Archive for August, 2012

by AC

I thought that one of today’s comments deserved a separate post: it is well-written and the discussed document is indeed interesting.

Here’s an interesting case I’ve been following in Pennsylvania: Malibu Media, LLC v.John Does 1-22 (5:12-cv-03139).


Copyright troll Christopher Fiore

The Judge’s order was posted the other day, which severed all Does except one from the case, ordering Fiore to refile separately. That’s great news, but what was even more interesting about this case was how that came about. I haven’t seen it talked about much yet so here’s the overview:

Troll Fiore submitted an opposition on 7/20/2012, which triggered Judge Timothy J. Savage to issue the following order on 7/24/2012:

AND NOW, this 24th day of July, 2012, upon consideration of the Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss and/or Sever Complaint, it is ORDERED that no later than August 8, 2012, the plaintiff shall file a supplemental memorandum in which it shall cite each case within the Third Circuit holding contrary to the cases cited in the plaintiff’s memorandum.

And another order on 7/31/2012:

AND NOW, this 31st day of July, 2012, upon consideration of the Plaintiff’s Motion for Clarification (Document No. 12), it is ORDERED that the motion is GRANTED.

IT IS FURTHER ORDERED that the Order of July 24, 2012 refers to all BitTorrent copyright infringement cases and similar copyright infringement actions.

So essentially, Judge Savage asked Troll Fiore to argue against himself. Fiore submitted his memorandum on 8/8/2012 and cites at least a dozen cases where joinder was held improper, but he does his best to try and make it seem like really the issue is up in the air and it should fall on his side.

This is probably the funniest document I’ve ever read. You can just feel the cognitive dissonance on the pages. He’s very quick to point out why the cases he cites are wrong, but maybe he made the mistake of citing one of Savage’s own decisions that found joinder improper. Either way, Savage was not swayed, as we have seen, and Fiore failed. But this document will be very interesting for future motions to sever, where we can use the trolls own words against him.

“At the Simmons Law Firm we treat our intellectual property clients as partners.”
(From the Simmons Law Firm website)

 


John Simmons,
Simmonns Law Firm chairman

One of the worst copyright trolling cases that I have been tracking, 4:Twenty Media Inc v. Swarm et al (6:12-cv-00031), is finally over. Magistrate Judge C. Michael Hill has finally made up his mind and killed all the Louisiana mass bittorent lawsuits, including this monster suit (1341 Does at the time of the filing), the first Louisiana’s porn shakedown fishing expedition initially conceived by Joseph C. Peiffer of a New Orleans’ law firm. After the unexpected and unwanted publicity, Peiffer’s partners pressured him into resigning from this case, and while he indeed resigned, instead of dismissing the lawsuit, he handed out this lucrative extortion undertaking to Paul Lesko of Simmons Browder Gianaris Angelides & Barnerd LLC, an Alton, IL law firm. Unlike Peiffer, Lesko happened to be immune from any reputational loss (in other words, Lesko’s parents failed to teach him telling good from bad). In addition, the chairman of his law firm, John Simmons, deliberately gave this racket a green light with a full knowledge of the details.

To the best of my knowledge, it was Lesko’s first porn bittorent shakedown lawsuit (based on a movie with a classy name Teen Anal Sluts), but soon he got addicted to easy money, even if it smelled like something that Lesko’s favorite human body part oozes: believe it or not, the next two cases filed by Paul Lesko were based on the following “works of art”: Super Anal Black Cougars and Phat Black Juicy Anal Booty 8. That’s how Paul “Anal” Lesko got his nickname.

Although this case’s docket featured motions that explained the fraud in irrefutable details — masterpieces from Nick Ranallo and Morgan Pietz, unfortunately, no Fantalises came forward to file counterclaims in order to destroy the shakedown enterprise. Alas, scumbags got away not only unpunished, but carrying a hefty loot extorted from uneducated citizens (in large cases like this, the money trolls receive in settlements is orders of magnitude higher than money spent to produce a filthy movie like Teen Anal Sluts).

With all due respect and cheers, the judges’ order is also kind of dull: all the Does except one were dismissed based on improper joinder, and not because this lawsuit is evidently frivolous and even potentially criminal. Why criminal? In addition to the fact that extortion is not exactly a lawful activity, the age of “teens” in this movie was never scrutinized. This film is foreign-made, and its rights holder 4:Twenty Media is registered by an individual named Christoph Petznick in Seychelles with a sole purpose to extort file-sharers and innocent people alike. The “masterpiece” Teen Anal Sluts was never legally distributed, and may even have been seeded by the perpetrators themselves to entrap bittorenters. Pornography is illegal in Seychelles; if this fact did not stop the fraudsters, it is unreasonable to expect that they would be concerned about teen porn.

