Posts Tagged ‘Justice Abuse’

A must-follow strategy

Every time I see Nick Ranallo’s work, I want to take off my hat. John Steele, annoyed by too much truth being publicized about his shady practices, labeled Nick as “underemployed lawyer trolling for business.” We know that Steele usually tries to brush off someone’s actions publicly only when these actions seriously hurt Prenda’s shakedown “business.” Therefore, it is not an understatement to call Nick one of the most capable Prenda’s foes: indeed, Nick continues delivering very serious blows to copyright trolls with every new case he defends. Embedded below is a new must-read Motion to Post Undertaking in one of the numerous Prenda’s individual cases, AF Holdings v. David Trinh (CAND 12-cv-02393-CRB) filed by Prenda’s California agent, Brett “Pinocchio” Gibbs.

Basically, defendant asks court to tell Prenda to put its money where its mouth is and deposit an $85K bond. The likelihood of defendant’s prevalence is great, but the likelihood that a secretive offshore “rights holder” will pay quickly and seamlessly in case if it loses is minuscule. That’s one of the reasons why offshore companies have been created in the first place: to make things opaque and difficult for creditors when those companies are eventually ordered to return what they stole from their victims.

This motion is so well written and so compelling that I can’t imagine how judge’s decision can be potentially swayed by Gibbs’s apoplectic opposition that he filed on 10/19. In that opposition Pinocchio has proudly showcased his long nose while calling this blog a “piracy forum.” A troll from Colorado Jason Kotzker labels our forums “anti-copyright”: laughable, but at least Kotzker has guts to post links in footnotes. Gibbs, on the other hand, cowardly cut the URL from his exhibit and did not provide a link anywhere in the motion. This childish fear of truth being learned by judges gives me some comfort, and I don’t want to spend more time discussing the obvious: if someone calls you a camel on the street, you don’t argue — you just raise your eyebrows for a second and move forward¹.

Defendant invokes California’s CCP 1030: I don’t know if similar rules exist in other states, let lawyers stop by and discuss, but if this is the case and most states allow such things, I see Nick’s primer as a serious game changer.

 

Prenda’s new game

I don’t know if this way to secure fair outcome can be invoked if individual defendants are not served, which is seemingly a new Steele’s strategy. The brief history of Prenda Law, which is presented in the Chapter II of Ranallo’s motion, is nearly impeccable and can be included in virtually any motion where Prenda’s “client” is an opposing party. In short, it explains how Steele moved from mass suing but not naming to blindly serving individuals (Gibbs’s own words). What is missing in Nick’s vision of Prenda’s history is the interim strategy. While indeed some individuals have been served, they comprise only a tiny fraction of those who have been named over the last months. So, naming but not serving is the stage of Prenda’s “genesis” that Nick has missed in his otherwise excellent educational field trip.

Look, Prenda recently filed a shitload of cases and promised to file more. It is physically impossible (at least in this universe) to litigate all these cases with a handful of cheap crooks Steele and Co. were able to find across the US. The talk about “representatives” in all states is just a hollow talk a-la Steele: currently two hands are more than enough to count all the local scumbags. Each of them files far more cases than he can even watch, less handle diligently (which leads us to a blatant violation of the rules of professional conduct, but that’s a different story).

Sure Steele and his goons still can make an effort and heave a couple of summons, but what about all of the currently named cases that rot in dockets all over the country? What will they do with this load? What is going to happen when it comes to depositions?

Prenda can’t even organize the complaints on its site, listing unrelated Duffy’s cases together with extortion lawsuits. In another occasion, an individually named defendant has not been dismissed from the underlying mass lawsuit. And this is just the tip of the iceberg: these guys absolutely, positively cannot manage the load they announced.

If you decided to settle (and you know, it upsets me), at least wait to be served. And if you are resolved to fight, just imagine what will happen if everyone files a simple Answer to Complaint denying wrongdoing, but each with an individual twist: the crooks will pop as soap bubbles when they attempt to file oppositions to 100+ Answers.

And, getting back to the topic, what is going to happen if every one of these 100+ defendants requests an $85K bond to be posted?

If you ask Steele, he will tell you a different story: you know him. Don’t be gullible. Don’t listen to him. Don’t listen to me. Simply turn on the common sense and do the 4th grade level math.

Update

10/28/2012

I was pointed to the fact that Morgan Pietz filed a similar motion to furnish security in an individual Prenda/Lihghspeed case back in September, so it maybe unfair that I dedicated lots of praise to Nick and did not mention Morgan. On the other hand, I know that many attorneys, including those two, exchange ideas all the time, and it really does not matter who came up first with a particular approach. What matters is that both Nick and Morgan (and many others) do a terrific job of healing our system from the trolling disease.

