Archive for the ‘M. Randazza’ Category

The header says it: this case is over for now. Although this dismissal is without prejudice, which means that the Does can be pursued in the future, the time is on their side — because they have more time to educate themselves and become less shakedown-prone, and because copyright trolling disease cannot last forever: the crisis is over, the recovery has started (IMO).

The dismissal happened immediately after a defendant’s attorney Charles Thomas removed this case to the federal court (PAED). I believe that there is more than one reason for this rather unexpected dismissal:

  • This particular federal court is ripe for getting rid or trolls for good.
  • Comcast was serious about not giving away its customers’ identities easily.
  • As I tweeted and wrote in comments, I had a gut feeling that Liberty Media’s counsel Jordan Rushie is not a greedy scum like the majority of the bittorent trolls, but rather a guy who was deceived by Marc Randazza, and who actually believed that he was doing the right thing. I hope that he realized that it is better to keep away from mass-suing individuals, especially given the flawed infringement detection methods that result in many innocents dragged into this misery.
  • I hope that the publicity we helped to create was also a factor. I doubt that Pennsylvania’s pre-complaint discovery loophole will be abused again in order to generate shakedown lists.

Read about this dismissal on Charles Thomas’ site.

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 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.

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.

Update 9/27/2012: Jordan appeared to be a decent fellow, and after some research and conversations with colleagues, he decided not to be involved in mass bittorent cases anymore (as a plaintiff’s counsel). We wish him the best of luck.

I have added a new page dedicated to a case filed in Pennsylvania’s local court — Liberty Media v. John Does 1-441. Raul wrote a nice overview of this case, which is duplicated below for casual surfers, those who don’t want to dive to the depths of this site. I only want to add a few points:

  • This case was filed by an otherwise reputable (although undeniably snobby) relatively young attorney, Jordan Rushie of Mulvihill & Rushie LLC. Since this case’s plaintiff is a gay pornography purveyor Liberty Media, even a moron in a hurry understands that Rushie is only a puppet, and Marc Randazza is the one who pulls the strings. Randazza is infamous for shaking down Liberty’s current and potential customers. Sure, this strategy brings some short-term cash to benefit a few, but extorting business’ targeted audience is an assisted suicide in the long run. I’m not even talking about ruined careers, families and lives. Marc Randazza surely learned how to count to One, and he became quite known as a First Amendment attorney. The problem is that his hubris prevented him from mastering bigger numbers, Eight in particular.
  • The entire business model of copyright trolls was never based on the law, it was always based on loopholes in the law, and this case is not an exception. By abusing local rules and misleading the court, Randazza and his devotees have finally stooped to the low area previously occupied only by such scum as Prenda Law. In the past Randazza and his admireres mocked John “Buffy” Steele and claimed that Liberty’s strategy of going after infringers is ethical: today I would like to hear any convincing argument why this lawsuit occupies a higher ground than Florida’s “Pure Law of Discovery” fishing expeditions run by con artists John Steele and Keith Lipscomb.

To avoid duplication, please discuss this case in the comment section of the cases’s page, not below.

Case overview

By Raul, copied from the page dedicated to this case

All warfare is based on deception.
— Sun Tzu, The Art of War

Such is the lawsuit entitled Liberty Media Holdings, LLC v. John Does 1-441; a deception being practiced upon the Philadelphia Court of Common Pleas in which the plaintiff is seeking pre-complaint discovery of the personal identifying information of 441 Comcast subscribers. Plaintiff has claimed that it needs this discovery in accordance with Pa. R. Civ. Procedure 4003.8  (writ of summons) so as to bring a future complaint for unjust enrichment and conversion against these individuals based upon their alleged pirating of plaintiff’s unspecified adult content during the period of 10/30/2011 through 2/2/2012.