Currently Lesko continues to file cases in Missouri (Mark Twain must be turning in his grave) and Southern Illinois with blessing from his boss John Simmons. Until the legal system recovers from the epidemic of copyright trolling, these walking insults to the legal profession will keep bringing tons of misery to thousands of undeserving families daily.

How can we contribute to stopping these terrorists? Last week a weasel named Jason Kotzker accused us in inducing harassment. We did not expect a liar not to lie, but nonetheless, the perverted power of a wrong accusation can bring a lot of damage: no need to look hard for examples: the entire copyright trolling business model is based on baseless allegations, most of which cannot be proved. Therefore, please avoid stooping lower than trolls do. I urge you to refrain from harassing and threatening these scoundrels, their colleagues and especially families: this is illegal, immoral and counter-productive as it gives ammo to the enemy. Nonetheless, contacting authorities (lawyer associations, media, attorneys general) or using publicly available information to inform Simmons Law Firm’s personnel and its clients politely about the unethical, bordering with criminal, conduct that is taking place in this allegedly reputable firm, is not harassment, but protected speech, and rather a duty of any concerned citizen.

Finally, I cannot agree more with a comment by Jen from Texas, a copyright troll victim who succeeded in triggering a troll investigation in the Florida Bar:

I’d like to add one more thing to this post. The best possible action any John Doe can make is going to be legally. Going through the proper channels, such as state bars and the court system shows the trolls and the courts that John Does are not crazy, volent, or sleazy. If you can’t afford to retain an attorney, you can research and file complaints with the state bars for free. Check and make sure the film you are accused of downloading and sharing are copyrighted. (In my case, it is not). And remember, YOU have the POWER, DO NOT give it to the trolls by stooping to their level.

Previous coverage
A month ago, KGUN9-TV (Tucson, Arizona) aired a program about copyright trolls. Anchor/reporter Tammy Vo, while talking about a mother of two Jenny Phan, an apparently innocent victim of a local CEG-affiliated troll Wayne Carroll, did an excellent job presenting to the general audience the ongoing rampant abuse of judicial system. Unlike a recent sloppy reporting by a Las Vegas TV station, Ms. Vo did her job diligently, researched this topic deeply, and as far as I know, this rather expressive program had a significant resonance in Tucson and the entire state of Arizona.


Arizona Attorney General Tom Horne

To our pleasant surprise, this theme was not closed with that program: apparently, Tammy Vo continued to investigate one of the most shameful “legal” scams in recent history, and, as a result, she interviewed a man who has a real power to put an end to semi-legal extortion in his state: Arizona Attorney General Tom Horne.

To the best of my knowledge, this is the first time when a state attorney general speaks about this issue. In the video, Tom Horne looks polite and friendly, but what he says in a calm and casual voice must be sending shivers down the spines of trolls and their co-conspirator porn purveyors:

“I’m not aware of any legal basis for why you would be responsible for someone else’s wrongful acts if they wrongfully accessed your computer” said Horne. He also says that if there was no reasonable basis to believe that Jenny pirated the porn, threatening her for money would be extortion.

Ms. Vo mentioned a couple of examples when trolls have been preying on the most vulnerable people — immigrants.

“If they are targeting immigrants, then that would be a bad sign and indicate they’re doing it because the immigrants don’t know how to defend themselves and it could be an aggravating factor for any action” said Horne.

Hearing that, I couldn’t help remembering a sad story of a clearly innocent immigrant who was conned into paying by California troll Gill Sperlein a year ago. I hope that soon such predatory assaults will not be possible anymore.

It is difficult to overestimate the significance of an attorney general weighing in on this investigation, even if he would simply articulate his opinion. However, he went farther than that: he encouraged victims to overcome illusionary embarrassment and file complaints — something that I, DieTrollDie, and Rob Cashman have been advocating for a long time:

The Attorney General’s office would like you to file a complaint with them if you feel that you’ve been wrongly accused of pirating porn. To do that, click here. Scroll to the bottom of the screen to access printable or online complaint forms.

