Posts Tagged ‘Hard Drive Productions’


Pornographer Paul Pilcher

Poor sleazeball Paul Pilcher! How many times the owner of an illegal¹ porn studio Hard Drive Productions cursed the day when he met a copyright troll John Steele (Prenda Law) and fell for his sweet promises? While this lopsided collaboration brought some dirty money to Pilcher’s coffers, this extortion campaign had a sizeable downside for the pornographer. Besides bad publicity and the fact that most of the loot ended up in Prenda’s pockets, this endeavor resulted in two countersuits from the victims: Liuxia Wong v. HDP (CAND 12-cv-00469) is now settled, and Seth Abrahams v. HDP (CAND 12-cv-01006) is dismissed by the judge but is currently on appeal.

Today a Minneapolis attorney Scott Flaherty filed yet another lawsuit (MND 13-cv-00380) on behalf of a Minnesota resident Nathan Abshire, who was initially a part of the infamous Hard Drive Productions v. Does 1-1,495 (DCD 11-cv-01741) lawsuit in the District of Columbia. After political games in this corrupt district resulted in unmasking all the Does in September 2012, Prenda started sending ransom letters, and its paralegal Mark Lutz (who sometimes lies identifying himself as “Jeff Schultz”) has been extensively harassing Nathan over the phone:

Hard Drive continued to propose various unacceptable settlement proposals, usually through its counsel Jeff Schultz. Hard Drive’s most recent proposal is a letter dated February 6, 2013. Attached as Exhibit 3 is a true and correct copy of the 2/6/13 Letter.

The complaint asks that the Court issue an order

  • …declaring that Plaintiff is not liable to Hard Drive for copyright infringement;
  • …declaring that Hard Drive’s purported copyright on its Work is unenforceable or invalid;
  • …awarding Plaintiff costs, disbursements, and expenses including reasonable attorney fees as authorized by law including 17 U.S.C. § 505, as appropriate together with interest; and that this Court issue such other and further relief as may be just and equitable.

Litigating with the scumbags is not a pleasurable occupation and the outcome is far from certain (in part because ineligibility of pornography for copyright protection is asserted: expect Marc Randazza on a white horse). Nonetheless, I am happy to see that a former troll victim did not succumb to shallow threats and did not pay up. Neither did he choose to enter an unethical and possibly criminal agreement to defraud the court, but instead he decided to fight back defending his dignity. I hope that he will prevail and will be compensated for his troubles at the end.

 

I had a dream that thousands of lawsuits are filed against those porn purveyors who have been assaulting the society with frivolous lawsuits, which would force them out of business. As for the worst troll lawyers (Steele/Hansmeier and their gang in particular), they went too far and do not deserve such an easy way out; they should be pursued criminally.

Related
Updates

 


¹Production and distribution of obscene material is illegal in the state of Arizona. Nonetheless, since, to the best of my knowledge, this law was never enforced, adult production is flourishing in the open (courts have yet to decide if pornography falls under the definition of “obscene”). Besides Hard Drive Productions, the best known pornographers are CP Productions and Lightspeed Media: all of them have been involved in copyright trolling, and because of the bad publicity and other troubles, I tend to believe that today their owners regret about their bad decision.

It was obvious that a rash of CFAA cases filed in state courts by Prenda con artists — Guava v. Skylar Case (Cook county, IL), Guava v. Spencer Merkel (Hennepin county, MN), and Arte de Oaxaca v. Stacey Mullen (Cook county, IL) — were sham lawsuits that employed the same scheme:

  • Find a poor guy or girl who was “caught” either breaking copyright law by sharing copyrighted material (pornography) using Bittorent protocol, or accessing a pornography paysite using stolen credentials. And by “caught” I don’t mean that his or her IP address was simply recorded by a purported forensic expert, such as Peter Hansmeier and his unregistered, illegitimate company “6881 Forensics,” or Steve “Lightspeed” Jones’ “Arcadia Security” with its few scripts that parse server logs and produce mind-bogging amount of false positives (link NSFW). I mean solid evidence, namely admission of the wrongdoing.
  • Threaten him/her with insanely huge fines and expensive lawsuit that he or she has no means to afford.
  • Offer a deal: this poor chap plays a defendant in a state court lawsuit filed on behalf of a fake company and agrees to sign his consent to subpoena multiple ISPs to unmask thousands of Internet users, whose IP addresses may or may not have been recorded by the fake “experts” mentioned above. As a payback, this “defendant “will not pay anything and will be quietly dismissed later. Judges in underfunded county courts are happy when defendant and plaintiff agree on something, and endorse such agreements, sometimes without reading them.
  • Get the personal information of those thousands, many (probably the majority) of whom are innocent of any wrongdoing, and shake them down using the widely known protocols of harassment, baseless threats and lies.

