Prior to the last week, these hollow threats and fear mongering were the responsibilities of Prenda’s paralegal Mark Lutz, who made tens of thousands of calls, reiterating the same script repeatedly. I bet that Mark stopped using phone to order pizza or taxi: if he would call those services, it would be very difficult for him not to tell a person on the other end of the line that he or she is named in a federal lawsuit, and should pay, or else… Anyway, these “live person” calls are considered an acceptable practice, and, despite sleaziness and lies featured in every call, technically are legal and not even in conflict with legal ethics.
However, as of the last week, Prenda Law started placing pre-recorded phone calls (“robocalls”) to the entire list of phone numbers they were able to acquire over the last year or so. If you read this blog’s comments and DieTrollDie’s blog, you are already aware of these developments. Today DieTrollDie posted a transcript of a Prenda’s automated call. So, Prenda’s fear-inducing engine was “upgraded” from a friendly-sounding dummy Lutz to an emotionless female-voiced robot: too much for Steele’s promise to hire an army of attorneys.
In other words, as automating legal threats is probably unprecedented, Steele finally loudly proclaimed that he and his “law firm” rather belong to the crooked world of scammers, spammers and debt collectors than to the sophisticated legalese-speaking crowd. We knew that from the day one, but it is always nice to hear the confirmation from the subject himself.
Calls originate from the official Prenda phone number (312-880-9160) but the robot voice suggests calling Florida (305-748-2102): don’t even think about doing that!
Society tolerates unsolicited robocalls more reluctantly than “live” ones, and therefore many states regulate such calls. Every state has its own rule, and in some states certain types of robocalls are illegal. I received many emails from people all over US, for example from California, where automatic calls “may be made to those with whom you have an ‘established relationship’.” It would be quite a cynical stretch for a blackmailer to claim an “established relationship” with its victim. One email came from Indiana, where “automated calls are prohibited without prior consent or unless a live operator comes on first.”
As I mentioned above, it seems that the entire database of phone numbers that Prenda managed to compile using courts as their private goons, made its way into the auto-dialing system. As a result, not only Does in currently pending cases started receiving calls, but also those who were previously dismissed, even with prejudice. Another category of people who is not supposed to receive any calls, less automatic, is those who retained an attorney: it is a big no-no to contact a represented party directly. Lastly, the recorded message claims, “at first, you will receive time sensitive documents,” nonetheless I’m aware of one guy who is already being individually sued, and who received such a call: threatening him with the impending lawsuit is bizarre to say the least.
If you received such call, please visit a poll page and let us know what state you are in.
Don’t worry, I have no means to learn your IP address. Thank you!
In addition to dubious legality, lawyers who automate legal threats seemingly violate the Illinois Registration and Disciplinary Commission’s Rules of Professional Conduct (Remember: Prenda Law is incorporated in Florida and Illinois, and both John Steele and Paul Duffy — the actual and the fake boss, respectively — are Illinois-licensed attorneys, thus these rules are mandatory for them to follow). According to IARDC’s Rules,
4.3 In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
A robocall is an explicit acknowledgement that an intended recipient is unrepresented. Otherwise, Prenda would brazenly violate one of the most enforced rules by deliberately bypassing a person’s attorney. Regardless of the wording of the call (and current wording violates both the letter and the spirit of the rule quoted above), “one-size-fits-all” one-way call inevitably runs afoul of this rule.
4.4 (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Sounds familiar? No comments necessary. I believe that other rules are violated as well (namely, 3.1 and 3.3). There is an interesting analysis of this subject posted by our friend on Current.com long time ago. Although this analysis may sound naïve from a legal pro’s viewpoint (and I admit that many of my speculations on the legal subjects may also be ingenuously dumb), the thoughts behind it are worth considering. In addition, ethics is not something that is easily codified, and common sense should always prevail over the letter of the rule if there is a conflict; in this respect, one does not have to have a formal legal training to tell right from wrong. When it comes to ethics, the principle “everything is allowed unless explicitly prohibited” is not applicable.
IARDC is an organization with a stated goal “to promote and protect the integrity of the legal profession.” So far, given apparent ostrich position when it comes to copyright trolling, IARDC deserves a solid B-. To the best of my knowledge (and according to John Steele’s words), many people complained to this organization, pointing to John Steele’s obvious disregard of ethics and immense harm to the reputation of the legal profession that he and his firm inflicts; nonetheless those complaints were either ignored, or declined². Probably prior to caring about the legal profession as a whole, IARDC should take care of its own integrity. I hope that the current event is a good (and maybe a critical) opportunity to crash trolls, as IARDC’s foreign colleagues, British regulators, did recently. If IARDC remains silent this time, many, including legal professionals, overwhelming majority of whom unambiguously condemns and despises the plague of bittorent “litigation campaign,” may perceive it really badly.
