Archive for April, 2012

Copyright troll of the week


Copyright troll Paul Lesko

Paul Lesko
Simmons Browder Gianaris Angelides & Barnerd LLC
One Court Street
Alton Illinois 62002
Tel. (618) 259-2222
Fax. (618) 259-2251
plesko@simmonsfirm.com
Attorney for Plaintiff 4:Twenty Media Inc.

 

On January 11, I wrote about the only Louisiana mass bittorent copyright infringement (a.k.a. copyright trolling) lawsuit over a pornographic movie with a classy name “Teen Anal Sluts” (LAWD 6:12-cv-00031). That lawsuit was filed by a New Orleans’s attorney Joseph C. Peiffer on behalf of a shady company 4:Twenty Media, which is registered on Seychelles (where, by the way, pornography is illegal — 05/15/12 update). Copyright on that movie was registered in the USA, yet it seemingly impossible to legally obtain this “masterpiece” — online or offline. Joseph Peiffer has resigned from this case in the beginning of March: a lawyer from Illinois’ Madison County Paul Lesko replaced him.

I strongly believe that we, a community that fights this type of lawsuit abuse, caused this resignation at least in part. First, since I posted about this lawsuit, searching Google for “Joseph C. Peiffer” started returning a link to this site’s article with an embarrassing title “Attorney Joseph C. Peiffer and ‘Teen Anal Sluts’ ” on the first page of the search results.

As I stated in that article, I deliberately chose such an embarrassing title. Adult industry cries foul when something happens because of social stigma attached to pornography¹, yet the very same industry (well, a part of it) has no problem with leveraging the very same social stigma to wrestle settlements from alleged copyright infringers. Therefore, I don’t see any wrongdoing in reflecting the shame using a publicity mirror and beaming this shame back to the troll.

This Google exposure was not the only reason for Mr. Peiffer resignation: as it is clear from the blog comments, many readers and victims wrote to partners and clients of the “Fishman Haygood Phelps Wamsley Willis & Swanson”, a reputable firm that employs Mr. Peiffer. No doubt, his partners pressured Peiffer to drop this embarrassing and reputation-damaging lawsuit. In addition, it is possible that Loyola School, Peiffer’s alma mater, also was flooded by e-mails explaining their alumni’s and visiting lecturer’s shenanigans. It is rumored that even Loyola’s dean received a notice. “Teen Anal Sluts” is not the kind of title that a Jesuit school will cheerfully accept.

Peiffer had something to lose — his reputation, and he made a right choice by resigning from this case. I hope he learned his lesson and if he is at least somewhat remorseful, I wish him all the best. It is beyond any mortal’s power to remove his name from the Internet though.

Simmons Browder Gianaris Angelides & Barnerd LLC, a lawfirm that specializes in asbestos litigation, a lucrative legal business that is quite controversial these days, employs Peiffer’s replacement, Paul Lesko. According to American Tort Reform Foundation, Madison County, where this firm’s main office is located, is one of the worst “judicial hellholes” in the USA and the epicenter for national asbestos litigation. This type of litigation is not necessarily evil per se, yet it is quite abused these days as explained in the articles linked above. Thus, this firm may or may not be immune to any reputational loss. In addition, I don’t know if Lesko represents his firms’ new turf or he is just a rogue attorney.

The case is still active: just last week Lesko dismissed more than 100 defendants with prejudice, which usually indicates settlements. Since the ransom amount is $3,500, so far extortionists were able to collect $350,000 from uneducated, scared Does. That alone makes my blood boil: a “masterpiece” like the movie in question usually has a budget that does not exceed $20,000-$40,000. Therefore, the proceeds from this ugly “business” probably topped the entire movie budget more than 10 times! If you are a part of this case — defendant or lawyer — please make sure this egregious abuse of the copyright law spirit is pointed to the judges. They have a power to request the information from the trolls, specifically how much settlement money they received. Until then take my calculations with a grain of salt: there may be different reasons for dismissing with prejudice, e.g., to create an impression that so many people settle. On the other hand, 10%-30% settlement rate is believed to be accurate (it is declining as people get educated about the scam).

Just look at the ransom letter sent by Lesko to his victims: it makes me so sad that this hogwash document, compiled from the pieces lifted from other trolls, caused so much irrational fear. “As you can see, the evidence we have in our possession against you is quite compelling.”: impudent, shameless lies.

There are also some good news for those Does who let their common sense prevail over irrational fears and either file numerous motions or wait the entire ordeal out. It seems that the judge on this case, C Michael Hill, is not impressed with this case’s merits and ordered all the defendants’ motions to be filed under seal, or their real names to be redacted. Though I may be wrong in my predictions, but over the last year I developed some intuition, and I have some good feelings about the judge.