 

While these “agreed orders” raised many eyebrows (including those of Judge Tailor), up to this point we did not have a smoking gun, and judges don’t like conspiracy theories, no matter how plausible they are.

Things have changed today in a dramatic manner: Spencer Merkel, a “defendant” in the Minnesota case, filed a damning affidavit through his attorney, exposing the brazen fraud:

 

This affidavit has surfaced during today’s hearing on motions to quash. John Steele appeared in person, probably hoping to save the case by dismissing those who filed motions, as he did in Chicago. No luck. Judge Tanya Bransford initially dismissed the complaint on the wrong jurisdiction grounds, but ultimately took the issue under advisement with the caveat that she will probably dismiss the complaint (and I hope will refer the fraudsters to the Bar and AG).

The house of cards built by the crooks (Paul and Peter Hansmeier, John Steele, Paul Duffy, Brett Gibbs, Michael Dumas) suddenly collapsed, implicating both the known scam artists and “defense” attorneys — Adam Urbanzcyk, Bernard Fuhs and Jennifer Dukarski.

The two latter attorneys represent another possibly fake defendant in a federal case AF Holdings v. Ciccone (MIED 12-cv-14442). Apparently, Prenda, not being slapped on the wrist and emboldened by a relative success, decided to pull the same trick on the federal level. I did not report on this, but both DieTrollDie and Rob Cashman did. This case is a hot spot now — after two excellent motions were filed by attorneys John Hermann and Eric Grimm (documents 22 and 33).

Note that I do not imply that two Michigan defense attorneys colluded with Prenda. I don’t have enough information to make such serious allegations. As for Adam Urbanczyk, the benefit of doubt we gave him has depleted long time ago.

Individual vindictive and vexatious Guava cases filed across the nation won’t survive the Minneapolis blast either: Booth Sweet has already filed a request for judicial notice of Merlkel’s affidavit in the Guava v. John Doe case (MAD 12-cv-11880), which I covered recently.

Now the ball is in the hands of Attorney General and FBI. We’ll see if they finally realize the depth of Prenda’s criminal activities and its impact on the society.

Funny fact: sometime next week I planned a post — an appeal to all the three defendants in Prenda’s CFAA cases to go forward and report the fraud upon the court to the authorities (assuming that those three poor souls did not realize that they are on the hook for criminal charges). Prenda’s bottomless greed (mixed with sloppiness) ended up working in place of my planned appeal. It is beyond comprehension why the crooks started threatening a cooperating patsy. Well, I don’t have to write this appeal anymore, which frees up my time to report on a couple of similarly big news (and I have a t least two in the queue).

There is more than one event happened today in the same building, albeit not in a courtroom but in an elevator. But it is a different story. Stay intrigued.

Update

I have just obtained a document that sheds some light on one of the reasons behind Spencer Merkel’s decision to go forward. The fraud was first reported to the court on Tuesday 1/22/2013, when a couple of ISPs filed a joint support document embedded below. It does not add much to what is said above, except maybe a suggestion that Mr. Merkel’s attorney Trina Morrison was not an active participant in the scheme, but was rather fooled by Prenda and initially was not even aware of the fraudulent “deal.”

 

Media coverage

Mark Lutz

Recently I heard too many reports that Steele Hansmeier / Prenda Law / Anti-Piracy Law Group has intensified its harassing calls. And the crook on the other end of the phone line is no one else but previously “retired” (or rather fired — after he foolishly disobeyed his master’s order to move to Las Vegas) Mark Lutz.

These calls are beyond fraud.