Jordan Rushie

On 3/18/2012 Judge Allan L. Tereshko granted the plaintiff pre-complaint discovery by means of a subpoena on Comcast. Subsequently on 6/11/2012 Comcast filed a motion to quash the subpoena and a motion for a protective order which was denied on 7/13/2012. Plaintiff filed a petition on 7/20/2012 to hold Comcast in contempt of court for failing to produce the pre-complaint discovery which has yet to be decided. Comcast made a motion for reconsideration of the judge’s denial on 7/23/12 which the judge also denied on 7/31/12. Undeterred Comcast filed a motion for permission to take an interlocutory appeal of the judge’s denial of their motions to the Superior Court on 8/1/2012. One of the John Does filed a motion to quash the Comcast subpoena on 8/3/12 which is pending.

Does wishing to fight this lawsuit should look at some of its obvious problems:

  • Lack of subject matter jurisdiction: A future state lawsuit for unjust enrichment and conversion is preempted by the federal Copyright Act.
  • Lack of personal jurisdiction: TAC has pointed out that the large majority of the IP addresses are located outside of Pennsylvania and the individuals linked to those addresses may be outside of the court’s jurisdiction (long-arm statute).
  • Improper joinder
  • Damages: Unlike a copyright infringement lawsuit, there are no statutory damages for unjust enrichment or conversion. In all likelihood plaintiff’s damages would equal a lost sale (i.e. purchase price of the adult content). Plaintiff has admitted this in its motion to take pre-complaint discovery (unjust enrichment = “…film’s sale’s price, which is normally paid by law-abiding customers”). So assuming the high end of a retail sale for plaintiff’s content; $60 per film downloaded as damages.
  • The best grounds for a motion to quash comes from the standard for pre-complaint discovery: “Under no circumstance should a plaintiff be allowed to embark upon a “fishing expedition,” or otherwise rely on an amorphous discovery process to detect a cause of action he lacks probable cause to anticipate prior to the pre-complaint discovery process under this standard.” He said that he couldn’t find any previous case where pre-complaint discovery was used to obtain the identity of a John Doe, let alone 400 of them, which made this a fishing expedition. (This is a lawyer’s opinion: thanks to anonymous commenter for this update.)
by unicorntugboat

On 7/9/2012, in what we can hope will become the tugboat heard ’round the world, Judge Lewis A. Kaplan summarily dismissed the claim of negligence against Cary Tabora that was brought by Liberty Media Holdings, LLC. in the Southern District of New York.

For some background on the case, it started in the normal troll way with Marc “Tugboat” Randazza filing a lawsuit in the Southern District of California back in March 2011 against the defendant, alleging that defendant shared LMH’s copyrighted gay porno flick, Down on the Farm, on BitTorrent. However, this lawsuit never got off the ground. While Tabora’s co-defendant was nowhere to be found, Tabora fought and won two different motions to dismiss (lack of personal jurisdiction — Tabora resides in New York).

Liberty Media Holdings also took some normal troll steps to motion for entry of a default judgement against Schyler Whetstone, which were also summarily dismissed. I think that the analysis provided by the court is very strong and I was glad to see the Judge take steps to prevent this abuse:

A district court “has an affirmative duty” to determine whether it has personal jurisdiction over the defendant before entering a default judgment. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). In considering whether to enter a default judgment, a court may dismiss an action sua sponte for lack of personal jurisdiction.

In its motion for default judgment, Plaintiff contends that this Court has personal jurisdiction over Defendant Whetstone and makes the same arguments in support of this contention that Plaintiff made with respect to Defendant Tabora. [Doc. No. 27 at 1.] As stated above, Plaintiff has failed to make a prima showing of jurisdictional facts establishing that the second and third elements of the Calder-effects test are met in this case.

This dismissal occured on 1/4/2012, however this was not the end of the case. LMH continued to try to pursue Mr. Tabora in his local jurisdiction. On 3/27/2012 a complaint was filed by LMH in SDNY again against Tabora and Whetstone. Since Mr. Randazza is not licensed to practice Law in New York, LMH obtained a local counsel — Nesenoff & Miltenberg LLP. With new information in their pocket as a result of Tabora’s innocent attempt at trying to talk to the troll and declare innocenece, LMH included a new cause of action, negligence. This is where the tugboat comes in.