10/29/2012

On 10/26 Nick Ranallo replied to an angry Prenda’s opposition with Memo in support of defendant’s motion to post undertaking. Mr. Ranallo, not resorting to emotions, absolutely ignoring ad hominem attacks (kudos for that: for the majority of people — even good people — it’s admittedly not an easy task), calmly and professionally killed each troll’s “argument.” The following quote from the Nick’s response deserves applause. Seriously (emphasis is mine):

Plaintiff argues that Defendant has articulated no need for security in the instant case. However, as recognized by this court, the need for security arises precisely because of the Plaintiff’s status as a non-resident and the difficulty that can be expected in enforcing a judgment against Plaintiff. This need is even more pressing in the instant case, as Plaintiff herein appears to engage in no business beyond the filing of lawsuits.

Plaintiff’s opposition opines that no security is necessary, since Defendant can easily attach any of Plaintiff’s judgments. See ECF No. 21 at 11. There are two fundamental problems with this. First, Plaintiff does not appear to have ever actually obtained judgment against a California defendant. Second, as laid out in Defendant’s original brief and this reply, Plaintiff’s copyright claims are extremely specious and are based on admittedly insufficient evidence. Thus, defendant doubts Plaintiff’s ability to actually obtain judgment on future claims in this state. Defendant likewise expects a long line of prevailing defendants with whom he must compete to attach any judgment that is ultimately obtained by AF Holdings during the course of this campaign. Simply put, Plaintiff is engaged in a highly questionable litigation campaign and would like Mr. Trinh, a victim of that campaign, to place his hopes for recompense on the success of the campaign. Mr. Trinh is acutely aware of the weakness of Plaintiff’s claims, and has no confidence that AF Holdings’ other suits will result in an attachable judgment of sufficient size to satisfy an award of costs and fees in the instant action.

Good news update

11/9/2012

Nick’s motion has been GRANTED! Motion underwent a “haircut,” but still the judge ordered Prenda to deposit $48,000 within 30 days or face dismissal!

 


¹After reading Prenda’s opposition one more time, I’m not so sure about the authorship: despite the fact that Gibbs signed this document, it very well may be John Steele himself — I hear some familiar hysterical notes: “There is no finer opposing counsel than one who declines to research the law,” “Mr. Ranallo would have done well to remember his role,” “His client’s future hangs in the balance. Instead of engaging in cathartic name-calling, Mr. Ranallo should have focused on the legal issues that control his client’s destiny.” “If Mr. Ranallo had spent his time conducting legal research…” etc.

Updates
  • On 11/14 Gibbs filed a motion for reconsideration. Seems that he does not want to deposit a bond, even such a negligible amount as $48,000, especially if he has no doubt that he wins in the end of the day.
  • On 12/7 Judge Breyer denied Gibbs’s motion:

    Plaintiff’s final argument, that the Court’s Order is “inapposite to [the] principle” that the “United States is supposed to demonstrate leadership in promoting the rule of law” is simply hyperbolic. Although the Court recognizes, and recognized in its Order, that posting an undertaking of any real amount is inconvenient to Plaintiff, see Order at 3 (reiterating Plaintiff’s concern that undertaking would bar it from proceeding in any copyright case and concluding that undertaking should be “no greater than necessary”), Plaintiff’s doomsday predictions about the fate of commerce in California, see Mot. at 9 (“many organizations might simply choose to exclude California residents from accessing their businesses”) strain its credibility. Only this case is before the Court, and Defendant has met his burden in this case.

  • On 02/01/2013 a judge on another similarly frivolous (and very active) case, AF Holdings v. Joe Navasca (CAND 12-cv-02396), granted Nicholas Ranallo’s motion to post undertaking requiring plaintiff (a fake entity AF Holdings — a mere facade for Steele & Co.) to post a $50,000 bond. Read this beautiful order by Judge Chen. “Coopergate” maybe was not instrumental in granting Nick’s motion, but definitely played a big role (emphasis is mine):

    […] based on the evidence of record, there are serious questions as to whether AF has standing to sue for infringement because of the “Alan Cooper” issue. Notably, in spite of a declaration from an Alan Cooper suggesting that AF or persons or entities affiliated with AF have fraudulently used his identity, AF has made no effort to provide any evidence to counter the declaration. AF could have, but did not, present a declaration from its own Alan Cooper or a declaration from its manager and/or CEO. As the Court stated at the hearing, even if there was a sufficient transfer for purposes of the Copyright Act, which focuses on proper authorization by the copyright transfer or, not the transferee, that is a separate issue from (1) whether AF has Article III standing in this Court to assert infringement based on claimed ownership of the copyright at issue and (2) whether AF is a real party in interest with capacity and authority to sue. See Fed. R. Civ. P. 17. The “Alan Cooper” issue raises serious questions that remain unanswered.

  • Related
    Followup
    A month ago, KGUN9-TV (Tucson, Arizona) aired a program about copyright trolls. Anchor/reporter Tammy Vo, while talking about a mother of two Jenny Phan, an apparently innocent victim of a local CEG-affiliated troll Wayne Carroll, did an excellent job presenting to the general audience the ongoing rampant abuse of judicial system. Unlike a recent sloppy reporting by a Las Vegas TV station, Ms. Vo did her job diligently, researched this topic deeply, and as far as I know, this rather expressive program had a significant resonance in Tucson and the entire state of Arizona.