  • The caller does not identify himself, which is a serious violation of the FDCPA (yes, some lawyers think that Prenda’s phone campaign can be categorized as a debt collection — albeit there is no debt). I’m sure it is afoul of other regulations.
  • Mark Lutz claims that he calls “from Prenda Law,” a nearly defunct law firm that is not in good standing with the state of Illinois: the beast is changing its skin these days, becoming “Anti-Piracy Law Group¹.”
  • Mark Lutz refers to dismissed lawsuits as if they are still alive, mentioning such “plaintiffs” as Hard Drive Productions, Boy Racer, etc. Especially egregious lie is Hard Drive Productions involvement. Its owner Paul Pilcher is probably soiling his pants every morning, as memories start to kick in after the wet slumbers recede. Memories of the countersuits, citizen activity informing his neighbors and schools about the illegal porn production in his home, and, on top of it, the current FBI investigation of the underage pornography allegations. Will anyone in his shoes even think of initiating a new lawsuit as Mark Lutz promises? Add the fact that Prenda dismissed all the “real” plaintiff cases, leaving only ones that involve questionable, most likely fake (and in any case fraudulent) entities AF Holdings, Ingenuity 13, and Quad International.

     

    When I hear about these threats, I imagine a gang of gas station robbers who just had a successful heist and took all the cash from the cash register, but the ultimate greed made them crawl on the unwashed floor to collect stray coins from under-the-shelf filth.

 

Here is a call that was recorded last week:

Ohai Mark, I hear your voice has changed a little bit (compared to fatter days). Was it a result of a special treatment you received in the Mexican jail? Regardless, if you say “copyright infringement lawsuit” tens of thousands times, it becomes a sound signature that is nearly impossible to forge.

Also, I thought you stated under oath “I do not work for Prenda Law.” I’m sure that Judge Scriven will love to learn that you have committed a perjury. I know, I know: you will say that you worked for Prenda before, then retired, and now you are back to work for the ticket John Steele bough to get you out of hell, that you did not work for Prenda at the end of November, when the hearings took place. Whatever, we will see if your hogwash is capable of convincing anyone.

In the meantime, while Mark is still with dying “Prenda Law,” ransom letters that use a new letterhead have started to arrive:

 

Although this letter is slightly less brazen than its previous reincarnations, it does not pass the anti-bullshit test. As Raul has observed after the first glance,

  • Who are the “engineers”?
  • What are “activities violating computer intercept statutes”?, Note the plural: I thought Prenda was only using the CFAA.
  • The letter incorrectly implies that the recipient is a defendant in a filed lawsuit “arising from these activities.”

 

 

Again, on the surface:

  • “Client’s secured website” is unreasonably vague.
  • Claims are “very serious,” my ass.
  • “Severe monetary damages” is also unreasonably vague.
  • How does Prenda/Anti-Piracy Law Group know a lawsuit like this will cost over 100K to litigate through a jury verdict?
  • The letter poses two questions but does not really answer them.
Update 1

1/25/2013

  • According to comments and personal emails, people receive a lot of such calls, majority (if not all) refers to dismissed cases.
  • There is a couple of reports that while the voice undoubtedly belongs to Mark Lutz, the caller identifies himself (when he identifies himself at all) as Jeff Schultz. I’m investigating this claim and will followup.
  • Some calls reportedly come from 703-272-2013, there is a set of interesting reports about this number, suggesting that the Prenda spoofs the caller ID.
Update 2

02/01/2013

Here is another recorded message. This time the caller introduces himself as “Jeff Schultz,” yet people who have been harassed for a long time by Lutz confirmed that the voice belongs to this putz. Compare yourself:

 

02/15/2013

…and if you still think that Jeff Schultz is not Mark Lutz (of the other way around), here is another recording, this time the caller introduces himself as Mark Lutz:

 

I also heard a story when Prenda’s Harassment officer called himself “Mark” and “Jeff” during the same conversation. Are all the crooks that stupid?

 


¹ While “Prenda” was a rather neutral term (please don’t start the “Pretenda” joke), ironically the criminal enterprise has managed to embed the deceit as a modus operandi in its very name: one simply cannot be anti- its own turf. It’s like if a plumber would declare that he is anti-sewage. Or a lion would declare that he is anti-meat. John Steele does not even hide the fact that he loves the status quo regarding the online infringement: his (now temporarily defunct) Twitter account had a tagline “Just a small town boy who thanks Bram Cohen every $ingle day.”

Hard Drive Productions v. John Does 1-1,495 (DCD 11-cv-01741) is over. It was voluntarily dismissed without prejudice on 12/21/2012 (de factowith prejudice: I will explain below why).

