Archive for the ‘Press’ Category

This thoughtful op-ed first appeared in XBIZ World and XBIZ.com on 1/16/2014. I’m always happy to hear sane voices from inside the adult industry.

By Q. Boyer

The other morning, a friend of mine shot me a link to a new article on XBIZ.com with the headline “Porn Piracy Defendant Uses 2257 as Weapon” (see story, page 1) and asked me for my take on the news — not so much from a legal perspective (which is good, because I’m not remotely qualified to offer that sort of feedback) but from a public relations standpoint.

What does it mean for the broader adult entertainment industry to have a defendant in a piracy lawsuit use 2257 as a means to attack the rights-holder who has sued them for alleged copyright infringement?

In terms of an immediate impact flowing from this one lawsuit counterclaim, my hunch is that there won’t be much direct effect. If the counterclaim proves effective, even if that efficacy is just making it past the court’s initial consideration without being dismissed, the claim might be replicated by other such defendants – but even that development would only have an impact on other companies currently engaged in similar lawsuits.

What does trouble me, though, is the general state of affairs with respect to the industry’s public relations where piracy lawsuits directed at end-users are concerned — a state of affairs that I think can be quite fairly and accurately described as “not at all good.”

Driven in large part by the swirling accusations of malfeasance directed at Prenda Law and its various offshoots, the practice of adult entertainment rights-holders suing (or threatening to sue) end-users in pursuit of settlement agreements or damages at trial has been very poorly received by the media, and tech-focused outlets in particular. Worse, and far more significantly, the judges hearing such cases have become extremely skeptical about the motivations and tactics employed by the rights-holder plaintiffs, and the legal basis for these lawsuits, as well.

To be fair, not all of these lawsuits are created equal; some of the tactics and strategies that Prenda has found themselves in hot water over are not shared by other litigants and their counsel. The problem is, from a public relations perspective, I’m not sure that distinction matters very much, if at all. Any and all plaintiffs involved in such lawsuits almost inevitably will be put under the same microscope that the Prenda saga has created, and subjected to the same skepticism that has been causing Prenda’s lawsuits to implode in various courtrooms around the country.

The greatest concern here, to me, is that the people paying the most attention to these cases are part of the very demographic the adult industry would like to be marketing to right now: Young, tech-savvy adults who overwhelmingly get their entertainment (adult and otherwise) via the Internet.

Some will say that the only consumers truly bothered by this sort of litigation are ones who would never pay for porn in the first place, freeloaders who frequent the tubes and torrents for their porn, and who are unlikely to ever become purchasers. While there might be a minuscule kernel of truth underlying that assertion, if you look at the broader discussion of the issue, whether it is taking place on blogs, comment forums on tech news sites, or elsewhere, it’s undeniable that the adult industry’s already-questionable reputation is taking another hit over these lawsuits.

Whatever financial benefit there might have been when this practice of exacting settlements from alleged end-user pirates first kicked off, certainly it is no longer anywhere close to a “sure thing” or “easy money.” The cat is out of the bag now, and end-users know that the courts are nowhere near as receptive to these lawsuits as they were with respect to the ones initiated by companies in the music and film industries — efforts that didn’t really play too well in the court of public opinion themselves, but that largely avoided the sort of resistance from the courts that we’re now seeing in cases involving adult content.

Unlike the legal precedents being set in these cases, the public relations impact has potential to reach far beyond the courtroom, and to negatively affect companies that have never brought such lawsuits, and never intend to. The bad press emanating from end-user litigation will be used by some of the industry’s critics to paint us all with the same brush and depict the industry at large as an ethically-questionable, moneygrubbing beast, one that will threaten to embarrass and humiliate our own customers in its unrelenting quest to exploit people for monetary gain.

As such, it’s probably past time that the industry make a serious effort to distance itself from end-user litigation, or at the very least, to distance itself from Prenda and others who have drawn copious bad press through their highly aggressive and legally-suspect methods.

