Prenda
Prenda ends one of its most controversial trolling lawsuits
Hard Drive Productions v. John Does 1-1,495 (DCD 11-cv-01741) is over. It was voluntarily dismissed without prejudice on 12/21/2012 (de facto — with prejudice: I will explain below why).
The early phase (Judge removal)
This case has a long and controversial history that was a subject of many posts on this and other blogs. Almost a year ago, I tried to recap what was going on with this lawsuit:
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.
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 All the previously filed and sealed motions would be either unsealed or withdrawn.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 Elliott Alderman’s guest post on the Eric Goldman’s blog.
Read the entire post for other developments.
Many things happened since then, and I’m not going to list them all: too much work. Nonetheless, if you feel that I missed something important, feel free to suggest (or, better, to write) a chapter.
Judge Facciola awakes from hiatus
This case was mostly dormant from January to August: Judge Facciola did not issue a single order until 8/13/2012. On this day, he woke up from his hiatus and issued his Memorandum and Opinion, essentially reiterating Judge Beryl Howell’s pro-troll position, including an opinion that considering jurisdiction question was premature. Troll’s extortion vehicle was given a green light, and this vehicle started moving a month later, when Judge Bates returned to the case that he previously “outsourced” to Facciola, and surprisingly put his courage in reverse, allowing ISPs to supply subscriber information to the trolls.
The order that followed denied all the eight pending motions to vacate, quash, sever etc.
On 8/20/2012 EFF (Mitch Stoltz), noting that Facciola is awake, reminded the judge that EFF had asked for permission to submit its amicus curiae brief half a year before, and it was time to consider looking at it (“ripe for decision”).
Judge Bates’s betrayal
From Rob Cashman’s 09/27/2012 article:
As of yesterday, Judge Bates caved in and wrote a scathing order describing in detail how and why Hard Drive Productions, Inc. should be allowed to force the ISPs to hand over the subscriber information for the John Does implicated in this case. In addition, siding with Judge Facciola and Judge Beryl Howell, Judge Bates agreed that internet subscribers have no expectation of privacy for the account information they provide to their ISP.
On the same day, Bates granted EFF’s motion for leave to file amicus curiae brief but denied the very essence of the brief — the request for emergency stay and reconsideration of earlier Facciola’s order.
In the same order, Bates unsealed 16 motions he had promised to keep under seal, loudly announcing that his word was worth exactly half penny from that moment on.
The scam artists filed a motion to strike EFF’s brief on 09/28/2012, basically providing no sane arguments — simply reiterating the same insults to EFF that were spitted in their earlier opposition. This motion was simply ignored.
Do I make my decisions by throwing a coin? Not your business: I am the judge!
On 10/31/2012 a brave defendant filed a letter to the court noting that Facciola issued two 180 degree opposite orders in the cases that were nearly carbon copies of each other. It is notable that this letter was filed at all, but it does not matter: Facciola decided not to answer. Rob Cashman wrote a post about it: Judge Facciola issues a F’You order to one of the defendants.
Disobeyed my order? Not a big deal: try again!
Just before this case was dismissed, on 12/18/2012, Facciola issued an interesting order. He learned that his December 21, 2011 order, directing Plaintiff to notify ISPs about one of his decisions, was blatantly disregarded. His reaction? Sanctions? Order to show cause? Wishful thinking! Instead, he basically told the trolls: “Guys, you disobeyed my order, why won’t you try again? I give you another month.”
Regarding individuals settling on this case
According to the case docket, some (I counted 28) Does were dismissed with prejudice at various times, including very recent occasions (which indicates that they settled). Although the overall number of dismissals is exceptionally low (good news), every time I saw a recent notice, my heart was bleeding: how is it possible for an intelligent person to settle on an out-of-state HDP case, given that an hour of Internet research would have convinced him not to? It is beyond my understanding. There was no way the plaintiff, Hard Drive Productions, would proceed with this lawsuit or file new ones in proper jurisdictions, since it was severely damaged by two counter actions and has been investigated for recruiting underage porn models.
Yet it is a number game: the IQ distribution is normal and the number of defendants (1,495) is big enough. If I insulted someone who had genuine reasons to settle (e.g., a schoolteacher risking to lose her employment), I do apologize, but it is apparent that the majority settled out of intellectual laziness and cowardice. Sorry for being so rude, but I am not angry with them, but rather sad.
