically blackmailing and extortion; even some trolls admit that). Besides those “supertrolls” there are many smaller, mostly opportunistic greedy lawyers involved in the trolling business. I suspect that most of them don’t even think that their hard-earned reputations (as well as reputations of firms and partnerships that employ them) are at stake. This is a big mistake. In the Internet age strange things tend to happen. Just last month I wrote a post about Frederic Abramson, who has a pretty well-established Internet presence: almost 4 thousand Twitter followers, a popular blog, etc. Nonetheless, if one searches for his name, my post “Frederic Abramson: respected lawyer or just another copyright troll?” appears on the first page of Google search results, contributing to his image.

So I want to use these powers to expose those smaller trolls, noting that what’s fair is fair: they use legal knowledge — the weaponry they perfectly mastered — to abuse the judicial system, while their tactics remain technically legal; and I use one of few legal weapons available to me: Internet with its amazing ability to shed light on the dark corners where copyright trolls dwell. I’ll try to write small posts like this one as often as I can, so that any prospective client of a troll lawyer could find out his or her dark secrets easily. And yes, I will keep choosing embarrassing titles deliberately.


Joseph C. Peiffer

So, meet this week’s troll:

    Joseph C. Peiffer
    FISHMAN HAYGOOD PHELPS WALMSLEY WILLIS & SWANSON, LLP
    201 St. Charles Avenue, 46th Floor
    New Orleans, LA 70170-4600
    Tel. (504) 586-5259
    Fax. (504) 586-5250
    jpeiffer@fishmanhaygood.com
    Attorney for Plaintiff 4: Twenty Media Inc.

 

Mr. Peiffer has filed a mass bittorrent lawsuit on January 10, 2012 against 1,341 Does alleging illegal sharing of a porno movie with a classy name “Teen anal sluts.” Correct me if I’m wrong, but this is the first mass copyright infringement case filed in Louisiana.

 

And who is the plaintiff? A shady company registered in Seychelles, as I believe, for a sole purpose of procuring copyrights and using them to extort settlements, and no doubt with the ultimate goal “to promote useful arts,” as written in the Constitution. This “company” does not even have a registered URL: the only contact information listed is Seychelles address and 4twentymedia@googlemail.com email. I would love to see a proof that this company even exists — nothing can be found on the Internet, and even searching the Seychelles International Business Authority website yields nothing.

 

Also, unlike in cases with some smarter trolls (Gill Sperlein, for instance), who adapt and don’t use the arguments that were already defeated in many courts, this lawsuit is so last-year:

  • Joinder. The complaint lists 3 separate swarms, while even participating in a single one did not justify joinder in many judges’ eyes.
  • Jurisdiction. This is simply laughable: only 7 of 1,341 Does reside in Louisiana, and Mr. Peiffer admits that.

One particular statement regarding jurisdiction is arrogant and funny at the same time:

Defendants nationwide purposefully availed themselves to the jurisdiction of this Court and should anticipate being haled into court in this State.

Another interesting detail:

Copying (or “stealing” if we use trolls’ own misleading terminology) other trolls’ complaints (including misspellings – see Sperlein’s complaint, p. 4 for example) inevitably leads to embarrassing bloopers. So, reading the complaint attentively, we first learn that

16. Plaintiff is a Seychelles company located at Global Gateway 2970, Rue De LaPerle, Providence, Mahe, Seychelles, that markets and distributes motion pictures

and later…

43. Plaintiff’s Motion Picture is easily discernable [sic] as a professional work. Plaintiff created the Motion Picture using professional performers, directors, cinematographers, lighting technicians, set designers and editors. Plaintiff created the Motion Picture with professional-grade cameras, lighting, and editing equipment.

Yet another thought. Neither complaint, nor any other currently submitted document contains any hint on where and if this “work” can be bought legally. This blog’s readers searched and all they found were torrent links. In many porn troll cases I saw references to websites where allegedly shared porn could be purchased. Not here. If an illegally copied “work” cannot be purchased, all the damage claims are effectively moot. So in addition to many wrongs described herein, we probably deal with a brazen honeypot scam. So much for an attorney who “was named as one of the fifty Leaders in Law by New Orleans City Business Magazine”. Note that I will be happy to remove this paragraph if I’m pointed to an online store that carries the title in question.