A letter to 4:Twenty Media

Back in January one of our mates wrote an email, which, while being funny and entertaining, at the same time was up to the point and showed why this lawsuit is an ultimate piece of crap. It’s not a surprise that he did not receive a reply.

From: John Doe
To: 4twentymedia@googlemail.com
Sent: Friday, January 27, 2012 2:13 PM
Subject: Inquiry for legal purchase

I would like to purchase a copy of your wonderfully touching film: Teen Anal Sluts for my own personal viewing enjoyment.

I understand from the copyright registration that this is the email address of the individual owning the copyright to this heartwarming tale of sluts who are teens and do something with anals.

I must admit, I have a certain weakness for teen anal sluts, and consider myself to be quite the connoisseur of media containing them.

I have spent WEEKS trying to find this movie, which was reportedly published less than a year ago. I simply cannot find it ANYWHERE, and think that it is a real shame your legally registered movie cannot be found in my area. I have many friends across the country who are also searching for legal copies of this film, and they cannot seem to find it at any legal store either, whether it be an actual storefront, or a virtual one.

Can you please instruct me as to how I could go about purchasing a copy of this movie legally? I will need to know where to purchase the movie from, and how much it will cost as my budget does not allow for blank checks to be written, no matter how amazing the experience may be.

Also, be aware that if this title is NOT for public sale, nor has ever been legally published in the United States, your copyright registration could have very well been fraudulently submitted². Fraud is a felony.

Thank you for your time,

A paying customer.

Related

Attorney Joseph C. Peiffer and “Teen Anal Sluts”: the previous coverage.
Louisiana: discussion thread.
Multiple Hash Files In A Single Troll Case — Ripe For A Motion To Quash / Dismiss — Louisiana : DieTrollDie’s article.

Updates

05/01/2012
The other Louisiana trolling case, filed by Paul Lesko on behalf of West Coast Productions is over the “work” Super Anal Black Cougars, I’m not making it up! As an attorney, Paul Lesko apparently has very narrow (I would even say “tight”) specialization.

05/03/2012
Nicholas Ranallo and Carlos Zelaya filed an omnibus motion to quash. This is a must-read, must-consider document. Written in good English, not Legalese, it is a very good document.

05/18/2012
This story has yet another interesting dimension: pornography is illegal in Seychelles, where the rightsholder of the “work” in question is registered. I notified various Seychelles ministries about possible criminal activity of 4:Twenty Media, as well as reputational harm to their country, which heavily depends on tourism. So far I received a notification that my complaint was officially forwarded to a relevant agency for investigation. I’ll post an update once I get more information.

8/29/2012


¹For example, recent firing of a schoolteacher over her acting in a porn movie years ago caused quite a stir in the adult industry. To be clear, my opinion sides with adult industry in this case, I point to this story only to illustrate the hypocrisy.

²Disclaimer: Technically failure to market a work does not constitute fraud in a legal sense. In colloquial terms if is still a fraud as the spirit and purpose of copyright were shamelessly perverted. The demand letter may be fraudulent because it lists 150K figure, yet failure to market a work most likely renders statutory damages inapplicable.

Prenda Law is an infamous clique of lawyers who file hundreds of mass extortion-like lawsuits against peer-to-peer users who allegedly share copyrighted pornography movies. This outfit has no desire to progress their cases to the actual litigation. Misleading courts around the country, crooks obtained tens of thousands names of suspected infringers and used these names to threaten, harass and intimidate putative defendants (many of whom are absolutely innocent¹) coercing “small”² settlements of $3,400. Prenda Law comprises some creative con artists and managed to deceive judges around the country for more than a year.

Fortunately, more and more judges have grown skeptical and started to deny “fishing expeditions” (orders to ISPs to hand out customers’ information to the predators). Some rulings were subtle, with just a hint of annoyance, some more up to the point. Three weeks ago Judge Howard Lloyd issued a groundbreaking order that was widely covered in the Internet press (TorrentFreak, Arstechnica, Techdirt). In his order Judge Lloyd told Prenda’s Brett Gibbs to mind his own extrajudicial business and to not use (abuse) his court for name-fishing while having absolutely no desire to litigate.

After this unambiguous lashing by Judge Lloyd, Brett Gibbs had an audacity to move for reconsideration (on the same date voluntarily dismissing a similar trolling lawsuit assigned to Howard Lloyd to avoid further embarrassment).