Conclusion
Apparent political games in the DC court district resulted in betrayal of hopes that Prenda’s victims had a year ago. In my humble opinion, the mockery of justice that has been taking place in courts is unspeakably more harmful to the society than all the copyright infringements combined. For the sake of the argument, let’s assume that these lawsuits are about solving the infringement problem, not about exploring the law loopholes in order to monetize people’s fears and weaknesses. Even if what trolls say to judges is true, there are alternative solutions to the problem — business solutions, the only viable ones, the only ones that do not trump people’s rights and dignity. On the other hand, when people lose faith in justice, society begins to rot. Not that we live in an ideal society: a lot of unfairness happens on many levels, yet the majority of population genuinely respects judges and does not consider the judicial branch hopelessly corrupt. Yet if one looks closer at some of many DC trolling cases, it is apparent that heavy and shameless lobbying¹ resulted in some judges forgetting about objectivity and fairness and siding with parasites.
The DC district (or, to be precise, one-half of it — a faction led by Beryl Howell) is probably the only unconditionally troll-friendly district today, and Howell’s disingenuous memorandum, a Troll Bill of Trumped Rights, is essentially the only document that scam artists use to justify their tricks. The majority of districts almost unanimously rejected the ideas expressed in this write-up, principally leaving Howell and her faction in isolation. Yet trolls still hold tight on this straw, never failing to refer to it in their frivolous complaints and motions.
Related
- Rob Cashman: DING, DONG, THE HARD DRIVE PRODUCTIONS CASE IS DEAD!
¹In addition, Beryl Howell allegedly has connections to the porn industry: there are very interesting leads and facts that require time and effort to check and follow through. If I ever dig in this direction, I will certainly publicize my findings as wide as I can.
Fight © Trolls 
Nice summation and “finale” to a horrific travesty of basic legal principles and first year jurisdiction law school schooling. Shame on these judges, unbelievable.
Someday we might have some system for holding Judges to the law, to undo the wrongs they do when their personal bias ignores the law.
Beryl Howell needs to be removed from the bench and the taint cleansed, until such time that court is controlled by someone beholden to the cartels who will push forward their deepest desires at the expense of justice.
And freedom and justice for some … with money.
The harm in this case has already been done. The trolls have the subscriber information of over 1,000 individuals. What’s to stop them from continuing to harass these individuals?
Exactly. By past performance, it’s expected that the Prenda/wefightethics.com goons will continue to harass many Does. The only difference is that they won’t say “in the case before the D.C. court”, they’ll say something like “due to the outcome in D.C. federal court”-“we are prepared to move forward”.
That’s part of the point of SJD’s post: many rulings were unbalanced, undermining faith in the justice system and laying bare [pun intended] distorted influences on the D.C. court.
We don’t know how many Does in this case will pay up in the future. We also don’t know how many Does paid Prenda/HDP with poor or no non-disclosure agreements and weren’t dismissed. We do know that these parasites caused ten of thousands of hours of anguish and lost time/productivity for citizens just in this case, besides the cash.
“how is it possible for an intelligent person to settle on an out-of-state HDP case, given that an hour of Internet research would have convinced him not to?”
Because the internet is not where Does should be getting advice. They should be getting sound advice from lawyers that is tailored to their individual needs, assets, and liabilities.
And any lawyer who says “Just ignore this” is a moron. Even an HDP case.
It’s not about advice per se, but about getting information and making his own informed decision. Anyone who religiously believes in what Internet advises and does not bother to turn on his intelligence, is a moron. Anyone who believes that what a lawyer is saying is a god-given truth, just because it was said by a lawyer, is a doubly moron.
…and by the way, an honest lawyer should say “Just ignore this,” as one of many options, outlining the probabilities and consequences of each choice, including this one. Otherwise I would smell he was just trolling for a client.
“…but if you ignore it, this this and this could happen. It’s unlikely, and even more unlikely in this specific case, but it could happen. I can’t guarantee they won’t act on it.”
If a client ignores it and something bad happens, that lawyer ought to have a CYA letter saying “That’s a bad idea, I wouldn’t do it, but it’s one of your options.”
I don’t think these cases should be ignored, personally, no matter how unlikely HDP seems to pursue it any further. You just never know.
I’m more and more convinced that a probability theory course must be made mandatory in law schools.
You’re not evaluating it correctly, though. Someone comes into my office and usually has these questions…
“If they file against me individually, will that come up on a background check?” <— yes
"Will have have to disclose this lawsuit to my professional liability company?" <— yes
"Will this lawsuit come up in a Google search?" <— yes
"Could this affect a security clearance?" <— yes
"Can a job fire me or refuse to hire me because of this?" <—- yes
Even assuming they won't follow through with a suit, which they probably won't (especially in this case) there is still collateral damage if a Doe is named individually.
If you didn't do it, my advice is to fight like hell. File a declatory judgment. Get yourself vindicated and then move for fees. Go Jeff Fantalis.
But, if you DID do it, you can't really fight it like that. And if you simply ignore it, there is a good chance even the collateral damage will suck. But that's your call under the circumstances.
