Attorney’s opinion: Lightspeed’s claim is a farce

This weekend Raul shared his initial insight on the Lightspeed Media Corporation v. John Doe lawsuit (in reality a fishing expedition targeting 6,500 victims), questioning its merits. Both Raul’s article, and this lawsuit itself, especially the judge’s decision to deny all the motions to quash/dismiss and ordering ISPs to hand over user data to the trolls, generated some buzz in the porn-oriented blogosphere. Most of the comments and articles presented this decision as a victory, portraying Steve “Lightspeed” Jones as a hero fighting evil pirates and hackers. Raul did a decent job debunking these simplistic views, and the following comment will undoubtedly add grains of bitter salt to the chorus of cheerful ignoramuses.

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.

Raul clarifies:

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.

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75 responses to ‘Attorney’s opinion: Lightspeed’s claim is a farce

  1. “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. ”

    If this is the case, could Amicus briefs, such as the EFF has filed in the past, be especially important in these state court cases ?

    • The amicus briefs are important, though their assistance can be of limited value. Specifically, at the order-writing stage, form orders are provided by both sides to the judge. The judge can pick one, the other, or create their own. With EFF, if their information is not submitted in one of the form order, there is the possibility that the argument could be left out. I’m not saying this is definitely the case. A better idea would be to have one of the defense attorneys incorporate the EFF information into the form order.

      With any of these cases, it is extremely important to check the judge’s individual website to see what their courtroom and briefing procedures are.

      • Yolofsky you are a true gentleman for lending your legal thoughts to this blog and giving solace to those that are surely be in despair in the near future. Thank you!

      • Thank you. The form orders sound like the highest priority.

        If it’s the case that some state judges lack time and assistance in getting background, then Does, attorneys, and concerned citizens could provide them with a clear general background.

        I wonder if having a routine response countering the troll forensic tech claims would be useful as an exhibit for Doe defense motions.

        Right now, the trolls keep recycling skewed “testimony” from either Nicolini (CEG) or Schulenberg & Schenk/Guardaley as Exhibits. The long passages of pseudo-legal and pseudo-technical claims may seem authoritative to those without background.

        A counterpoint statement could reduce the clout of these exhibits. Two obvious points: the entangled financial links between the self-appointed forensic workers and the troll front men; and the untested unexamined & vague capability claims of the proprietary software.

  2. Nice post! I wonder if Steve Jones is aware that these two posts (so far) would not have been written but for the fact that Pirate Hunter made this community aware of the imminence of the launching of this major troll initiative with his juvenile gloating on April13th.

    For me there are two reasons why the breach of contract Claim is ludicrous. First, the membership agreement appears to be standard CYA porno site boilerplate put in place to help the site operator avoid an obscenity charge as “community standards” are the measure of most, if not, all obscenity statutes. Second the complaint claims that Doe and co-Does unlawfully hacked their way into a members only area of its websites and viewed or stole content, so how can an unlawful user be converted into a paying member and be held to the membership agreement? The complaint tries to have it both ways with the Doe and co-Does being unlawful users AND members of the websites.

    But I have to believe that all these arguments including the admissibility of Steve Jones’ “evidence” were raised by the attorneys for the ISPs who must have left the courthouse shaking their heads in disbelief when the motions were decided in favor of the Troll. I mean with it appearing that the facts and law are on your side, how on earth could something like that happen?

  3. Since this is the beginning of this blog and this may be important down the road I am leaving it here.

    In my previous post SJD posted a link to a discussion that is useful for context, content and makes a great read.

    By way of background, in a weirdly parallel universe there is a community of hard working good people (by and large-the assholes know who they are) who have concerns, questions, passions and issues just like this community of Does; it just happens that this coummunity is the pornography industry. This community is extremely tech savvy so accordingly they have a couple of forums one of which is very similar to this blog in that they discuss the issues of the day, concerns and opinions as to what is going on. That would be my favorite: At the previous Lightspeed post SDJ posted a link to a thread in which the porno industry was beginning to get into a discussion of the legality and ethics of the current Lightspeed litigation. Since then Steve Jones has entered the discussion and the fur is flying (BTW-one of the commenters shares my exact same wishes for John Steele’s future at page 3). Kisses and Hugs for you Buffy! The link is here

    • DamianJ is one reasonable fellow there. His arguments are solid. Not only because I largely share his opinion — I have no problem in praising and respecting an opponent who doesn’t share my views — if he respects me and can hold a civil discussion.

      Lightspeed, on the other hand, is a savage in this sense — he entered the discussion with an arrogant ad hominem, and most of his cheerleader crowd cannot think outside the box(ers). Initially I wanted to register at GFY and enter the conversation, but has changed my mind: I don’t see any sense in trying to argue with narcissistic savages.

