The Fifth Column: Marc Randazza attempts to sabotage defense against copyright trolls

Posted: August 6, 2012 by SJD in M. Randazza
Tags: , , , , , , , , , ,

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.

Comments
  1. Subscribe says:

    Ubscribe

  2. Johnathan Doe says:

    This sounds like something that would get you in trouble with an ethics board.

  3. that anonymous coward says:

    It obvious he is unfit to defend anyone in these cases, he has a vested financial interest in the model not being rocked. Pretending CEG would file single cases given their track record of Does named and brought to trial is laughable. He can offer a vigorous defense for his client, up until the facts prove inconvenient for his own filings.
    They all rely on the same IP capture tech, which has NEVER been tested in a US court. It was tested in a German court and thrown out, and the company running it sued by their partner lawyers for hiding the known flaws in the system. Then it moved to the UK, then the US, then Canada when US Judges started to resist. But some persist in the US, as the porn troll has a higher settlement rate. The puritanical views of the court and society predispose them to assume bad things about defendants, on mere uncontested accusation.

    Lets draw this out very clearly.
    We saw a blue car hit our clients car causing great damage. We want the court to order the DMV to turn over the records for all blue cars so we can pursue the wrongdoer. They then send a letter to every owner of every blue car and tell them if they don’t settle people will know they are a hit and run driver. Even if you didn’t do it, someone else might have used your car and you had a responsibility to his client to make sure no harm came from you loaning the car out so you owe him money.
    Ludicrous in these terms, and yet this is done day after day in court rooms across the country.

    An IP address does not equal a person or even a specific computer. It is not like DNA or fingerprints, despite the trolls trying to infer such.
    There is no special law saying people have a duty to make sure their connection is secure to protect your porn.
    There is no duty that says you need to hover over visitors shoulders to make sure they do nothing wrong.
    There is something wrong when you publicly talk about asking all visitors to the home and the neighbors if they were the ones who downloaded porn on your connection.

    You can try to play both sides of the field, but when you hit that point where you have to decide between the best interest of the client and the best interest of your cash cow we know which one will win. To try and pretend your above these moral quandaries shows a staggering amount of ego.

    You are despicable, and I hope that this line is finally enough to get people to stop giving you a pass as a top 1st amendment lawyer… the price others have to pay being ground up in the copyright trolling is much to high to allow you any more leeway.

    You can call me a pirate, an ass, or 100 other nasty things… I have 1 thing you lack.
    Integrity.
    I mean what I say, I say what I mean. My word is my bond, and my words have been always…
    I am smarter than you, I am faster than you, and I will see you fall.
    One lawyer who heard those words and thought them to be just the rantings of some crazy guy with an overly commercial avatar was Evan Stone…
    One lawfirm who heard those words is being sued along with Raw Films Ltd.

    You’ve been a nuisance, nothing more.
    I will continue my fight against you…
    Enjoy the ride.

    • AC says:

      “It was tested in a German court and thrown out, and the company running it sued by their partner lawyers for hiding the known flaws in the system.”

      Do you have the details for this? I would like to read more about what methods were used in that case and why it was thrown out.

      • that anonymous coward says:

        SJD beat me to it…
        But something really funny to look at… is this proprietary software no one knows ANYTHING about is being used by several “companies” all based in Germany. And somewhere in my travels we had a document where one of the companies was talking about providing different experts and companies for each case. IIRC.
        See because if a troll was stupid enough to go to trial without an admission of guilt, that means the doe could hire an expert to examine the software… and when it comes out how flawed it actually is it would sink all of the cases for that company immediately…
        So its a series of collapsible tunnels, they funnel cash back to some German company and if they get busted… the trail stops with them.
        This is why I am often amazed that someone can sign a document, claim to be an expert, working with unfaliable software and the Judge never looks into if it is true.

  4. Anonymous says:

    Since we know Marc is reading, it would be nice for him to stop by and point us to some evidence of just how likely it is that Plaintiff will file 120 separate claims if the Court severs all defendants.

    For example, he can point us to the public records that show that Liberty Media has filed one separate claim per Doe when they have had defendants severed. Or even a case where they actually named all the Does in a mass-Doe case, or how about one where they named *and* served every Doe defendant.

    Oh and if you stop by Marc, please don’t forget to throw in a Melville reference!