Many Does will spend whatever the settlement payment is to avoid the collateral damage. Often it's in their best interest, too. What's good for an individual isn't necessarily good for "the cause." And as a lawyer, we represent clients – not causes.
Bayes theorem you mean? “If a tiger that may one day escape from the city zoo and enter my backyard attacks me, will I die?” <— yes. Once again, probability theory and statistics should be taught in law schools.
I hope you don’t talk about moral aspects. Because for me, even if you did it, it is more immoral to pay a disproportionate fine to an undeserved party and sustain the racket, than your deed per se.
So, yes, you can. It involves some kind of deception, true, yet it’s the art any attorney possesses: to pad it, so it does not bear serious consequences if revealed. It’s only fair: trolls lie and bluff all the time, yet they will get away with it. Anyway, I don’t want to wander to this area today: I’m leaving for a birthday party in 10 min.
Bayes’ Theorem:
Rushie’s Theorem:
And personally, I don’t charge any money to people who want to settle.
The catch 22 is there are a lot of Does who SHOULD settle, but the lawyer encourages them to file a stupid motion to quash / sever because they just want to get paid.
“SHOULD”? Like this? All capitals? Why not “MUST”?
“Many Does will spend whatever the settlement payment is to avoid the collateral damage. Often it’s in their best interest, too. What’s good for an individual isn’t necessarily good for “the cause.” And as a lawyer, we represent clients – not causes.”
Jordan, you seem like a good guy, but I have to disagree with you here. SOME lawyers do represent causes, heard of the Southern Poverty Law Center? http://www.splcenter.org/ The point being, you aren’t a nonprofit and I do get that you have to make a living, but you’re ultimately in the same ballpark as the Copyright Troll lawyers.
Most does should NOT settle. Very few of the does that are targeted are guilty. I’m not saying none of them are, but few.
I have a friend who owns a business and paid his mortgage with business checks. His accountant then listed those transactions incorrectly as a business expense. My friend was audited by the IRS and was told he was in a lot of trouble. He went to a tax attorney who then told him he was probably looking at jain time and his defense would probably cost him $20K. He called me in a panic and I gave him some sound advise: “Ignore everything the attorney told you, he is wrong and unjustly causing you to panic.”
I then told him to go out and find a new accountant, have that accountant go over his books, and then cut a check to the IRS. He did that and it cost him considerably less.
To SJD’s point: I would never accept the first legal opinion (or any opinion for that matter) that I heard without doing some research first to make an informed decision.
Exactly, like everyone else in every other profession, attorneys see themselves as the center of the world and think their advice and services stand between you and the end of the world.
Remember Y2K? Computer programmers making the same mistake.
Bank bailouts? Goldman Sachs convincing everyone they were the most important.
I wouldn’t go so far as to call Jordan a troll, but he does make the mistake of thinking anyone else in the Universe gives a crap about any of this irrelevant lawsuit stuff. If every Copyright Troll disappeared tomorrow it would have basically no affect whatsoever on anything important (but a slight net positive affect overall).
Seriously, this stuff doesn’t really matter that much. One should not overestimate one’s importance.
Business expenses? Ohhhh the IRS HATES that. The larger the business expense deduction claim, the higher the chance of an IRS audit. As a CPA, and I don’t even specialize in tax (I HATE it….which is why tax partners make BIG bucks), I would advise people who claim business expenses to do so VERY meticulously (i.e. you cannot have a computer that others have access to, other devices, etc.). Eh I know it’s got nothing to do with the case…sorry hehe.
I was one of the settling parties. I didn’t want to and I didn’t have the money to but I couldn’t risk my job and marriage on the off chance I would be named. Cashman and I talked and he was a great resource. If I had to do it over again I probably wouldn’t have settled but the possibility of losing everything in my life was enough a scare tactic to make me crumble, being e coward that I am.
Whether settlement is appropriate differs from person to person. Different people have different stuff to lose.
I’ve seen people ignore these, get named individually, and then the social ramifications are far worse than the money that would have made it go away in the first place. It all depends on you, your circumstances, and an assessment of what you’re risking – including the toll getting named individually could have on your job, marriage, etc.
As lawyers, our job is to discuss that stuff with you.
So basically any lawyer will advise settling because its cheaper and has better odds than fighting? That’s the reason this racket is such a success because qualified lawyers don’t know how to deal with it. They treat every threat of a lawsuit as a plausible threat with real repercussions. But isn’t it the responsibility of a lawyer to properly evaluate empty threats?
I’m also quite surprised that Mr Rushies clients are so worried about a lawsuit even being filed against them and the impact of that on their future. We all know it only takes $350 and a bogus claim to file a suit. The trolls have taught us that. Can I really ruin people’s futures just by filing a suit???