We need to make clear to end-users that we will not use against them the specter of being publicly identified as some sort of “pervert” because they have downloaded our products. While some adult entertainment rights-holders/litigants will protest that the real source of embarrassment here should be that the accused has stolen entertainment media, and not rooted in the nature of the content itself, in this age of rampant piracy of all manner of digital content, the sad fact is that there simply isn’t much public stigma attached to illegally downloading entertainment content — even if that illegal downloading is done knowingly and intentionally.

It’s also more than a bit disingenuous, in my opinion, for the plaintiffs in these cases to say that potential defendants’ sheepishness over being identified as the downloader of salaciously-titled movies isn’t part of what they are counting on when they try to extract a settlement from these people. (Far more importantly, from what I’ve read in the decisions and rulings coming from the court, judges aren’t buying it, either.)

To be clear, there’s nothing wrong with trying to protect one’s intellectual property rights, and in theory, there’s no reason a case can’t be made against an end-user/file-sharer without engaging in skullduggery, unethical practices, or highly suspect legal maneuvering. Unfortunately, in the “post-Prenda” world, I’m not sure that this theoretical possibility matters from a public relations standpoint; the pool has been poisoned, and the rot flowing from the bad apple has already spread to the bunch, so to speak.

Consider these points the next time you are asked by a member of the media whether you or your company support copyright lawsuits directed at endusers. Remember that they aren’t asking if you think, theoretically, such lawsuits could be a good thing, or could be handled ethically and responsibly. What they are really asking you, in effect, is: “Are you with us, or against us?”

A 16-year veteran of the online adult entertainment industry and long time XBIZ contributor, Q Boyer provides public relations, publicity, consulting and copywriting services to clients that range from adult website operators to mainstream brick and mortar businesses.

On August 7, 2012 our very own Raul made a live guest appearance on the Stupid America Internet radio show created and hosted by Jeremy Stillwagner. Raul was talking about… well, you know what he was talking about: copyright trolls, our sites (fightcopyrighttrolls.com and dietrolldie.com), why and how we help to destroy this mob-like “business.”

Regular readers of this site probably won’t hear anything new, but because the target audience of this show most likely never heard about the issue, and due to the host’s and Raul’s efforts, the program turned out to be very informative and easy to follow — “copyright trolling for dummies” I would say.

I recommend downloading the mp3 of this show and listening while driving, strolling or just sitting and staring at the wall. Send the link to your friends — so they would learn about the ongoing unprecedented abuse of the court system; spread the word.

Download this show.

Copyright troll Evan Stone

This is a quick post to break the news. I expect ArsTechnica to come up with a detailed article later today. For those who don’t know who Evan Stone is, read an earlier ArsTechnica’s article “Sanctioned: P2P lawyer fined $10,000 for ‘staggering chutzpah'” by Nate Anderson. “Staggering chutzpah” indeed: although Stone is not active on the porn scene, he did not abandon his greedy habit and currently shakes down anime fans. Not for long, not for long…

Update 07/113/2012: of course ArsTechnica came up with a good story.

Just one quick note. Looking at the following paragraph, I have a warm feeling that this event will reverberate beyond the bridge, under which Evan Stone dwells:

Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars — a tactic that he has employed all across the state and that has been replicated by others across the country.

Why am I so excited? Because it is clear that the Fifth Circuit is aware of the copyright trolling plague and obviously not happy about it: just re-read the quote.

Enjoy the feast of common sense:

Thanks to Steve Glista for breaking the news.

Media coverage

This is a story of a John Doe from Pennsylvania, who was an extortion target in a mass trolling lawsuit K-Beech v. Does 1-78 (5:11-cv-05060) filed by a pornotroll Christopher Fiore. As it happens with any such lawsuit, it was dismissed without prejudice after trolls extorted enough money from those who succumbed to fear, those who did not realize that they were duped by a con artist and virtually nothing would go differently if they decided not to pay. To create a smokescreen of legitimacy and in a hope to wrestle more payments, trolls sometimes file individual lawsuits. So, Fiore filed 9 such lawsuits against IP addresses that were dismissed earlier. Our Doe was targeted in one of those.

Armed with the fact that the truth is on his side, John Doe picked up the fight and filed motions in both lawsuits (mass and individual), and, although the judge sided with K-Beech and denied the motions, finally the troll dismissed this lawsuit with prejudice and moved forward to shakedown fresh meat.

