EFF announces its intention to fight the subpoena, and WordPress refuses to comply with this subpoena

Posted: March 9, 2013 by SJD in Prenda
Tags: , , , , , , , , , ,

This is a wonderful news: yesterday Electronic Frontier Foundation announced on Twitter that it would help to fight the subpoena in the copyright troll Prenda’s defamation lawsuits designed to silence the troll’s critics:

 

We should expect an official press release on Monday, I guess.

My heart has melted because of all the support we have received. The site traffic was unprecedentedly high over the last week, and people (even those who never heard of us before) have offered all types of help, including creating a fund to raise the defense money. With EFF’s involvement, it became a no-brainer: if you want to support our cause and the fight for the free speech in general, EFF is the right organization to donate your money to. Note that this plea is my own initiative: if EFF chooses to intervene and help people, they do it unconditionally.

Shortly before the EFF’s announcement, Paul Sieminski, a General Counsel for Automattic (WordPress.com’s parent company) sent an official response to Paul Duffy, refusing to comply with the troll’s sneaky overreaching subpoena. I’m sure you will enjoy this eloquent email and praise the business that, while having to abide the law, actually cares about its customers and does not throw them under the bus (as, for example, Neustar does):

From: Paul Sieminski
Subject: Response to Subpoena to Automattic, Inc.

Date: March 8, 2013 2:39:47 PM PST
To: paduffy@wefightpiracy.com

Re: Prenda Law, Inc. v. Paul A. Godfread, Alan Cooper, et al.
Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, Case No. 13-L-75

Mr. Duffy:

I write in response to Prenda Law, Inc.’s subpoena to Automattic, Inc. (“Automattic”) (relating to the WordPress.com sites dietrolldie.com and fightcopyrighttrolls.com). Your subpoena is legally deficient and objectionable for numerous reasons, enumerated below, and Automattic will not produce any documents in response to this subpoena.

  • First, the subpoena purports to relate to an action pending in Illinois, but in violation of California Code of Civil Procedure (“CCP”) Sections 2029.350 and 2029.390, it is not on the proper form for a subpoena for production of business records in action pending outside of California and it fails to attach a true and correct copy of the Illinois subpoena. Indeed, the form served on Automattic is for appearance at a trial or hearing, and in violation of the instructions of the subpoena, you direct Automattic to serve documents to your office and not to the clerk of the court as required.
  • Second, the subpoena purports to require production of business records in Chicago, Illinois, in violation of CCP Section 2025.250.
  • Third, the subpoena was issued in Marin County, when the discovery is to be conducted in San Francisco County, in violation of CCP Section 2029.350(b)(4).
  • Fourth, the subpoena was issued on February 22, 2013, yet you demand compliance by March 4, 2013, in violation of CCP Section 2020.410, which requires a minimum of 20 days to respond following the issuance of the subpoena.
  • Fifth, the subpoena improperly asks Automattic to create a document and to supply information, rather than properly asking for documents from a nonparty.

 

In addition to the numerous legal deficiencies that render the subpoena invalid, it is also objectionable on numerous fronts.

  • First, it seeks information protected by the First Amendment, including rights under the First Amendment to anonymous speech.
  • Second, it violates the right to privacy under the California Constitution and common law, in that it seeks information relating to the websites that consumers visited.
  • Third, it is facially (and outrageously) overly broad, in that it is not limited to information related to any alleged defamatory posts, but instead seeks the identity of any person who ever read the blogs in question.
  • Finally, it seeks information that is not likely to lead to discoverable information, for the reasons enumerated above.

Please contact me should you have any questions or concerns. A copy of this message will also follow by US Mail.

Paul Sieminski
General Counsel
Automattic Inc. | WordPress.com

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Comments
  1. Anonymous says:

    Wow! Is Duffy actually that fucking stupid? Wrong form, wrong place for production, wrong county, etc, etc, etc. Mr. Sieminski pretty much ripped Duffy a new one. This just keeps getting better. After this, the EFF may not even have anything to do.

    Thank you, Paul Sieminski, for knowing the law and for standing up against this kind of legal bullying. Well done, Sir!

  2. Donate to EFF! says:

    Can this lead to sanctions against Paul Duffy? Especially since the case he’s served a subpoena on has been removed to a federal court? I wonder if he even notified Automattic of the situation (if at all, in a timely fashion). I imagine there is some responsibility to notify the recipient of the subpoena of this, and if there isn’t, then there is yet another serious deficiency in our legal system to protect the public trust.