Dismissed or not, this case will still live as long as Prenda…err, The Anti-Piracy Law Group exists. They will be sending demand letters to Does, stating that they’re part of this case, and all their other scare jib-jab (that would make me laugh but scare most others). If the case is dismissed, assuming you haven’t completely fucked yourself by incriminating yourself over the phone, THEN it is time to ignore them.
Is it even ethical (or legal) for an agent of a law firm (not necessarily an attorney but a guy like Lutz) to tell a Doe that they’re part of a lawsuit when, in fact, Does are non-parties in federal cases? Is it ethical (or legal) for the same people to send letters and leave voicemails, telling Does that they are “part of a lawsuit” that has actually been dismissed, but how many of the 1,495 (minus 28 or whatever) know that it’s been dismissed. They tried to extract money from me for 8+ months post-dismissal, leaving voicemails telling me that they’re filing an individual suit (never did). Perea even sent me a demand letter and called me.
What’s an attorney’s take on Prenda actually recording a phone conversation in a two-party state when the person (Doe) on the other end has not given express consent? Nor has the Prenda rep even asked for it. Based on my understanding of IL law, it’s a felony…eavesdropping. Voicemail is different since express consent is given when the message says “Leave a message.”
The beast is dead. Long live the beast. I suspect that Prensa/HDP have much bigger problems and won’t pursue individual cases.
Everything in life has an element of risk so the exercise is to evaluate the risk and apply it to your particular circumstances. Back in 2011 it was a no-brainer to elect to ignore these lawsuits as there were only a small handful of individual lawsuits in which a Doe had been served with process so it was easy to say your chances of being served were in the 0.0001% range. Today the percentages have increased somewhat but they are still ridiculously slim. Prenda is, by far, the most aggressive of the copyright trolls with a (last time I checked) a database of around 25,000 Does and at best 250 individual state/federal individual suits filed this year. So, in other words, if you have been targeted by Prenda your chance of being individually sued is at about 1%.
Also keep in mind, in case you do not read this blog often, Prenda is bogged down with some serious ethical allegations and legal troubles. Accordingly I expect to see this 1% risk begin to erode over a short period of time
SJD-not yor funniest but your best IMO.
As one of the 1495 we contacted local counsel upon receipt of the letter from our ISP. He advised against any motions in the DC court, stating ” based on the judges involved it would be a waste of money”. He also advised that he was now experienced in this type of lawsuits. So we decided to wait and fight if named.
We are middle 60’s in age.
Not applying for any loans, jobs, security clearances.
Will be applying for Medicare and Social Security soon.
Never heard of the movie, this company, this law firm.
Never downloaded or watched any porn movies.
Don’t know how, who or by method the ISP determined some IP address related to us.
We have received one letter and one phone call from Prenda. Late November or early December we recived a extortion letter from Mr. Ruggiero raising the demand to $6000 with a lawsuit pending if we didn’t settle in 10 days. We decide to wait and as everyone on this blog knows the DC case was dismissed. BUT these people have our contact information.
I see the comments going back and forth about settling or not settling. Also about retaining a attorney. I know every circumstance is different, but I’m confused now as to what Mr.Rushie is recommending. Now that the case is dismissed and the trolls are free to file locally, is Mr. Rushie suggesting getting a attorney and fighting them before being named ?
We have access to legal counsel via work provided Legal plans, but unfortunately, attorneys like Mr. Rushie are not in our plans. Guess we will take the best we can get.
So the question we all have, wait it out or be proactive ?
Let me say first, Merry Christmas! This must really be stressing you out to post today (assuming you celebrate it, if not happy Chanukah or whatever holiday you celebrate), so my first piece of advice would be to relax, and should you believe in Yaweh, Jesus Christ or any other deity, be confident that these trolls are getting one mighty big lump of coal in their stocking. What Mr. Rushie is saying, you should keep in mind, is one lawyer’s opinion. Specifically, he is describing the way that many of his clients use him to negotiate their settlement, as these lawyers can be quite shady and underhanded in their dealings. You would not be fighting before being served, you would be settling.
On to the next question, I think it is worth asking yourself the pros and cons and the moral and financial ramifications involved. The bottom line is that even if they sue you, they cannot touch Medicare, your retirement plan, and your Social Security. They almost never actually take these to trial, the odds are very slim of that happening. If you aren’t planning on taking out any loans or gaining security clearance, waiting is probably your best bet for now. The ONLY reason to get an attorney at this point is to settle. To simplify as much as possible you can do one of three things: 1.Settle on your own (bad idea). 2. Settle with the aid of a lawyer (probably immoral idea, since you are giving in to extortion, but it’s your call). 3. Wait it out (probably the consensus view, not necessarily Mr. Rushie’s view). Always remember though, if there were no copyright lawsuits, there would be no copyright defense attorneys, and these guys are all part of the ABA tribe. There are good and bad lawyers, just like there are good and bad people, but don’t let someone pull the wool over your eyes because they managed to avoid falling asleep through 3 years of law school.