    • SJD says:

      Can’t imagine why this message went to spam, as well as another one you’ve posted. Next time you don’t see your comment, shoot me an email. Or just wait: I check spam for false positives 1-2 times a day.

    • Johnny Doe says:

      Lawyers are trained to make every argument they can come up with no matter how implausible or far-fetched. They don’t care about veracity but only what is best for their particular client and their own pocketbook.

    • that anonymous coward says:

      He can show you the few number of named cases LMH has filed. They are always against people who made the mistake of contacting the troll. The conversation always allegedly shows the Does guilt and the move onto trial.
      The fun thing you can see then, is LMH’s legal representation inability to actually serve the now named Does in the cases.
      The MA case where the service document clearly shows the Doe was served at an address in the MIDDLE OF A LAKE. LMH wasted no time moving for default, and it was granted but the Doe became aware of the case and filed with the court.
      That case will be junked shortly as LMH was unable to correctly name their copyrighted work in their filing.
      Like in the case in NY, which was the 2nd try to sink the person paying the ISP bill but who did not infringe. They pursued him under some idea that he was negligent. The court tossed the case for misrepresenting the copyrighted work and tossed the negligence as well. The roommate might be found in default, but given the history of service by LMH, its questionable he was ever served.
      And its funny a case in CA against someone well outside the courts jurisdiction who they tried to serve 4 times, each time trying and failing to provide proper service. Then the court discovering the defendant lived in another state the entire time, outside the courts jurisdiction (IIRC). They are trying to appeal that case.
      Then there is the named case for $250,000 where they sued a subscriber of CF for uploading and got a negotiated settlement. One might wonder why they track their users IP addresses in such a fashion and turn them over to the lawyers.
      Then there is the unnamed case where they extracted $10,000 for the negligence claim that was found to have no merit in 2 courts so far. Oh and they got $4 for contributory infringement.

      I’m sure there is more, there always is…
      When other people do it they are horrible evil trolls abusing the law, but he has himself convinced he is a great liberator who does everything correctly and by the book… even when he does the same things.

  5. Johnny Doe says:

    I am not a fan of lawyers. For a long time I’ve asked the question– does law school attract assholes or does it create them? Lawyers tend to be a humorless, technocratic and belligerent.

    I will say that the higher up on the legal food chain a lawyer is, the more ethical and professional lawyers tend to be. However, we aren’t dealing with those folks when it comes to bottom-feeders such as Marc Randazza. Law school isn’t like medical school– just about anyone can get in as long as you have a college degree. And the bar exam is tough, but it isn’t nearly as difficult as lawyers would have you believe.

    Having said all this, I am a little surprised that lawyers are playing both sides with copyright trolling. You don’t have prosecutors representing criminal defendants because it would be a huge conflict of interest. And I don’t know any civil attorneys who work both sides like these clowns.

    I posted once before that the legal profession is in really bad shape. Tens of thousands of people graduate with a law degree every year, and there are very few jobs for them. They are desperate to pay their bills and pay off their loans (many graduate with $100,000 or more in debt), and some see copyright trolling as a new opportunity since most reputable attorneys won’t touch it.

    If any copyright trolls are reading this, all I ask is that you try to listen to what is left of your conscience. These are real people with real lives. For the sake of argument, let’s assume that most John Does did what you are accusing them of doing. Is the just punishment really $3400 or more for downloading one pornographic film? The reality is the damages are probably $0 since it is unlikely they would have ever actually paid for the movie. However, a few hundred would be more than sufficient to cover your client’s damages, and we both know that.

    Meanwhile, I fell the worst for the people who are being bludgeoned with actual lawsuits. We all know these laws were put into effect for people who are profiting off of pilfered works– not the guy who buys the pirated DVD off of the street or downloads the porn. Yet you are destroying people’s lives to make a quick buck. It saddens me what had become of the legal profession.

    • Anonymous says:

      Well said. The settlements they want are sometimes the equivalent to years worth of memberships at their sites or hundreds of copies of the DVD. One download does not equal a lost sale. Only a fraction of people would have purchased or subscribed to the material in question if they could not download it. There is no way these companies can say we lost $X.XX as a result of this.

      Also, When you talk about some sort of punitive damages or statutory damages, haven’t many of these people been punished enough just from the stigma of being identified with adult films, lost marriages as a result, etc.? We let first offenders off all the time in this country and many of them still don’t learn their lesson. However, in these shakedowns they don’t offer any sort of cease and desist or we’ll come after you next time scenarios.