 

The early phase (Judge removal)

This case has a long and controversial history that was a subject of many posts on this and other blogs. Almost a year ago, I tried to recap what was going on with this lawsuit:

2011-11-02. Judge Bates, reading numerous motions to quash the subpoena, seemingly smells the stink this lawsuit exudes and stays the subpoena. One of the predatory features of copyright trolling cases is a Catch-22 situation: court rules require signing motions, i.e. revealing defendants’ names, while the very purpose of such motions is to prevent releasing the names. Judge Bates tries to solve this puzzle and orders Does to file motions under seal; he promises not to reveal movants’ names even if their motions would be eventually denied. This order filled every putative defendant with hope, and an avalanche of motions ensued.

2011-11-16. The case was reassigned to magistrate judge John M. Facciola, and this event raised some brows and created huge discomfort. Rob Cashman wrote a post about it suggesting political games — that judge Bates was removed against his will rather than voluntary referred the case to Facciola.

2011-12-21. Judge Facciola betrays Does’ hopes and issues an order that undoes Bates’ promise. According to this order, no one is allowed to file either anonymously or under seal. All the previously filed and sealed motions would be either unsealed or withdrawn.

The worst part of this order is the fact that the motions would be unsealed by default, if a filer does not request withdrawal. Although ISPs were tasked with notifying all the Does, it is not enough: it is not implausible that some Doe would miss this order, and as such would be betrayed by the court. Unfortunately situation like this is not hypothetical: I witnessed a defendant indeed miss that order and panicked a day before the deadline.

This order was negatively accepted by many IP law experts: for example, read an Elliott Alderman’s guest post on the Eric Goldman’s blog.

Read the entire post for other developments.

Many things happened since then, and I’m not going to list them all: too much work. Nonetheless, if you feel that I missed something important, feel free to suggest (or, better, to write) a chapter.

Judge Facciola awakes from hiatus

Magistrate Judge John M. Facciola

This case was mostly dormant from January to August: Judge Facciola did not issue a single order until 8/13/2012. On this day, he woke up from his hiatus and issued his Memorandum and Opinion, essentially reiterating Judge Beryl Howell’s pro-troll position, including an opinion that considering jurisdiction question was premature. Troll’s extortion vehicle was given a green light, and this vehicle started moving a month later, when Judge Bates returned to the case that he previously “outsourced” to Facciola, and surprisingly put his courage in reverse, allowing ISPs to supply subscriber information to the trolls.

The order that followed denied all the eight pending motions to vacate, quash, sever etc.

On 8/20/2012 EFF (Mitch Stoltz), noting that Facciola is awake, reminded the judge that EFF had asked for permission to submit its amicus curiae brief half a year before, and it was time to consider looking at it (“ripe for decision”).

Judge Bates’s betrayal

From Rob Cashman’s 09/27/2012 article:

As of yesterday, Judge Bates caved in and wrote a scathing order describing in detail how and why Hard Drive Productions, Inc. should be allowed to force the ISPs to hand over the subscriber information for the John Does implicated in this case. In addition, siding with Judge Facciola and Judge Beryl Howell, Judge Bates agreed that internet subscribers have no expectation of privacy for the account information they provide to their ISP.

On the same day, Bates granted EFF’s motion for leave to file amicus curiae brief but denied the very essence of the brief — the request for emergency stay and reconsideration of earlier Facciola’s order.

In the same order, Bates unsealed 16 motions he had promised to keep under seal, loudly announcing that his word was worth exactly half penny from that moment on.

The scam artists filed a motion to strike EFF’s brief on 09/28/2012, basically providing no sane arguments — simply reiterating the same insults to EFF that were spitted in their earlier opposition. This motion was simply ignored.

Do I make my decisions by throwing a coin? Not your business: I am the judge!

On 10/31/2012 a brave defendant filed a letter to the court noting that Facciola issued two 180 degree opposite orders in the cases that were nearly carbon copies of each other. It is notable that this letter was filed at all, but it does not matter: Facciola decided not to answer. Rob Cashman wrote a post about it: Judge Facciola issues a F’You order to one of the defendants.

Disobeyed my order? Not a big deal: try again!

Just before this case was dismissed, on 12/18/2012, Facciola issued an interesting order. He learned that his December 21, 2011 order, directing Plaintiff to notify ISPs about one of his decisions, was blatantly disregarded. His reaction? Sanctions? Order to show cause? Wishful thinking! Instead, he basically told the trolls: “Guys, you disobeyed my order, why won’t you try again? I give you another month.”