Another interesting document followed this motion shortly. Seemingly, it was filed with the sole reason to move judge to pity. It appears that Gibbs (as well as other trolls) receives anonymous nasty emails from time to time. This is sad, counterproductive, and sometimes very disturbing, yet not surprising: when a troll threatens livelihoods of anonymous defendants in huge numbers (tens of thousands), he is destined to occasionally stumble upon putative defendants who are ethically challenged to an even greater extent than the troll himself is.

Clearly, the person who wrote these emails is a cruel, miserable jerk: wishing death to a person who recovered from a serious health problem is… I cannot find proper words. Such cruelty is beyond my understanding. Still, using such emails to soften judge’s heart in order to sway his decision is not much higher on the moral scale in my opinion.

As TAC noticed, Hushmail has zero tolerance policy for harassment. Meanwhile, there is a week-long gap between those two harassing emails. What does it say? Any reasonable person (especially a lawyer) would complain to Hushmail immediately, and the offending account would be suspended at once. Gibbs did not do it as if he hoped for more threats/nastinesses from that jerk in order to use them to advance Prenda’s agenda. Disgusting.

Looking at Gibbs’s sleazy opportunism, I’m absolutely sure that if he had more serious stuff sent his way (it’s a huge stretch to call the mentioned emails “threats”, although arguably they are nauseous), he wouldn’t miss the opportunity to use them to his advantage. So, if these childish rants are the most serious offenses, Gibbs/Steele most likely simply lie about actual “death threats”.

Thank you both, “John Johnson” and Brett Gibbs, for dunking my head into a virtual toilet: I am going to take a shower ASAP.

Update

6/7/2012

Seemingly Judge Lloyd was not touched by the little boy’s whining: the motion for reconsideration is denied (emphasis is original):

The papers submitted by plaintiff and the statements by plaintiff’s counsel at the hearing on plaintiff’s application for early discovery make it clear that granting the sought-after discovery would not uncover the identities of the infringers.

In what must be a misreading of the March 30 Order, plaintiff in effect seems to chastise this court for sympathizing with, and, plaintiff would argue, insulating infringers from plaintiff’s reach. The court had no such purpose or intent. Instead, it expressly sympathized with the plaintiff and other victims of infringement. It said nothing sympathetic about infringers. It was deeply concerned about non-infringers who, based on plaintiff’s prior use of early discovery in other cases, would almost certainly be caught up in plaintiff’s dragnet aimed at achieving an extrajudicial remedy.


¹My educated guess: 10-15% of targeted Internet users are innocent. Inherent flaws of the IP detection software tools, open wireless networks, human error — a few factors that contribute to this unacceptably high false positive rate.

²To wrestle settlements, trolls threaten their victims with insanely huge punishments — up to $150,000. This statutory maximum was clearly targeted at large-scale commercial infringers, and was written into the law before consumer-level file-sharing became widespread. No sane person would agree that the amount equal to an average American family’s lifetime savings is a fair and balanced punishment for sharing a single smut movie.

By Raul

As a part of the Third Massive Wave of the Copyright Troll Lawsuits (lawsuits filed at the close of December 2011 and continuing to the present) there has been a new wrinkle added, which are claims for trademark infringement. This post will take a look at the plaintiff behind this claim, the nature of the claim and whether or not it has any merit.

As a preliminary matter, a copyright troll asserting a trademark infringement claim is not, technically “new”: these claims have been previously raised when a Troll filed an Amended Complaint in an attempt to spread FUD or to paper over the fact that it has a problem with the underlying copyright. However, with these “John Stagliano, inc d/b/a Evil Angel Productions” complaints this is the first time we are seeing a sole trademark infringement claim being brought against Does.


Pornographer John Stagliano

John Stagliano a/k/a “Buttman” is a big time director, producer and distributor of pornography which does business as Evil Angel Productions, Inc. He is also a self-proclaimed Libertarian who fails to see the conflict between his philosophy of minimal government intrusion and using the judicial branch of our government to intrude into and terrorize ordinary citizens by his authorization. In other words, he is a hypocrite.

There have been approximately a dozen of these lawsuits (allegations are identical — porn titles can be different) filed across the country as of April 22, 2012 by the usual Trolls (Fiore, Kotzker, Hoppe and Lipscomb). For the purposes of this post, we will look at the first filed John Stagliano trademark complaint, which claims the infringement of its Evil Angel trademark filed in the United States District Court for the Middle District of Florida (embedded below). Mega Troll Michael Keith Lipscomb is the attorney of record for this lawsuit (3:12-cv-00337-HES-JRK) that involves the cute title “Occupy My Ass”.

