Archive for March, 2012

I recently wrote about how Prenda’s “rogue partner” Brett Gibbs was commanded to list all Prenda’s (and its predecessors’) mass porn bittorent cases and to indicate how many Doe defendants were actually served. In his reply, Gibbs has listed 118 cases. One of this blog’s readers counted the number of Does — 15,878. Not as epic as the number of victims in the US copyright trolls’ “founding fathers” Dunlap, Grubb and Weaver’s cases, but still an impressive number.

Theoretically, if every putative defendant would succumb to threats and pay the $3,400 demand, the entire scam would pay whooping $54 million dollars. Not a surprise that ethically challenged attorneys adopted this moneymaking scheme without hesitation.

These numbers also communicate the amount that Steele and his gang saved on court filing fees by lumping together more than a hundred Does per case on average. If all the cases would be filed individually (as they should be), the cash-strapped courts would receive 15,878 ⋅ $350 = $5,557,300. Since only 118 ⋅ $350 = $41,300 was paid to file the listed cases, the citizens of the U.S. have been robbed of over $5.5 million in fees rightfully owed to the courts.

The most famous and amusing part of Gibbs’ reply was his unambiguous affirmative statement that “no defendants have been served in the below-listed cases”, which underlines the hollowness of the threats to sue everyone who would not pay the ransom.

Seeing the significance of this self-incriminating document, I predicted that defendants would soon use it to complement motions to quash/dismiss. I was correct.

A Florida attorney Joseph A. Yolofsky filed a motion to quash (and for protective order) on behalf of one of the Prenda’s victims in the Boy Racer v Does 1-34 case (1:11-cv-23035), and he later submitted a notice attaching the abovementioned document. Not surprisingly, Prenda’s con artists did not like it. Joseph Perea, who files Prenda’s cases in Florida, including this particular case, was understandably frustrated by the fact that the judge would learn uncomfortable (for the trolls) truth about the scammy nature of cases like this. He called Mr. Yolofsky and demanded that the notice must be withdrawn within 60 minutes otherwise threatening to file a motion for sanctions. Mr. Perea could not provide any coherent explanation of the basis for those sanctions though. I bet that Prenda lawyers lost their connection with reality and treated an attorney as one of their unrepresented victims. Big mistake.

Naturally, Mr. Yolofsky refused to withdraw the document that is relevant to the case, and Perea executed his threats and moved for sanctions. In his motion Perea argued that Gibbs’ response is unrelated to the case, that the “notice is to falsely state that Plaintiff’s counsel has never named and served an infringer in any of its cases nationwide,” and that Mr. Yolofsky acted in bad faith to mislead the court and abuse the process (aren’t you laughing yet?).

Mr. Yolofsky was neither upset nor deterred by the Perea’s frivolous motion. “There is a saying that if a trial attorney has never had a sanctions motion filed against them, then they are not aggressive enough to be successful.” — he comments with a smile as he files a response in opposition; this response is very entertaining and up to the point, it debunks Perea’s claims so thoroughly that I almost feel pity for the little troll. Definitely, Mr. Yolofsky had fun writing this document, and therefore you will have fun reading it. Enjoy.

The nearest hearing on this case is set to April 2. Judge Goodman did this on his own, which is encouraging. Most likely, the sanctions issue will be added to the agenda. Some defense lawyers we know, Danny Simon and Richard Viscasillas, represent various defendants in this case, so they will attend that hearing. I hope that judge Goodman will find time to educate himself about copyright trolling legal plague and will be able to contribute to trolls’ demise. I’ll keep you updated.

Update: Bad news

It appears that judge Schumacher vacated the order that caused so much excitement. I apologize for delivering false hopes. At the same time I’m rather angry than apologetic. I broke the news based on an official order posted on an official website, after reading a comment from an attorney who is involved in this case… and if a lazy judge signs something without reading it and then sees nothing wrong in saying oops, I’m out of words…

So the original article below is based on false information. It does not affect my opinions and conclusions. Everything that was written in that order is true: I know that, you know that, trolls know that. Florida laws are brazenly abused, and judges allow that. Shame on them.

