EFF is back in fight! Amicus curiae brief in the Hard Drive Productions v. Does 1-1495 case

It is strange even to me that I did not cover this eventful case in a separate post, although it was quite a buzz about it in the comments section.

This case was filed by the troll lawsuit factory Prenda Law. I briefly mentioned it when I introduced a troll Paul Duffy, John Steele’s puppet (Steele pretends to be “retired”, although no one doubts that he is the puppet master.)

Brief history of the case

2011-09-27. The case is filed in a toll-friendly DC district, and it was assigned to a district judge John D. Bates.

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.

During the rest of November many experienced attorneys appear on the case. John Michels of a reputable law firm Lewis Brisbois Bisgaard & Smith LLP appears on behalf of all the Does 1-1,495, but he did not file any motion as of today.

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 All the previously filed and sealed motions would be either unsealed or withdrawn.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 Elliot Alderman’s guest post on the Eric Goldman’s blog.

2011-12-02. Despite the obvious danger of being selectively targeted later, four brave souls decide to go forward and file motions under their real names (1,2,3,4).

2011-12-23. In a similar case (Open Mind Solutions v. Does 1-565: same trolls, same judge) ISP Cablevision refuses to provide names based on the unclear wording of the subpoena. Duffy complains and suggests amending the subpoena order to remove any ambiguity. Instead of simply signing a prepared order, Facciola threatens ISP with sanctions — heavy-handed to say the least. Some people suggest corruption. There is no proof, and I find it hard to believe, but Facciola’s actions indeed look bad, as if he goes an extra mile to please trolls.

2012-01-05. Steele (I use Steele/Prenda/Duffy interchangeably: multiple monickers — same gang) is forced to file replies to those four motions (good: more time trolls waste writing oppositions — less time is left to inflict damage on society — less lucrative the entire trolling “business” is.) In those replies trolls argue that Does were not allowed to file motions to quash, because they are not the parties against which the subpoena was issued; that ISPs are the ones who should file such motions. Kafkaesque situation deepens.

2012-01-11. In a similar case mentioned above attorney Julie A. LaVan files an excellent motion to quash — worth reading and borrowing ideas from.

2012-01-25. Judge Facciola, in some cases assigned to him, issues memorandums questioning jurisdiction and venue. Strangely, no such memorandum was issued in this case.

2012-01-30. Finally! EFF files an amicus curiae brief:

Of course this is not a victory yet: I will update this post as new events happen.


Ha! Prenda opposes, calling EFF “Radical interest group”. What kind of interest, trolls? Huh? I know that you are the interest group, and your interest is money and money only; blinded by greed, you are not concerned that you ruin jobs and families, seed hate.

Also, the timing of this is suspicious — opposition filed the same day as the brief? As if someone has tipped Prenda. Who? Good question. Update: commenters suggest that the entire opposition was written in advance, in premonition of inevitable EFF or ACLU intervention.

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67 responses to ‘EFF is back in fight! Amicus curiae brief in the Hard Drive Productions v. Does 1-1495 case

  1. The Clerk just got caught up today. EFF hit on Friday, and the reply from Prenda came this afternoon. But even with a weekend Prenda sure was fast. I suppose they were/are under the gun to try to fight back. Of course, they missed the mark and didn’t even begin to address the concerns the EFF AB brings up.

    What is most interesting on this, is that the Hon. Judge has yet to rule on any of the 4 MTQs. I would think that he would have to before the Feb 1 deadline…no?

    This case becomes more and more interesting as time progresses. Of course, with me in the crossfire that makes it even moreso.

  2. thank you sjd. Without your site and your hard work, this case probably would have went the way some of the others did. Who knows how it will turn out, but at least the legal system didn’t just bend over again for the trolls.

    With each new case, we seem to be gaining ground and I personally believe your site is a large reason why.