It is clear from the program that Mr. Horne sincerely was not aware of the problem, and just learned about it. Someone had to inform him: in this case, it was a journalist, but it could very well be any victim. Look, we have been witnessing a Florida Bar investigation of troll Joseph Perea, and this investigation would not start if not for a pissed off innocent Doe, who filed a complaint. And it is just the beginning.

In order to win, you have to pick up the fight, and in order to secure powerful allies, you should reach them, and you have to be persistent if at first you are not heard.
Update

There is a follow-up 8/24/2012 KGUN9-TV story that I overlooked: More threats for Tucson mom accused of dirty deed.

Attorney Samuel Perkins is understandably angry. In his motion to dismiss Discount Video Center v. Does 1-29 case (12-cv-10805) on behalf of one of the Does, he explains why. This time I don’t want to summarize the motion for an unusual reason: I think of the summary as a spoiler — and I want everyone to read this document from the first to the last paragraph. Most of court filings are logical yet boring. Sometimes we see anger that hopelessly buries arguments: such motions are usually easily rebutted and not taken seriously by judges. It’s a fine art to balance on the edge between anger and clarity of a logical mind.

I hope that this motion will result in equally harsh, truthful and precise order by the judge who is already unhappy with Marvin Cable (to put it mildly), and Massachusetts will join the list of states that recovered from the judicial plague of copyright extortion.

Exhibits (Marvin Cable’s extortion letters) 1, 2, 3.

Update

9/1/2012

On 8/27/2012 Samuel Perkins filed another, even more harsher, motion to dismiss in the Celestial v. Does 1-28 (12-cv-10948) case. Enjoy:

I wrote many (admittedly not that many) posts keeping in mind a casual web surfer who never heard of copyright trolls, so I did my best to tell the story in such a way that he could understand what the hell I’m talking about, and feel our grievances.

This short post is the total opposite, and it targets those who know about the topic and who can pass the History of copyright trolling in the USA exam with at least solid “B.” And instead of grievances, sometimes I must share lulz. To keep us sane.

Searching the Internet for “bittorent litigation,” I found a May 2011 print issue of XBiz World (pdf). It was beyond my control not to post one particular page (61).

I’m actually going to print this page and hang over my desk with two quotes highlighted:

Randazza is filing suits in jurisdictions where the defendants are located because he wants to give them a fair shot at defending themselves.

“I don’t believe in bullying people into writing checks,” he said.

and

A judge has already granted Time Warner’s motion to quash. Stone said the judge went beyond his authority.

“We will move to have the issue reviewed by a district judge,” Stone said.” We will file an appeal, and we want this addressed by the 5th U.S. Circuit Court of Appeals.”

Have fun:

I would like to bring a new addition to my page “Counter actions against trolls” to your attention. You remember a recently widely covered event, when a pro se defendant Jeff Fantalis fought back in a powerful way, while answering to Malibu Media’s complaint. Likewise, the defendant in Discount Video Center, Inc v. Does 1-29, (Massachusetts District, 12-cv-10805) has also combined his answer to complaint with a set of counterclaims against a few parties: a porn purveyor Discount Video Center, a “forensic” expert Jon Nicolini, and a Mafioso-like troll clan Copyright Enforcement Group.

Although it has been almost three weeks since this document was filed, I somehow overlooked it. DieTrollDie covered this case in detail:

Even Marc Randazza crashed the party with his amicus curiae brief defending the copyrightability of pornography¹. Yet no one has pointed out to the following beautiful Answer and Counterclaims prepared by attorney Samuel Perkins (and his colleagues from his firm Brody, Hardoon, Perkins & Kesten) on behalf of Doe 22:

 

The best part is beyond this document: it is in the knowledge that this offensive is just a beginning. Samuel Perkins, Jason Sweet, and other “troll slayers” are very serious in their intention to end the copyright trolling plague (at least in Massachusetts), and are looking for brave Does, who are willing to serve as plaintiffs in impending lawsuits against Copyright Enforcement Group, its clients and attorneys. You can secure your place in history and improve your Karma if you come forward, and (do I really need to say this?) you will have our infinite support.

 

 


¹ I don’t want to look like a tinfoil hat connoisseur, but… did anyone else notice that there are only two trolling cases where defendants fight back by means of counterclaims, and these are exactly the two cases where Marc Randazza intervened with his briefs? There are more than two cases where the copyrightablity of pornography was questioned, but others were ignored so far… Coincidence?