Regarding individuals settling on this case

According to the case docket, some (I counted 28) Does were dismissed with prejudice at various times, including very recent occasions (which indicates that they settled). Although the overall number of dismissals is exceptionally low (good news), every time I saw a recent notice, my heart was bleeding: how is it possible for an intelligent person to settle on an out-of-state HDP case, given that an hour of Internet research would have convinced him not to? It is beyond my understanding. There was no way the plaintiff, Hard Drive Productions, would proceed with this lawsuit or file new ones in proper jurisdictions, since it was severely damaged by two counter actions and has been investigated for recruiting underage porn models.

Yet it is a number game: the IQ distribution is normal and the number of defendants (1,495) is big enough. If I insulted someone who had genuine reasons to settle (e.g., a schoolteacher risking to lose her employment), I do apologize, but it is apparent that the majority settled out of intellectual laziness and cowardice. Sorry for being so rude, but I am not angry with them, but rather sad.

Conclusion

Apparent political games in the DC court district resulted in betrayal of hopes that Prenda’s victims had a year ago. In my humble opinion, the mockery of justice that has been taking place in courts is unspeakably more harmful to the society than all the copyright infringements combined. For the sake of the argument, let’s assume that these lawsuits are about solving the infringement problem, not about exploring the law loopholes in order to monetize people’s fears and weaknesses. Even if what trolls say to judges is true, there are alternative solutions to the problem — business solutions, the only viable ones, the only ones that do not trump people’s rights and dignity. On the other hand, when people lose faith in justice, society begins to rot. Not that we live in an ideal society: a lot of unfairness happens on many levels, yet the majority of population genuinely respects judges and does not consider the judicial branch hopelessly corrupt. Yet if one looks closer at some of many DC trolling cases, it is apparent that heavy and shameless lobbying¹ resulted in some judges forgetting about objectivity and fairness and siding with parasites.

The DC district (or, to be precise, one-half of it — a faction led by Beryl Howell) is probably the only unconditionally troll-friendly district today, and Howell’s disingenuous memorandum, a Troll Bill of Trumped Rights, is essentially the only document that scam artists use to justify their tricks. The majority of districts almost unanimously rejected the ideas expressed in this write-up, principally leaving Howell and her faction in isolation. Yet trolls still hold tight on this straw, never failing to refer to it in their frivolous complaints and motions.

Related

 


¹In addition, Beryl Howell allegedly has connections to the porn industry: there are very interesting leads and facts that require time and effort to check and follow through. If I ever dig in this direction, I will certainly publicize my findings as wide as I can.

Prenda Law is an infamous clique of lawyers who file hundreds of mass extortion-like lawsuits against peer-to-peer users who allegedly share copyrighted pornography movies. This outfit has no desire to progress their cases to the actual litigation. Misleading courts around the country, crooks obtained tens of thousands names of suspected infringers and used these names to threaten, harass and intimidate putative defendants (many of whom are absolutely innocent¹) coercing “small”² settlements of $3,400. Prenda Law comprises some creative con artists and managed to deceive judges around the country for more than a year.

Fortunately, more and more judges have grown skeptical and started to deny “fishing expeditions” (orders to ISPs to hand out customers’ information to the predators). Some rulings were subtle, with just a hint of annoyance, some more up to the point. Three weeks ago Judge Howard Lloyd issued a groundbreaking order that was widely covered in the Internet press (TorrentFreak, Arstechnica, Techdirt). In his order Judge Lloyd told Prenda’s Brett Gibbs to mind his own extrajudicial business and to not use (abuse) his court for name-fishing while having absolutely no desire to litigate.

After this unambiguous lashing by Judge Lloyd, Brett Gibbs had an audacity to move for reconsideration (on the same date voluntarily dismissing a similar trolling lawsuit assigned to Howard Lloyd to avoid further embarrassment).

Another interesting document followed this motion shortly. Seemingly, it was filed with the sole reason to move judge to pity. It appears that Gibbs (as well as other trolls) receives anonymous nasty emails from time to time. This is sad, counterproductive, and sometimes very disturbing, yet not surprising: when a troll threatens livelihoods of anonymous defendants in huge numbers (tens of thousands), he is destined to occasionally stumble upon putative defendants who are ethically challenged to an even greater extent than the troll himself is.