I don’t want to go into too many details, you will hear them. In addition, DieTrollDie wrote a post about this case around the time of its filing: reading the comments to this post, you will get the details of this story unfolding.

Hacker Public Radio is a podcast radio that runs community-contributed shows every weekday, and our Doe recorded a very articulate story about his ordeal. I like it in its entirety, but one particular analogy is hilarious in its precision:

Picture yourself driving in the city at night and you stop at a traffic light and there is a prostitute standing on a corner; and she just turns her head and looks in your car. Just as she does, there is a guy across the block who takes a picture of the two of you, and then later on he gets a hold on you and threatens you: that if you don’t pay him, he’s going to tell everyone that you are soliciting a prostitute, and that may be embarrassing. So, whether you were or weren’t, it does not matter: since he says he has a picture of the whole thing. So, you just give him the finger and say “you don’t have a proof, you just have a picture, that does not prove anything.” But what would your family think if they heard about you involved with a prostitute, or what would your neighbors think, what would your boss think? Or, you just may pay him to go away. And enough people pay: that’s the business model of the copyright trolls.

I hope that those victims who are still confused will find comfort and encouragement to stand against bullies. For a curious passerby who wants to understand the anatomy of the legal plague, which we call copyright trolling, this is a very good introduction. Enjoy!

SoundCloud Listen this podcast on SoundCloud (you can also download it from there).

 

No Agenda fragment about XArt

One of the most recent episodes of “No Agenda,” a popular podcast show, discussed, among other things, the copyright trolling phenomenon. One of two show hosts, Adam Curry, told the story about x-art.com (Malibu Media) and its owner, Adam’s former colleague, Brigham Field and his relations with “mobster” lawyers.

Apparently, it was the first time Adam heard about this legal plague. However, he (as any person who was taught the difference between good and bad by his parents) immediately recognized that it is nothing else but a “Mafioso operation” and that this “business” is ethically wrong no matter how lucrative it is.

There is an interesting bit: the porn purveyor gets only 10% of the collections. Seemingly, Brigham Field and his wife Colette are not really on top of what is going on and simply receives checks from the trolls who use his copyrights to harass citizens into paying ransoms. News outlets, when talking about these cases, often name plaintiffs, but barely mention troll lawyers (and sometimes do not mention them at all). However, such a small cut of the loot a pornographer receives leaves no room for speculation who is the boss.

In addition, Adam mentioned that “they stopped doing this because they thought it is inherently wrong.” I’m not sure if he meant x-art/Malibu Media by “they” at this point: Malibu Media still actively files mass lawsuits across the country; in 2012 alone copyright trolls have filed 144 cases in 11 districts against more than 2000 Does on behalf of Malibu Media (between 2/08/12 and 5/24/12; that’s almost 2 troll cases per working day filed nationwide!)

“No Agenda” has about half a million listeners, so it is great that so many people became aware of the ongoing scam.

I remixed only relevant 7 minutes of the episode for this post, but I encourage you to visit “No Agenda” website: listen to their podcasts and contribute.

SoundCloud Listen this fragment on SoundCloud (you can also download it from there).

 

Thanks to commenters who spotted this news last week, and of course to Adam Curry and John Dvorak.

Here is the list of “mob lawyers,” who keep assaulting semi-random Internet users on behalf of Malibu Media:

I have a question to Bar associations: can someone explain how these scumbags managed to correctly answer questions related to legal ethics during their Bar exams? I bet they were cheating.

Since we broke the news about a game-changing ruling by a New York judge Gary R. Brown, a dozen or so news outlets wrote about this fantastic news, and I’m aware of at least three non-English articles (Spanish, German and Swedish). Good folks from SourceFed, Joe Bereta and Elliott Morgan, brought the most hilarious of all the stories about this groundbreaking event. There is nothing to add or remove. Enjoy and share:

 

This video has 114,000 hits at this moment, and I couldn’t be happier: it is exciting that general public is getting aware about the rampant abuse of judicial system.

One of the readers spotted an excellent paper written by a DC attorney Guity Deyhimy, “Copyright Infringement in Cyberspace – Decoding Strict Liability.” This paper was published in the Journal of the Bar Association of the District of Columbia in May 2011.