I am aware of at least five occasions, when the question “is pornography eligible for copyright protection?” was raised in court documents by defendants, attorneys and even judges over the past year. When Steven Yuen, in his counter attack on Prenda and Hard Drive Productions, introduced this idea as an affirmative defense, it caused a mini-hurricane in online media, especially in that connected to the adult entertainment industry. Indeed, this industry is religiously fearful of consumer piracy, and it takes for granted that file sharing is the main reason behind the Smut Empire’s decline over the last decade. No surprise that almost every industry insider believes that losing copyright protection would forever devastate the magic kingdom of fake boobs and artificial moans. Marc Randazza, who made his name as a free speech advocate and a defender of copyrights on such timeless masterpieces as Jeff Cums in Colby’s Mouth, was not silent at that time either, but he stopped short of entering the legal arena and venting his righteousness in courts.

This week something has seemingly changed: a similar suggestion — that copyright does not cover obscene materials — has prompted Randazza to intervene. This clause was just one of many defenses found in the counterclaim filed by a pro se defendant from Colorado Jeff Fantalis. In response, Randdazza, formally representing the First Amendment Lawyers Association (FALA), filed an amicus curiae brief. This document is an interesting read, although, just like the majority of the latest Randazza’s write-ups, this one did not avoid his hallmark hypocrisy. For example, he writes about the consequences of copyright abolishment for pornography:

The casualties of such legal poison will be far-reaching and indiscriminate,

In fact, the same statement is quite applicable to Randazza’s activities as a copyright troll.

Although I said that “something has changed,” I don’t believe that any single event has triggered the involvement of Randazza/FALA; it was rather an emerging pattern that woke up the man who is capable of seeing that the legal foundations of the porno industry are not as solid as they seem, and if nothing is done, things may turn out grim for pornographers. Ironically, our “visionary” is among those people who helped escalating this problem in the first place.

I’m never tired of repeating that those adult producers who have sided with copyright trolls and approved terror and extortion, are not only shooting themselves in the foot, but also pushing their colleagues towards a dangerous chasm. It is very upsetting, because the majority in this industry understands the perils of the indiscriminate assault on the customer base. This smarter part of the industry regards the actions of few lowlifes as shortsighted and moronic.

Many copyright troll victims are not silent lambs and they often push back and, not surprisingly, employ methods they find handy, not necessarily the methods that Legalese-speaking trolls expect. Questioning whether porn should enjoy the copyright protection is one of “asymmetric” responses, and only a tip of the iceberg, although this particular tip is big enough to nickname the entire adult entertainment industry ship Titanic.

The fact that Randazza has entered a lawsuit filed by the very people that he and his caste loathes (Lipscomb and his goon Kotzker), tells how far trolls managed to wander in their industry-destructing quest.

I would love to make sure that the rest of the FALA is aware of the following irony: out of more than 180 members, the one who hurried to defend the rights of the Smut Guild is one of those responsible for the emerging mess.

So… there is not much else to add. I just want to stress one more time that my speculations are not about the copyrightablity of porn per se, but about the reasons why this battle is currently raging on and who has started it. If I was alone in my conclusions, I would probably feel uncomfortable making such bold statements, but as I look around, I see that the majority thinks the same way. Below are just two random comments out of many from the discussion board:

Drifter 2012/08/14 at 3:25 pm wrote:

Randazza and the other copyright trolls brought this on themselves by abusing the court system with their predatory litigation practices. While I am definitely not one for censorship or limiting the ability of people to create works, even adult ones, I cannot help but be amused that the court system that the trolls and their adult film clients abused so egregiously of late could now potentially destroy them all if pornography is ruled to be uncopyrightable. That’s what they get for being greedy shortsighted douchebags.

Anonymous on 2012/08/14 at 4:04 pm wrote:

Exactly. I doubt anyone would have seriously considered this issue if not for copyright trolling by the adult industry. Even if they were filing copyright lawsuits along traditional lines (copied script, going after bootleggers who are profiting from selling copies, etc.) this probably would never have come up. But now that we have seen the adult industry turn to copyright law to run a criminal, for-profit extortion scam, we even have judges spontaneously questioning the copyrightability of porn. I think what we are seeing here is the judiciary acting like a parent trying to reign in a child, basically saying “look, we gave you guys a little more privilege and responsibility, we thought you had grown up enough to handle it, but it looks like maybe we’re going to have to take it back.” Copyright trolls have been pushing the legal system to its limits, daring courts to find ways to stop them, and this is what they have provoked in response. To have a judge spontaneously question the copyrightability of porn must have these guys shitting bricks, as it is a very clear warning that the judiciary’s patience is running out. I’ll bet if you looked at all copyright lawsuits brought be the porn industry in US history, by now less than 10% of them are non-trolling lawsuits, so clearly this is an industry that has shown a lack of respect for its access to the courts.

