Guardaley | DGW

Copyright trolls must be proud to have Kenneth Ford in their club

Kenneth Ford

ArsTechnica has recently published Nate’s Anderson’s article about Kenneth Ford, one of the most “famous” West Virginia copyright trolls: “How a troubled West Virginia lawyer foisted a Teen Anal Nightmare on the nation.” In my (and most readers’) opinion, this kind of high-quality investigative journalism is the hallmark of Ars’ publications.

I personally think that this article is a must-read for anyone who follows current mass filesharing lawsuits that abuse the law and insult common sense, and for those who care about justice in general.

The article brought a crooked character of Ken Ford to the light. His license was suspended six times since 2006, and numerous complaints were filed against him. Though this particular information was new to me, I was not surprised. Quick cash schemes that disregard ethics have always been attracting all kinds of con artists: IO Group’s lawyers are currently being investigated for security fraud, a Texas attorney has been recently sanctioned for deliberately sending subpoenas to ISPs without court’s approval. Even those who are formally “clean,” have been constantly lying to courts: they often request postponements to serve defendants, complaining about ISPs’ non-cooperativeness, but in reality wanting to buy more time in order to extort as much money as possible. In addition they invent non-existing requirements in ISPs’ Terms of Service, conceal important information, and mislead judges… The list can go on and on.

One of the most hypocritical excuses trolls use is that they “just do whatever is good for their clients,” claiming that they merely do their jobs and earn their bread. Bullshit: I know many lawyers and most of them would never resort to unethical schemes like speculative invoicing, no matter how lucrative these schemes are. There is no need to trump on dignity to earn a living.

I’d like to quote one of the best comments to this article in full.

Mogbert wrote:

This is the kind of thing that scares me. The only way to prove your innocence is by proving a negative. For you to claim you didn’t do it, they want to examine every IP enabled device you’ve owned. If you can’t provide one, then it is proof you are guilty. If you had to restore any of your systems, then you are guilty. If any HDD you’ve owned goes bad anytime between when they claim they saw your IP address and when you go to court, you are guilty.

For a one or two computer house, maybe that wouldn’t be a problem. What if you are a tech head. What if you have thirteen computers, only five of which are actively up and being used? You have over twenty-five HDD not in any given computer, ten of which are external, and three you can’t remember where you’ve put them. You know you have about seven flash drives, but you only know where two of them are, the others are lost, under the bed, or somewhere in the yard after a trip through your pet’s digestive system.

So let me get this straight. You tell me that your infallible system saw an IP address that someone else has said was assigned to my device which was made entirely for the purpose of sharing that IP address with multiple devices, and which uses standard security that I hope hasn’t already been cracked. Then you tell me that either I pay you several thousand dollars or pay a lawyer who will try and prove this negative (civil case, doesn’t need to be shadow of a doubt) at a risk of over a hundred thousand dollars, plus legal fees. But IF I win, there MIGHT be a chance that the judge will ask you to pay my legal fees, and if he does I MIGHT eventually get them from you, if you answer your phone, or I may need to get the lawyer to force it from you again. And at the end of this, I’ve only won the right to not be accused of that one infringement. You can always try again with another movie?

How much longer are we going to allow this to happen? Either some major reform goes on to protect people from this scam, or someone will step up and balance the reward side of this equation with some risk. Either they are going to threaten the wrong guy (which will likely end with an assault/murder charge), or some hacker group out there (MAFIAA, I’m looking at you) will find a way to spoof IP addresses of every major politician, mover and shaker, to every porn torrent in order to show that, NO, an IP address does not constitute automatic guilt.

Too often, these people go up to court and present their IP address as if it is the DNA evidence that seals the case. “You can’t PROVE that you aren’t guilty, but we have proof! WE have an IP address that leads directly to you!” Yeah, however there is no checking. You got that IP address from a company that gets paid to provide you IP addresses. How do we know they weren’t just made up? Some IP addresses went to people that had already died. One went to a printer. If the company fed you a bad IP address, would the system kick it out, or just identify another person down the street? Does that IP address indicate a person, a house, or a 100 yard radius around a WEP protected router? Do I need to prove that someone was parked down the street from my house on the day in question, with a beer can antenna, gabbing some pr0n on his lunch break? How exactly can someone prove they are innocent? Is it like TV where the only way to prove I’m innocent is to find the real culprit and trick him into confessing while an extraordinarily patient police officer waits behind a curtain?

When asked that question in court, the best they could come up with was “There isn’t any way to prove the person is really guilty, the evidence doesn’t exist. However, we have found all the evidence that is possible to get, and so it has to be enough even if it doesn’t prove anything.” This logic is flawed, but was allowed to fly in court. Cases where enough evidence to find someone guilty doesn’t exist should be thrown out, not seen as an proof the person is guilty. That is like saying “Your honor, the accused is a cunningly clever criminal. All of the evidence points away from him. JUST like you would expect from someone so cunningly clever. Therefore, it PROVES that he MUST be guilty! If he wasn’t, then WHY would the evidence point away from him!”

OK sorry for wall of text. I just needed to let that out. I’m done.

“There is no need to apologize,” – many repliers to this comment agreed. I have the same opinion: there is no need to apologize for the same kind of emotions that overwhelm everyone who has taken an effort to learn about this cynical abuse of judicial system. Only uninformed folks or inch-thick skinned cynics would remain indifferent. More and more people become informed and hence outraged.