 

Trademark infringement is based on the Lanham Act, which is a federal statute that regulates the use of trademarks in the world of commerce. It gives those who have registered their trademark with the Patent and Trademarks Office certain rights and remedies. One if these remedies is to sue for trademark infringement when, for example, Prada discovers a company that is selling counterfeit Prada handbags or Rolex uncovers a manufacturer of phony Rolex wristwatches. The Lanham Act provides for the issuance of injunctions to stop the manufacture or selling of counterfeit goods as well as statutory damages.

Stagliano’s complaint makes three separate claims under the Lanham Act:

  1. Infringement under Section 1114(1)(a) which gives a trademark holder the right to sue the counterfeiter of that trademark when used “in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive”,
  2. Contributory trademark infringement, which is inducing another to infringe on a trademark, and
  3. False designation of origin claim which is deliberately causing confusion at the origin of a product. Take as an example the counterfeit Prada handbag which has a label indicating it has been manufactured in Italy when, if fact, it was made in China.

So what is the fatal flaw to these claims? The complaint does not plead any specific facts as to how the Does sold, distributed or advertised any goods whatsoever. Also, since when is a porn flick a trademark?

In commenting on the trademark infringement claims of Patrick Collins, while denying the Troll leave to serve third party subpoenas Judge Legrome D. Davis of the Eastern District of Pennsylvania had this to say:

…we do note that “[f]or infringement of federally registered marks, what the Lanham Act requires is that the accused use be ‘in connection with the sale, offering for sale, distribution or advertising of any goods or services’ in a context that is likely to cause confusion, mistake or deception.” 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:11.50 (4th ed. 2011). Further, the accused use must constitute a “use in commerce” for a trademark infringement action to lie. See 15 U.S.C. § 1114(1).

Here, Plaintiff’s complaint baldly asserts that each of Defendant’s unauthorized uses of the PATRICK COLLINS and ELEGANT ANGEL marks will confuse consumers into purchasing Defendants’ goods or services, mistakenly believing them to be Collins’ goods and/or services. However, the complaint lacks any specific factual allegations that John Doe Defendants sold, distributed, or advertised any goods, much less goods bearing Plaintiff’s trademarks; or that Defendants have used Plaintiff’s trademarks “in commerce.” Instead, the facts alleged in the complaint show, at most, that all twenty-six (26) John Doe Defendants participated in a BitTorrent swarm to obtain a copy of Plaintiff’s movie. We harbor some doubt that these facts, even if true, support a claim of trademark infringement. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” will not survive a motion to dismiss). As such, Collins’ trademark infringement claims do not give us good cause to permit Collins to subpoena John Doe Defendants’ ISPs.

Based on this Memorandum Order it looks as if Patrick Collins might be infringing on John Stagliano’s beloved trademark (Elegant Angel v. Evil Angel) and he should send his Trolls after Patrick Collins. That trademark infringement lawsuit would have more merit than the ones I have discussed here today.

This weekend Raul shared his initial insight on the Lightspeed Media Corporation v. John Doe lawsuit (in reality a fishing expedition targeting 6,500 victims), questioning its merits. Both Raul’s article, and this lawsuit itself, especially the judge’s decision to deny all the motions to quash/dismiss and ordering ISPs to hand over user data to the trolls, generated some buzz in the porn-oriented blogosphere. Most of the comments and articles presented this decision as a victory, portraying Steve “Lightspeed” Jones as a hero fighting evil pirates and hackers. Raul did a decent job debunking these simplistic views, and the following comment will undoubtedly add grains of bitter salt to the chorus of cheerful ignoramuses.

I asked attorney A.J. Yolofsky (I already introduced him in a recent mood-boosting post) about his opinion, and here is what he said:

The claim brought under 18 USC 1030 is a farce. Any first year attorney can run a truck through the hole in their pleading. You’ll notice in paragraph 22, no specific sub-paragraph is identified to support the actual alleged violation. They correctly allege that the state court may have jurisdiction (there’s an exclusive jurisdiction argument here).

I did a brief review of the statute and my gut tells me this is a farce. Obviously, Lightspeed is neither a government nor financial institution. Thus, the potential violation of a “protected computer” as the term is defined in 18 USC 1030(e)(2)(A) is eliminated. They may have some support under the concept that the computer(s) in question may be used in interstate commerce, which would possibly satisfy the definition under 18 USC 1030(e)(2)(B). However, I believe there are probably evidentiary issues there that would need to be developed.