I still believe the house of cards that trolls have built will fall miserably, it’s just a matter of time. Meanwhile stay strong, don’t succumb to fears and don’t feed the troll.

Thanks to Danny Simon for keeping me informed.

ArsTechnica has a nicely worded explanation of what actually happened:

After we ran this story, we received word that the order we reported on has been vacated by Judge Schumacher. Ars Technica talked to Kubs Lalchandani, an attorney at the law firm of Lalchandani Simon, which represents defendants in copyright troll cases and has been involved in this case. He told Ars late on Wednesday that the order we reported on had been drafted by one of the defendants in the case. Because Judge Schumacher mistakenly believed that the order had been agreed to by both sides in the case, he signed off on it without (apparently) reading it carefully. When Schumacher discovered his mistake, he vacated the order.

 

Over the last year, Florida became an Eldorado for copyright trolls. Some ethically challenged lawyers found a local loophole — so called “pure bill of discovery”, an ancient law that allows plaintiffs to petition local courts, so ISPs would be compelled to unmask Internet users who allegedly shared copyrighted material (mostly pornography) over peer-to-peer networks. Since copyright is a federal matter, infringement cases cannot be litigated in those local courts — an ideal situation for trolls, who needed exactly that: nothing more than learning identities of users for subsequent racket. It is not plausible that today anyone capable of a quick research can be fooled by trolls’ threats of costly and uncertain litigation, especially after revelations like this.

Two major trolls explored this loophole: M. Keith Lipscomb and Prenda Law. The latter is a John Steele’s outfit that has supposedly moved to Florida from Illinois: so lucrative the extortion business was in the sunny state!

And indeed, judges rubber-stamped orders to ISPs to hand out their customers’ information to trolls without much resistance, and crooks’ phones were hot from threatening calls. Those victims who succumbed to unsubstantiated fears sent thousands of dollars to the con artists, and anonymous motions to quash were denied. John Steele ecstatically wrote in this blog’s comments:

Spin Spin Spin.
Almost every judge in America denies those stupid MTQ’s.
Hmmm, state court seems nice . . .

The abuse was so clear and so blatant that any sane person who heard about it shook his head in disbelief. Fortunately, it turned out that there are many lawyers in Florida who care about their profession’s reputation, and thanks to their efforts, judges finally started to see that their courts were abused and to realize the cosmic proportions of this abuse.

And at last… judge Marc Schumacher issued a no-nonsense order, calling trolls by their ugly names. He ruled that “pure bill of discovery” cannot be used for copyright trolling, dismissed one Prenda’s lawsuit (Boy Racer v. John Does 1-615) with (!) prejudice and created a precedent that is very hard to overestimate:

Lawyer’s opinion

Richard M. Viscasillas, Esq. helped many Does to protect their identities from racketeers. When I almost finished writing this article, Richard posted an excellent comment, and since I simply cannot describe the situation better, I copy the entire comment here. Thank you, Richard!

 


Circuit Court Judge
Marc Schumacher

Miami Dade Circuit Court Judge Marc Schumacher has just unleashed the equivalent of a 9.0 magnitude earthquake in the Boy Racer v. John Does 1-615 case in his March 20, 2012 Order on Plaintiff’s supplemental Motion to Strike all pending motions objecting to the subpoenas as Moot!

Perhaps not being lawyers most of you do not realize the significance of this ruling. Finally one of the Circuit Court judges being bombarded with these frivolous “pure bill of discovery” lawsuits has reviewed the merits of the Motions to Quash filed by myself and other attorneys as well as anonymous John Does in these State Court Cases and spoken loudly and clearly in dismissing with prejudice the Boy Racer case against all 615 John Does on the basis of the court’s lack of Jurisdiction.

When I saw Judge Schumacher’s recent 3/7/11 Order striking all anonymously filed MTQ’s, I notified everyone on this board that yet another Circuit Court Judge had invoked the technicality of requiring all pro se litigants to have to deal with the Hobson’s choice of either divulging their personal information on their Motions (which defeats the purpose of filing a MTQ) or face having their MTQ stricken from the record. Consequently, to have a chance to maintain your constitutional right to anonymous free speech on the Internet you had to retain an attorney to shield your identity.