    • lkj says:

      Serving invalid subpoenas is something Prenda does as naturally as breathing.

      The overlooked story here is that, after two years of extorting millions of dollars from ISP subscribers, if Prenda is sanctioned on Monday this will be the first time (AFAIK) that any court or bar association has ever sanctioned or disciplined Prenda or any of its attorneys or associates. Every Prenda attorney is free, at least for the moment, to practice law in the jurisdictions where he is licensed, as well as the jurisdictions where some practice without a license.

    • Raul says:

      Nice find! Always suspected proof of damage to Prenda’s reputation would be a hard row to hoe but not that there reputation has been so publicly soiled, IMO, that they cannot sue in the first place.

      • Lawyers Aren't All Scum, but There are Scum Lawyers says:

        To be clear, there is an argument that Prenda et al’s reputation has been soiled by their own actions, in an action brought with Brett Gibbs and a Federal Judge — not anything else (e.g., discussions of free speech on this blog, other blogs, and in the press). I think the libel-proof doctrine absolutely applies here, and will be one of many affirmative defenses that could be used (in addition to truth, opinion, etc.) Odds are, these guys won’t pursue things past subpoena returns (sound familar?), and won’t even let it get that far. Those of you with lawyers who can file counterclaims should seriously consider it. I myself have a legal plan that protects me from these sorts of spurious attacks, but does not cover counterclaims. I might put my own money towards them, though.

  3. Mysterious Anonymous says:

    Yeah, if anyone was afraid Prenda might actually follow through here, take a look at Duffy’s awesome lawyering skills. Can’t get the fucking forms right? No wonder he wound up in business with Steele.

    I’m sure people calling them names on the Internet seemed like a huge problem in February, but come Monday March 11 these guys are going to have much bigger fish to fry.

    I don’t think we’ll see a follow up from Mr. Frontman between WordPress digging their heels in and EFF on D. The world is watching and those fighting Prenda have nothing to lose and great PR and self-satisfaction to gain from going on the offensive.

    Buckle up bros!

  4. We have the technology, they have the hate says:

    As for “rights under the First Amendment to anonymous speech”, you can proactively protect yourself with the Tor Browser Bundle, available for all major Operating Systems:

    Don’t use an email address that can be traced back to you. Your IP address should be protected through Tor:

    https://www.torproject.org/projects/torbrowser.html.en

  5. Anonymous says:

    About to donate to the EFF! I’m very happy they are taking the case for this particular subpoena. I am also considering membership in the ACLU, which I imagine should have some interest in this case

    • Duke says:

      Yes, donate. I have provided financial support to the EFF in the past and just donated again now. Please give what you can to protect the rights of all.

  6. Anonymous says:

    With respect to “Donate to EFF” @ 3:24pm, it seems like there may be a reasonable claim to Prenda, et al, being libel-proof. Especially given Popehat’s opinion:

    “By responding with a jurisdictional argument now, they have utterly eviscerated their credibility and the credibility of their enterprise permanently in every court in the United States of America.”

    http://www.popehat.com/2013/03/08/prenda-law-attorneys-ask-judge-wright-to-lift-order-requiring-them-to-appear-monday/

    and numerous other opinions from Slashdot or Twitter of commenters at AVN questioning the compellingness of Steele, et al’s services and likeablility. Several expert witnesses could be called to challenge the notion that Prenda, et al are anything but a libel-proof plaintiff.

  7. SJD says:

    Re: Paul Sieminski’s email: I did not want to use a ruder version of one of my credo bits regarding business responsibility to both the law and the customers. Here it is:

    It is possible to cover one’s ass and not to be an asshole. At the same time.

  8. Howard Funkenstein says:

    Paul Steele and everyone else associated with Prenda blow goats. I have proof of this. Also they smell funny and throw like girls. And their moms are all women of incredibly loose morals who basically have mattresses for backs. This is true.

    Come at me bro!

    • Art VanDeLay, Esq. says:

      See, I personally tutored Paul Duffy in Techniques of Feline JiuJitsu, and he led me to believe that John Steele keeps a midget prostitute in his comically oversized pants to service him in emergencies.

  9. [...] e-mail to Duffy (reproduced by Fight Copyright Trolls) noted, “Your subpoena is legally deficient and objectionable for numerous reasons, enumerated [...]

  10. Anonymous says:

    Reading WP’s response makes me think of Ace Ventura when it comes to Prenda:

    [insert sarcasm]

  11. Anonymous says:

    Watching this meltdown in almost real time is really amazing. They just keep getting more and more desperate. I think these idiots may have to be put on suicide watch.

