Prenda
Copyright trolls have been abusing Florida’s ancient “Pure Bill of Discovery” for too long. Enough is enough – says judge (update: …and than takes his words back).
Update: Bad news
It appears that judge Schumacher vacated the order that caused so much excitement. I apologize for delivering false hopes. At the same time I’m rather angry than apologetic. I broke the news based on an official order posted on an official website, after reading a comment from an attorney who is involved in this case… and if a lazy judge signs something without reading it and then sees nothing wrong in saying oops, I’m out of words…
So the original article below is based on false information. It does not affect my opinions and conclusions. Everything that was written in that order is true: I know that, you know that, trolls know that. Florida laws are brazenly abused, and judges allow that. Shame on them.
I still believe the house of cards that trolls have built will fall miserably, it’s just a matter of time. Meanwhile stay strong, don’t succumb to fears and don’t feed the troll.
Thanks to Danny Simon for keeping me informed.
ArsTechnica has a nicely worded explanation of what actually happened:
After we ran this story, we received word that the order we reported on has been vacated by Judge Schumacher. Ars Technica talked to Kubs Lalchandani, an attorney at the law firm of Lalchandani Simon, which represents defendants in copyright troll cases and has been involved in this case. He told Ars late on Wednesday that the order we reported on had been drafted by one of the defendants in the case. Because Judge Schumacher mistakenly believed that the order had been agreed to by both sides in the case, he signed off on it without (apparently) reading it carefully. When Schumacher discovered his mistake, he vacated the order.
Over the last year, Florida became an Eldorado for copyright trolls. Some ethically challenged lawyers found a local loophole — so called “pure bill of discovery”, an ancient law that allows plaintiffs to petition local courts, so ISPs would be compelled to unmask Internet users who allegedly shared copyrighted material (mostly pornography) over peer-to-peer networks. Since copyright is a federal matter, infringement cases cannot be litigated in those local courts — an ideal situation for trolls, who needed exactly that: nothing more than learning identities of users for subsequent racket. It is not plausible that today anyone capable of a quick research can be fooled by trolls’ threats of costly and uncertain litigation, especially after revelations like this.
Two major trolls explored this loophole: M. Keith Lipscomb and Prenda Law. The latter is a John Steele’s outfit that has supposedly moved to Florida from Illinois: so lucrative the extortion business was in the sunny state!
And indeed, judges rubber-stamped orders to ISPs to hand out their customers’ information to trolls without much resistance, and crooks’ phones were hot from threatening calls. Those victims who succumbed to unsubstantiated fears sent thousands of dollars to the con artists, and anonymous motions to quash were denied. John Steele ecstatically wrote in this blog’s comments:
Spin Spin Spin.
Almost every judge in America denies those stupid MTQ’s.
Hmmm, state court seems nice . . .
The abuse was so clear and so blatant that any sane person who heard about it shook his head in disbelief. Fortunately, it turned out that there are many lawyers in Florida who care about their profession’s reputation, and thanks to their efforts, judges finally started to see that their courts were abused and to realize the cosmic proportions of this abuse.
And at last… judge Marc Schumacher issued a no-nonsense order, calling trolls by their ugly names. He ruled that “pure bill of discovery” cannot be used for copyright trolling, dismissed one Prenda’s lawsuit (Boy Racer v. John Does 1-615) with (!) prejudice and created a precedent that is very hard to overestimate:
Lawyer’s opinion
Richard M. Viscasillas, Esq. helped many Does to protect their identities from racketeers. When I almost finished writing this article, Richard posted an excellent comment, and since I simply cannot describe the situation better, I copy the entire comment here. Thank you, Richard!
Miami Dade Circuit Court Judge Marc Schumacher has just unleashed the equivalent of a 9.0 magnitude earthquake in the Boy Racer v. John Does 1-615 case in his March 20, 2012 Order on Plaintiff’s supplemental Motion to Strike all pending motions objecting to the subpoenas as Moot!
Perhaps not being lawyers most of you do not realize the significance of this ruling. Finally one of the Circuit Court judges being bombarded with these frivolous “pure bill of discovery” lawsuits has reviewed the merits of the Motions to Quash filed by myself and other attorneys as well as anonymous John Does in these State Court Cases and spoken loudly and clearly in dismissing with prejudice the Boy Racer case against all 615 John Does on the basis of the court’s lack of Jurisdiction.