I’m sure others will comment later, just make sure you speak with several attorneys (any reputable one will provide a free consult on a case like this) before doing anything. Unfortunately, there are as many interpretations of the law and how to handle a suit as there are attorneys in this world, and believe me there are way too many of both.
What Rushie are you talking about? The are two Jordan Rushies who have been commenting here: one who frees possums and understands that going after an individual for a minor copyright violation will ruin (or at least derail) his or her life, and therefore is inherently evil.
The other one is Jordan who just finished talking on the phone with Marc Randazza.
As one of the 1,495, we also received the late November $6000 extortion from are going Mr. Ruggiero. Does this mean they are going after us individually even though the original case was dismissed? Can we breathe easy or is this still in play?
This is probably one of very rare moments when I feel more depressed than you. Sorry, couldn’t help….
Reading comprehension, people…
You can ignore these lawsuits. There is a good chance nothing will happen if you do, even if you are named individually and served. And even if you are named and served, there is a chance if you default the court might enter in minimum statutory damages of $750, which is significantly less than it would have cost you to hire a lawyer and settle.
BUT, there is a chance that won’t happen. A court could enter in maximum statutory damages of $150k or maybe something in between around $75,000.00. The plaintiff might put on a persuasive assessment of damages hearing and get a good default award. You just never know – litigation is anything but predictable. (which you guys should know – courts in D.C. have issued rulings entirely different than say Judge Wright. These cases are all over the map and it varies from District Judge to District Judge – even courts in the same district are inconsistent).
If they’re diligent, they will probably figure out if you’re a defendant worth their name. A simple asset search will determine if you own a home and some other factors that would go into it. They might just pursue one or two individuals who are high net worth and ignore people who live in their parents’ basement.
You also have to determine whether simply being named and served will hurt your career or other stuff. If you’re in a position where you need a security clearance, a member of a professional organization (like a state bar), or carry professional liability insurance, you probably need to deal with it. Sorry, you just do.
There are just one of many things you need to evaluate before deciding what strategy best suits your need. It all comes down to your propensity for risk, where you’re at in life, and how much you’re willing to gamble. Personally, I think if you have assets, you’re a moron to risk a default judgment. Especially considering it wouldn’t cost all that much to make it go away, and if you are innocent and hire a lawyer, chances are you will recoup most of your fees anyway. If the plaintiff gets a default judgement of $75k, I’m guessing you will have wished you either fought it or paid the settlement demand.
Bottom line: different strokes for different folks. The job of a lawyer is to try and evaluate all your options to allow you to select the one you’re most comfortable with. If you think you know enough to do that without a legal education, by all means, take your advice from the internet. Personally, I wouldn’t try and perform a heart surgery by myself, but hey, it’s your life – not mine.
I do wish there were a one sized fits all solution for everyone. But there just isn’t. And anyone who tells you differently is just patting you on the head and giving you a belly rub. If saying that makes me a troll, a jerk, or makes you feel a little less than happy I’m okay with that, because at least I’m telling you the truth…
I’m sorry, Jordan, but reading comprehension (or, rather, attentiveness) is something that you would benefit from. This site has nearly 200 posts and 17,000 comments: I challenge you to find a single advice to ignore court summons (why are you talking about default judgement?), or even to ignore the matter when you are named individually.
“Ignore” and “ignore” are different verbs we are talking about here. No sane person will advise to ignore a lawsuit against one individually.
At the same time, when an abortion material that managed to survive, Mark Lutz, calls you and tell you that a suit will be commenced against you — THAT where probability kicks in. To do anything at this stage is stupid in most cases. It’s like dwelling on the fact that you may die in a car accident today. It’s your right to run from every shadow that may be a robber, but I would rather live my life and worry about the problems that are real.
My comment was not directed at you, SJD. Or Raul, or DTD, as all of you have a good understanding of how these suits work. Better than many defense lawyers.
I would note one thing in response to your comment – (and I know you know this, too), but you can’t take what one law firm does and attribute it to every other firm and client. A Prenda case involving HDP might be entirely different than a Prenda case involving another client, and it IS entirely different than say a Malibu case or a DGW case.
A lot of people assume because something is true in one case, it is true in all other cases… not realizing that Prenda isn’t Malibu, and Malibu isn’t DGW, etc.