Marc Randazza declared in a comment to a recent TechDirt article:

The negligence theory is that if T knows that W is committing a crime with his account, and still lets him use is, then T is negligent.

The Tugboat case to quote dates back to 1932 (yes, 1932, welcome to the Internet age!):

Two tugboats, one of which was The T.J. Hooper, were towing barges. During a storm, the barges sunk and their cargoes were lost. The owners of the cargo sued the barge owners, which in turn sued the tugboat owners. They claimed that the tug operators were negligent because they failed to equip their tugs with radios that would have warned them of the bad weather.

I know, your head is saying the same thing as mine at this point: what does this have to do with Internet file sharing? Well let’s again go to Mr. Randazza himself quoted from TechDirt:

The TJ Hooper case stands for the proposition that it is the province of the court to recognize duties in negligence cases — even new ones that have not existed before.
You focus on the legal rule, not the boat. If you focus on the boat, you’ll be confused. If you focus on the legal rule, you’ll understand.

Ah, once again I was caught staring at the boat. Luckily, Judge Kaplan was focusing on the law and not the boat (which makes me wonder what Mr. Randazza was focused on). As with the first case, Tabora was not going to sit back and get trolled. Through counsel, he filed a motion to dismiss the complaint on various counts:

  1. Failure to state a claim (due to invalid copyright registration);
  2. The Copyright Act Preempts Plaintiff’s Negligence Claim.

 

The EFF also stepped in and filed and Amicus Curiae Brief in support or Tabora.

LMH filed a 20-page response in opposition to the motion to dismiss that was all over the map. Plantiff’s counsel went so far to as admit:

With respect to the duty, the Plantiff acknowledges that it is asking this Court to recognize a duty that has never been facutally before a court in the past.

They even claimed that because his ISP had its terms of service in place to protect third parties, and since Tabora violated these TOS, the duty to LMH was in place. I can see the tugboat through the fog now.

Just two business days after plantiff filed its opposition to the motion to dismiss, Judge Kaplan issued a memoradum opinion rejecting Plantiff’s claims and granted Tabora’s motion to dismiss. As to LMH’s negligence claim, the Judge wrote:

Federal Judge Lewis A. Kaplan

The negligence claim suffers from at least two problems, each independently fatal to its survival. It is necessary, however, to discuss only the first.

and…

…as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer. In light of the preceding discussion and the doctrine of contributory infringement — which Liberty’s memorandum ignores entirely — that position is untenable.

The Judge also found the the misnamed copyright registration was and issue and that in order to proceed on any claim of direct or contributory copyright infringement, they must filed and amended complaint by 7/25/2012 to assert any claim.


Let’s hope this decision is heard loud and clear in California where similar cases are on process against defendants.

 

 

Randazza’s “negligence theory”
Media coverage
The only remaining IO Group’s eDonkey2000 infringement case, IO Group v. Antonio Almeida, was dismissed with prejudice yesterday:

We will never know if any money changed hands as a result of this dismissal, I hope not, or at least not too much. Marc Randazza never misses a chance to brag about huge settlements he “won”, which appear bogus when one gives a closer look at the dismissal documents¹.

I wish all the best to Antonio.

Sperlein is still active in his extortion business, he filed a bunch of cases in Eastern Disctrict of California recently, this time representing another plaintiff, Celestial Inc. I have a completely different set of wishes to him.


¹ “Defendant has an opportunity to reduce the amount payable to Plaintiff if Defendant ceases any further content theft (whether the Plaintiff’s content or anyone else’s), and if he makes regular payments toward the judgment on a schedule that will be agreed upon by the parties in a separate agreement.” — and this “agreement” never sees the light of day…

I’m never tired of repeating over and over again that talking to plaintiff’s attorney (a copyright troll) directly, not through your own lawyer, is not only a questionable idea, but just a plain stupid idea. Reading numerous comments on TorrentFreak, ArsTechnica, Techdirt and other discussion boards, I sometimes see someone bragging: “If I received a call from a troll, I would tell him…” Wrong! You don’t want to tell him anything. Just hang up. Ignore emails and scary ransom letters¹.