    • I don’t think the legal system is bending over for these trolls any longer… that was 6 months ago.. The trolls(esp. Prenda) are the ones getting bent over by judge after judge in California and the tide is turning in DC now.

  3. Is it worthwhile to bring any of this to the attention of the ISPs? Theoretically, subscriber information is to be released tomorrow; is any of this preventative in nature? Did Facciola ever formally lift Bates’ stay on the subpoena?

  4. I filed a MTQ using the syfert template back in November & now I’m trying to decide whether or not to respond to the Dec. 21st court order to either remove my MTQ & keep my identity anonymous or allow my identity to be revealed & keep the MTQ in place.

    I realize the deadline is tomorrow, I was contemplating overnighting the “Response to court order” form, I just cant decide which box to check, ie allow my identity to be revealed & keep MTQ or withdrawing my MTQ.

    Any advice??? THANKS!

    • Will it make it in time? I think the default is to release it (which wasn’t a good move by the judge). I’d imagine all the MTQs that show up tomorrow are people who did not respond.

      This case is so far from normal, I doubt even a lawyer could give you sound advice here.

      Who knows the judge might dismiss anyone with an MTQ tomorrow, and keep the rest going since he knows they are outside the jurisdiction. He might make an order that Duffy can’t do, and then the case is dead except all the MTQ’s have their info out there. Who knows what he’s going to do.

  5. Oh snap.. Things are about to get interesting. LMAO.. How does it feel to be the dependent now Gibbs.

    RFC Case Number: C-L12-469H
    Court Case Number: 5:12-cv-00469-HRL
    File Date: Monday, January 30, 2012
    Plaintiff: Liuxia Wong
    Plaintiff Counsel: Aaron K. McClellan, Steven W. Yuen of Murphy Pearson Bradley & Feeney
    Defendant: Hard Drive Productions, Inc.
    Cause: 16:3374 Conservation: Complaint for Forfeiture
    Court: California Northern District Court
    Judge: Magistrate Judge Howard R. Lloyd

    • Holy shit I’m reading the amended complaint. Found it on PACER so should be up on Recap now. It alleges that they used an unlicensed PI, set up a honeypot, basically proves that they didn’t even have a copyright at the time of the infringement, sent out coercive letters, yada yada. WOW.

      “This is a civil action seeking declaratory relief based upon the continuing improper conduct of defendants Hard Drive Productions, Inc. (hereafter ―Hard Drive‖) and Does 1-50 in harassing plaintiff and others like her to settle claims of purported infringement of Hard Drive’s purported copyrighted works.”

      This is probably the first of MANY suits to come against HDP, Pacific Century, and all of the other internet porn makers. The next few weeks/months should be a blast. Oh, and here’s a link to HDP’s annual reports for the past 6 years, a long with addresses for all of the…scumbags.

    • I love the stance that the plaintiff takes…HDP is a glorified pimp/panderer and that porn is not copyrightable ahahaha. I LOVE this! Gibbs, you fucked with the wrong person.

      “85. Given the absence of any subsequent en-banc Ninth Circuit decisions, Supreme Court precedent, or changes in the Constitution that copyright is authorized for works which does not promote the progress of science and the useful arts, the subsequent Ninth Circuit decisions are void and do not constitute binding precedent.
      86. Hard Drive’s work does not promote the progress of science.
      87. Hard Drive’s work does not promote the useful arts.
      88. Hard Drive has judicially admitted that its work is adult pornography.
      89. Hard Drive’s work depicts obscene material.
      90. Plaintiff is informed and believes, and thereon alleges that to create the work, Hard Drive and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.
      91. Hard Drive’s work depicts criminal acts and/or conduct.
      92. Hard Drive’s work is not copyrightable.”

      “94. Although Hard Drive in its public present action denies that it does not know if plaintiff is liable to it for copyright infringement, in nonpublic communications, Hard Drive’s position is completely the opposite—that plaintiff is liable to Hard Drive.”