When I saw Judge Schumacher’s recent 3/7/11 Order striking all anonymously filed MTQ’s, I notified everyone on this board that yet another Circuit Court Judge had invoked the technicality of requiring all pro se litigants to have to deal with the Hobson’s choice of either divulging their personal information on their Motions (which defeats the purpose of filing a MTQ) or face having their MTQ stricken from the record. Consequently, to have a chance to maintain your constitutional right to anonymous free speech on the Internet you had to retain an attorney to shield your identity.
This latest Order by Judge Schumacher is now the only precedent in the 11th Judicial Circuit that I and other attorneys will be invoking to get all pending cases by all Plaintiffs dismissed with prejudice. This is the proverbial “shot heard around the world” that may just spell the end of all the “pure bill of discovery” troll lawsuits in Miami-Dade County, Florida.
The Trolls have to be in an absolute state of panic right now, similar to the NDF Fiasco involving Teryk Hashmi’s unlicensed practice of law and the 27 troll lawsuits he filed. Not only is this case dismissed with prejudice (which means they cannot refile) but all of their pending cases in the 11th Judicial Circuit are now at risk of being dismissed with prejudice. Not to mention that all the ill begotten gains they extracted from the unsuspecting John Does who paid them could now be subject to a class action lawsuit for their recovery.
I have been stating over and over on this blog that the biggest obstacle to getting to the root of these cases is the troll’s tactic of dismissing John Does from the case to avoid the judges from having to make rulings on the merits. I was planning on attending the ex-parte hearing that the Trolls set once they first file these cases to try to challenge the issuance of the subpoena in the first place to get around their tactic of dismissing to avoid having hearings.
Finally one of the Judges has reviewed the MTQ’s filed by myself and the other attorneys and taken a stand which comports with due process and is not an abuse of discretion. I commend Judge Schumacher for taking the time to analyze the issues we have been raising on behalf of the John Does and doing the right thing.
I will be forwarding this Order to all clients I represent in these cases and will be filing Amended Motions to Quash citing this ruling in order to obtain dismissals with prejudice for not only all the clients I represent, but all the other John Does in those cases who didn’t have representation.
This is not only a major victory for the 615 John Does in the Boy Racer case, but also a major victory for freedom of speech on the Internet and everyone’s constitutional rights. I suspect that Mr. Perea will be taken to the woodshed by his troll colleagues for being the cause of the downfall of their little niche of abuse they carved out in the State Court’s solely to avoid having to deal with the more rigorous federal Court Rules and negative precedents. His belated attempt to try to get the Court to strike all pending MTQ’s objecting to the subpoena as moot only aggravated the Judge who called a spade a spade quoting the Federal Judges who label these lawsuits “fishing expeditions”.
Hopefully this is the beginning of the end of their business model of abusing the legal system in Miami State Courts like they have been doing in the federal courts.
Coverage
- ArsTechnica: Copyright troll smacked down again after fleeing to Florida
- TorrentFreak: Judge: BitTorrent Downloads Are Protected Anonymous Speech
I’m sorry I was (unintentionally) a source of faux news for these two articles. Both have been updated.
Fight © Trolls 
Your post was nothing less than beautiful and I am sure a sign that these assholes will return to litigating nasty divorces which is where they belong..
Come on Johnny Boy talk to us! We want to hear how you are winning!
This is great news for myself and the other 614 Does in this case. Thanks to this site for the continued education of people who would otherwise succumb to these scumbags. Thanks again for all your help!
It is situations like this where it is clear that SJD and DTD are making a diffeerence. Oh in case I forgot “fuck you ass sucking troll”
Its great to see news like this. These scumbag trolls have had their way with the justice system for far too long already and it is no doubt that great people like SJD and DTD, along with the EFF and several other dedicated and generous people, are greatly responsible for the progress that has been made against the trolls so far. Everyone involved owes these guys and gals a huge debt of gratitude for their selfless contribution to this fight. Thank you SJD and DTD, and everyone else that has contributed.
But I wonder what they have up their sleeves next. Just when you think the Trolls have been banished back to the bridges, they sneak out with something new.
Bad troll, Bad.
As our British brothers-in-arms precisely put it, Speculative invoicing or “Copyright Trolling” really is the “Turd that will not flush”
So if this ruling effectively shuts down the pure bill of discovery approach that trolls use in Florida state courts (let’s pray it does), what might we expect next? I surmise that trolls aren’t going to want to exit the “monetization of piracy” business, and my hunch is that they will turn their focus to the Federal courts.
Even though Federal courts have been growing increasingly inhospitable to the trolls, Federal court is the only other game in town so to speak if you desire to engage in copyright trolling.