I do not believe pornography should be treated any differently than other media, and I doubt porn would be found to be uncopyrightable if this went all the way to the Supreme Court. The danger here for xbiz and the trolls isn’t whether the ultimate outcome would be in their favor on not, but that they have now crossed into the danger zone of provoking the legal battle that will cost them years in court and millions in attorney’s fees. The funny part is that the trolls won’t be the ones who suffer the most for their own bad behavior. Sure, if this shuts them down they’ll lose out on potential future troll revenues but they won’t pay out of pocket; they’ll slink off with their cash and leave the bigger players in the adult industry, who have the most to lose, to pay the legal bills.

I’ll give Randazza credit, at least he’s on the forefront here after being one of the players responsible for stirring shit up as a copyright troll. Don’t expect to see guys like John Steele, Mike Meier or Ira Siegel jumping in to clean up their own mess (not that they could do more good than harm if they tried). But Marc is a guy I expect to see in it to the end.

Trolls have summoned even more potentially destructive forces

Last thought and yet another long quote from Reddit. This time the author analyzes another grave problem (courtesy of copyright trolls) that adult industry will have to deal with earlier or later.

dendropsophus says:

Adding to your argument about harm done to the industry, remember that porn used to be very much a mob-run business (Deep Throat was financed and distributed by the Mafia). Much like the casinos in Las Vegas, the adult business has made a huge effort over the years to dissociate itself from that image and rebrand itself as professional, honest, and legitimate.

But a lot of older people, many of whom vote and live in Florida, the swing state par excellence, remember how things used to be. If the copyright-shakedown racket proliferates enough that the subject gets some more mainstream media coverage (or if enough victims like Fantalis are not too ashamed to fight back), the industry’s image could suffer enough damage that the legal and political climate surrounding obscenity could shift very quickly. (Expect to see more pandering similar to Romney’s advocacy of mandatory porn filters on computers, but from both major parties.)

It’s inevitable that free downloads will continue to get easier and more anonymous, and the adult industry has to adapt to that. But ethically-challenged extortion rackets are a real (and avoidable) existential threat to their business, and more people who work in the industry need to realize that.

I hope that those who work in the industry, those who at least try to listen to us, and not to convenient straw men (“boo! you defend thieves!”), understand that we are not enemies. Even occasional file sharers are not their enemies either, and those “pirates” (read: potential customers) don’t deserve such a cruel and disproportionate punishment they receive. The real enemies of both consumers and the entertainment industry are worm-tongued trolls who care about nothing but a quick buck at the expense of ruined careers, families, and lives on one side; and failed businesses on the other.

Update

08/23/2011

Jeff Fantalis filed an opposition to FALA’s (in fact Randazza’s) amicus curiae brief. He argues two main points:

1. It is not appropriate to ask a judge to rule sua sponte on the porn copyrightability issue, which is essentially a jury question: obscenity is a community standard and only jury can decide.

2. [Most important] Fantalis points to the obvious financial interest of FALA in the outcome of this litigation, which is clear even from the reading of the brief itself: FALA have been representing adult industry for a long time, and many of its lawyers participated in copyright trolling.

For FALA, this case isn’t about freedom of speech; it’s about money.

Couldn’t agree more.

By Raul

When one confronts a “blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent,” it appears as if Federal District Court judges are looking for more reasons to grant severance as a way to discourage these lawsuits. As Judge Otis D. Wright of the CACD observed:

The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement—making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.