It’s a bit more difficult to determine if any of the violation provisions of 18 USC 1030(a) have been violated. Subsections (a)(1), (a)(2)(A), (a)(2)(B), and (a)(3) are all unavailable to Lightspeed. This leaves the broad catch-all provisions of (a)(2)(C) and (a)(4), though both of those subsections have problems on their face. In particular, (a)(4) would require the specifics of the alleged fraud to be alleged.

Fundamentally, this complaint should fail for many of the same reasons that Prenda’s complaints fail. They do not meet the pleading standards of Iqbal and Twombly.

One other thing about this recent complaint. A plaintiff can have either a breach of contract claim or an unjust enrichment claim, not both. The latter exists to fill a gap where two parties did not form a contract, but one provided something of value to another without receiving anything in return. Did Doe actually have a contract with Lightspeed? I don’t know. In the absence of an express contract, what I think would be fun thing for Lightspeed to actually prove would be what “benefit” it conferred upon Doe for which it did not receive payment?

So, it would seem from the lack of information presented by Lightspeed in its complaint that they would be vulnerable to a motion to dismiss, yet don’t forget that this case currently lingers in a state court (although it alleges the federal claim). Recently I and others were understandably angered by a Miami-Dade county court judge Schumacher, who signed an order without reading it and then vacated that order, but now I’m not mad at him anymore: it was explained to me that state judges usually have neither the time nor the staff to research the law and evaluate the arguments made by the parties; thus, they rely more on the attorneys who present the briefs. Thus, if an attorney happens to be a former judge from the same district, or a crook, or (like in our case) both, then we have what we have. Federal judges, on the other hand, have the law clerks to help read, understand, and research the pleadings.

So, because of the federal claim alleged, first step in these state cases would be to remove them to federal court pursuant to 28 USC 1441. This would cost the filing defendant the federal case filing fee of $350 or so. However, this will get Prenda and its cohorts back in front of the federal judges, which is where they do not want to be.

Who can remove? The statute says that removal may be accomplished by the defendant or defendants. Thus, one argument would say that only Doe #1, not the unindicted co-conspirators would be able to remove the case. However, the other Does could obtain permission to intervene and then file a motion to remove. I’m not a lawyer, and don’t want to speculate further, but I have a gut feeling that this route should be seriously considered. Trolls will keep working around the edges in order to avoid scrutiny, but we should continue shedding the light on their swarm of vermin, and removing this case to the federal level is worth trying.

This lawsuit is a farce.

Update

I really like this comment by a reader (emphasis is mine):

I bothered to look at 18 USC 1030. Although I am not a lawyer, I did however work with environmental law for over 10 years (environmental law makes most other law look stupid). Lightspeed cannot possibly be filing under 18 USC 1030. There is literally no case there, at all. The entirety of that code surrounds a “protected” computer, and there is literally no way in hell they are working with a protected computer unless he received an executive order stating that his porn is a national security issue. Not even the general catch all provision of 1030 a(4) applies on 2 counts. 1 because again there is no protected computer, and 2 because each individual who gained access to the computer would have to be responsible for $5k in accumulated usage value over a 1 year period. First, the problem with this is that if you pay a membership fee you are entitle to view and even download ALL of their content. Therefore, the value of the accumulated material acquired with a shared password would be the membership cost. But forget about all that because it isn’t a protected computer to begin with.

I am sorry, I know I am not an attorney, and I am not trying to give advise here, but it really looks like Lightspeed is using a very specific federal regulation that is meant for a specific class and is twisting it and trying to use it in state venues. In my opinion, his claim not only cannot hold up in state courts because it is a federal statute, but it wont even hold up in federal courts because he does not fall in the protected class of computer genre, unless of course some porn star is secretly passing state secrets to other porn stars during filming and as a result of this the feds feel that this is a national security issue.

Raul clarifies:

With regard to the Comment above I did look into that issue before writing my first post and I believe that the CFAA does not just apply to a “protected computer”: because it also applies to computers that are used in of affect “interstate commerce” which has been broadly interpreted by courts across the country. The reported decisions/opinions that I looked at where a CFAA complaint has been dismissed usually zero in the fact that the plaintiff cannot possibly make the 5K threshold as is the case with Lightspeed Media.

Update 2

A must read Opinion and Order by federal judge Naomi Buchwald that discusses the 5k threshold of the CFAA, page 52 — spotted by Raul.

Update 3

5/3/2012 by Raul

Lightspeed has many problems when it comes to damages. One of them is that our legal system requires you to mitigate your damages which means that once you notice you are being damaged you have to take steps to prevent more damage and if you do not, you cannot recover those damages which could have been avoided. In this lawsuit, Steve Jones freely admits that he monitored hacked passwords to his website for one year and that he did nothing to stem the access other then harvest IP addresses. In other words, he failed to mitigate his damages. A decent attorney could crush this lawsuit on this issue alone unless his client was the first one to hack the websites that Steve noticed.