Clearly, the person who wrote these emails is a cruel, miserable jerk: wishing death to a person who recovered from a serious health problem is… I cannot find proper words. Such cruelty is beyond my understanding. Still, using such emails to soften judge’s heart in order to sway his decision is not much higher on the moral scale in my opinion.

As TAC noticed, Hushmail has zero tolerance policy for harassment. Meanwhile, there is a week-long gap between those two harassing emails. What does it say? Any reasonable person (especially a lawyer) would complain to Hushmail immediately, and the offending account would be suspended at once. Gibbs did not do it as if he hoped for more threats/nastinesses from that jerk in order to use them to advance Prenda’s agenda. Disgusting.

Looking at Gibbs’s sleazy opportunism, I’m absolutely sure that if he had more serious stuff sent his way (it’s a huge stretch to call the mentioned emails “threats”, although arguably they are nauseous), he wouldn’t miss the opportunity to use them to his advantage. So, if these childish rants are the most serious offenses, Gibbs/Steele most likely simply lie about actual “death threats”.

Thank you both, “John Johnson” and Brett Gibbs, for dunking my head into a virtual toilet: I am going to take a shower ASAP.

Update

6/7/2012

Seemingly Judge Lloyd was not touched by the little boy’s whining: the motion for reconsideration is denied (emphasis is original):

The papers submitted by plaintiff and the statements by plaintiff’s counsel at the hearing on plaintiff’s application for early discovery make it clear that granting the sought-after discovery would not uncover the identities of the infringers.

In what must be a misreading of the March 30 Order, plaintiff in effect seems to chastise this court for sympathizing with, and, plaintiff would argue, insulating infringers from plaintiff’s reach. The court had no such purpose or intent. Instead, it expressly sympathized with the plaintiff and other victims of infringement. It said nothing sympathetic about infringers. It was deeply concerned about non-infringers who, based on plaintiff’s prior use of early discovery in other cases, would almost certainly be caught up in plaintiff’s dragnet aimed at achieving an extrajudicial remedy.


¹My educated guess: 10-15% of targeted Internet users are innocent. Inherent flaws of the IP detection software tools, open wireless networks, human error — a few factors that contribute to this unacceptably high false positive rate.

²To wrestle settlements, trolls threaten their victims with insanely huge punishments — up to $150,000. This statutory maximum was clearly targeted at large-scale commercial infringers, and was written into the law before consumer-level file-sharing became widespread. No sane person would agree that the amount equal to an average American family’s lifetime savings is a fair and balanced punishment for sharing a single smut movie.


Copyright troll
Brett Langdon Gibbs

Anyone, who follows mass bittorent lawsuits, certainly remembers an amusing event when a judge ordered Prenda Law’s attorney, a copyright troll Brett Gibbs, to present a “list of the BitTorrent copyright infringement cases involving multiple joined John Doe Defendants filed Plaintiff’s counsel’s law firm or predecessor firm in federal court.” She ordered Gibbs to ”Identify the case by name, case number, court, and filing date…” and for each case, to indicate how many Doe defendants were actually served.

The reply was amusingly self-incriminating because, while 118 cases were listed, Gibbs famously admitted that “no defendants have been served in the below-listed cases.”

As I predicted, this document was widely used by defense lawyers and even judges to illustrate the trolls’ blatant abuse of judicial system. The document was so damning that when an attorney referred to it in a related case filed by Prenda, trolls freaked out and filed an absolutely frivolous and ridiculous motion for sanctions. However, those stories were already covered in this blog and elsewhere.

There is a slightly different story to tell: a reader has spotted that some of Prenda’s cases were not at all disclosed as ordered. There are two categories of such cases.

1. [Fellinis and Kurosawas of porn] v. Unknown

Being constantly exposed, trolls are forced to invent new methods to conceal their abuse of the legal process. One product of trolls’ creative arrogance is a set of new cases “[A pornographer] v. Unknown.” Complaints in such cases list a single Doe and about a hundred of so called “co-conspirators.” Some of these cases are even misleadingly titled as “[A pornographer] v. John Doe”, while in reality such a complaint lists pages of IP addresses.