      “97. Plaintiff is informed and believes, and thereon alleges that along with the settlement demand letters Hard Drive and/or its counsel have transmitted, they also included a ―memorandum of law‖ authored by its then counsel John Steele of Steele | Hansmeier, PLLC whose firm name has since changed to Prenda Law Inc. A true and correct copy of the ―memorandum of law‖ is attached hereto as Exhibit B and a true and correct copy of the metadata for the ―memorandum of law‖ is attached hereto as Exhibit C.”

      “100. Hard Drive’s present action, in which it allegedly denies that it does not know who infringed its work is false and mere pretext given its nonpublic actions and conduct as alleged herein.”

      “101. Plaintiff is informed and believes, and thereon alleges that Hard Drive is purposefully avoiding naming plaintiff so that it can improperly conduct expedited ex parte discovery upon plaintiff.”

      “102. Plaintiff is informed and believes, and thereon alleges that Hard Drive is purposefully conducting expedited ex parte discovery upon plaintiff in order to intimidate and to coerce plaintiff into settling with Hard Drive.”

      • Even better is John Steele’s “Open Wireless Defense” memo stating “Open wireless defense is not viable in the courts.” Exhibit C

        Nice try Johnny Boy….

        Re: An Assessment of the Open Wireless Defense

        We have been asked to prepare a memorandum on the viability of the Open Wireless Defense in the context of civil copyright infringement claims.

        The Open Wireless Defense is often considered by defense counsel on behalf of clients accused of illegally downloading copyrighted works via a wireless computer network. In short, the Open Wireless Defense is a claim that a third party surreptitiously accessed a defendant’s unsecured wireless network and illegally downloaded a plaintiff’s copyrighted works.

        Based on an extensive review of applicable case law and secondary materials, we conclude that the Open Wireless Defense has never been successfully used by a defendant to escape liability for claims of direct or indirect copyright infringement. First, proving that a given wireless network was unsecured on a past date has proven to be prohibitively difficult, not to mention expose a defendant to liability for spoliation of evidence. Second, the defense has been rejected by the courts in every context in which it has been raised. Finally, the defense does not trump the “willful blindness” doctrine in the indirect copyright infringement context.

        We begin our discussion by describing the logistical difficulty of proving the Open Wireless Defense. Then, we discuss the treatment the Open Wireless Defense has received in the courts. Finally, we analyze the “willful blindness” doctrine as it relates to indirect copyright infringement and the Open Wireless Defense.

        Proving the Open Wireless Defense
        As its name implies, a key element of the Open Wireless Defense is that a defendant’s wireless
        network lacked an authentication scheme (and was thus accessible by third parties within signal range) on the date that infringing activity was observed on the defendant’s network. According to our technical consultants, it is extremely challenging to prove that a given network was unsecured on a past date – even if a defendant refrained from destroying all applicable network traffic logs. First, most network traffic logs cannot distinguish between authorized and unauthorized traffic. Second, even if a log is able to so distinguish, it is often the case that BitTorrent packets are encrypted and thus not subject to ready analysis. Finally, the cost of decrypting such packets and analyzing network traffic logs in preparation of litigation is often cost prohibitive.

        In addition, although the vast majority of wireless routers are capable of logging network traffic, few individuals bother to enable that feature – even after they are notified of impending litigation. Because of this, the instant such individuals raise the Open Wireless Defense, they invite a spoliation of evidence claim. Courts have not hesitated to penalize copyright infringement defendants for their failure to retain evidence. See Arista Records v. Tschirhart, No. SA-05-CA-372-OG, 241 F.R.D. 462, 466 (W.D. Tex. Aug. 23, 2006). “In this case, defendant’s conduct shows such blatant contempt for this Court and a fundamental disregard for the judicial process that her behavior can only be adequately sanctioned with a default judgment. No lesser sanction will adequately punish this behavior and adequately deter its repetition in other cases.” Rather than wade into the morass of the Open Wireless Defense, courts often simply prevent a defendant from raising it. See Interscope Records v. Leadbetter, No. 03 CV 4465 (DGT/RML), 2007 WL 1217705, at *8 n.8 (W.D. Wash. 2007); Capitol Records Inc. v. Thomas-Rasset, No. 06-1497 (MJD/RLE), 2009 WL 1664468, at *7 (D. Minn. June 11, 2009);