This paper questions the notion that a dynamic IP address coupled with a timestamp reliably identifies an alleged infringer. Ms. Deyhimy sees the same problems with the “business model” of copyright trolls as we discuss daily in this blog:

A great number of these Doe defendants would testify under oath that in fact they did not download and have no knowledge of the allegedly unlawful download using their respective dynamic IP addresses. The specter of substantial legal expenses in defense of a proceeding away from home, however, often militates towards an agreement to pay between $1,000 and $3,500, to purchase freedom from prosecution of the case against them.

While a few of this blog’s commenters admit that they indeed shared the files in question, the majority are saying something like: “What is going on here? I haven’t done anything and I’m getting these threatening letters. Can somebody help me?” The high collateral damage rate inherent in the current state of the Internet technology has always been the main concern of my postings (needless to say that I myself was caught in the crossfire and asked the same question). Most of my articles reiterate the same thought: the “business model” built on a questionable evidence and incentive to pay settlements regardless of the guilt is nauseous to say the least.

Thankfully, more and more attention is being paid to the sleazy methods utilized by a handful of greedy attorneys, who inflict tremendous harm on the reputation of legal profession. Given another big problem with copyright trolling — inequality of arms — it is especially nice to see that IT professionals and copyright attorneys loudly voice their concerns.

In my opinion, if you file a motion to quash, referencing this article can bolster your position.


John Steele

Nicholas Ranallo wrote a very interesting article about Steele Hansmeier and MCGIP for TorrentFreak on September 23. I linked to that article many times, but today I thought it would be helpful if I had this article republished here.

One of the reasons: John Steele, a brave pirate slayer, has honored this blog by his appearance in the comments to my recent article about his amicus brief in a VA troll case. Calling the commenters “wannabe lawyers,” he is having fun mocking our ways of fighting his (and other trolls’) scam. But what about taking the challenge of replying to accusations and concerns from a professional IP attorney?

By the way, I saw this article as an attachment to a motion in one of the troll cases and I hope the judge on that case will take his time to read it carefully.

Who is MCGIP (and Why are They Suing for Other People’s Movies)?

Nicholas Ranallo

Our story begins at the IDS tower in downtown Minneapolis, a city known for its wholesome values and that special kind of crazy known as “Minnesota Nice”. Number 900 in this tower is an exceptionally busy place these days as the home office of Media Copyright Group, LLC. MCG is the technology company behind Steele Hansmeier, PLLC, and the affidavit of this firm’s “technicians” have formed the basis of countless motions seeking the identity of IP address owners. It wasn’t the contents of the technician’s affidavit that interested me initially, however, it was his identity — Peter Hansmeier. Hansmeier? Hmm. That name rings a bell.

A look at the LLC filings available from the Minnesota Secretary of State reveals that Media Copyright Group is managed by Peter Hansmeier from #900 IDS tower. Notably, Paul Hansmeier (attorney for Steele Hansmeier) is the registered agent for the LLC. In a way, then, the sole evidence submitted in favor of many of Steele Hansmeier’s subpoenas is a statement by one brother that his other brother really should be able to get this information. But wait, it only gets worse from here.

Media Copyright Group proudly proclaims on their website¹:

“The cost of our services is paid out of the damages that are collected on your behalf. In other words, you do not pay us any money up front, and we are paid only out of the damages that are collected…”

Peter Hansmeier appears then to be more than merely a witness, and more than just a witness and the brother of an involved attorney, but appears to be an interested party to the lawsuit himself. As the website makes clear, the witness against a John Doe defendant does not get paid unless damages are collected. If this alarms you then it’s time to buckle up, because we’re about to take a trip way down the rabbit hole.

At the bottom of the hole is MCGIP, LLC, a Steele Hansmeier plaintiff that has filed multiple lawsuits against hundreds of Doe defendants in the last year. As another peek at Minnesota’s Secretary of State website reveals, MCGIP’s registered office address is #900 in the IDS, the same bustling office as Hansmeiers’ Media Copyright Group. It also lists its c/o as Alpha Law Firm, yet another business registered to #900 in the IDS tower. Notably, Paul Hansmeier’s LinkedIn Profile lists him as “Partner” at Alpha Law Firm. This tangled web has several potential implications and leaves me wondering if MCGIP is Steele Hansmeier’s baby Righthaven, with all of Righthaven’s fatal flaws.