    Arizona Attorney General Tom Horne

    To our pleasant surprise, this theme was not closed with that program: apparently, Tammy Vo continued to investigate one of the most shameful “legal” scams in recent history, and, as a result, she interviewed a man who has a real power to put an end to semi-legal extortion in his state: Arizona Attorney General Tom Horne.

    To the best of my knowledge, this is the first time when a state attorney general speaks about this issue. In the video, Tom Horne looks polite and friendly, but what he says in a calm and casual voice must be sending shivers down the spines of trolls and their co-conspirator porn purveyors:

    “I’m not aware of any legal basis for why you would be responsible for someone else’s wrongful acts if they wrongfully accessed your computer” said Horne. He also says that if there was no reasonable basis to believe that Jenny pirated the porn, threatening her for money would be extortion.

    Ms. Vo mentioned a couple of examples when trolls have been preying on the most vulnerable people — immigrants.

    “If they are targeting immigrants, then that would be a bad sign and indicate they’re doing it because the immigrants don’t know how to defend themselves and it could be an aggravating factor for any action” said Horne.

    Hearing that, I couldn’t help remembering a sad story of a clearly innocent immigrant who was conned into paying by California troll Gill Sperlein a year ago. I hope that soon such predatory assaults will not be possible anymore.

    It is difficult to overestimate the significance of an attorney general weighing in on this investigation, even if he would simply articulate his opinion. However, he went farther than that: he encouraged victims to overcome illusionary embarrassment and file complaints — something that I, DieTrollDie, and Rob Cashman have been advocating for a long time:

    The Attorney General’s office would like you to file a complaint with them if you feel that you’ve been wrongly accused of pirating porn. To do that, click here. Scroll to the bottom of the screen to access printable or online complaint forms.

    It is clear from the program that Mr. Horne sincerely was not aware of the problem, and just learned about it. Someone had to inform him: in this case, it was a journalist, but it could very well be any victim. Look, we have been witnessing a Florida Bar investigation of troll Joseph Perea, and this investigation would not start if not for a pissed off innocent Doe, who filed a complaint. And it is just the beginning.

    In order to win, you have to pick up the fight, and in order to secure powerful allies, you should reach them, and you have to be persistent if at first you are not heard.
    Update

    There is a follow-up 8/24/2012 KGUN9-TV story that I overlooked: More threats for Tucson mom accused of dirty deed.

    I would like to bring a new addition to my page “Counter actions against trolls” to your attention. You remember a recently widely covered event, when a pro se defendant Jeff Fantalis fought back in a powerful way, while answering to Malibu Media’s complaint. Likewise, the defendant in Discount Video Center, Inc v. Does 1-29, (Massachusetts District, 12-cv-10805) has also combined his answer to complaint with a set of counterclaims against a few parties: a porn purveyor Discount Video Center, a “forensic” expert Jon Nicolini, and a Mafioso-like troll clan Copyright Enforcement Group.

    Although it has been almost three weeks since this document was filed, I somehow overlooked it. DieTrollDie covered this case in detail:

    Even Marc Randazza crashed the party with his amicus curiae brief defending the copyrightability of pornography¹. Yet no one has pointed out to the following beautiful Answer and Counterclaims prepared by attorney Samuel Perkins (and his colleagues from his firm Brody, Hardoon, Perkins & Kesten) on behalf of Doe 22:

     

    The best part is beyond this document: it is in the knowledge that this offensive is just a beginning. Samuel Perkins, Jason Sweet, and other “troll slayers” are very serious in their intention to end the copyright trolling plague (at least in Massachusetts), and are looking for brave Does, who are willing to serve as plaintiffs in impending lawsuits against Copyright Enforcement Group, its clients and attorneys. You can secure your place in history and improve your Karma if you come forward, and (do I really need to say this?) you will have our infinite support.

     

     


    ¹ I don’t want to look like a tinfoil hat connoisseur, but… did anyone else notice that there are only two trolling cases where defendants fight back by means of counterclaims, and these are exactly the two cases where Marc Randazza intervened with his briefs? There are more than two cases where the copyrightablity of pornography was questioned, but others were ignored so far… Coincidence?

    TAC has pointed to a Slashdot story (reprinted below) of Prenda’s victim, a disabled guy who can commit an irreversible action if we don’t help him.

    Words fail me. You know that I’m a rational person who thinks well before acting. Yet if at this moment any of Prenda’s criminals — John Steele, Paul Duffy, Joseph Perea, Mark Lutz or any of their “local counsels gangsters” — were nearby, I honestly don’t know if I would be able to restrain myself. Read the story below and you’ll perfectly understand why.

    If you are an attorney and willing to defend this guy pro bono or on a contingency basis, reply to him on Slashdot or leave a message here. And please share this story widely.