When Virginia-based copyright troll Mike Meier began filing lawsuits in the Southern District of New York (SDNY) back in December of 2011, I wondered if he paused to consider the implications of what he was doing or whether he was too busy counting the rewards he would reap. The implications are that the SDNY is arguably the most prestigious District Court in the nation (sorry, DDC, NDIL and CACD), because it hears and rules on some of the most high profile and complex cases in the federal judicial system. Accordingly, other District Courts will more often than not look to the SDNY when deciding a similar matter. For reasons known only by him, Marc Randazza had his theory of vicarious negligence kicked to the curb in the SDNY, while pursuing a copyright troll lawsuit in the SDNY. Randazza is a very smart guy, and he is aware of the implications. Based upon the determination in this case, it is more than reasonable to forecast that other lawsuits, which rely upon this theory of liability, either in whole or in part, will also be summarily dismissed in the future.

Regarding reasons to grant severance in a copyright troll lawsuit, Meier’s track record in the SDNY has given other District Courts several reasons to grant severances, which they are using on a weekly basis (it seems):

  1. On 1/3/20120 in the lawsuit entitled Digital Sin v. Does 1-176 (12-cv-00126) SDNY Judge Nathan referenced a 1-17 hearing during which Meier incredibly admitted to a 30% mismatch between infringer and subscriber in identifying IP addresses. Judges across the nation are using this as a plank of their platform to grant severance.
  2. Likewise and out of the same determination, Meier admitted to hearing “horror stories out there, telling what some law firms have done. For example, they have called and harassed the John Doe defendants.” This has since been translated into “abusive litigation tactics” in many subsequent judicial determinations across the nation granting severance.
  3. On 05/15/2012, in the lawsuit entitled Digital Sins v. Does 1-245 (11-cv-08170), a SDNY judge McMahon was the first judge to point to the fact that by joining oodles of potential plaintiffs in a lawsuit with a $350 filing fee, copyright trolls were ripping of the federal government. Once again, this reason to grant severance now resounds across the nation.
  4. Additionally, in the same lawsuit Judge McMahon observed that she had no faith in Meier’s geo-location technology, which she drilled home at a later date. Not surprisingly, this has also become another nationwide plank, granting severance in many determinations across the nation.

To the glee of us who are opposed to this predatory and shameless business model, Meier has continued to soldier on in the SDNY, but he has now blundered into an area, where both sides of this fight need to pause and assess the stakes. To put it bluntly, Meier has so aroused the ire of the SDNY, that First Amendment rights are potentially being placed on the sacrificial altar of the “quick buck.”


Federal Judge Victor Marrero

On 7/31/2012, in the lawsuit entitled Next Phase Distribution v. Does 1-27 (12-cv-03755), Judge Marrero who is no novice when it comes to overreaching handed down a Decision and Order, severing Does 2-27, and while touching on a lot of the customary reasons, added a new one:

Finally, the court recognizes that if the Motion Picture is considered obscene, it may not be eligible for copyright protection … Accordingly, the court recognizes that joining 27 defendants, a substantial number of whom may have no liability in this case, in a copyright infringement case when the copyright itself might be deemed invalid, could prove to be a costly and futile exercise for Nest Phase and the Court, and a damaging and unnecessary ordeal for the John Does.

This may just be a warning shot across the bow, but xbiz should take notice and put pressure on the small percentage that engage in this noxious extortion scheme before your freedom to create is undermined by the few. Based on the above, I predict future determinations severing Does, making use of this reasoning, which is problematic to say the least.

 

To end on a lighter note, I’m sending this out to the Frat Boy Trolls in response to the last week email (NSFW):

 

Featured comment

houstonlawy3r says:
August 13, 2012 at 10:10 pm

This is probably one of the best articles I have read yet. Quite frankly, after reading your article, I feel compelled to write something up as well because this is a momentous order (especially considering what Judge Howell just did in DC elevating the issue to a higher court).

The problem is that there is nothing to write because you’ve covered it all in a way that cannot be matched. Good for you. :) I would advise all readers to read the order and take this one seriously. The dominoes are falling and I suspect (and hope) this issue is coming to a resolution.

Rob came up with an article soon after this comment. The article compliments Raul and complements Raul’s observations.

Every time John Steele (or one of his minions) appears at this and DietrollDie’s forums, he never fails to mention his intention to hire new lowlifes. I have no idea why he thinks that it will help scaring readers into submission, but he persistently tries to plant into our minds the idea that Prenda is legion. In reality, the times are hard for Steele and trolls in general: information about the copyright trolling scam is spreading fast. As a result, it is hard to find an attorney who will risk his reputation at the dusk of extortionists’ day. Even in Florida, Steele’s firm is having problems finding a Joe Perea’s replacement. One reputable attorney was tricked into cooperation recently, but ran away as soon as he learned what Prenda is about. The prospect to find anyone soon in Florida is seemingly grim to the extent that Chicago’s Paul Duffy, the nominal Prenda’s boss, has to appear pro hac vice to represent Steve Lightspeed in a farcical CFAA lawsuit that lingers in the Miami-Dade county court. In Texas, long-time faithful servant Douglas McIntyre decided to leave the sinking ship Prenda this week, a noble action that any self-respecting rat performs when the time is right.