  12. [...] e-mail to Duffy (reproduced by Fight Copyright Trolls) noted, “Your subpoena is legally deficient and objectionable for numerous reasons, enumerated [...]

  13. [...] EFF announces its intention to fight the subpoena, and WordPress refuses to comply with this su… [...]

  14. [...] (3/9/2013): DENIED.  Automattic, Inc. letter to Prenda Law Inc. (on behalf of WordPress.com sites) rejects [...]

  15. [...] (3/9/2013): DENIED.  Automattic, Inc. letter to Prenda Law Inc. (on behalf of WordPress.com sites) rejects [...]

  16. Anonymous says:

    Good on WordPress for not backing down. I’d expect Duffy on behalf of his client Prenda (a/k/a sole principal Duffy) to make a new subpoena that is more targeted. At that point, WordPress will have to comply, and we get the fight, but Duffy/Prenda’s original subpoena is now on the record as something a reasonable person could argue as “bad faith”. Not only that, but it’s also helped further a libel-proof plaintiff defense given the press and legal experts making comments. I wonder what Steele is planning do to next. Naturally, his dismissal without prejudice in FL isn’t the end of it. It’s an easy case to have him be a public figure (Forbes and others), and I think it’d take a lot of show malice (as opposed to a desire to warn or inform the public). Maybe he’s more consumed by what he’s dealing with in LA Monday (assuming he has the wisdom to not disobey a lawful order). When the dust settles, this would make a great feature for a TV show. That is to say, this entire affair is in the public interest. Oops, did I just make an observation that further limits a libel case from “private citizens”. Yeah, I think I did.

  17. Doug a "Male" Doe says:

    Troll Lutz….. call me from court on Monday. I’ll answer this time and wish you luck. Just kidding.
    I might answer but it’s never going to be a friendly conversation. I was thinking.. to all the TROLLS how does it feel to be some of the most hated men in America?

    also wondering how Miss Van Hemel stays clean hang with those trolls all day. Must have to take a few showers per day to clean off the stink. Wonder if she is BITTORRETBEATY? if so, she’s on the wrong side. Time to find another job

    days are numbered trolls

    • SJD says:

      Looks like an absolutely unrelated lady. Not a single connection.

      • Mysterious Anonymous says:

        Agreed, that was super-duper uncool.

        There’s nothing in that public profile that event hints at a connection to Prenda and OH BY THE WAY THE FUCKING NAME IS WRONG.

        Prenda’s paralegal is Van Den Hemel not Van Hemel. For the love of FSM I think too much exposure to Prenda is rubbing off on our investigative skills.

        SJD I think under the circumstances you should delete that post.

        • Doug a "Male" Doe says:

          I think you should SJD

          sorry for the mistake
          no reason to offend

        • SJD says:

          Mistakes are mistakes, nothing tragic about that especially if a mistake is found and acknowledged in the course of a discussion. I removed only that portion with the link. I wouldn’t do it if you (the commenter) did not ask me. I’m very reluctant to do the moderation. Only do it in a couple of circumstances:

          - Too much identifying information – easy prey for trolls
          - Spam
          - Overly gross trolling
          - Request from the author

          Otherwise, the rule #1 is “speech v. speech.”

  18. [...] e-mail to Duffy (reproduced by Fight Copyright Trolls) noted, “Your subpoena is legally deficient and objectionable for numerous reasons, enumerated [...]

  19. G Thompson says:

    Congrats on the EFF being involved.

    As for the letter by Paul Sieminski of Automattic, inc.. the ‘Arkell v. Pressdram” is strong in that letter ;)

    (for those non lawyers who are wondering..wtf… http://www.nasw.org/users/nbauman/arkell.htm – the last two words of the reply]

  20. [...] e-mail to Duffy (reproduced by Fight Copyright Trolls) noted, “Your subpoena is legally deficient and objectionable for numerous reasons, [...]

  21. thatbalddude says:

    Proceeding on the assumption that Prenda et al are actual lawyers, wouldn’t they have known this? They can’t be that stupid. (Unscrupulous, yes. Unethical, yes. Can’t argue those.) Maybe I’m too cynical, but I can’t help but wonder what they’re trying to pull with this. Besides someone’s leg, I mean.

    • that anonymous coward says:

      They are used to answering anything asked of them with “because we said so”.
      These IP addresses were involved in “pirating” our “clients” “valuable” work. How do you know for sure? Because we said so.
      Why should I pay you a settlement, I didn’t download the file. But your saying I’m responsible how is that? Because we said so.