    Copyright trolls are murderers and must be stopped. The first blood would create a tsunami of public outrage and bury the trolls, but isn’t this price too high? Will we wait to react until this Doe kills himself because of Prenda’s threats and a complete failure of the system to hold Prenda accountable?

    Update 8/4/2012: Thank you all for the overwhelming support! I’m happy that the author is among us and not desperate anymore. Read his comment below. Yet what is going on in this country is not OK. There will be no more “business as usual”: we will make sure that the ground is burning under the trolls’ (and their enablers’) feet. The crooks must be stopped unless it is too late. Read the previous post and be empowered by the example of a single Doe having triggered a Bar investigation. Please don’t be passive.

    Let me say this before I tell my story: I live on a fixed income of SSI and SS for schizoid personality disorder, agoraphobia and so on. I also am not guilty of anything and have never been in trouble in my entire life. I am 28 years old. I am also very afraid. I also apologize beforehand for all the upcoming text.

    I recently received a letter from Prenda Law stating they subpoena’d my ISP (new wave cable) and included my IP and the supposed porn video I downloaded in the letter. I assumed they’re liars and just pulled my IP from a torrent swarm or out of their ass. Either way, they phrased it as “Illegal Pornography” which made my mother assume the worse when I showed it to her and tried to explain what was going on. She didn’t understand that “illegal” meant copyright infringement and not weird bsdm porn (she’s old, she doesn’t know what that is and that it’s not illegal) or worse, CP. They’re demanding $3800 “to make it go away”. (By the way, I don’t live in my mothers basement, I have my own apartment). They were even nice enough to include a paper to put down my credit card information.

    They also threatened to use local law enforcement to seize all of my PC equipment. The day that happens is the day I get my own slashdot article because I’ll be damned if they take about the only thing I get enjoyment from. From what I looked up though they have never been able to pull this off and it would cost them more to do that then what they want for the supposed infringement.

    They just want to scare and embarrass people into paying. I refuse to be shamed — However I do not want to go to court either so I contacted lawyers…and this is where the rest of this little story goes into.

    I went to the EFF site and grabbed a list of lawyers from there, contacting 3 that were within my area — 2 in IL and one in MO where I live. The first one I contacted was from torrentlitigation.com. After explaining my situation he said my IP equaled guilt and paying him $500 he could settle with Prenda Law and get it down to around $2000. I told “Adam” No.

    I am not guilty and never admitted guilt, nor would I ever admit anything. I refuse to pay a lawyer who assumes I am guilty and wishes to just settle. Prenda has continued to call my phone on a daily basis and leave voice mails over and over, sometimes 3 times in a row. By the time I got their first letter I only had a few days to respond before they threatened to get logs from my ISP and take me to court. It is now past that date.

    I contacted the BBB after being suspicious after “Adam” told me I was guilty and he could settle with them for the small, small fee of 500 dollars to him which could be paid with paypal or credit card. They told me to contact the FCC. I did. They laughed and told me to ignore it and to contact the FTC. I did. They laughed told me to ignore it. They also all told me to not ever answer the phone for them or contact them in any way as not to incriminate myself — something I already knew anyways.

    I contacted the Missouri Attorney General. Laughter. Told me to ignore Prenda Law like the others. Everyone said they know about what is going on, but a lot of Judges have no idea about this type of scam. Prenda Law goes from state to state — once they get ran off/found out in one, they start in others.

    I live on a fixed income of social security so if I was summoned to come to court I likely wouldn’t even have the money to make it to defend myself and the judge would issue a default settlement. It was heavily implied by the FCC and AG that some of these lawyers could be in on this (tinfoil hat time) or are just too lazy to fight for you in court.

    I still don’t find it funny. I am not laughing. I feel like I am being harassed and singled out. I do not like being threatened. I receive SS and SSI for schizoid personality disorder, among other things. I get barely over $700 a month to live on. The only thing I have worth anything is my PC, and recently, a S&W .38 revolver. Obviously not to harm anyone but I will defend my property.

    If worse comes to worse I would kill myself just so there would be a slim chance my story with Prenda Law would be heard on the news/internet and more light would be shed onto this scam and others would not have to go through what I am going through. Since I have no money to fight the only way to get my voice heard would be with a gunshot against my head. It sounds extreme but I do not know what else to do but wait and see if Prenda Law just ignores me since I ignored them and they just drop it once they realize I literally have no money. If they happen to try to seize the only thing I have in my life that brings me what little joy I do have I will not allow that. I contacted another lawyer in MO I found on the EFF site and told him what kind of hell they’re putting me through. I told him the above. I thought it was going to be confidential.

    The police showed up at my door a day later. I thought my equipment was about to be seized. I almost painted the walls red with my brains until I realized it was just one cop and he was only checking up on me.

    Since this has began I have been unable to sleep, I’ve stopped taking my medication and I really want to check myself into the Hospital for help. I am afraid if I do that though I won’t be home to defend myself from these attacks on my character. Prenda Law is preventing me from getting the help I require.

    I have no idea what to do, everyone says to ignore it, it’s a scam and so on. I realize this but it still torments me. I am a paranoid person to begin with. Prenda Law is making my life hell.