Might we expect a rise in the number of cases filed in Federal courts?
I am also quite upset that this ended up being a case of lazy justice (well, lazy “injustice”), but I also read the order and pretty much agreed with 100% of what was in it. I *DO* think that sooner or later a judge *WILL* write such an order, and perhaps they should consider using this one as a template.
To answer Anonymous’ question, as soon as these state-based “bill of discovery” loopholes are closed, the plaintiff attorneys will need to resume suing defendants in their home state’s federal court.
If they want to continue this racket of suing out-of-state defendants in courts which do not have jurisdiction over those defendants, they have many states still to move to, and 1-4 federal courts in each state (Northern District, Southern District, etc.).
***BREAKING NEWS***
DON’T KILL THE MESSENGER!!!
I spoke with the guys at Lalchandani Simon today and got some disheartening news. They said the recent order dismissing the bill of discovery in the Boy Racer case has been vacated. There was some mix-up in chambers where the court thought that it was an agreed upon order but it had actually been submitted by a single John Doe’s attorney. The order has been vacated. I know the Lalchandani Simon defendants were dismissed. Everyone else who was a Doe in this case needs to contact thier lawyer to see what their disposition is. For those of you not represented yet in ANY of the FL “troll” cases, please call a lawyer to discuss what this poor turn of events means for the “Doe” Community. If I get any paperwork from my representation on this I will post it here. Again, please don’t kill the messenger. You all deserve to know what is going on so you can protect yourselves accordingly!!!
I’m aware of this. Nonetheless I don’t see any updates on the Miami-Dade County Clerk’s website (enter “2011” – “29024” – “CA” – “01” in the search boxes), but there can be a delay. If this is true (my doubts don’t imply misinformation, rather misunderstanding), I will amend the post accordingly and apologize for giving false hopes.
Again, I hope we have some misunderstanding here, therefore I’m holding the update until I see the vacation order with my own eyes. Reading this order again and again, I fail to comprehend how miscommunication between lawyers can result in such a strongly worded and well researched order.
Meanwhile ArsTechnica posted an article about this event (referring my article) and there is quite a stream of tweets about it.
You are absolutely right. I had a mild heart attack this morning when I was talking to Danny Simon at Lalchandani Simon. He assured me (about 8 times) that this was new info in the case and to get the word out to the other “Does”. Please don’t take my word for it, feel free to call them to discuss it. I asked for a copy of the order to post and I should have it by tonight (although not sure how to post a pdf on here). I also checked the clerk’s site as well this morning and was assured there is a delay in the dockets posting. Feel free to Call Danny or Kubs at (305) 999-LAW1. I hoped it was a mistake too, but it appears that as fast as it was signed, it was vacated. I was really hopeful that this was the death blow to the trolls…
More to follow, please let me know how to post a pdf as well so I can share it once I receive it.
Just send it to me. Once again, my delay is not the sign of disrespect to Lalchandani & Simon, I’m just being cautious. Also, posting a vacation order is highly desired, and I’m going write more than just an update since this type of mix-up is not acceptable in a court.
Agreed! It sounds like the judge assumed both sides agreed to the order without (gasp) ever reading it. Not sure how judges in FL usually handle cases, but this seems strange. I never sign anything without reading it (but I’m no lawyer…or judge!).
Just got off the phone with them now. They said they emailed you directly this morning and I should have the paperwork here shortly as they just got it. I will send it to you for posting as soon as I see it. I also noticed that Richard Viscasillas was not on the order posted here as a lawyer in that particular case. That has got to be why he didn’t know that it had been vacated (as all the lawyers actually invovled in the case were notified). Not his fault, he just didn’t have any clients in that particular case (too bad there are so many cases, hard to keep track of them all these days). If only the Clerk’s website was faster, we’d all have known about this yesterday afternoon.
BOTTOM LINE: ALWAYS READ WHAT YOU ARE ABOUT TO SIGN!!! Someday people may ridicule you online for signing something you never read!!!
Here’s the crappy part. As is the tactic of the trolls, as soon as a lawyer makes a motion to quash on behalf of their client/clients the trolls agree and their clients are removed from the case. Then, since those lawyers are no longer involved in the case, they can no longer participate in the lawsuit and help fight on behalf of the unrespresented masses of Does (no interest in the case since their clients were all released from the suit).
