I asked attorney A.J. Yolofsky (I already introduced him in a recent mood-boosting post) about his opinion, and here is what he said:
The claim brought under 18 USC 1030 is a farce. Any first year attorney can run a truck through the hole in their pleading. You’ll notice in paragraph 22, no specific sub-paragraph is identified to support the actual alleged violation. They correctly allege that the state court may have jurisdiction (there’s an exclusive jurisdiction argument here).
I did a brief review of the statute and my gut tells me this is a farce. Obviously, Lightspeed is neither a government nor financial institution. Thus, the potential violation of a “protected computer” as the term is defined in 18 USC 1030(e)(2)(A) is eliminated. They may have some support under the concept that the computer(s) in question may be used in interstate commerce, which would possibly satisfy the definition under 18 USC 1030(e)(2)(B). However, I believe there are probably evidentiary issues there that would need to be developed.
It’s a bit more difficult to determine if any of the violation provisions of 18 USC 1030(a) have been violated. Subsections (a)(1), (a)(2)(A), (a)(2)(B), and (a)(3) are all unavailable to Lightspeed. This leaves the broad catch-all provisions of (a)(2)(C) and (a)(4), though both of those subsections have problems on their face. In particular, (a)(4) would require the specifics of the alleged fraud to be alleged.
Fundamentally, this complaint should fail for many of the same reasons that Prenda’s complaints fail. They do not meet the pleading standards of Iqbal and Twombly.
One other thing about this recent complaint. A plaintiff can have either a breach of contract claim or an unjust enrichment claim, not both. The latter exists to fill a gap where two parties did not form a contract, but one provided something of value to another without receiving anything in return. Did Doe actually have a contract with Lightspeed? I don’t know. In the absence of an express contract, what I think would be fun thing for Lightspeed to actually prove would be what “benefit” it conferred upon Doe for which it did not receive payment?
So, it would seem from the lack of information presented by Lightspeed in its complaint that they would be vulnerable to a motion to dismiss, yet don’t forget that this case currently lingers in a state court (although it alleges the federal claim). Recently I and others were understandably angered by a Miami-Dade county court judge Schumacher, who signed an order without reading it and then vacated that order, but now I’m not mad at him anymore: it was explained to me that state judges usually have neither the time nor the staff to research the law and evaluate the arguments made by the parties; thus, they rely more on the attorneys who present the briefs. Thus, if an attorney happens to be a former judge from the same district, or a crook, or (like in our case) both, then we have what we have. Federal judges, on the other hand, have the law clerks to help read, understand, and research the pleadings.
So, because of the federal claim alleged, first step in these state cases would be to remove them to federal court pursuant to 28 USC 1441. This would cost the filing defendant the federal case filing fee of $350 or so. However, this will get Prenda and its cohorts back in front of the federal judges, which is where they do not want to be.
Who can remove? The statute says that removal may be accomplished by the defendant or defendants. Thus, one argument would say that only Doe #1, not the unindicted co-conspirators would be able to remove the case. However, the other Does could obtain permission to intervene and then file a motion to remove. I’m not a lawyer, and don’t want to speculate further, but I have a gut feeling that this route should be seriously considered. Trolls will keep working around the edges in order to avoid scrutiny, but we should continue shedding the light on their swarm of vermin, and removing this case to the federal level is worth trying.
This lawsuit is a farce.
4/20/2012 by Raul
I really like this comment by a reader (emphasis is mine):
I bothered to look at 18 USC 1030. Although I am not a lawyer, I did however work with environmental law for over 10 years (environmental law makes most other law look stupid). Lightspeed cannot possibly be filing under 18 USC 1030. There is literally no case there, at all. The entirety of that code surrounds a “protected” computer, and there is literally no way in hell they are working with a protected computer unless he received an executive order stating that his porn is a national security issue. Not even the general catch all provision of 1030 a(4) applies on 2 counts. 1 because again there is no protected computer, and 2 because each individual who gained access to the computer would have to be responsible for $5k in accumulated usage value over a 1 year period. First, the problem with this is that if you pay a membership fee you are entitle to view and even download ALL of their content. Therefore, the value of the accumulated material acquired with a shared password would be the membership cost. But forget about all that because it isn’t a protected computer to begin with.
I am sorry, I know I am not an attorney, and I am not trying to give advise here, but it really looks like Lightspeed is using a very specific federal regulation that is meant for a specific class and is twisting it and trying to use it in state venues. In my opinion, his claim not only cannot hold up in state courts because it is a federal statute, but it wont even hold up in federal courts because he does not fall in the protected class of computer genre, unless of course some porn star is secretly passing state secrets to other porn stars during filming and as a result of this the feds feel that this is a national security issue.
With regard to the Comment above I did look into that issue before writing my first post and I believe that the CFAA does not just apply to a “protected computer”: because it also applies to computers that are used in of affect “interstate commerce” which has been broadly interpreted by courts across the country. The reported decisions/opinions that I looked at where a CFAA complaint has been dismissed usually zero in the fact that the plaintiff cannot possibly make the 5K threshold as is the case with Lightspeed Media.
4/29/2012 by Raul
A must read Opinion and Order by federal judge Naomi Buchwald that discusses the 5k threshold of the CFAA, page 52 — spotted by Raul.
5/3/2012 by Raul
Lightspeed has many problems when it comes to damages. One of them is that our legal system requires you to mitigate your damages which means that once you notice you are being damaged you have to take steps to prevent more damage and if you do not, you cannot recover those damages which could have been avoided. In this lawsuit, Steve Jones freely admits that he monitored hacked passwords to his website for one year and that he did nothing to stem the access other then harvest IP addresses. In other words, he failed to mitigate his damages. A decent attorney could crush this lawsuit on this issue alone unless his client was the first one to hack the websites that Steve noticed.