    I hope someone who has the money to fight takes them to the cleaners and stops these frivolous lawsuits against innocent people.

    Please, mod this up so others know what kind of hell they’re putting people like me through.

    Thank you for reading.

    Update

    David Kerr points to the importance of Section 207 of the Social Security Act. In short, SSDI cannot be garnished or taken under any circumstances (there are exceptions but they deal only with government agencies or child support). Even if a person found liable (which is no more probable than a discovery of a soul in John Steele, i.e. 0.00001%), he is untouchable.

      1. Section 207 of the Social Security Act (42 U.S.C. 407) protects Social Security benefits from assignment, levy, or garnishment. However, the law provides five exceptions:

    • Section 459 of the Act (42 U.S.C. 659) allows Social Security benefits to be garnished to enforce child support and/or alimony obligations;
    • Section 6334 (c) of the Internal Revenue Code (26 U.S.C. 6334 (c)) allows benefits to be levied to collect unpaid Federal taxes;
    • Section 3402 (P) of the Internal Revenue Code allows beneficiaries to elect to have a percentage of their benefits withheld and paid to the Internal Revenue Service to satisfy their Federal income tax liability for the current year;
    • The Debt Collection Act of 1996 (Public Law 104-134) allows benefits to be withheld and paid to another Federal agency to pay a non-tax debt the beneficiary owes to that agency: and
    • The Tax Payer Relief Act of 1997 (Public Law 105-34) authorizes the Internal Revenue Service to collect overdue federal tax debts of beneficiaries by levying up to 15 percent of each monthly payment until the debt is paid.

     

    Also, regarding “They also threatened to use local law enforcement to seize all of my PC equipment.” — this is simply impossible: crooks don’t have this kind of power.

    Despite the involvement of the Illinois Supreme Court, Ligtspeed Media Corporation v. Doe frivolous case is not dead yet. No doubt, Steele’s evil mind and Jones’s arrogant irrationality work around the clock to produce more sleaze to lubricate their way through the law. Yes, not even around, but brazenly through — thanks to one of the most corrupt judicial districts in the US!

    Right before the IL Supreme Court poured a bucket of common sense onto the hot head of judge LeChien, Jason Sweet submitted a motion on behalf of one of the Does. Dan Booth and Jason Sweet don’t need an introduction if you follow copyright trolling cases. To those who don’t know, Booth Sweet LLC pioneered a class action lawsuit v. “fathers of US copyright trolls” Dunlap, Grubb and Weaver, and are currently litigating it rather successfully (yet painfully slowly — not their fault of course). In addition, they filed numerous motions in many courts, and those motions stand out as very thorough and convincing yet very easy to read even for a layperson.

    So… Jason Sweet has appeared on the battlefield with his consolidated motion & memorandum to dismiss. I uploaded the motion yesterday linking it from the Lightspeed page, and readers immediately recognized its high value and strongly recommended writing a quick post in order to maximize the exposure. As one commenter said,

    …The motion does a great job of addressing and debunking each and every claim in systematic fashion (almost surgical if you will). By bumping it up to its own post, it makes it easier for other Does and attorneys to find this great example that potentially affects 6500+ individuals.

    Besides, if LeChien doesn’t dismiss the case or denies every upcoming MTQ next Friday, there are many references in this particular motion that could be incorporated into appeals to a higher court. It’s also a potential template for other Doe defendants to seek dismissal in the unlikely event they get named and served in their own jurisdictions.

    I will refrain from analyzing this motion: first, it is well written and self-explanatory, and second, every detail is equally important, so I advise to read it in its entirety.

     

    Obviously, this community contributed many ideas and facts to this motion, and we are happy about it. Hive intelligence of mostly non-lawyers, combined with sharpest legal minds, results in an undefeatable weapon against crooks.

    Lightspeed’s goon and copyright troll Kevin T. Hoerner blatantly lied to the high court that we are a community of hackers. The following is obvious not only to any sane and independent person, but even to Prenda bozos: law-breakers would never secure such a wide, strong and sincere public support, as this site has been enjoying. Just imagine for a second a grassroots site “Copyright Trolls,” which has amassed 10,000 comments, 99.9% of which are supportive of Steele, Lightspeed and their noble quest against “pirates”, all without registration and moderation. I see you laugh: does anyone still have doubts regarding who is on the right side of history, and who will prevail soon?

    By Raul

    After reading DieTrollDie’s post regarding how troll Leemore Kushner plays loose and fast with Local Rule 83-1.3 by refusing to file notices of related cases with her shitload of Malibu Media lawsuits, I thought it was time to post about a little order which little old me stumbled across recently.

    Federal Judge Otis D. Wright

    The lawsuit is Malibu Media v. John Does 1-10 (12-cv-3623) which is pending in the Central District of California before Judge Otis D. Wright. As is usual with a copyright troll lawsuit, Kushner makes a motion to serve third party subpoenas prior to a Rule 26(f) conference, which, as the judge notes, is typically not allowed (in the context of all civil cases, not just mass BitTorrent lawsuits), but there are exceptions. As all the other trolls, Kushner argues that her lawsuit is an exception to the general prohibition.