TAC has pointed to a very-very sad story: a guy from one of the mass Liberty Media Holdings lawsuits received a call from an attorney notifying him that his IP address was recorded in connection with sharing a copyrighted material on BitTorrent, demanding money and asking questions. Instead of hanging up, this guy did the worst thing possible: he answered the questions and admitted that he downloaded that damned movie! He explained that he did not know that it was illegal, probably thinking that a reasonable copyright holder who cares about its business would say something like “ok, you are a good guy, and we appreciate the interest in our studio products, what you did was illegal, please stop doing that and here is the URL where you can buy and enjoy our products legally”. Note, however, that here we are not talking about copyright holders who are interested in retaining fans and promoting their products. Instead, we are talking about scum of the Earth, disgraced attorneys who can’t think about anything but money right now with as little investment as possible. Ruining someone’s life for a $40 movie is something that these vampires wouldn’t hesitate to do if it could possibly bring them a couple of dollars.

So what happened next? As a result of this phone conversation, our former Doe, now a named defendant, got himself an individual lawsuit, in which the trolls are accusing him of willful infringement (up to $150,000 “damages” sought – the complaint is embedded below).

13. When counsel for Plaintiff contacted Fraga regarding AE3 Lawsuit, and after counsel advised Fraga to seek legal representation, Fraga admitted to using BitTorrent to download and share the Motion Picture. Fraga took the position that the unlicensed copying and distribution of the Motion Picture over a BitTorrent file sharing network was somehow not illegal.

14. Fraga, who was Doe 19, has been dismissed from the AE3 Litigation in lieu of the present proceeding. Given Fraga’s admissions, Plaintiff has opted to pursue its cause of action against him individually.

If not for this confession, there would be no way trolls could prove the tort; they just don’t possess any court-grade evidence. Bluffing works in Poker, bluffing worked here.

So, do you still think that talking to a random lawyer on the phone and answering his questions is a good idea? If you do, please see your physician as soon as possible.

The trolls involved in this assault:

Marco Randazza, the most hypocritical troll as of today: one of his hands defends Righthaven victims, the other wanders in similarly abused citizens’ pockets.

 

Aaron Silverstein, a thin-skinned troll, whose feelings were hurt when I included him in my copyright troll list on Twitter.
 

Note that the troll attorneys think that

The conduct of Fraga is causing and will continue to cause Plaintiff great and irreparable injury.

This is not only laughable, but the direct opposite of the truth: it’s not Fraga, it’s you, trolls, who cause irreparable injury to your client’s business by methodically destroying its reputation.


¹Of course don’t ignore summons if you are named in a lawsuit.

I was reading various mass file-sharing lawsuit complaints recently and found out that they are heavily copied from each other. I was daydreaming how wonderful it could be if copyright trolls would sue each other for infringement…

Jason Fischer / Mark Randazza:

88. In the BitTorrent world, there is honor among thieves. Those who merely download files, without publishing and sharing files, are derisively called “leechers.”

Gill Sperlein:

29. In the eDonkey2000 Network, there is honor among thieves. Those who merely download files, without making files available in their share folder are derisively called “leechers.” The more files a user makes available in his share folder, the faster the system allows him to download files from others.

Andrew Contiguglia:

53. In the BitTorrent world, there is honor among thieves. Those who merely download files, without publishing and sharing files, are derisively called “leechers.”

[...and so on...]

Dear trolls!

I heard many times that “there is honor among thieves,” and I don’t care if it is true or not, because it is absolutely not applicable to file-sharing. Firstly, it is highly unprofessional for a lawyer to confuse theft with infringement. Secondly, peer-to-peer participants don’t give a damn about others, because they absolutely don’t know with whom they share their files. I don’t know about Bittorrent, but in eMule download speed is directly correlated with upload speed. So talking about accelerating downloads, you confuse common sense incentives with moral imperatives. It is not surprising since you obviously have a problem comprehending what moral is.

Could you please stop lifting nonsense from each other and start using your own ugly heads?

Thank you.


Mimi and Eunice by Nina Paley