      They are used to no one questioning what they are doing and how they do it.

    • They are hoping that that Automattic, Inc. would roll over, like certain other ISPs, and just hand over the information without actually paying attention to the subpoena. I mean, how many of us read that subpoena and and didn’t catch on to its deficiencies. I saw the Marin County issue but dismissed it in my mind because Prenda has seldom issued a subpoena from the county where the action will take place. I didn’t even notice any of the other problems it had.

  22. godxile says:

    It’s funny how butt hurt they are over a little name calling. I have no problem saying what I think about those scumbags to their face.

    I mean really how do you except people to act towards you when your legal methods are pretty damn close to being flat out extortion. Honestly I would not surprise me in the least if they companies they’re suing for are uploading their own work just so they can hire scumbags like Prenda to extort people.

    Just step back and look at it like this.
    They’re suing countless people for hundreds of dollars up to thousands of dollars each.
    The lawsuits are made in a way that they’re actually cheaper to just cave in and pay the extortionist assholes they are.
    They don’t go after people that cannot afford it.
    They never take it trial if the person refuses to pay.

    I really hope those assholes serve hard time for their crimes because I rank them with thieving extortionist scumbags. I have zero respect for them and their blatant abuse of our justice system.

  23. [...] in the meantime WordPress has given Prenda Law (reproduced by Fight Copyright Trolls) five legal reasons for its non-compliance, and a further four reasons by which it finds the [...]

  24. Anonymous says:

    Tomorrow, tomorrow, I love you tomorrow…you’re only a day away…
    RIP copyright trolls: b. 2009-March 11, 2013

  25. F-ing Trolls says:

    re: anonymous comment regarding putting the fecal matter known as Prenda on suicide watch……..DON’T. I realize it was a joke of sorts, but do any of them warrant any help after engaging in the actions they have taken???

    Those Prenda assholes don’t deserve even that much help from any one of the hundreds of thousands of people they have continually tried to violate and extort. They are a steaming cesspool of greed and unethical behavior. Lawyers…..HAH. They’re big-ass jokes and sorry excuses for human beings.

    March 11, 2013……the iceburg strikes the fatal blow and sets the SS PRENDA-EXTORTION on its well deserved voyage into the deep.

    Now we need the submarines to properly torpedo Lipscum and the rest of the extortionist gang extorting money on baseless bullshit allegations only……

    Hey Johny…..make sure you let us know how your cellmate ‘feels’. “…here’s my ‘steel’ for you Johnyboy…take it like the little girl you really are..!” !

  26. Anon says:

    Check out the notice that Pietz filed yesterday along with the StarTribune Article on “Allan Mooney”. The guy is a go-getter that’s for sure.

    (scroll to bottom of page)
    http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.docket.html

  27. Psychic Doe says:

    IDK why they think they aren’t public figures. Hell, Steele/Hansiemer offshoot Alpha Law Firm even commissioned a commercial. Complete with words they’d never live up to. So, if that ain’t puttin’ yourself out there – I don’t know what does:

  28. SJD says:

    In case you did not notice my and DieTrollDie’s retweets yesterday,

    Charles Lee Mudd Jr. ‏@clmuddjr 13h
    EFF motion to quash #Prenda’s subpoena to Wild West Domains filed today on behalf of “Die Troll Die” in AZ #BitTorrent

    Wild West Domains is DieTrollDie’s registrar, and, unfortunately, it is based in the USA. I have no doubt that a defective and frivolous subpoena will be quashed.

    As for my registrar… I have no intention to brag but to promote a business that values privacy above all (and inexpensive too). It is Internet.bs and it is based on Bahamas. Below is the reply from its representative to the request regarding their subpoena handling policy:

    We have never ever released our customer’s details to a third party. The only way to obtain personal details about our customers would be through a Bahamas’ court order and it is extremely unlikely it will ever happen as the Bahamas is enforcing privacy by our constitution and breach of privacy could result in severe penal consequences. We are proud to say that our Private Whois is a real protection, while the equivalent service provided by an US based registrar is not really protecting you as a simple subpoena would immediately force your registrar to release your personal data.

    Note that I did not even state that it was me who registered fightcopyrighttrolls.com domain name.

  29. […] purposely leaving out the side stories (even the story related to the very same case — the one that triggered the EFF involvement). I already wrote a plethora of compliments to Jason Sweet, […]

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