If I have one piece of advice it’s this – every case and every Doe is different, for the most part. Don’t just take generic advice from the internet and assume if applies to your situation.
Jordan, if it was directed at me (and I’m the only other person who commented, so I’m guessing it was) we just have to agree to disagree here. Didn’t I advise that they consult SEVERAL lawyers? If you don’t like my attacking the ABA and the code of ethics you subscribe to, too bad. No one was ever forced to take the bar at gunpoint, last time I checked. My point being this, the advice was not generic. They explained they are about to hit retirement age, and if you know anything about retirement, you can now file bankruptcy and hang onto your retirement funds after the 2005 reforms, and not even defaulted federal student loans can garish your social security check. How does it matter if it’s Mailibu media or any other plaintiff, those are facts. That’s not generic advice, it’s tailored to their situation. If all hell broke loose and they were the first to go to a jury trial and lost it, they might end up losing some titled property. At the same time, if a meteorite falls from space and emits large amounts of volcanic dust, we might die off like the dinosaurs. Statistics are statistics. If I rub you the wrong way, so be it, I don’t care if you like me, but just call me out and call a spade a spade here.
1. The ABA does not set rules of ethics for lawyers. They are state specific. Meaning all 50 states have different, although similar, rules for lawyers.
2. Is a willful infringement dischargeable in bankruptcy? According to the Bankruptcy Code, “willful and malicious injuries” are not dischargeable. Does this apply to copyright violations that are found to be willful? Is it the same in every circuit?
3. For many, the house you live in is titled property. Are you willing to risk your house over this? Are you willing to gamble your house? Your savings account? Your car?
If there is a 2% chance could will lose your house and your savings account, but $3500 would make your risk to go 0%, would you chance it? If there is a 15% chance it could cost you a security clearance, a new job, or make your insurance skyrocket, would you chance that?
It all depends on the individual. If there were certainty in litigation, there would be no need for lawyers. But there isn’t. Our job as lawyers is to determine what you’re risking and help you make an informed decision. As a client, you determine what you feel comfortable gambling with.
I had actually come here in part to defend Jordan, because I believe the Devil’s Advocate perspective is valuable, and it is always smart to know the worst-case scenario, but I believe this post is going too far.
Jordan, if you are going to post percentages to strengthen your argument, don’t make them up. At least give us your rationale for your estimate, if not some actual data. I think it would certainly be fair to point out that many of the posters here make up their estimates of the risks involved here, but that doesn’t make it OK. They are posting anonymously on a biased forum, you are a professional and, I believe, trying to raise the quality of discourse here and IMO just making stuff up is not ethical, especially when you potentially have a vested interest in what people here believe.
So, please, if were are going to go there, tell me how many people you think have lost their homes over these cases. A year ago, reports using an estimate drawn from federal court filings put the number of BitTorrent users sued at over 200,000. Mass-Doe filing have slowed down significantly since then, but if you also lump in the CFAA cases with very large numbers of Does there have probably been at least a few more tens of thousands roped in to BitTorrent and similar lawsuits. But lets just say 200,000 as a minimum.
So, how many people have actually been on the wrong end of a judgement in these cases? None have gone to trial. A couple have resulted in counterclaims that resulted in a judgment or settlement favorable to the defendant, and a handful have gone to default, some for very large and some for very small amounts. I can only think of a handful, perhaps a half-dozen reports of defaults in these cases at all. I’m sure there are more that haven’t been dug up by readers here, but remember John Steele loves to brag, so any scary-number judgement is very likely to be used by Prenda for PR value, and there have only been a couple of those. Even if the number of total judgements obtained against Does is 100, which I suspect may be an order of magnitude off, that would be 0.05%, significantly less than 2%. Now, my numbers are sort of made up too, although I am making an estimate based on some of the data out there about these cases, but at least I am telling you guys how I came up with that number so you can agree or disagree and we can try to build a better model.
Beyond the simple numerical risk of being individually sued and subject to a judgment, you really recklessly leave out everything between the lawsuit being filed, summons served, and default. In every case that we have observed, settlement is [i]always[/i] an option. In a well documented case involving the plaintiff we are discussing here, Liuxia Wong v. Hard Drive Productions, Inc., we know that after filing a single-Doe lawsuit, when Wong’s attorney made it clear she was not interested in settling, before Wong filed her own lawsuit against HDP, HDP actually [i]lowered[/i] their settlement offer before they got beyond the point of no return. There has been absolutely nothing to indicate a plaintiff in these cases will not accept settlement at any point up to a default judgement, as obtaining settlements is the entire point of this game! Aside from some bullshitting from John Steele at one point about a few cases where the plaintiff had supposedly “withdrawn the option of settlement for the time being,” there is no documented evidence to suggest a plaintiff will turn down a Doe who decides to throw in the towel and settle. And we all know John Steele is full of shit, and at this point is basically documenting himself as a criminal, and the last time he was bragging about his cases he claimed Prenda was at a 300 individual case/month capacity and taking a quick browse through RFCExpress it looks like November saw about 50 single or named Doe cases (mostly single Doe, not even named) from Prenda with December bringing maybe 10. So I’m no going to put any stock in John Steele’s threats about not accepting settlements all court records suggest otherwise.