      Plus, they’ve ultimately hurt their business model in the long run. If I was accused of illegally downloading someone’s product, I wouldn’t touch the legal version with a ten foot pole for fear of being wrongly accused somewhere down the line.

  6. CTVic says:

    These trollawyers are a bunch of dirty bastards, and there’s hardly any way to know who to trust. Marvin Cable’s a worthless piece of shit who was granting interviews where he admitted that he was selling his own clients down the river many months ago. Is he the worst lawyer ever, or was he making backroom bargains with quiet whispers of five-figure numbers? It’s incredible how quickly ethics can disappear when the greenbacks move into town.
    My suggestion on where to go to find a trustworthy defense consultation: EFF – Electronic Frontier Foundation. Beware, though. Their attorney list is old, and more than a few of them have been suggesting settlement a little too early for comfort. Another good place to start is houstonlawy3r – Rob Cashman’s always been pretty up front and decent, as far as lawyers go.

    As for myself, I would LOVE to see some of the secret communications between these copyright troll lawyers. Particularly between established trollawyers and those who toe the line between defense and dickweed. If ever there were a job for some ambitions Anons, a nice email doxing would be wonderful here. Let’s not forget that it was an Anon operation that helped take down our friend Andrew Crossley at ACS Law on the other side of the pond.

    • Anonymous says:

      Yeah, could be fun. I’m sure Prenda’s site is a soft target. Their webpage actually has some text in it that says “test test test” and if you view the page source there is some stuff in their for Cadillac Doctor, probably someone took the code for an old page the worked on and reused it. Besides, all you need to do is look at the site to see the guys running it don’t have a clue about site design or security.

      • SJD says:

        I would refrain from discussing these topics. Here is why: although there is nothing illegal is talking about security issues, these loonies already dubbed us as a community of hackers in court filings. While this is laughable, giving them the ammo is the last thing we want.

        As for some questions about the origins of the wefightpiracy website, our friend wrote about it in back January.

  7. Anonymous says:

    the biggest problem i have is that he argues on one hand the joinder is best for the plaintiff cases when he is playing offense, then he argues that joinder is best for the defendants when he is playing defense. i am not sure how it can be what’s best for BOTH parties. he argues that joinder is best because it prevents the system from being overwhelmed, but a recent order by one judge aregued that because everyone’s defense is essencially different then keeping a case joined would actually be LESS effecient for the court system because of the difficulty of comunicating between all the pro se defendents along with the represented defendants and the fact that often they are spread out all over the district/state/country, and because they all have the right to be present for every motion hearing. so hearings would be constantly canceled for one valid reason or another. joinder HINDERS the court system more than it helps anyone other than the plaintiff.

    i hate lawyer double-speak

    • Anonymous says:

      Since Marc saw fit to drop by yesterday, I would love to hear him comment on just how likely it is that the Plaintiff would refile 120 separate claims in the event of severance, based on his personal experience. For example, he could point us to the public records the document a mass-Doe case of his that was severed and then all the separate claims that were filed in the wake of the severance. He could also point us to records of cases where he has actually named every Defendant, and where he has named *and* served every Doe Defendant.

      Something tells me that his own experience as Plaintiff’s attorney in mass-Doe cases does not support his claims here, unless he feels that Mr. Cable is a stronger, more aggressive attorney than himself.

      In any case, I’m sure there’s a Melville reference that goes perfectly with all this.

  8. Anonymous says:

    Since Marc saw fit to drop by yesterday I would love to hear his comments on how likely it is that the Plaintiff would refile 120 separate claims in the event of severance, based on his personal experience. For example, he can point us to the public records the document a mass-Doe case of his that was severed, then he filed separate claims against each Doe. He could also point us to records of cases where he has actually named every Defendant, and where he has named *and* served every Doe Defendant.

    Something tells me that his own experience as Plaintiff’s attorney in mass-Doe cases does not support his claims, unless he feels that Mr. Cable is a stronger, more aggressive attorney than himself.