Northern California is not a fertile ground for new trolls either. As I said, it is very hard to find anyone who is willing to risk his future career, especially if the salary that is offered is a joke. Nothing is impossible for a California’s Prenda attaché, brave Brett “Pinocchio” Gibbs, though, and our restless young man posts a job ad to Craigslist. If you access this text from the future, the link is most likely invalid: the lifespan of a Craigslist ad is short, that’s why I preserved a screenshot:

 

No copyright experience needed! $40K/year! I knew these people are vile, but did not expect them to be so cheap. My mood was already elevated after reading this ad, but Raul chimed in and made my day: I did not have such a good laugh for a long time. Below is Raul’s translation from Pinocchiolean:

  Full-Time Apprentice Copyright Troll (mill valley)

Mill Valley Of Counsel to Copyright Troll Firm, Prenda Law, seeking full-time apprentice troll to help maintain the caseload provided by a nationally disdained Chicago-based copyright troll firm specializing in a barely legal extortion racket. Currently, this is a one-person scumbag operation, and will be looking for someone to work with that one person directly to accomplish the tasks presented. Very sleazy environment in the office but we keep lots of beer on hand to please our leader, Master Troll John Steele, in case he visits us from sunny Florida. A lot of opportunities to appear in State and Federal courts to receive lashing by judges, potential sanctions, and unanimous contempt by others in the legal profession.

Necessary Qualifications:
- No clear moral compass;
- Ability to work independently on certain projects like harassing grandmothers, the blind, and the innocent;
- Love of money above all else;
- Good at not being good but being a little evil;
- Must be proficient in Douchebaggery;
- Creative in lying to others.

Bonus Qualifications (not necessary):
- Knowledge of offshore corporate and banking practices;
- Worked for the Mafia;
- In depth knowledge of programming robo-callers as we still haven’t figured this thing out.

NO copyright/litigation experience/background necessary as we fly by the seat of our pants.
NO NEED FOR LICENSE TO PRACTICE IN CA — If just recently graduated, and still waiting for Bar results, this is a good opportunity to gain trolling experience and make money while waiting for results. Obviously, however, while you are awaiting those results, you will be expected to engage in copyright trolling practices such as those our fearless leader has been allegedly doing in Florida.

  •   Compensation: to be defined (need to call the Department of Labor to learn the current minimum wage).
  •   OK to highlight this job opening for persons with mental disabilities: we hired Lutz and Duffy after all.
  •   Principals only! Recruiters, please don’t contact this job poster unless you wish to be sued for copyright infringement.
  •   Please, no phone calls about this job! (as if you can find my phone number in this ad — LOL)

  •   Please do not contact job poster about other services, products or commercial interests such as malpractice insurance.

 
About a month ago I was amused by the appearance of a well-known copyright bully Marc Randazza as a counsel for a defendant in a copyright trolling case Media Products, Inc. v. Does 1-120 (3:12-cv-30100) brought by a weretroll¹ Marvin Cable in Massachusetts. This discovery has triggered a twitter exchange with Randazza. One particular statement seemingly described Randazza’s credo in less than 140 characters:

@fightcopytrolls You fail to understand. You don't have to choose one side or the other. You advocate for your client best you can.

 

This principle is not new and most of lawyers think of it as a must-follow rule. I don’t see any problem with it either, however, if this rule is applied without any ethical safeguards, it becomes pure evil. This concept is a relative (or even a derivative) of the Machiavellian ends justify the means, which is wrongly understood by many as an absolute paradigm. Actually, Machiavelli applied this principle narrowly and advocated that it should be used only by governments and only to help their citizens. He believed that private associations and individuals (including Randazza’s clients) cannot ethically use this philosophy for personal greed or profit.