    • Here comes your pitiful universe, where fear replaces respect, where in order to accept someone’s opinion you must be scared of him.

      Every time I hear your insecurity speaking, my mood elevates: I look at the people around me and say to myself: “how lucky I am to live in the world where in order to make a living and enjoy life I don’t have to create enemies, lie and hate”.

      • I’ve never encountered a lawyer with such a lack of professionalism as Steele and I work with corporate attorneys on a weekly basis. Commenting on pending cases in a public forum (such as here or on…bad idea for any attorney.

  4. the gfy site is funny, they keep asking how many people are really innocent. didn’t the prenda attorneys admit that atleast 30% of the people accused are not the actual offenders, but merely the people who pay the bill.

    as a side not to this, if they think that all of these people are infact hackers then it would make sense that they would hack into someone else’s wifi in order to hack into a website would it not? hackers hack into stuff, like other people’s wifi and porn sites.

    • Another comment:

      wow that fightthetrolls site is crazy. If you have a family or a reason to keep your adult ties private you really have to think twice. Wow

      First of all, the information presented in the article is public, any elementary school kid with a laptop would find this address in a matter of minutes, so our craziness is overstated. However, this concern has its merits: pornographers enjoy reasonably secure life if they play by the rules, but a predatory, unjustified assault on the general public that creates thousands of enemies (and anonymous ones!) has a prospect of jeopardizing pornographer’s peace. So the question is: who is really crazy here?

      • This comment is interesting.

        “Why is there a 4 page discussion about this?

        Obviously, the only reason Steve is doing it is to extort money out of people. His paysite business died many years ago and he needs a new money source to support his habits. This has nothing to do with fighting piracy or password trading.

        Anyone who says otherwise is either an idiot or a bro.”

      • Ah, so now we see a weakness. These guys really don’t want publicity. Best to exploit this to the greatest extent possible.

        Also remember that WSJ profile about Steve that talks about how he likes to keep a low profile?

        There is a high school within about a half mile of his house, Arcadia High School. Maybe the students’ parents would be concerned.

      • And you hit the nail on the head. They’re bound to sue someone who’s not, oh how shall I put it, mentally stable. Probably already have, given the volume of lawsuits filed. All of this personal stuff is public information. Apparently it’s ok for them to get our home addresses, phone numbers, emails, and other identifying personal info, yet the plaintiff is off limits. Sorry it doesn’t work that way. If they just left people alone, I couldn’t care less what they do. The second they start screwing with me, that’s when I go into fight mode.

        It’s not like anyone has threatened their lives (yet) anyway. It’s just nice to know how bad (ha ha) they’re being financially injured by piracy. Doesn’t look like Lightspeed is doing too bad. His house is bigger than mine (mild understatement) and I work 80-100 hours/week for 4 months out of the year, and 60 for the other 8 months. In other words, I work…this asshole doesn’t do a fraction of the amount of work I do and he makes 400% more than me. Then again, I’m no smut entrepreneur. I value my reputation but they can go to hell if they expect me to bend over and hand them $3400 between my legs.

      • What’s hilarious is that up until now, I’ve always lived my life by the concept of “if you’re too ashamed to admit doing it, it’s simply not worth doing”. Today, I hide behind a thin veil of anonymity out of fear of reprisal by trollawyers … at least until statute of limitations expires for my case, which I’ve been dismissed from without prejudice.
        If a trollawyer wants to make life miserable for me just because I’ve spoken out against them, and convinced others that their threats are without merit – they’re well within their power and rights to do so.

        Most of those idiots at gfy LIVE THEIR LIVES hiding behind anonymity, because they are generally ashamed of EVERYTHING THEY DO. Their lives go by in a flurry of cocks and cunts and shemales and exploitation of anything that’s barely 18 behind closed doors. Come Sunday morning, they pack up the kids and sit next to all the other churchgoers who haven’t the foggiest idea how they paid for that snazzy car parked diagonally in the lot.

        I know I’ve always preached the idea of keeping it business, not personal and leaving a person’s private life and home out of the fray. But jackasses like this Lightspeed guy *really* make me wonder about how good it would feel for a little payback.

        • here is the thing that confuses me the most. if you are a parent and your job has the potential to effect your children’s lives negatively, AND you have a skill set to get a job that will not risk a detriment to your children shouldn’t you change jobs?? how can you claim to love your children and then complain that other people are ruining your kid’s lives because of what YOU do for a living. can anyone explain this to me please.