        The Open Wireless Defense in the Courts
        The Open Wireless Defense arises most frequently on motions to suppress evidence based on lack of probable cause. For example, in United States v. Perez, 484 F.3d 775 (5th Cir. 2007), a woman reported receiving an internet message containing child pornography from an individual with the Yahoo ID, “famcple.” The police contacted the FBI, and a subpoena to Yahoo!, Inc. revealed that on the date the child pornography was sent, the transmitting computer used IP address Through a second subpoena to an internet service provider, the FBI determined that the account holder associated with the IP address was Perez. A search warrant was obtained to search Perez’s residence, and child pornography was found. Perez objected to the search warrant, arguing that mere association between an IP address and a physical address is insufficient to establish probable cause. He argued that because his wireless network was unsecured, other individuals could have connected to the Internet through his router and, consequently, used his IP address. The Fifth Circuit flatly
        rejected Perez’s argument, stating that “through it was possible that the transmissions
        originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence.” Id. at 740 (emphasis added).
        In general, federal courts routinely deny motions to suppress based on an open wireless argument, holding that there was probable cause to search and seize defendant’s computers. See, e.g., United States v. Carter, 549 F. Supp. 2d 1257, 1268-69 (D. Nev. 2008) (“[T]he Court agrees that … there would still have remained a likelihood or fair probability that the transmission emanated from the subscriber’s place of residence and that evidence of child pornography would be found at that location.”; United States v. Merz, 2009 WL 1183771, at *5 (E.D. Pa. May 4, 2009) (“The court also concludes there was a sufficient connection between the IP address … and the physical location to which the IP address was linked to establish probable cause to search the physical location.”). See also, United States v. Massey, No. 4:09CR506-DJS, 2009 WL 3762322 (E.D. Mo. Nov. 10 2009);United States v. Hibble, No. CR 05-1410 TUC DCB (HCE), 2006 WL 2620349 (D. Ariz. Sept. 11, 2006).
        The Open Wireless Defense has also been raised by defendants in civil copyright infringement actions. In Arista Records, Inc. v. Musemeci, the defense arose on a motion to vacate summary judgment. No. 03 CV 4465, 2007 WL 3124545, at *5 (E.D.N.Y. Sept. 18, 2007). The court concluded that the defendant’s claim that an unsecured wireless router at his residence could have been used by an outside party to commit the alleged infringing activity was not a meritorious defense and denied the motion. Id. In Capitol Records, Inc. v. Thomas-Rasset, the court excluded expert testimony on the Open Wireless Defense because the defendants were unable to offer sufficient evidence in its support. No. No. 06-1497 (MJD/RLE), 2009 WL 1664468, at *7 (D. Minn. June 11, 2009). In Interscope Records v. Leadbetter, the Open Wireless Defense was similarly excluded. No.
        03 CV 4465 (DGT) (RML), 2007 WL 1217705, at *8 n.8 (W.D.Wash. 2007).