So, where am I going with this? I’ve been setting up to ask that you please stop pretending that anyone is going to go directly from being threatened with a lawsuit, even when there is no lawsuit pending, unless they settle, to suddenly losing their home without any warning. Before anyone gets anywhere near a default judgement there will be threats. There will be another lawsuit filed, either named or single-Doe. There will be more threats. There will be a summons served. There will be more threats. And then, only if the target willfully ignores this will there be a risk of default. If, at any point during this long process the target decides things are getting too hot to handle, they can settle and most likely (according to the actual public records of these cases) settle for the same amount they were shaken down for to begin with.
Especially when were talking about a plaintiff like Hard Drive, that hasn’t filed a case since March 2012, has [i]never[/i] filed a named case (although perhaps they have amended complaints to name defendants after filing a HDP v. John Doe case), and (as documented by court records) were always desperately willing to settle the case for the initial price or less the whole way through the process, fear-mongering about people waking up with their lives ruined and their homes gone just doesn’t sound very credible.
Furthermore, one of their talent scouts was just indicted for trying to recruit an undercover cop posing as a 17-year-old. So please give at least some consideration to what you are encouraging people to support.
I would also be interested in some documented evidence that frivolous lawsuits impact individuals’ eligibility for security clearance, etc. I don’t necessarily doubt this is true, but I would very much prefer to read some documented sources that provide examples of this happening, rather than taking the word of someone who benefits from having other people believe it. I can’t help but think that if this were true, the Soviets would have realized this during the Cold War and created a bunch of phony law firms just to file BS lawsuits against American intelligence officers, defense contractors, etc., effectively rendering everyone in America’s defense apparatus unemployable.
Also, Jordan, I have to say you’ve really gotten me irked on Christmas (considering I’ve wasted this much time on my Droid phone), but after reflection something doesn’t sit right with me about your prior statements. Why exactly don’t you charge the clients who settle, but DO charge those clients who choose to fight back after being served? Let me give you an example from my own life. A few years ago, my neighbor’s cable was disconnected. Shortly after, I found he was splicing my cable, and turned him in to my service provider, who promptly disconnected the line (I have no idea if they took legal action). About a week later, I had to rush home because his son had jumped my fence, supposedly to retrieve a baseball, and accused my Labrador Retriever of biting him. Now, there were a few issues: the dog was beaten brutally with a baseball bat, supposedly in self defense. Second, the vet who saw my dog was willing to look at the photo evidence involved, and the bite to the son’s ankle was at such an angle that it indicated the dog was lying on his back when he bit him, or else the kid was levitating upside down in the air defying all known laws of physics.
I hired an attorney, who for a fee offered my neighbor a settlement wherein I paid the son’s medical expenses and $500 for damages and I agreed not to pursue trespassing charges (as my gate was clearly locked with a deadbolt). Otherwise, we were going to fight it out and call my vet as a witness. I would have done so, but my employer would have been extremely irritated by my absence, so I took the easy way out. The point being, he charged me a substantial fee for settling because that is his business model, and he would be bankrupt in a month if he did all of settlement work out of the goodness of his heart. Given the number of people who are settling these Doe cases, what reasonable defense attorney handles such settlements pro bono? If I heard that my neighbor’s son had been bitten by several other dogs in my neighborhood, and my lawyer negotiated those settlements too, AND did so pro bono, it would raise red flags. Certainly I would wonder if my attorney had an improper relationship with my neighbor.
So, would you please elaborate for the ignorant and unwashed such as myself who lack JDs and couldn’t possibly fathom your rationale, exactly why you handle settlements pro bono but charge to fight? For the life of me, I can’t figure it out.
Jordan, let me start by apologizing for not seeing your reply before I posted again, but our comments went up at roughly the same time.
To your points
1. “The ABA does not set rules of ethics for lawyers. They are state specific. Meaning all 50 states have different, although similar, rules for lawyers.” Oh Jordan, why treat me like a fool? The difference between “rules” and “ethics” is a flimsy matter of semantics and you know it. So you’re saying you don’t go to hell, or whatever afterlife you believe in, if you only violate ABA precepts rather than say the Catechism, the Mosaic Laws or perhaps Sharia law? That is a depressing concept. Also, of course I know they differ by state, but I think I can safely state that I don’t agree with the totality of any of the “rules” regardless of each state. As a supporter of tort reform, I can guarantee it. And thank you for admitting attorneys live outside the bounds of ethics, and rely on purely amoral concepts of duty.