    • honestly if you are one of the 6500 you should either file your own MTQ (though anon ones are often ignored) or find a lawyer with group rates to file for you and then wait till they get enough settlement money from the uninformed does to finally drop the case. or just wait it out and hope they don’t name you in a local court (statute of lim on the hacking cases is 2 years) because they probably will not name you locally.

      please note this is not legal advise but is for discussion purposes only.

      • So sorry for the interuption to this thread…….is there a link to the list of 6500 or so IP addresses? can see the case doc in a few places but not the attachments or whatever has the addresses.

        • the “link” that they have is that all 6500 people used “stolen” passwords to access their site, they do not alledge they are all the same pw but rather that anyone who used them is in the same “hacking community” which is retarded since you can just google their site and copy the pw right off of googe without ever really accessing a “hacker community” they make this sound like a big conspiracy when really it is more than likely that most people who “hack passwords” are probably using a search engine to find the pass’s and the actual “crackers” consist of only 1-2% of the people who have access to these passes. if they really cared they would be googling their site and then supoenaing the sites with posted passes for the ip of the actual poster and going after them. as history has shown us they do not care about protecting their “art” but rather care about extorting the most money possible.

    • I already articulated my opinion: if you can afford it, hire a lawyer and remove this case to the federal level. If not, sit still and don’t talk to scumbags. They can’t name all 6500 in separate lawsuits, so bigger the case – safer you are. Of cause there is a small risk of being individually pursued, but I never understood people who are obsessed with absolutely risk-free existence. Risk and reward are the two sides of the same coin.

  5. 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.

  6. Thanks for the great article. I received a letter from Comcast that I was named in the 11 L-0621 suit. At one point though it states that I should have been in court on March 5 2012, then it states I have till July 20th, it’s just confusing.
    Since it appears to be a farce, should I do anything? Or just ignore this?


    • Is the Comcast letter concerning the release of your personal identifying information or is it something else? Will the release of your info be damaging to your career or family life?

      You can try to get further clarification by calling the courthouse and speak with Judge LeChien’s courtroom clerk, Tina Sambo, or send her an email as a John Doe

  7. Yes it is about releasing personal information. Do you know how much it might cost to file a motion to quash? thanks

    • No, but if you check the Circuit Court Clerk’s listing for this case you will see the names of several of the lawyers representing Does who are easy to find on the Internet. I think I left links to their websites somewhere on this site’s discussion of Lightspeed cases in March.

      • Any recommendation for attorneys from St Clair County that can help with this case to file a MTQ? Also, if the ISPs were not able to squash the subpoena then how effective is it for individual does to file an MTQ.

  8. @Raul – Can you find/repost those links? Is there a std form to file a MTQ? I too got one of these letters. Odd that they can randomly send people letters and accuse them of something.

    • If you are going to to fight this locally, you need to retain local counsel. The corrupt state court, while adjudicating copyright law,to the best of my knowledge, rules on federal issues without allowing pro se Does a word in the shakedown. A Damn Shame

      • Sorry about the rant, I am not sure as to the level of corruption in St. Clare but if Steele and Lipscomb are renting down there, the fix is in. At this stage with everything being embryonic, I would keep my powder dry and see what developes. This BS by no means constitutes legal
        advice but is good advice notwithstanding.

    • This page is most likely not updated since 2009 – look at the bottom: Copyright 2009. Even if it was, I doubt that their motion is better than one that you can write yourself based on many excellent examples found here and on DTD site. The situation in this area is very dynamic, arguments become old and obsolete, new good arguments pop up, so I’m very skeptical about that site. Very-very skeptical.

      On top of that, there is no indication it is applicable to mass subpoenas with all their inherent problems.

      • Where are these excellent examples found here and on DTD site? Also, what is the DTD site? Sorry for the questions but I too was targeted with one of the 6500 letters.

  9. Any recommendation for attorneys from St Clair County that can help with this case to file a MTQ? Also, if the ISPs were not able to squash the subpoena then how effective is it for individual does to file an MTQ.

  10. Has any accused Doe here taken any action regarding this yet? If so, could you please share with us what you did?
    I have until May 10th or the ISP will release my personal information. I’m still pretty lost at this stage and what to do. Any suggestions are greatly appreciated. Thanks!

  11. After doing some reading online, it sounds like one has more chance to get the case dismissed if they file a Motion to Dismiss instead of a Motion to Quash. From what I understood, if one can prove that the state where the lawsuit has been filed has no jurisdiction over where John Doe lives, the case should be dismissed (i.e Lawsuit filed in Illinois, John Doe lives in New York).
    Any ideas/inputs regarding this?

  12. Can someone please tell me, worst case scenario, if my public information is released, what can Lightspeed media do? Take me to court? Call to settle? Realize it’s not worth the money for them to go on with this?