        Secondary Liability and the “Willful Blindness” Doctrine
        The unlikely defendant who escapes liability for direct copyright infringement vis-à-vis the Open Wireless Defense will nevertheless have to contend with liability for contributory copyright infringement. Contributory infringement occurs when a party who, with knowledge of the infringing activity, induces causes, or materially contributes to the infringing conduct of another. Metro-Goldwyn Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
        A defense counsel’s first instinct is to allege that a client is innocent where a client had no actual knowledge that the conduct it engaged in (i.e. providing internet access to copyright infringers) constituted contributory infringement. Before advancing those claims, however, an attorney would be well advised to take a close look at the conduct for which persons engaging in infringing activity have been held responsible. Because the typical wireless router is readily capable of logging traffic, a defendant cannot escape liability by claiming they never made the effort to analyze such traffic. Willful blindness is knowledge. In re Aimster Copyright Litigation, 334 F.3d 643, 654 (7th Cir. 2003); Deep v. Recording Industry Ass’n of America, Inc., 540 U.S. 1107 (2004).Thus, an internet account holder who maintains a wireless network and fails to monitor the traffic on the network is liable for contributory copyright infringement. Id. Copyright law may lead to harsh results, but it nevertheless is the law.

        The Open Wireless Defense is not viable. First, from a technical standpoint it is extremely challenging to establish that a wireless network was unsecured on a past date and if the related evidence has not been preserved then a defendant may be subject to liability for spoliation of evidence upon raising the defense. Second, it has never been successfully used to avoid liability for direct copyright infringement in any court in the United States. Finally, even if it were established that a third party used an account holder’s internet account to illegally download copyright content, the account holder would not be able to escape liability for contributory copyright infringement.

    • Thanks ala! This is incredible! Besides all the obvious brillance in the complaint, I find it hilarious that their settlement offer actually went down as things escalated. By the time she was was involved in one of the fake named cases the offer went down $400. So…I guess being target is actually the economical decision 😉

  6. Wonder how Hard Drive Productions, Inc. feels tonight. I’ll bet Steele’s promises of no risk, no cost, just profit sounded soooo good at the time.

    I’ll bet at some point these guys turn on each other and HDP sues Steele Hansmeier/Prenda for getting them into this mess. No way these guys will have any loyalty to each other when it becomes a matter of survival.

    Super-happy to see their sloppiness with regards to copyright registration came back to bite. I have been harping on this, as it is a problem with perhaps a majority of the HDP cases, especially the ones filed before the second-half of 2011; after that they seem to have become more careful about registration. But there are literally thousands of Does in the old cases that were subject to the same fraud. This may just open the floodgates.

    Maybe if they are lucky, Ms. Wong will make it all go away for a price…

    • I think a little internet popularity directed to his name might help some of these cases die on the vine.

      When these guys realize it’s not like how Steele sold it to them, “just collecting checks”, when they find their name out there.

      I’ve always thought the quickest way to kill these cases is to shame the companies, if it becomes something that ruins companies, the laywers will have no clients. It’s obvious nothing shames the lawyers.

    • Sure, and/or against plaintiffs. The more people invited to the party the better IMO.

      The allegations here are applicable to easily thousands of Does. In the early days of the scam Trolls made basically no effort to ensure the works were registered. Lots of the HDP works were never registered, so every Doe in one of their cases without a valid or timely registration will be able to make the same arguments. Trolls have become more careful about registering works with the recent suits, I guess hoping nobody would notice their past misdeeds, but it looks like their neglicence has caught up with them.

      • The copyright registration is only one issue of from a laundry list. This one basically would kill all prenda cases in California and possibly other states.

        110. That the court issue an order declaring that no infringement has occurred given that Hard Drive had authorized its work to be distributed by its non-California unlicensed private investigators, who are in violation of California Business and Professions Code sections 7520 and 7521, while they were distributing and participating in the distribution of the work, and/or that Hard Drive is guilty of unclean hands due to its and/or its agents’ operation and use of honeypots, and/or the use of a third-party’s services as honeypots;

        • Sure, but I think the registration issue is the most cut-and-dry. The other issues are somewhat more complicated and require interpretation. I fully approve of Yuen going for the Fatality + Flawless Victory, but I think the rest of the allegations will require some work to prove.