This is the first post by a long-time reader (and valuable contributor to the discussions) Raul. I hope he will be back soon to share more of his thoughts in the form of another (and another) blog post.

Disclaimer: This post in a way constitutes legal advice but is being submitted for discussion purposes only.

I wanted to write my first post and try to keep it simple about the case entitled Lightspeed Media Corporation v. John Doe currently pending in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois (complaint is embedded below). Don’t let the title deceive you : this is not a lawsuit against a single malicious hacker, but a mere fishing expedition, which has a sole goal to obtain contact information of 6,500 Internet users and start extortion racket. Naming one person and burying hundreds, and (like in this case) thousands, of subscribers in a complaint is one of the new sleazy tactics employed by trolls in order to deceive both courts and public.

Who is Lightspeed Media Corporation?


Pornographer Steve Jones

Lightspeed Media Corporation (LMC) is a pornography enterprise located at 4402 N. Arcadia Drive, Phoenix Arizona 85018 (remember this). It is owned by Steve Jones, a former computer consultant who, along with his wife,

…publishes photos and videos of youthful models, and has long used terms such as “barely legal” and “barely 18″ in its marketing. Users pay between $30 and $40 a month, depending on how many sites they want to access.”

(According to Wall Street Journal.)

Today Steve Jones charges (NSFW link) either $34.95 or $39.95.

Who is LMC’s troll?


Former judge Michael O’Malley

LMC is being represented by an attorney affiliated¹ with Prenda Law by the name of Michael O’ Malley, who until August 2010 was a judge in the court where this lawsuit is pending. Undoubtedly he is on friendly terms with the judge who has been assigned to this case in what American Tort Reform Foundation has identified as being in the top list of “judicial hellholes” in the USA.

 

 

Who is LMC’s Forensic Computer Expert?

Quick answer: Steve Jones. According to the complaint at paragraph 14,

Plaintiff retained Arcadia Data Security Consultants, LLC (“Arcadia”) to identify IP addresses associated with hackers that use hacked passwords and the Internet to access Plaintiff’s private website and content.

[to do this] Arcadia used forensic software named Trader Hacker and Intruder Evidence Finder 2.0 (T.H.I.E.F.) to detect hacking, unauthorized access, and password sharing activity on Plaintiff’s websites.


Arcadia‘s
address is 4402 N. Arcadia Drive, Phoenix Arizona 85018, which is the same address for LMC. Arcadia’s sole member is Steve Jones (likewise Matthew P. Collins is the Organizer of Arcadia and Attorney of Record for LMC).


A million-dollar mansion at 4402 N. Arcadia Drive

Furthermore, guess who owns, markets and likely commissioned the creation of the forensic software? Yup, Steve Jones (www.arcadiasecurity.com ²). So a more accurate statement of paragraph 14 would be “Plaintiff’s principal, Steve Jones, retained Steve Jones to use Steve Jones’s forensic software to identify…”. No reports, investigations or testimony would be admissible in an honest court because they would be found to have been issued or given by a “biased expert” or one who has a financial interest in the outcome of the lawsuit.

What is the Amount of Money Involved In This Lawsuit?

LMC is claiming damages in excess of $100,000 plus attorney’s fees and costs. Back to reality, Buffy the Pirate Hunter (a.k.a. John Steele) has threatened to sue individuals and if that is the case then, in my opinion, LMC’s damages would be the cost of a lost monthly membership ($34.95 – $39.95) if a case actually went to trial.

What of Earth is Going on With Count I of the Complaint?

LMC’s troll is bringing lawsuit in a state court based upon a federal statute known as the Computer Fraud and Abuse Act (CFAA) on the ground that John Doe and his 6,500 co-conspirators used hacked passwords to access his websites (how this could happen to a former computer consultant who has been working in online porno business since 1999 is beyond me). On its face it looks a little scary but I do not believe the troll has pleaded a claim that would survive a motion to dismiss. This is because to make such a case the troll has to prove that his client sustained “damage” or “loss” of at least $5,000 which I think is not realistic.

The CFAA states that “damage” means any impairment to the integrity or availability of data, a program, a system, or information and “loss” means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. In plain English and within the context of this lawsuit it means that the Troll has to show that LMC spent at least $5,000 to repair and/or re-secure his websites. The complaint claims it can reach this amount “in the form of actual damages, statutory damages, and reputational injury” but there are no statutory damages contained in the CFAA and as to reputational injuries to a pornographer that uses models/actresses who are barely 18… good luck with that.