Such is the case of this suit. All the lawyers who filed motions have had their clients released, but all of the Does who filed anonymously or not at all will have their info released by the ISPs. The ONLY way to prevent your name from being released (in FL at least) is to file a motion through a lawyer or give your name to the judge when you file the motion to quash. The MTQs being thrown out in FL cases is due to the law mentioned all over this site that you cannot file anonymously in FL. While it may seem that you are helping your case and fighting the troll movement in general by filing an anonymous MTQ, the judge will simply throw them out without reading them. If the judge in this case didn’t even bother to read the motion that would have effectively DESTROYED the trolls cases in FL forever, they they sure as hell haven’t read the anonymous MTQs.
Not retaining a lawyer (or at least calling one, hey it’s FREE), is a bad idea in these Florida cases. Your info WILL get released by the ISPs. If you have the fortitude to ignore the threats and phone calls then you might be ok (not legal advice). I just know that I’m glad I called a lawyer and had them file for me so I know my MTQ will not get thrown out. Since I had a lawyer file it, odds are the trolls will release me (and the rest of the represented Does) to get the lawyers out of the case. Out of 915 Does in my case alone, I can bet only 50 or so have lawyers. The trolls are counting on this and dismissing 50 so they can hunt 865 Does unimpeded by defense attorneys is how they do business. Get protected. Don’t go into battle with the trolls without the proper protection (information and legal advice). Still the best call I made was to Danny Simon. To him and the other lawyers fighting everyday against the trolls, I want to publicly thank them. Maybe one day the judges will read the motions and actually throw the case out on the merits of the motion, not because THEY DIDN’T READ IT!!!
I’m skeptical that this order should be vacated. Factually, it’s absolutely correct, and I fail to see how a judge could see it and not realize that it’s a federal jurisdiction (copyright). Now that these over-reaching judges are aware of this through the order (intentionally signed or not), it seems criminal for them to continue overreaching their powers.
If this (fairly obviously correct) ruling is thrown out and they allow this to continue, it’s probably time to take this to the attention of the federal judges and let them remind these county judges that they play in a much smaller pond, and not in the copyright game. It’s stupid this has gone on as long as it has, and unforgiveably stupid if it’s allowed to continue now.
I agree with you too. It makes perfect sense to us that a factually correct order would make sense, but the issue is that the judge never read it, and later realized that he signed something that was not agreed upon (no kidding, the trolls didn’t agree to that!).
Imagine if he signed a motion by Prenda Law (without reading it) that moved to force each Doe to pay $10,000. If the same mistake were to be made, the trolls would be jumping for joy and we would be up in arms. While, in my opinion, the judge looks like a fool, I think the correct thing to do was to vacate the motion until a future hearing discusses the motions from both sides (legally speaking, not ethincally speaking as we know the case is pure BS!).
We all know the trolls are full of SH!T, but it doesn’t change the fact that if the judge made a mistake he should fix it right away. He just has to deal with the fact that he might/will be portrayed as a lazy judge (my opinion only) and that’s not who we want deciding our fate. More to follow, I’ll email sophisticatedjanedoe with the document when I get it tonight. Let the speculating begin. I hope I never have a judge make a decision like that against me. I would hope they would actually READ what they sign when deciding my fate!
So, it seems the judge has to hear BOTH sides of the story and then make his decision? I highly doubt much can be done by the trolls now to sway him. It seems he is on to this “fishing expedition” of theirs. God, I want this to be over and I thought for 24 hrs that it was. Thanks for keeping us Does updated
“+1” does not even begin to describe how much I agree with this.
Oops, my post above at 4:57 was meant for you Anonymous at 4:38
sophisticatedjanedoe, the vacated order is in your email as promised.
If Florida has something akin to New York’s Article 78 proceeding it may be applicable here http://definitions.uslegal.com/a/article-78-proceeding/ ?
The above post of mine is stupid so ignore it. Sorry
When you read the revolting dockets in these bill of discovery cases you get the notion that it is all one big circle jerk with the judge appearing to be at the service of the attorneys (on both sides) and most definitely not at the service of blind justice. If I were a FL Doe I would definitely tip off the local media who would love a case like this which involves the apparent incompetence/sloth of an elected official, money, pornography and sleazy lawyers. On the bright side the decision and order would make a GREAT exhibit to any motion to quash/sever made before this judge so he can explain over and over the circumstances of its making.
Recovering from the shock, I also started seeing the bright side.