The main goal of this novel approach is still the same: to obtain personal data of many alleged file-sharers at the cost of filing a single lawsuit and subsequently harass them to coerce settlements.

These three cases (and maybe others — I did not perform an exhaustive search) were not mentioned in the report at all. Gibbs probably can “explain” this omission: he may dance around the truth claiming that these cases are not among “copyright infringement cases involving multiple joined John Doe Defendants,” but I don’t believe that any judge would buy this weak excuse. A naïve belief that a pure technicality prevents judges (and public) from seeing the bigger picture is simply laughable.

2. Florida’s “Pure Bill of Discovery”

Another set of cases that did not make it to the list is comprised of Florida’s state cases that are based on the antiquated “Pure Bill of Discovery.” Again, trolls may claim that those are not “copyright infringement cases,” and technically they are correct: state courts have nothing to do with copyright, which is a federal issue. Nonetheless, since these cases are based on the alleged copyright infringement, I’m sure that judge Lucy Koh (and other federal judges) would love to know about them and about the fact that Miami-Dade judicial hellhole continues to usurp federal powers and deserves a good slap on the wrist.

When I told my story a year ago, I wrote that “the judicial system is not inherently wrong, but it is very slow.” It took a while before judges around the country started to understand both the goals and the anatomy of mass bittorent lawsuits, and when they did, they liked it not. This is especially true for one of the first districts that suffered heavily from lawsuit abuse by copyright trolls — Northern District of California.


Magistrate judge
Howard R. Lloyd

These days orders denying “fishing expeditions” are not rare events anymore in this and other districts, but the order denying Prenda Law’s application for leave to take expedited discovery (case 5:11-cv-03825-HRL) issued by a magistrate judge Howard R. Lloyd goes an extra mile: it not only lists the usual suspects, jurisdiction and joinder, but describes the very core of the scam. Judge Lloyd writes in the conclusion (emphasis is mine):

…the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do.

This order contributes to the case law getting mature as we speak. I don’t own a crystal ball, yet I can guarantee that this order will be widely quoted in motions, both pro se and written by attorneys, as well as in other judges’ orders and opinions.

 

Taking the occasion, I want to reiterate once more: we do make a difference. Publicity works. When I received a predatory blow in a form of a letter from my ISP a year ago, it took almost a week before I had a clear understanding of the matter and resolved to fight, and I must admit that during that week I seriously considered settling despite being innocent. Today a new victim finds a wealth of information in this, DieTrollDie’s, Rob Cashman’s and other blogs¹ after searching the Web for mere five minutes, and before fear and uncertainty take over him, knowledge kicks in and prevents irrational actions.

I browse many dockets daily, and I noticed that a year ago, notices of dismissal with prejudice that listed dozens of Does at once, were filed pretty often (these types of notices indicate settlement payments), while today I hardly see similar notices, and they usually list just a couple of defendants. This speaks for itself. Trolls constantly change tactics and shop for friendly forums, but these actions yield lesser and lesser results. Everyone knows that the only way to get rid of trolls for good is to stop feeding them, and we are obviously doing a good job starving them.

News coverage

TorrentFreak: Court Kicks Out Copyright Troll Who Has “No Desire To Litigate” by enigmax.

Arstechnica: Copyright-trolls: mind your own extra-judicial business, court says by Megan Geuss.

Techdirt: Yet Another Copyright Troll Case Kicked Out Of Court, With Excellent Reasoning From The Judge.

A Glimmer of Hope : CA Court Slaps Down Copyright Troll by The Alyona Show (video).

Update

Lawyer receives nasty emails, uses them to advance his agenda.


¹Although we, who maintain these sites, deserve some credit, the community is the main contributor to this wealth of knowledge. For example, this news was spotted by a reader earlier today.

“Standing up to a bully, whether some blowhard attorney, or an 8th grader feels good.Try it sometime.”
John Lawrence Steele, from “Even Attorneys Can Be Bullies”, 2008


Steven Yuen

This event is long overdue. We all are aware of Dmitry Shirokov’s class action lawsuit against Dunlap, Grubb and Weaver handled by Booth Sweet LLP, but I did not know about any other offense against copyright trolls… until today. So far, the anti-troll community was purely defensive in courts. The tide may switch its direction soon, and this event is a good omen. We have been hearing that “enough is enough” for too long. Finally, a concrete action has taken place.