So, what would you say if a lawyer advocates for his client “best he can” while this “best” is prone to significant collateral damage? Imagine if you are one of the negotiators in an armed hostage situation and you are responsible only for a single hostage out of many. Will you provoke bloodshed if you are sure that gunpowder smoke and chaos would allow you to smuggle your client to safety? Logically, this kind of behavior would make you an expensive, demanded negotiator. Yet do we, the society, want such “professionals” to succeed?


Copyright troll Marc Randazza

Revenons à nos moutons. Randazza has finally filed his first motion, but it was… a motion in opposition to another defendant’s motion!

Doe 120, via his counsel Nicholas S. Guerrera, filed a motion to sever all Does but one arguing wrong joinder. This year we witnessed the case law in making: currently more and more judges opine that it is a huge stretch to claim that the same swarm participants are “the part of the same transaction or series of transactions” — a necessary condition of a proper joinder. Moreover, it is clear as day that the real goal behind lumping together tens and hundreds of Does is the strategy to save on filing fees and paperwork in order to obtain contact information of putative victims as cheaply as possible; judges finally started to get this simple truth.

So, now Randazza argues that the joinder is proper and the frivolous lawsuit must proceed. He presents twisted arguments, some of which are impudent lies, lies that even Brett Gibbs is not capable of conceiving (emphasis is mine):

If this Court severs all of the defendants, the Plaintiff will then likely file 120 separate claims, forcing each of the 120 defendants to stand alone facing a much larger, and well-financed, opponent, causing unnecessary expense to all parties involved…

Randazza’s arguments are disingenuous to say the least because he knows from experience (or ought to) that severance in a CEG lawsuit equals the end of it for all intents and purposes. Therefore, because, based on previous troll lawsuit experience, severance would mean the end of the litigation for his client with 99.9% probability, he is either (a) trying to run up the Doe’s legal fees, (b) pursuing a not so hidden agenda, or (c) both.

Read this masterpiece of hypocrisy:

I would probably fall from my chair after reading this presumably defense motion, if I did not know that Marc Randazza is a troll himself and has filed dozens of mass bittorent cases similar to this one, albeit he is on the other side of the isle this time. Obviously, beside the best interest of his client, Randazza also cares about his current and future lawsuits and wants to destroy a major defense, which is almost settled as a law, and destroy it from within. The Fifth Column indeed. We already see the results of his sabotage: it did not take long before troll Mike Meier quoted Randazza’s reasoning to justify improper joinder.

I’m sure Randazza will come up with another set of twisted arguments to drag his client out of this lawsuit while letting the other 119 sink. Yet I hope that the judge will learn about Randazza’s other role as a plaintiff attorney and adverse interests derived from this fact. Then, I hope that someone will refresh the judges’ memory of the Rule 1.7 of the ABA Model Rules of Professional Conduct:

[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer’s ability to recommend or advocate all possible positions that each might take because of the lawyer’s duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

While what’s going on here is so obviously slimy, I wonder if Randazza made a slightest attempt to stop admiring his reflection in the vanity mirror for a moment and question whether his actions in fact are severely reputation-damaging, maybe not among his numerous devotees, but among attorneys in general and prospective clients with deep pockets.

Update

As I finished writing this post, I learned that an anti-troll EFF veteran Ray Beckerman has picked up the fight against Mike Meier and attacked the applicability of Randazza’s arguments:

Then, in a manner suggesting a quote from a court opinion, or at least a neutral commentator, Plaintiff’s attorney inserts into his opposing memorandum of law in this case (at pages 6-7) a lengthy single-spaced self-serving block quote from a memorandum of law submitted in another BitTorrent case in Massachusetts by a Doe defendant purportedly represented by Marc Randazza, Esq. Said attorney has sued hundreds of BitTorrent users in the last year on behalf of copyright holder plaintiffs, which raises the question of how and why he came to be making a motion, purportedly on behalf of a Doe defendant in that case, that clearly goes against the interests of the defendants in that case.


¹ I use the word weretroll, a portmanteau of werewolf and troll, to describe a copyright troll who used to defend alleged file-sharers in mass bittorent lawsuits, but couldn’t resist the call of greed and changed sides to pursue quick yet dirty money. Mike Meier and Marvin Cable are typical representatives of these troll species.

Funny fact: Before deciding to destroy his karma, Marvin Cable used to defend Does from Liberty Media in lawsuits filed formally by Aaron Silverstein, but actually by Marc Randazza. So, while the chess players have turned the board, victims’ families, careers and even lives are continuing to be destroyed over obscene material with a highly questionable value.