1. “Exclusive Licenses” and Potentially Defective Standing

As noted above, MCGIP does not own the copyrights to the allegedly infringed works, instead acquiring an “exclusive license” for the rights at issue. MCGIP says in its complaints that the work is publicly available, but only to “bone fide purchasers.” In a way MCGIP is right — the works are publicly available. Unfortunately for MCGIP, the works aren’t being offered by MCGIP. MCGIP does not have any web address where its purportedly licensed works are available, nor does it have any website at all. Take the heartwarming coming-of-age tale, “Blacks on Blondes — Mariah Madysinn,” for example. This movie is the title at the center of MCGIP, LLC v. John Does 1–55 in the Northern District of California (3:11-cv-03312). This film is registered to Directech, Inc. d/b/a Dog Fart Productions (keepin’ it classy), but copyright.gov makes no mention of MCGIP, LLC. The video is presently available only from the original owner’s website. Another blush-worthy example is “Well Hung Amateurs 5,” the movie at issue in MCGIP v. John Does 1-18. This situation is even more interesting, and the “exclusive” license even more questionable. This film is registered to Xplor Media Group and again the registration info makes no mention of MCGIP. It appears that this movie was created in 2006, has been consistently distributed by multiple online outlets in the time since, and continues to be available through multiple (apparently) legitimate adult vendors including Spice and Homegrown Video. Copyright.gov notes that the registration date for this movie was in April, 2011, and MCGIP’s lawsuit based on its “exclusive” license alleges infringements in Mid-March of 2011. All of this made the Righthaven alarm bells start ringing in my head, and they haven’t stopped since.

For those who are unfamiliar, Righthaven appears to be doomed by its business model, which relied on purportedly exclusive licenses from the copyright owners that allowed Righthaven to do little more than sue. Sound familiar? In Righthaven’s case, suit after suit was dismissed for lack of standing. You see, copyright law only allows the owner or exclusive licensee of a protected right to bring suit to enforce that right. Righthaven repeatedly failed to convince courts that they had the requisite exclusivity, and the cases were dismissed. Righthaven was sunk. This doesn’t seem like an ideal business model to copycat, but it appears that Steele Hansmeier might have done just that.

The case for MCGIP’s standing doesn’t seem any stronger than Righthaven’s and the status of these purportedly exclusive licenses needs to be scrutinized. It seems unlikely that the actual owners of these movies gave MCGIP the exclusive right to distribute the works, especially in light of the fact that the actual owners and/or numerous internet distributors continue to offer the works themselves. This makes the license seem, by definition, non-exclusive. Some of MCGIP’s filings seem to indicate that they are only the exclusive licensee of the right to distribute the movie on BitTorrent. This would be astounding, if true, and highlights the highly illusory nature of these licenses. A large section of Steele Hansmeier’s filings are devoted to explaining how a single user only exchanges bits of information through BitTorrent, and the entire structure of the network makes an exclusive BitTorrent license ridiculous and potentially impossible. It is a disguised license to sue, and little more. And if MCGIP’s licenses don’t support standing, all of the MCGIP cases should be dismissed and all of their collection efforts should cease.

2. Potential Failure to Disclose Interested Parties

You might be asking yourself, “didn’t Righthaven get in trouble for its litigation practices?” Indeed they did. Specifically (and most pertinent to this discussion), Righthaven was fined $5,000 for failing to disclose that the actual owner of the copyrighted work was entitled to 50% of settlement proceeds from its suits. I have not seen the purported assignments from the owners to MCGIP, but I find it hard to believe that they would give their reproduction rights to a company that does not appear to be in the movie business (but is certainly in the lawsuit business), and failed to retain at least some interest in the outcome of the litigation. What incentive would they have to participate? The Northern District of California Local Rule 3-16 (b)(1) explicitly requires disclosure of:

any persons, associations of persons, firms, partnerships, corporations (including parent corporations), or other entities other than the parties themselves known by the party to have either: (i) a financial interest (of any kind) in the subject matter in controversy or in a party to the proceeding; or (ii) any other kind of interest that could be substantially affected by the outcome of the proceeding.