  13. tell them you didn’t do anything they claim you did and to please stop calling. once they have your info a lawyer is a worthless expense. these are data mining suits, therefore to actually try to get money from you (from an actual judgement) they have to re-file in your home state (this is true for the Florida pure discovery cases, i do not know about any others) and they probably won’t re-file. if they do re-file to name you in your state then you should get a lawyer. getting a lawyer at the beginning is solely to delay/stop them from getting your info. once they have your info you just have to wait till the statute of limitations runs out (2 years from time of infringement) and suffer through/ignore the calls and mail. DO NOT settle unless being named can effect your job or some other similar life changing situation.

    on a side note, the initial case (the data mining one) can last up to and over a year. they probably will not single you out until after that at which point they have less than a year to do it so it is very UNLIKELY they will actually single you out, however it is not impossible.

    please note i am not a lawyer and this is for discussion purposes only please if you are worried contact a local IP lawyer and let them explain what your options are. though they have to recommend you settle so that you cannot sue them for bad advice if you actually do get named.

    yay for litigious american society.

  14. OK so I should have done this earlier (maybe I did) and and going to post this comment on all 3 of SJD’s discussions regarding Lightspeed. Also I hope the Doe attorneys of record in the Illinois lawsuit appreciate it because I think they are about to get a few phone calls.

    The attorneys of record for the Does in the Lightspeed Media lawsuit pending in St. Clair County (case no. 11-L-0683) are:

    Andrew J. Rankin

    Karen E. Scanlan

    Douglas A. Stultz

    Celestine Dotson

    If you do contact an attorney about Lightspeed Media be sure to let them know about this blog as we would love to hear from them and they might get some business in return.

  15. I spoke to several of the below attorneys a few weeks ago but don’t think it would be appropriate to share the exact conversations. Rankin said he is representing an ISP and it would be a conflict of interest and could not represent me.

    “The attorneys of record for the Does in the Lightspeed Media lawsuit pending in St. Clair County (case no. 11-L-0683) are:

    Andrew J. Rankin

    Karen E. Scanlan

    Douglas A. Stultz

    Celestine Dotson

    If you do contact an attorney about Lightspeed Media be sure to let them know about this blog as we would love to hear from them and they might get some business in return.”

  16. I spoke to several of these attorneys a few weeks ago. I don;t think it appropriate to share the conversations but Rankin was representing an ISP and said he could not represent Doe’s as it would be a conflict of interest. Hopefully that can save everyone including him some phone calls.

    “The attorneys of record for the Does in the Lightspeed Media lawsuit pending in St. Clair County (case no. 11-L-0683) are:

    Andrew J. Rankin

    Karen E. Scanlan

    Douglas A. Stultz

    Celestine Dotson

    If you do contact an attorney about Lightspeed Media be sure to let them know about this blog as we would love to hear from them and they might get some business in return.”

  17. This was probably the best article I have read yet, and I agree that this case should ABSOLUTELY not go forward for 100 reasons IN ADDITION to the ones you so clearly described. Serious Kudos to you. -Rob

  18. Very glad i found these forums! still unsure of what to do. i have no legal experience, but all this info has been very helpful. time to start digging in and doing more research!

  19. anyone else caught up in this situation, what sort of action are you taking? if no action is taken, what will happen?

  20. I Spoke with an attorney and gave me 3 choices that have already been discussed here:

    1. You can do nothing. The merits of this suit are dubious at best, and it’s unlikely they will do anything more than harass you with phone calls/letters once they get your information. To do anything more than that, they have to file suit against you as an individual in your home state.

    2. You can file a motion with the court. A motion to quash, if approved, would stop your name from being revealed and put an end to the matter. (There may be other avenues to accomplish this goal as well.). This costs between $500 – $1000 depending on lawyer. (Could be more)

    3. You can settle. If you didn’t do anything though, why give them anything? An estimated settlement amount they’d request would be around $1700.

    As mentioned here before probably doing nothing is the best thing..

    Hope that helps.

  21. received a subpoena for my IP address yesterday from comcast and they are giving up my IP address unless i file a motion to quash by May 31st. Trying to figure out should i lawyer up and fight it, or settle or do nothing. I did not do this, but can not stand my name being associated with a pornographer for religious reasons. Any thoughts?

  22. The vast majority of us are victims, they cannot isolate the hackers so they go after an IP address seeking to to extort money, hackers can hijack, hack , and piggyback any Ip address with impunity,and THEY know it, This case is fraud and extortion, if you quash or God forbid settle you set a president that will have you at the mercy of them and others, what I have done was to contact my attorney to look over the comcast order and contacted my states attorney general for a better understanding of this situation I suggest reading throughout this blog.

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