    Unlike some federal judges, Judge Wright displays a better understanding of BitTorrent than me. In his findings the judge notes that, amongst other things:

    There are several nuances about the BitTorrent protocol. First, every participant may upload and download pieces of the file. Second, these individual pieces are useless until a user has all of them; the user cannot reassemble the original file with even 99% of the pieces. Third, a user may log on and download just one piece (e.g., a 10kb piece) of the file and then log off, waiting to download the other pieces later or discarding the downloaded piece. Fourth, a user may restrict his BitTorrent software to only download pieces, and not upload.

    In discussing whether to allow the issuance of the third party subpoenas, the judge observes that (all together now!) the subscriber may not be the actual infringer, so “in some situations, the identity of the subscriber may yield the identity of the infringer; in others, the infringer may never be known,” Judge Wright then goes on to hint at how this is all going to end:

    Although the Court is inclined to allow Malibu to conduct this discovery, the potential for abuse is very high. The infringed work is a pornographic film. To save himself from embarrassment, even if he is not the infringer, the subscriber will very likely pay the settlement price. And if the subscriber is a business, it will likely pay the settlement to save itself from the hassle and cost of complying with discovery — even though one of its customers or employees is the actual infringer.

    Returning to his finding regarding BitTorrent, the judge points out that the troll has not put in any evidence that the Does downloaded the entire porno which the judge notes:

    …that Malibu’s case is weak if all it can prove is that the Doe Defendants transmitted only part of all the BitTorrent pieces of the copyrighted work.

    Judge Wright goes on to note that there is no evidence that the Does acted in concert and severs Does 2-10 from the lawsuit. With respect to Doe 1, the judge admonishes the troll (emphasis is mine):

    …though Malibu now has the keys to discovery, the Court warns Malibu that any abuses will be severely punished.

    In other words, do not dun Doe 1.

    Here comes the punch line, and rather than dissect it, I think it is best appreciated as originally put down (again, emphasis is mine):

    The Court is familiar with lawsuits like this one. AF Holdings LLC v. Does 1-1058, No. 1:12-cv-48(BAH) (D.D.C. filed January 11, 2012); Discount Video Center,Inc. v. Does 1-5041, No. C11-2694CW(PSG) (N.D. Cal. filed June 3, 2011); K-Beech,Inc. v. John Does 1-85, No. 3:11-cv-469-JAG (E.D. Va. filed July 21, 2011). These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisance-value check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits. 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.

    Here is the entire order, hope you enjoy it:

    For those who cannot access Scribd, enjoy the order here.

    Happy Independence Day!

    Update

    07/13/2012

    I’m happy to observe that Judge Write’s opinion reverberates all over the country: just noticed that it was quoted in Comcast’s reply to Prenda’s status report in the Hard Drive Productions v. Does 1-59 case (4:12-cv-00699, TXSD).

    By Raul

    On June 27th the Illinois Supreme Court issued a Supervisory Order vacating Judge LeChien’s orders of May 21st and allowing the moving ISPs’ motion to quash. How did this come about and what does it mean? Thankfully, fightcopyrighttrolls.com had been provided with some (not all) of the court filings, which give a glimpse into what took place behind the scenes.

    Judge Robert LeChien

    After monitoring his porn websites beginning in August of 2011, Steve “Lightspeed” Jones (via a Prenda affiliate) filed this lawsuit on December 14, 2011, alleging that “John Doe” and 6,600 “co-conspirators” hacked into his websites and viewed content without authorization. On December 16, 2011 Lightspeed, without giving the ISPs any notice, applied for and obtained an order for the early discovery by way of a subpoenas of the personal info of both “John Doe” and the 6,600 “co-conspirators” (hereafter “Co-Does”). The court also granted the troll’s request to extend the order into Florida. The troll may or may have not properly served all the ISPs with the subpoenas, and some of the subpoenas were defective. The ISPs: AT&T, Bellsouth, Cellco, Centurytel, Embarq, Qwest, Verizon and Wayport filed a joint motion to quash/issue a protective order on March 20th and Comcast filed its separate motion to quash.

    On April 12th Judge LeChien denied the motions to quash and directed the ISPs to notify their subscribers and to produce the Doe and Co-Doe personal info by June 12th. The Judge also ordered the ISPs to advise their subscribers that all of the subscriber’s motions to quash would be heard in his courtroom on July 20th.

    Enough on background, from this point on the sleaze becomes obviously apparent.

    Five days later on April 17, without allowing the attorneys for the ISPs to participate or to even observe, Judge LeChien helps the troll craft the Doe shakedown letter. The shakedown letter is mailed, and inquiries and pleas from across the country begin to roll into the court. Due to this avalanche of inquiries and pleas, Judge LeChien issues an order directing the troll to halt mailing shakedown letters for the time being. You are not going to believe this: in response to that order, on May 7 the troll sends a letter to the court that suggests that the Judge’s clerk instruct any internet subscribers who call in to instead telephone the troll “with any questions” they might have! By May 11 the judge indicates that the shakedown letter was somehow revised and the shakedowns can resume.