What About the state claims of conversion, unjust enrichment, breach of contract and civil Conspiracy?

The simpler ones (conversion and unjust enrichment) are arguably valid but the damages are small ($34.95 – $39.95). The other two causes of action (breach of Contract and civil conspiracy), in my opinion, are laughable under the circumstances of this lawsuit.

 

I will keep an eye on these cases and, if the need arises, write a post about personal jurisdiction and removal under the Federal Rules of Civil Procedure. In the meantime, do not feed the trolls.

Thanks to On2ndthought for unearthing some interesting facts presented in this post.

Notes

A resource and discussion page dedicated to Lightspeed “hacking” cases.

4/16/2012: A follow-up post: Attorney’s opinion: Lightspeed’s claim is a farce.
5/5/2012: Another follow-up post by Raul: Lightspeed Media Corporation v. John Doe: a quick follow-up Q & A.

Here is an interesting blog post about St. Clair county and its public servants.


¹Pay attention to the address where deposition is set to take place: this is the official Prenda Law headquarters (a.k.a Troll Central).

² Initially I linked to www.arcadiasecurity.com, but it was brought to my attention that Steve Jones redirects to a Google image search for “gay love”. Is this how a mature individual behaves? You decide. Update: now it redirects to the Facebook main page; also, Steve Jones’s name is not listed in the domain name registration anymore: don’t worry, we have plenty of screenshots.


Copyright troll
Brett Langdon Gibbs

Anyone, who follows mass bittorent lawsuits, certainly remembers an amusing event when a judge ordered Prenda Law’s attorney, a copyright troll Brett Gibbs, to present 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.” She ordered Gibbs to ”Identify the case by name, case number, court, and filing date…” and for each case, to indicate how many Doe defendants were actually served.

The reply was amusingly self-incriminating because, while 118 cases were listed, Gibbs famously admitted that “no defendants have been served in the below-listed cases.”

As I predicted, this document was widely used by defense lawyers and even judges to illustrate the trolls’ blatant abuse of judicial system. The document was so damning that when an attorney referred to it in a related case filed by Prenda, trolls freaked out and filed an absolutely frivolous and ridiculous motion for sanctions. However, those stories were already covered in this blog and elsewhere.

There is a slightly different story to tell: a reader has spotted that some of Prenda’s cases were not at all disclosed as ordered. There are two categories of such cases.

1. [Fellinis and Kurosawas of porn] v. Unknown

Being constantly exposed, trolls are forced to invent new methods to conceal their abuse of the legal process. One product of trolls’ creative arrogance is a set of new cases “[A pornographer] v. Unknown.” Complaints in such cases list a single Doe and about a hundred of so called “co-conspirators.” Some of these cases are even misleadingly titled as “[A pornographer] v. John Doe”, while in reality such a complaint lists pages of IP addresses.

The main goal of this novel approach is still the same: to obtain personal data of many alleged file-sharers at the cost of filing a single lawsuit and subsequently harass them to coerce settlements.

These three cases (and maybe others — I did not perform an exhaustive search) were not mentioned in the report at all. Gibbs probably can “explain” this omission: he may dance around the truth claiming that these cases are not among “copyright infringement cases involving multiple joined John Doe Defendants,” but I don’t believe that any judge would buy this weak excuse. A naïve belief that a pure technicality prevents judges (and public) from seeing the bigger picture is simply laughable.

2. Florida’s “Pure Bill of Discovery”

Another set of cases that did not make it to the list is comprised of Florida’s state cases that are based on the antiquated “Pure Bill of Discovery.” Again, trolls may claim that those are not “copyright infringement cases,” and technically they are correct: state courts have nothing to do with copyright, which is a federal issue. Nonetheless, since these cases are based on the alleged copyright infringement, I’m sure that judge Lucy Koh (and other federal judges) would love to know about them and about the fact that Miami-Dade judicial hellhole continues to usurp federal powers and deserves a good slap on the wrist.

When I told my story a year ago, I wrote that “the judicial system is not inherently wrong, but it is very slow.” It took a while before judges around the country started to understand both the goals and the anatomy of mass bittorent lawsuits, and when they did, they liked it not. This is especially true for one of the first districts that suffered heavily from lawsuit abuse by copyright trolls — Northern District of California.