Another thought: judges (especially lazy and incompetent judges) have huge ego and don’t like to change opinions even under the pressure of hard evidence. Even smart judges are not immune to this weakness (yes, I treat inability to change opinion given the solid evidence as weakness, not as strength) and have to come up with unusual and creative ways to “save their faces”: look at M-E James’ joinder and Ira Siegel saga for example.
Although in this case judge Schumacher reversed his order (he apparently couldn’t not to), I don’t expect that his final ruling will be drastically different from what he already supposedly “said”. We’ll see.
Good point. BTW-since when do lawyers draft decisions and orders, aside from simple granted/not granted ones? I thought that was the job of law clerks.
In state court actions, lawyers tend to write most all of the orders. State court trial judges, particularly here in Florida, do not have full-time law clerks to write opinions. Also, there are simply too many cases for the judges to sit and write the opinions. Additionally, the judiciary’s budget has been cut several times by the Florida Legislature, which has the collateral effect of reducing the number of staff attorneys available to the trial judges.
Occasionally, when there is a matter that particularly interests a judge, the judge will write the order themselves. This normally happens when something particularly egregious occurs. For example, a couple of years ago a Broward County judge took notice of a pro se defendant’s (not a copyright case) repeated (nine) attempts to file a counterclaim. When I pointed out to the judge that this was our ninth time in front of him on the same issue – he noticed! The judge then had a staff attorney write an order that directed this individual to stop abusing the courts. The order also directed the court clerk not to accept further pleadings or motions until further instructions were received.
The above description is the uncommon situation. As I said earlier, the more common scenario is that the attorney writes the order for the judge’s review. The advantage to this method is that the order will be worded in a certain (helpful) manner to one side. Normally, orders are sent to opposing counsel for review in order to avoid the situation that occurred in Judge Schumacher’s court.
Nevertheless, the battle is not over. In fact, I’m curious to see if the plaintiff’s mootness argument could be challenged because this entire situation is one that is capable of repetition; yet is evading review.
Please someone follow-up on this request. Anyone. You do not need to be an attorney to alert the press. Just make the phone call, send the e-mail. If you do not, then nobody will.
What would be nice is if a Fl attorney who is involved in this matter weighed in and cleared up some of my concerns. Concern No. 1: It appears to an outsider looking at these bill of discovery dockets that there is a pervasive friendly atmosphere between adversarial lawyers as in “we are all getting paid here today so lets not try so hard” (both plaintiff and defense counsel). Concern No.2: It appears the judges are political hacks and are in the pocket of the local attorneys who are dragging these cases to generate hourly fees (yes, that is you defense counsel) as well as plaintiff’s counsel with no concern as to notions of justice and fairness. What is up with that, Richard?
Would the second exception to the Anti-Injunction Act of 1793 apply in this situation? http://www.enotes.com/anti-injunction-act-1793-reference/anti-injunction-act-1793
So it sounds like that while this order is vacated, it’s not gone. Sounds like something that’s going to have to go in front of the judge and both counsels for a hearing.
Would the existence of this order merit a hold on the ISPs releasing information?
This motion has nothing to do with the already served subpoena’s to the ISP’s. The date on the subpoena that the ISP’s must hand over the info will likely be BEFORE this motion is even heard by the judge. Make sure you get a lawyer to file your MTQ before that date or your info WILL get released to the trolls!
Remember, this motion was written by a Doe lawyer and looks similar to EVERY OTHER MTQ that has been submitted in these cases (very general statement of course). If you obtain counsel to represent you in these types of cases, your MTQ might look just like this motion. So NO, the existence of this will likely have zero effect on holding back the subpoena to the ISP’s… Unless you have a lawyer-filed MTQ on file with the court.
Not all law firms are created equal, so do your research. Call some firms and see what their success rate is. I’m represented by Lalchandani Simon, and they have been VERY successful in obtaining dismissals of their clients. I just got the good word on my case this morning, no longer a Doe in a case :-). Score one for the good guys!
Aside from Mr. Yolofsky all I can hear in Mr. Steele’s parlance is “crickets”. It would be nice to hear from an advocate for the Does as to what is being done to embarrass this judge and expose the apparent breakdown of the underfunded Miami-Dade judiciary.
I am using Richard M. Viscasillas for representation. Lalchandani Simon wanted $2,000 for representation, just $900 cheaper than what the trolls are asking for. The more folks who work with Richard M. Viscasillas, the better combined rate you get.
If there are folks who were served in Patrick Collins v. Does 1-414, give Mr. Viscasillas a call.
Wow. This site is going to make me be able to sleep tonight!! 1 of 615, VERY grateful for all of this!