    On April 25 the ISPs filed a motion for finding a friendly “contempt,” so they could appeal the judge’s orders in the Fifth District Appellate Court and for a stay in the turning over of their subscriber’s info. In response, the troll (OK: Steele in all likelihood) filed a procedurally improper, lacking legal basis, and harassing motion seeking the court-ordered deposition of the Chairman of the Board, CEO and President of AT&T! A hearing on these motions was held on May 14, at which the judge refused to allow the attorneys for the ISPs to elaborate on their argument that the Co-Doe info is not relevant in a lawsuit against a single John Doe, and that the court does not have personal jurisdiction over most, if not all, Co-Does, and that this court is being used as a tool in a massive shakedown scheme.

    Thus, on May 21 the judge denied the ISP’s motion to qualify to take an appeal finding that the conspiracy theory is legit or in his words: “…the plot was designed to steal and share Lightspeed’s nasty pictures.” The judge also issued another order directing the ISPs to turn their subscriber info over to him for his review. There were no safeguards to prevent the judge from immediately handing that info over to the troll.

    It was at this point that the attorneys for the ISPs made their motion for the Supervisory Order, and as a result, the order directed Judge LeChien to allow the motion to quash. In an attempt to prevent this order, the troll filed his opposition papers, which served up misstatements and some howlers. For example, the troll asserted (zippo evidence) that “John Doe” resided in St. Clair County and is a hacker who is the “worst of the worst” and runs a blog entitled “World’s Biggest Hackers.” Likewise, in a thinly veiled attack, directed at this blog, the troll asserts (again without any evidence) that “the hacking community has targeted plaintiff for retribution.”

    Obviously, the Illinois Supreme Court did not buy it.

    In the end, what this means is that Judge LeChien is basically being told to grant the moving ISPs’ motions to quash as to the Co-Does only. Granted, the non-moving ISP info has gone to Prenda, but I suspect that it is a small fraction of the 6,600 Co-Does identified by T.H.I.E.F ver.2 (Jone’s forensic computer program to identify alleged hackers). What this means is history has repeated itself. Like in the case of Lightspeed’s teaming up with Steele in the BitTorrent troll lawsuits of 2010/2011, a lot of work and energy has gone into launching this massive troll enterprise, and it is quickly falling apart. Neither Prenda nor Lightspeed are going to reap the riches they must have initially envisioned. Karma, Baby!

    SJD: Raul gave a short overview of what can be found in the attached documents. However, there is much more there, and I hope that all the dirt, lies and greed will be exposed by mainstream press in the near future.

     

    Documents

    11-L-0683 12/14/2011 LIGHTSPEED VS JOHN DOE

     

    Relevant posts:

    This is huge.

    As ArsTechnica reports today, on June 27th Illinois Supreme Court nixed the latest porn trolling scheme brought forward by infamous copyright troll John Steele (Prenda Law) in conspiracy with pornographer Steve “Lightspeed” Jones.

    We reported on this lawsuit more than once, trying to bring attention to this blatant abuse of justice:

    Federal judge Lynn N Hughes

    Remember how Texas judge Lynn N. Hughes lashed copyright troll McIntyre over his sloppiness (and, although judge never said it explicitly, douchbaggery)? Remember an amusing line “The court is not an ex-girlfriend’s Facebook wall” that went mini-viral (retweeted by many famous tweeps)?

    After obtaining some information about Does from ISPs, crook McIntyre was getting ready to send out blackmail letters, and, to avoid further scrutiny, tried to silently dismiss the case without prejudice on 5/25/12 — a normal troll modus operandi. Fortunately for Does, judge noticed that, and, clearly understanding that his court was cynically used as an instrument of extortion, issued an unprecedented order:

    The case was finally dismissed on 6/15 as McIntyre wanted, but with prejudice by judges’ order, and the troll was left empty handed. Kudos to judge Hughes, I wish all federal judges were as straightforward and intolerant to abuse as he is. I’m puzzled though: why wasn’t McIntyre slapped with sanctions?

    To those who can’t read the embedded document:

    Case 4:11-cv-04431 Document 21 Filed in TXSD on 06/08/12
    First Time Videos, LLC, Plaintiff, versus Does 1-46, Defendant.

    Order to Prevent the Misuse of Discovery

    First Time Videos sued 46 Does then used pre-trial discovery to search for actual defendants. After it had obtained the personal information of 15 people, it did not tell the court what it had discovered or how it had used this information.

    First Time has abused its opportunity for discovery. It has insufficiently cooperated with the court and now wants to abandon its claims without explanation.

    It may not use the information it has received; it must destroy it.