This latest Order by Judge Schumacher is now the only precedent in the 11th Judicial Circuit that I and other attorneys will be invoking to get all pending cases by all Plaintiffs dismissed with prejudice. This is the proverbial “shot heard around the world” that may just spell the end of all the “pure bill of discovery” troll lawsuits in Miami-Dade County, Florida.

The Trolls have to be in an absolute state of panic right now, similar to the NDF Fiasco involving Teryk Hashmi’s unlicensed practice of law and the 27 troll lawsuits he filed. Not only is this case dismissed with prejudice (which means they cannot refile) but all of their pending cases in the 11th Judicial Circuit are now at risk of being dismissed with prejudice. Not to mention that all the ill begotten gains they extracted from the unsuspecting John Does who paid them could now be subject to a class action lawsuit for their recovery.

I have been stating over and over on this blog that the biggest obstacle to getting to the root of these cases is the troll’s tactic of dismissing John Does from the case to avoid the judges from having to make rulings on the merits. I was planning on attending the ex-parte hearing that the Trolls set once they first file these cases to try to challenge the issuance of the subpoena in the first place to get around their tactic of dismissing to avoid having hearings.

Finally one of the Judges has reviewed the MTQ’s filed by myself and the other attorneys and taken a stand which comports with due process and is not an abuse of discretion. I commend Judge Schumacher for taking the time to analyze the issues we have been raising on behalf of the John Does and doing the right thing.

I will be forwarding this Order to all clients I represent in these cases and will be filing Amended Motions to Quash citing this ruling in order to obtain dismissals with prejudice for not only all the clients I represent, but all the other John Does in those cases who didn’t have representation.

This is not only a major victory for the 615 John Does in the Boy Racer case, but also a major victory for freedom of speech on the Internet and everyone’s constitutional rights. I suspect that Mr. Perea will be taken to the woodshed by his troll colleagues for being the cause of the downfall of their little niche of abuse they carved out in the State Court’s solely to avoid having to deal with the more rigorous federal Court Rules and negative precedents. His belated attempt to try to get the Court to strike all pending MTQ’s objecting to the subpoena as moot only aggravated the Judge who called a spade a spade quoting the Federal Judges who label these lawsuits “fishing expeditions”.

Hopefully this is the beginning of the end of their business model of abusing the legal system in Miami State Courts like they have been doing in the federal courts.

Pingback

ArsTechnica: Copyright troll smacked down again after fleeing to Florida. Thanks to Timothy B. Lee for writing about this event and linking to this article.

TorrentFreak: Judge: BitTorrent Downloads Are Protected Anonymous Speech. Thanks to Ernesto.

I’m sorry I was (unintentionally) a source of faux news for these two articles. Both have been updated.

“Under the Federal Rules of Civil Procedure, our lawsuit against you personally will not commence
until we serve you with a Complaint, which we are prepared to do if our settlement efforts fail.”
 
(From Prenda Law’s demand letter)

Recently Northern California district judge Lucy H. Koh commanded copyright troll Brett Gibbs (Prenda Law) to answer certain questions. In particular, she wanted to know

A list of the BitTorrent copyright infringement cases involving multiple joined John Doe Defendants filed Plaintiff’s counsel’s law firm or predecessor firm in federal court. Identify the case by name, case number, court, and filing date. For each case, indicate how many Doe Defendants were actually served.

Well, we know how many defendants were actually served. Nonetheless, it was amusing to hear this answer from a troll, especially observing a long list of cases that MCGIP, Steele Hansmeier and Prenda Law have filed to date (I counted 118):

Although our records indicate that we have filed suits against individual copyright infringement defendants, our records indicate that no defendants have been served in the below-listed cases.

Many thanks to you, John Steele, and to your restless crew of useful arts promoters, for an excellent illustration to your 1.5-year long scam. I have no doubt that this document will make a good exhibit to numerous motions and counterclaims.

Update

4/11/2012

After a reader has spotted that some of Prenda’s cases were not disclosed as ordered. I decided to write a separate post about it.