There is a funny bit in the message: Prenda’s geniuses could not master a simple call script, and placed the intended recipient’s name where it should not be: “This is [name] with Prenda Law.” As a result, every call implies that Prenda employs each callee. This blooper leads to a not-so-funny observation: the very same people, who cannot figure out how to use a one-line script, claim that the software they produced to collect IP addresses is impeccable! Moreover, it is just a tip of the iceberg: for example, who will believe in a company’s expertise if they cannot fix the contact form on their website for more than half a year?
What should I do if I receive such call?
Many readers probably came here not to read these lengthy speculations, but rather in search for an answer to an important question: how do I react to these calls? A quick answer: ignore, and do not even think about calling back unless your lawyer does it for you. A long answer is distributed over posts and comments of this and other blogs. Your situation may be unique, and education is the key.
If you think that your time is too expensive to spend on research, you are probably rich enough to hire a lawyer. Hiring a lawyer is always a good thing, but if you cannot afford it, it is OK not to. Naturally, no lawyer would give you an advice to be on your own, and that is perfectly natural. Nonetheless, most attorneys who deeply understand this type of lawsuits would silently agree with me: unless your situation is complicated (e.g., you are a teacher, and your employment can be terminated if your name is associated with a teen porno case, even if you have nothing to do with it), spending money on a lawyer at this moment is as unreasonable as paying a ransom. Of course, if you are individually targeted, i.e. a lawsuit was filed against you personally or a very small group, and you have been served with summons, hiring an attorney is strongly advisable.
As always, I repeat: my advice is just a drop in the ocean of common sense: take my words with a grain of healthy skepticism, do your own research, weigh on opposing opinions, and act only when you clearly understand the situation.
If you are pissed off enough to strike back, you can help yourself and others by suing a robocaller in a small claims court. Since you are not found liable by any court (and most likely will never be), you owe absolutely nothing to Prenda. There are some encouraging precedents: for example, in the EDPA in Watson v. NCO Group, Judge Davis found that, in accordance with the Telephone Consumer Protection Act, an individual can sue the owner of a robocaller that harassed him over a debt he did not owe. Unfortunately, TCPA violation fee is only $500. Class action is also an option.
This is undoubtedly a very dumb move by Prenda. Another dubious move: Prenda recently filed more than 50 “individual” cases in California, Illinois and Florida, though, as expected, they did not name defendants: all the cases are “[Pornographer] v. Doe.” Same boring fear mongering, nothing serious, but it is a theme for a different post. Looks like Prenda is on a final looting spree before authorities shut them down for good and close a very embarrassing chapter in the history of the US jurisprudence.
Thanks to those who replied to my request and sent me their stories, Raul and every one who commented about these developments: you’ve provided a treasure trove of information and insight! Special thanks to TexJenM who provided the call recording.
¹ I couldn’t avoid using so many instances of the word “allegedly” because every step of the moneymaking scam has its own, in most cases unacceptable, flaws:
- “Allegedly share.” the false positive rate is huge, which derives from many factors: poor quality of the detection software, ever-growing use of wireless internet coupled with intentional or unintentional lack of password protection and relative ease of hacking even protected wireless routers, human errors etc. Some researchers estimate the error rate as high as 30%; my opinion — about 15%.
- “Allegedly copyrighted.” Although recently Prenda and other trolls pay more attention to making sure that their clients’ “works” are properly registered with the US Copyright Office, there are plenty of cases in which said “works” were improperly registered, therefore rights holders are barred from claiming statutory damages (up to $150,000). Needless to say, trolls always request statutory damages, which is fraud.
- “Allegedly legitimate.” Some clients (Lighspeed Media, hard Drive Productions, CP productions) are registered in Arizona, where pornography production is illegal. Many other companies are registered offshore with an apparent sole goal to facilitate mass lawsuits.
- “Allegedly impeding.” Every Doe is eventually threatened with a personally tailored lawsuit. Less than 0.01% of these threats are fulfilled (with fanfares of course).
As a result, this “litigation campaign,” portrayed as the only way to fight piracy and reclaim revenues lost allegedly (sorry!) due to it, appears to be a sleazy, error-ridden, unethical, and, in some instances, illegal moneymaking conspiracy, sometimes compared to a Mafioso operation.
² Actually, I do not know what is worse: a careful troll who quietly terrorizes population and keeps low profile, or someone like John Steele, who, being emboldened by regulators’ indifference (which is mistakenly perceived as approval), earlier or later loses the sense of reality and commits irreversible and self-destroying actions that are too gross to be ignored even by hard-butted IARDC bureaucrats.