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Discussion

13 responses to ‘Copyright trolls must be proud to have Kenneth Ford in their club

  1. Thank you for posting this, as I haven’t been to ars for a while and probably would’ve missed this insightful article otherwise. Due to my current situation, this article was especially relevant, since the names U.S. Copyright Group and Kenneth Ford have popped up on my radar recently.
    I’ve always known that lawyers are a dirty bunch, but Mr. Ford seems to take the cake. If I were associated with any of these “copyright troll” cases, I would feel more dirty to be looked at by Mr. Ford than if I were associated with any of the hideous movies they’re accusing people of sharing.

    Thank you, Jane. You’re a great writer, and are doing a great service to the people who really are the victims in these trolling suits.

    • Thank you, although I don’t think I’m that great as a writer. That’s funny – all these scumbags made a nice service to me: I feel I’m much more articulate and able to express my thoughts now, comparing to last year. Parasites have their place in the world’s ecosystem, and though they inflict serious harm to certain organisms, they are not that useless: their victims become sturdier…

  2. Hi SJD,
    I’m trying to figure out how DGW/Kenneth Ford can sue in west Virginia, then in DC, and now again in DC all for the same client and the same film(west coast productions). Ars technica recently featured the case but subsequently DGW filed another case against 1911 does in september. In the previous cases, all were dismissed and doesn’t this mean that rule 41(a) apply (FRCP). I can’t figure out why lawyers, including DGW, nor the judge recognize this. What am I missing? I’m not a lawyer but these federal rules regarding civil procedures are clear, no three strikes. So I’m figuring that there is some sort of loophole that I’m overlooking. Please help as I could use your guidance. Perhaps this may help the unfortunate 1911 does whom may soon get settlement letters or enen those who may be named as a result of the previous DC case (5829 does).

  3. @ittybittybrainy

    These cases are often dismissed “without prejudice” which means they can still file them again.
    If the case was dismissed “with prejudice” its dead stick a fork in it.

    From wikipedia –
    “Within legal civil procedure, prejudice is a loss or injury, and refers specifically to a formal determination against a claimed legal right or cause of action.[1] Thus, in a civil case, dismissal without prejudice is a dismissal that allows for re-filing of the case in the future. The present action is dismissed but the possibility remains open that the plaintiff may file another suit on the same claim. The inverse phrase is dismissal with prejudice, in which the plaintiff is barred from filing another case on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it; dismissal without prejudice is not.”

    https://secure.wikimedia.org/wikipedia/en/wiki/Prejudice_%28legal_procedure%29
    under Civil Procedure.

    I remain…
    TAC

    • TAC
      Thanks for entering into the discussion; however I think you missed the point I was trying to make. I understand the nuance of voluntary dismissal. Rule 41(a) specifically talks about voluntary dismissal by the plaintiff without prejudice. Quoting rule 41 of FRCP,

      “unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal or state court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”

      I ain’t no lawyer but think it says that you got two chances. If on the second trial you dismiss, the matter is settled, ie you don’t get three chances.

      I asked this question to mr cashman who agrees with my perspective(he’s a lawyer in Houston). I’m hoping this may help all those 5829 does dismissed in the second DC case and the new 1911 newly accused does. If you’re one of the 5829 does, why settle? You were not named, were dismissed, rule 41 seems to apply, and if they come after you in your home state you have a procedural defense. What am I missing?

      If you are one of the new 1911 does, should bring this to light, it’s worth a shot. The dc judge really seems to favor the trolls so would be interesting to see how she rules.

      • The case, West Coast Productions vs. Does 1-1911, is for a different set of IP addresses entirely. The dates of alleged infringement are between May/June and August of 2011.

  4. Yes Jim, I stated above that the 1911 does were “new”. This in fact further strengthens my point that rule 41 of FRCP should apply. Does anyone follow me? The responses I’m getting completely miss the point. Seems like the only one I can get traction with is torrentlawyer from another blog.

    • Sorry for not keeping up, mini-vacation, then rush at work… I will start cleaning email and comments backlogs tomorrow.

      You overestimate my legal expertize 🙂 I’m learning a lot every day (in part from commenters and email corespondents.) To be honest, I never heard about “no three strikes” before, so I can’t provide an educated opinion, but I definitely trust Rob.

      Statutory damages are set “per work per infringement” – if I interpret it correctly, a different infringement of the same work counts as a separate suit. So I would speculate that “no three strikes” rule uses the same restrictions. Trolls have to prove that the infringement was different, which is very difficult in my opinion. “The same claim” interpretation of the Rule 41 is the key to understand if it is applicable or not.

      Let me know if you learn anything new about this topic.

      • Hi SJD,
        I will definitely let you know what I learn. My only goal in posting to your blog was to raise awareness regarding rule 41. It seems to me that it applies and I see from mr. Cashmans’s blog that the idea is picking up steam and he has commented on this topic several times. If correct, the new 1911 does and the 5829 does from DC shouldn’t fear a court action. Perhaps if they are faced with legal action and get representation they should raise this issue. If I learn something, I’ll definitely let you know and vice-versa for anyone following this topic. Thank you SJD for having a forum to discuss

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