    Signed on June 8, 2012 art Houston, Texas

    Lynn N. Hughes
    United States District Judge

    By Raul
    Disclaimer: This post in a way constitutes legal advice but is being submitted for discussion purposes only.

    Since my last post regarding this matter, Does have been receiving letters from their ISPs and have been raising questions and concerns, which this post will try to address. Please keep in mind: a lot of this is based upon pure speculation and certain assumptions, which may prove to be incorrect, so be forewarned.

    Before I start, I want to remind the rule #1: never talk to the troll! You may want to consider the “Richard Pryor Response” advocated by DieTrollsDie, but do it only if you clearly understand the perils, and exercise the utmost caution.

    Q. I just received a letter form my ISP. What should I do?

    This is a difficult question to answer because it depends upon your particular circumstances. As it will be discussed below, the odds that you will be named and sued in a state court are slim. I do not think that Does’ pro se motions to quash the subpoenas are working at the state level in these lawsuits. Please let us know if I am wrong. So if you are strapped for cash, can withstand some harassing letters, emails and, possibly, some phone calls, just sit tight. On the other hand, if you can afford to retain counsel who can file a motion to prevent or delay the release of your personal identifying information, do so. An attorney by the name of Celestine Dotson, whose number is (315) 454-6544, has appeared on behalf of at least one Doe in St. Clair, I don’t know anything about her, but I hope she is competent enough to make a difference, we’ll see. Likewise, the Electronic Frontier Foundation maintains a list of attorneys offering assistance with these kinds of lawsuits.

    Q. What are the chances that I will be named in a lawsuit and served with a summons and complaint?

    Very slim indeed. LMC’s Steve Jones has indicated that they have identified 6,500 Does as targets. Obviously, they are not going to sue that many individuals. However, a commenter (presumably John Steele) over at dietrolldie.com has boasted that he recently spent $4,000 on process servers (the people that hand you the summons and complaint). I find it remarkable that none of these served individuals have shown up at this blog or at dietrolldie.com yet. Nonetheless, assuming that figure is true, it means that Prenda has (or plans) to name and serve approximately, at the most, 65 Does or 1%, merely to help spread FUD. Consequently, your chances of being named and served hover at or below 1%. Prenda has associations or affiliations with trolls in FL, IN, VA, DC, TX, and CA. So your risk is slightly increased if you reside in those locales.

    Q. In the unlikely event that I do get named and served, how will it play out?

    In answering this question I am relying on the assumption that Prenda knows its Lightspeed complaint is largely garbage that will not withstand a careful judicial review, so it will drop those lawsuits in which such a review will occur. As I commented earlier, I think the rough parameters of Prenda’s Master Plan are:

    1. Get Doe info out of both St. Clair and Miami-Dade cases.
    2. Send extortion letters to the 6500 Does.
    3. Name and serve a very small percentage (at the most 1%) of Does in those state courts where Prenda has attorneys to spread FUD.
    4. If a named and served Doe retains an attorney and will not settle, Prenda will drop the lawsuit either before or at the time the Doe’s attorney interposes an answer or motion to dismiss.
    5. If a Doe does not retain an attorney, does not settle and does not put in a pro se answer or motion to dismiss, Prenda will wait 30 days and move for default. Get the default and shout it from the rooftop to spread more FUD. Prenda will have a hard time getting a sizable default judgment because Lightspeed’s damages are small ($40 ballpark plus court costs which would be less than $400 IMHO for a total default judgment).

    Q. What is the Statute of Limitations for these various claims?

  • 2 years for the CFAA claim.
  • 1-4 years for the conversion and unjust enrichment claims; depending on the state, with most being either 1 or 2 years.
  • Civil conspiracy is a damages theory that needs to be tied to a wrongful act and the Statute of Limitations controls that wrongful act. In this case the theory dovetails with the conversion claim and the unjust enrichment claim, so the Statute of Limitations would be in the 1-4 year range.
  • 2-6 years for the breach of contract; depending on the state where the suit is filed.
  • The Statute of Limitations is working against Lightspeed and Prenda. This is because in the same ynot.com post Steve Jones indicated that he started compiling the list of alleged hackers back in December of 2010, and for those Does the Statute of Limitations began ticking away as it would for subsequent Does, once their IP address was discovered. So, say, you live in a state where the Statue of Limitations is 2 years for all the claims being asserted in Lightspeed’s complaint, and he discovered your IP address on December 10, 2010, which means that Lightspeed’s complaint against you will be time barred by the Statute of Limitations on December 11, 2012. With 6,500 Does to harass and threaten you can easily see how this becomes problematic as the trolls race the calendar.

    Q. Why do you think the breach of contract claim is especially moronic?

    For several reasons, but the main one is that the complaint alleges that unlawful hackers violated the membership agreements of its websites. The complaint can’t have it both ways: either the Doe is a unlawful hacker or the Doe is a member who breached the membership agreement, but the Doe cannot be both.

    Best of luck to all the Johns and Janes out there!


    ¹Pay attention to the address where deposition is set to take place: this is the official Prenda Law headquarters (a.k.a Troll Central).