          On the other hand, asking for statutory damages without registration is not permitted according to the letter of the law. In some circuits, even filing a copyright action without registration is not permitted. Hard Drive Productions, Inc. with Steele | Hansmeier/Prenda as their counsel have filed case after case after case asking for statutory damages for works that do not appear in the Copyright Office’s registration database.

        • This could possibly kill all of Steele’s cases and open him up to a whole assload of liability not to mention disbarment. If the FBI decided to poke its nose around in Steele’s operation, it may very well come out with a RICO indictment.

  7. I think it’s absolutely hilarious that Steele didn’t see that this whole scam he set up is a giant house of cards. It’s like Enron, only if Enron’s executives announced what they were doing in a press release. You can’t perpetrate fraud like this in the public eye, with this many victims nonetheless, and expect to come out of it doing great. He has got to be the most arrogant, self-absorbed ass of a lawyer on the face of the earth.

      • SJD, we all knew the tide would turn.. It was a matter of time. I am optimistic that if Spero gets this case as requested by Yuen that this is the beginning of the end of Prenda and Gibbs in California. The interesting part right now is that Mag. Judge Lloyd has the case. He basically rubber stamped a bunch of ex parte requests for Prenda in the summer and disappeared off the face of the earth after. He has yet to rule on motions to quash in some of his cases. It will be interesting to see the domino effect this case has on those pending cases if Lloyd stays on the case.

    • I sent comcast a copy of John Michael’s promise to appear on behalf of all does and said they shouldn’t release any information until he is able to appear. I look forward to seeing what happens. Regardless, no more answering the phone for a little while.

    • Apparently, the Doe who hired him wanted the MTQ withdrawn. Screw the other 1472 people involved. I’m just glad that I don’t have to listen to Mark Lutz on my machine since I’m technically represented by an attorney.

    • No, I think the fact that it was entered into the Docket was the error. Obviously, if this would have been a Doe instead of an attorney, that Doe’s information would have just been leaked.

      The clerk probably took one look at it, saw it was from an attorney and posted it to the docket.

  8. Update on the 1495 case.

    Looks like Facciola officially recognized Duffy’s last dismissal of a few people who settled. One more person settled today. No other news.

    Really hoping Facciola does something soon…

  9. so i assume that all of of the recent motions to hit the docket in this case, were a result of not submitting the from provided by the judge?

  10. New posting today, 2 more does settled in 11-cv-01741.

    Still waiting for rulings, they gotta be coming sometime. Is it likely Facciola writes the rulings, or does he hand that off to a clerk?

    Anyone talked to their ISPs lately to verify nobodies been handing over information?

  11. So it seems like everything is still on hold right? Any does here from Steele/Duffy, or Stuffy or call their ISP to ask whether anything has been handed over?

  12. Looks like Mitchell Stoltz of the EFF just filed another brief in this case.

    I haven’t heard anything from it in a while, does anyone know what Facciola has done in any of his other case? I recall him issuing a few very nice looking memorandums, but then everything seemed to come to a halt.

  13. Bad news today. Facciola denied all the motions, does this mean our info is going to be handed out in the very near future? There was an amicus brief from the EFF that Facciola hadn’t ruled on.

    He cites Howell (the DC court’s resident RIAA lobbyist) who is pro-troll but doesn’t mention Judge Wilkins (also DC) anti-trolling positions.

    Write or fax him, making sure he is aware of the split in the DC court.

  14. So I just got a letter from my ISP saying my IP address is involved in this case. So what’s the recent development in this case and what should I expect?

  15. I have also just received a letter regarding this case.

    It is from a “Daniel Goldsmith Ruggiero, Esquire” stating that he has been retained by Hard Drive productions, Inc. to pursue the commencement of the filing of a lawsuit against you for the copyright infringement of the movie.

    It further states that a suit will be filed if I do not attempt to resolve this matter, giving me 10 days to settle for a total of $6,000.

    Any advice on what to do with this matter? Should I consult an IP lawyer, or try to contact the EFF regarding this?

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