    • doecumb says:

      There’s possible signs of personal disturbance that some trolls, beyond being despicable and harmful, need to act hypocritically grandiose. Maybe troll use of misrepresentation is rooted in self-deception.

      http://randazza.wordpress.com/2012/07/16/a-pair-of-bit-torrent-defendants-remind-me-of-why-we-do-pro-bono/

      “…being a lawyer is, above all, about helping people. We have a responsibility to do pro bono work. But, it isn’t just so that everyone can afford a lawyer — I believe that pro bono helps keep me more human. It reminds me of the fact that my pleadings and filings and agreements affect real people — and lets me deliver some positivity into the karmic whirlwind.”

      • doecumb says:

        To clarify, this would be the Marc J. Randazza representing the plaintiff purveying porn works including:

        “Cam F***s Cole”, “Luca and Liam’s Bi 4-Way”, “Bi F*** Fest”, “Aaron & Dawson’s Bi Tag Team”, etc. etc. 3/1/10 CASD

        “Twinks for Cash”, Circle Jerk Boys” 8/31/10 CASD
        “Mason F***s Trey” 12/20/10 NVD
        “Turner F***s Austin” 1/6/11 NVD
        “Amateur College Men Down on the Farm” 1/7/11 CASD
        “Aiden F***s Cain” 3/22/11 CASD

        who is the Marc J. Randazza delivering “positivity into the karmic whirlwind” through allegations resulting in demands toward hundreds of Does.

  9. skruuball says:

    The “Art of War” thing is tired, classic Douchebaggery. Only idiot lemmings have that book on their shelf because their boss had one in the back seat of his Miata.

    “You must be to your enemy as the necktie is to the horse….”

    Randazza is a coin-operated scumbag who would sell his mother into five dollar blowjobs in the subway if it made him look cool at the clubs.

    • Anonymous says:

      That was HIS mother?!?! I had NO idea. She wasn’t bad, though…for 5 bucks.

    • Anonymous says:

      Art of War? One wonders if he takes notes from the Soldier in Team Fortress 2?

      “If fighting is sure to result in victory, then you must fight! Sun Tzu said that, and I’d say he knows a little more about fighting than you do pal, because he invented it! And then he perfected it so no living man could best him in the ring of honour! Then he used all his fight money to buy two of every animal on Earth, and then he herded them onto a boat, and then he beat the crap out of every single one. And from that day forward whenever there’s a bunch of animals in the same place it’s called a zoo!”

  10. theonlyone says:

    I wouldn’t trust him (Randazza) to write a will for me.

    • SJD says:

      I would. Because he would twist it the way:

      1) the money transfer happens prior to my death, not after
      2) the direction of money transfer would be opposite: from my beneficiaries (who said it should be my children?) to myself.

  11. Anonymous says:

    Marc has such a delicate ego, you should pay special attention to making sure your site gets up in the top few search results for his name. Currently this article comes up tenth, not bad, but I did have to scroll down the page to see it. It would be so much sweeter if his true nature was revealed in the first page of results.

  12. Drifter says:

    I definitely think his Wikipedia page could use could use some updating on him being a copyright troll, as of right now it mentions nothing about him being involved with torrent copyright litigation cases. In general it appears to have been written by one of his fans or perhaps Randazza wrote it himself as a form of self promotion. I find it strange that he even has a Wikipedia page, as he is not really noteworthy or important enough to warrant his own page in my opinion.

    http://en.wikipedia.org/wiki/Marc_Randazza

    • SJD says:

      This. “Copyright troll” article also cries for an update: although some kind soul linked this site from it, it barely touches the subject.

      Many ask me “how can I help?”; “what can I do?” — Wikipedia is a good place to start.

      In addition, I want to create a “chores” page where we crowdsource activity ideas and then crowdsource their implementation :)

  13. Anonymous says:

    I love it. Randazzas twit should read:

    ” You dont have to chose one side or the other as long as there is a decent profit to be made”

    • anonymous2 says:

      Looks like Randazza and Cable settled. There is a new Stipulation Of Dismissal doc in pacer. Notice Of Settlement And Joint Stipulation Of Dismissal With Prejudice Of All Claims Pertaining To Doe #30

      • SJD says:

        No, a sloppy third rate attorney Marvin Cable submitted this document in error: it is a stipulation between two trolls on a different case. I recapped.

  14. [...] this “anti-severance strategy” also caused Randazza to take some flack from Fightcopyrighttrolls and Ray Beckerman. Beckerman [...]

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