Beyond the interest of the actual copyright owner, Media Copyright Group is fairly explicit in its own claims to an interest in the lawsuit. If they collect their fees only out of damages (as the website claims), aren’t they by definition a firm with a financial interest in the litigation? Peter Hansmeier’s sworn declarations (which are publicly available from a number of sources online) and the MCG website lead me to believe that they are heavily involved in the Steele Hansmeier suits, yet to my knowledge this interest has never been disclosed in any of Steele Hansmeier’s filings.

The Takeaway

MCGIP has received little to no discussion in the ongoing debate about mass copyright practices. This needs to change. Their entire business model seems to be built on shifting sands, and I’m not sure if anyone has brought this to a court’s attention. Steele Hansmeier has declined to comment on this article.

If you are a defendant, make sure that your attorney is following up on all of the potential angles for your defense. If you don’t have an attorney and you or your case is in California, call me, or visit my website. If you are a defense attorney or anyone else with something to add to this discussion, I’d love to hear from you too. In the words of former Supreme Court Justice Louis Brandeis, sunlight is the best disinfectant, and I’m happy to add a bit of light to this debate. This article now qualifies as attorney advertising.


¹[SJD] As of today (10/29/11), the MCGIP website’s is not available: “Forbidden: You don’t have permission to access this server.” I suspect that the initial publication of this article in TorrentFreak is the reason.

The blog “ACS:BORE”, our British brothers-in-arms, has published an article “Davenport Lyons Two Suspended for “Intimidation” today.

In short, two directors of Davenport Lyons firm, the law firm that introduced the scam called “speculative invoicing” (copyright trolling) to the world, were sanctioned by Disciplinary Tribunal for sending intimidating letters of claim to members of the general public that they accused of file sharing.

This article is a must-read for anyone who follows copyright trolling grand scam, and for trolls themselves.

Earlier these lawyers had both been found in violation of SIX rules of the Solicitors Regulation Authority:

 
(1) Breach of rule 1.03 of the Solicitors Code of Conduct 2007: respondents allowed their independence to be compromised.
(2) Breach of rule 1.04: respondents did not act in the best interests of their clients.
(3) Breach of rule 1.06: respondents acted in a way that was likely to diminish the trust the public place in them or in the legal profession.
(4) Breach of rule 2.04(1): respondents entered into arrangements to receive contingency fees for work done in prosecuting or defending contentious proceedings before the courts of England and Wales except as permitted by statute or the common law.
(5) Breach of rule 3.01: respondents acted where there was a conflict of interest in circumstances not permitted under the rules, in particular because there was a conflict or significant risk that the respondents and/or their firm’s interests were in conflict with those of their clients.
(6) Breach of rule 10.01: respondents used their position as solicitors to take or attempt to take unfair advantage of other persons, being recipients of letters of claim either for their own benefit or for the benefit of their clients.

Torrent Freak also reports on this significant event.

Many, including me, were disappointed by the punishment — £20,000 fine and a 3-month suspension. I’m not hungry for revenge, but in order to have similar scams deterred in the future, trolls should be ordered to pay at least twice the amount they were able to extort from their victims.

While UK celebrates the end of the trolling plague epidemic, the disease is still taking its toll on the US soil. Unfortunately we don’t have an entity similar to UK’s Solicitors Regulation Authority here, and I don’t really know whether the Bar can do similar things, but everyone can contribute to the demise of this contagion:

  • Exercise simple hygiene: ignore threatening letters and never communicate with trolls until named in a suit.
  • If you are named in a lawsuit and served, fight back by denying everything: the “evidence” against you is a pure bluff, trolls will NOT be able to prove anything in court based on this “evidence”, and they have no intention to bring most of these cases to actual hearings anyway.
  • Spread the word. Refer to this and other similar blogs and websites, retweet my twits, email friends, authorities and media.

Please do.