One of the Prenda Law’s victims, Liuxia Wong, filed a lawsuit against Hard Drive Productions with the help of one of the best IP attorneys from the California section of the EFF Subpoena defense list, Steven Yuen (an experienced IP litigator, not a divorce lawyer.)

I want to break the news quickly, so I will not do too much analysis of the complaint at this time, but it is a fun read, even a better mood-booster than Steele’s insults to EFF I talked about yesterday. Enjoy.

One last thought before you dive into the pure bliss of reading such a heartwarming text… Righthaven fell apart not by itself, and not even because of “good” or “wise” judges. Messing with wrong people is what predicated its downfall, messing with people who have dignity and do not succumb to frivolous threats, who are ready to fight back.

Exhibits: 1, 2, 3, 4.

What I think would be particularly interesting (and effective) is if Does from across the country began filing similar cases when they received the threatening letters. It’s risky, but Prenda would have to scramble to find attorneys in the 45 states that they are currently threatening people and without licensed attorneys. Something like a Declaratory Judgment day, where Does from all over the country file simultaneously. That would have an effect!

Update 1

02/06/2012

It seems that Brett Gibbs, an eccentric copyright troll, the only Prenda Law’s representative in increasingly anti-troll California, will be defending this case. These guys are so greedy… they hesitate to spend a tiny fraction of the money they extorted from alleged file-sharers on an attorney that could match Mr. Yuen! Or simply they are arrogant and detached from reality… I don’t know. A motion to dismiss amended complaint that was filed yesterday is weak to say the least.

Here is the analysis from the comment section I totally agree with (Raul is of the most active commenters, and his contributions are always up to the point):

The improper venue argument that Gibbs makes is weak in that he is asserting that all copyright infringement actions are governed by Section 1400(a) of the Copyright Act. However this is not a copyright infringement action but one requesting declaratory relief as to the defendants’ agents/employees improper conduct and misrepresentations in the context of a previous and pending copyright infringement action.

Likewise his argument that there is no case or controversy between the parties is also less than compelling because he is arguing that there can be no case or controversy until HDP sues Ms Wong. Again this is not true because even if HDP does not have a case or controversy with Ms. Wong it does not mean that she cannot have a case or controversy with HDP and its agents/employees for their improper conduct and misrepresentations.

Gibb’s last argument is also without merit in that he asserts that Ms. Wong’s lawsuit is duplicative of an earlier filed lawsuit by HDP in which she can assert these claims in the event she gets sued. Wrong; she cannot assert (counterclaim) these claims (improper conduct and misrepresentations) against HDP’s agents/employees because they are not named plaintiffs in the prior HDP lawsuit.

Watch Mr. Yuen maul this pathetic dog of a motion in his opposition papers.

and

One of the problems with Gibbs representing Hard Drive Productions in this lawsuit is that he has an obvious conflict of interest being that he is one of the “John Doe” co-defendants who is alleged to have engaged in improper conduct and made misrepresentations of law and fact to Ms. Wong. An objective attorney might very well advise HDP to consider instituting a third-party action against Gibb and his gang for, among other things, a declaration that these agents/employees were acting outside the scope of their agency/employment.

and

Gibbs representing HDP and the ethical (if not procedural and legal) problems down the road. Ms. Wong’s complaint was, in my opinion, drafted in such a way so as to preclude Gibbs and his gang from answering it insofar as it made the self-dealing/conflict of interest issues central to the lawsuit so that only a moron (IMHO) would represent himself and HDP without the Judge and the Bar Association taking note. But, as we have seen, they have done exactly that… Wow!

Update 2

02/22/2012

As expected, Steven Yuen crashed Gibbs’ silly arguments. Gibb’s claim that “there is no case of controversy” received the following reply:

Hard Drive‘s $3,000 settlement demand to Mrs. Wong is the equivalent of the 3,000 pound elephant in the room that Hard Drive never mentions in its moving papers.

Update 2

02/28/2012

Mr. Yuen discharged the second barrel: another (very similar) lawsuit was filed against the same pornographers (and Prenda). DieTrollDie is covering it. Same claims and a new one: defamation (Prenda Law website used to list 25 individual complaints under the “Top Pirates” header, removed later).

News coverage

Thanks to enigmax (TorrentFreak: You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists) for spreading the news and linking to this post.

Arstechnica: Can porn be copyrighted? One file-sharing defendant says no.