Magistrate judge
Howard R. Lloyd

These days orders denying “fishing expeditions” are not rare events anymore in this and other districts, but the order denying Prenda Law’s application for leave to take expedited discovery (case 5:11-cv-03825-HRL) issued by a magistrate judge Howard R. Lloyd goes an extra mile: it not only lists the usual suspects, jurisdiction and joinder, but describes the very core of the scam. Judge Lloyd writes in the conclusion (emphasis is mine):

…the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do.

This order contributes to the case law getting mature as we speak. I don’t own a crystal ball, yet I can guarantee that this order will be widely quoted in motions, both pro se and written by attorneys, as well as in other judges’ orders and opinions.

 

Taking the occasion, I want to reiterate once more: we do make a difference. Publicity works. When I received a predatory blow in a form of a letter from my ISP a year ago, it took almost a week before I had a clear understanding of the matter and resolved to fight, and I must admit that during that week I seriously considered settling despite being innocent. Today a new victim finds a wealth of information in this, DieTrollDie’s, Rob Cashman’s and other blogs¹ after searching the Web for mere five minutes, and before fear and uncertainty take over him, knowledge kicks in and prevents irrational actions.

I browse many dockets daily, and I noticed that a year ago, notices of dismissal with prejudice that listed dozens of Does at once, were filed pretty often (these types of notices indicate settlement payments), while today I hardly see similar notices, and they usually list just a couple of defendants. This speaks for itself. Trolls constantly change tactics and shop for friendly forums, but these actions yield lesser and lesser results. Everyone knows that the only way to get rid of trolls for good is to stop feeding them, and we are obviously doing a good job starving them.

News coverage

TorrentFreak: Court Kicks Out Copyright Troll Who Has “No Desire To Litigate” by enigmax.

Arstechnica: Copyright-trolls: mind your own extra-judicial business, court says by Megan Geuss.

Techdirt: Yet Another Copyright Troll Case Kicked Out Of Court, With Excellent Reasoning From The Judge.

A Glimmer of Hope : CA Court Slaps Down Copyright Troll by The Alyona Show (video).

Update

Lawyer receives nasty emails, uses them to advance his agenda.


¹Although we, who maintain these sites, deserve some credit, the community is the main contributor to this wealth of knowledge. For example, this news was spotted by a reader earlier today.

Thanks to an anonymous commenter who pointed me to this exciting event. K-Beech, Inc. v. Does 1-31 mass bittorent case (mdd 8:12-cv-00088) was filed by a copyright troll Jon A. Hoppe on 01/10/12. Not much happened there since then: not surprisingly, discovery was granted, later two motions to quash were filed, and that’s it.

I have been keeping an eye on this lawsuit intrigued by the following blog comment:

Doe 1 of 31 says:
March 22, 2012 at 6:06 pm
Defendants from 8:12-cv-00088-AW, please contact me ASAP! My lawyer friend suggested some unusual idea, and he is confident that it will work.
THE CASE MAY BE OVER AS EARLY AS NEXT WEEK, but we need to get together ASAP, ALL of us. Please!
doe1of31@gmail.com

And, yes! Last week this lawsuit was indeed dismissed, not by the troll, but… by the defendants. Apparently Does managed to get together and draft the following notice. I’m happy and proud that my humble blog facilitated that.

The idea was indeed unusual, and I was skeptical at first, until I read the Federal Rule 41(a) “Voluntary dismissal”. This rule has 3 paragraphs: (1) – dismissal by the Plaintiff; (2) – dismissal by Court Order and, rarely invoked, (3) – dismissal by the Defendant(s).

To use (3), one important condition should be met:

RULE 41. DISMISSAL OF ACTIONS
  (a) Voluntary Dismissal.
    …
    (3) By the Defendant(s). An action may be dismissed at the defendant(s)’s request only, without a court order, only if Plaintiff’s Counsel is
            (i) a crook; or
            (ii) a douchebag; or
            (iii) an asshole; or
            (iv) the above virtues are combined in any proportions.
        Unless the notice states otherwise, a dismissal under this paragraph (3) is with prejudice.

It is an exciting news because it may effectively end the copyright trolling legal plague. Mass bittorent infringement lawsuits are designed to wrestle Does to settle. This is achieved by threatening them with liability based on statutory damage awards that were clearly intended to be used only in large commercial cases. No sane and honest person thinks that demanding 150,000 from an individual for the most minor violation of the copyright law is proper and ethical. Any lawyer that files such a lawsuit clearly meets the Rule 41(a)(3) conditions.

Also, notice that the case was dismissed without prejudice, which means that defendants are free to file a lawsuit against Plaintiff K-Beech Inc. and/or Plaintiff’s Counsel, troll Jon A. Hoppe. I hope it will happen sooner or later.

Good work, Does!

(Please mind the date of the publication)