2. “Is a willful infringement dischargeable in bankruptcy? According to the Bankruptcy Code, “willful and malicious injuries” are not dischargeable. Does this apply to copyright violations that are found to be willful? Is it the same in every circuit?” I don’t believe for a second any jury in the world is going to find a 63 year old couple guilty of that and you know it. If we’re talking about a 23 year old kid, okay, but come on here, let’s not play dumb.
3. “For many, the house you live in is titled property. Are you willing to risk your house over this? Are you willing to gamble your house? Your savings account? Your car?”
Again, you’re making your own generic statements. This man has hinted he is not exactly in a great financial position, I didn’t tell him “YES! FILE BANKRUPTCY IMMEDIATELY IF YOU ARE SERVED!”. I was just giving him options.
Once you’ve been falsely accused in a case such as these, there is no winning, only mitigating your loss. Imagine a street thug comes up to you with his hand hidden under his coat and says give me your wallet. It is common advice to “just give him your wallet, your money isn’t worth your life”. This is good advice for an old man with a heart condition. If you are a special forces commando,however, you’d probably be safe taking out the untrained street thug. You’d be doing society a favor. The sick old mans surrender will probably encourage the thief to rob again. Is it fair to blame the old man? No, it is the thief’s fault. The individual evaluation of risk varies from person to person. I think Jordan is saying he has seen old men with heart conditions who think they are special forces commandos and don’t realize the truth until too late. As a person with no “juice” in the game, I’m not a troll, defense lawyer or accused doe– just a curious bystander, I admit I’d have to settle a case if accused, even though I’d be innocent and able to prove it. Financially, I could afford to fight, but I’m a teacher. I live next door to a school. My wife’s job requires a high level security clearance. Sure I’d win in court, and get a judgement against a worthless shell company. I’d be “vindicated”. My reputation would be forever tarnished. My “evaluations” at work would be effected and I’d be pressured to retire. I’d have lost dozens of nights sleep and hundreds of hours of time. My wife would probably not get her job back. What would the effect on the trolls be? At worst, the trolls would either pay my attorney fees or have to create a new fake shell company for their lawsuits. For many, I think the cruelty of the scam is simply financial. Either pay $3000 or the trolls will rack up $10,000 to $15,000 in law bills for you before dropping the case. Effectively it is identical to the old “protection” racket. “Pay $3000 to protect your business or we will do $15,000 in damage.” It might be better for society for Jordan’s clients not to pay protection, but he’d be remiss if he didn’t warn his clients that the mob would likely burn their business to the ground if they didn’t pay.
“Once you’ve been falsely accused in a case such as these, there is no winning, only mitigating your loss”
Right, because Nguen clearly isn’t going to be “winning” Coopergate, and the Trolls have “won” all of those cases they brought to trial…which would be 0… Also, almost none of your examples apply to the gentleman in question. He said he doesn’t want security clearance and he’s retiring so he obviously couldn’t care less if they call his job. I have to say, it does seem as if you have a dog in this fight, if only an intellectual one. It’s a lot of text for someone with a passing interest.
The trolls win whenever their business model turns a profit. Every time they cost a doe $10000 to fight their $3000 extortion, they’ve won because they get more settlements from those who can’t afford to defend themselves. My point is that the only way to truly win is to not be in a suit in the first place. How many does do you think are HAPPY this happened to them? Its like claiming an accident victim who is paralyzed is lucky they were injured because they will get a big insurance settlement. As for Jordan’s specific advice, I think most of the criticism is really related to the fact he is NOT offering specific legal advice to the specific case but giving general advice that the reader needs to apply to their specific circumstances. In other words talking to the larger audience.
Happy would be an overstatement, but I can’t really say I mind being trolled by Prenda at this point, these guys are such a joke. Yeah, it got my attention and I was a little stressed out for a while, but I found Fight Copyright Trolls the night I received my subpoena notification, knew what to expect, and now I am long past worrying and am thoroughly enjoying watching these buffoons get themselves in trouble. If things work out the way I expect, I may even pay John or Brett a surprise visit in jail if it’s not too inconvenient.
BTW, it has been mentioned a couple times by Does but I don’t think anyone has commented on Prenda apparently asking for $6000 for HDP settlements now. It was about half that back when I got trolled and that already seemed to be a sign of desperation, getting way too close to the limit where most people just can’t pay no matter how much they believe Prenda’s bluff. With only 28 dismissals in a 1,495 Doe case, and I know even that disappoints the hell out of SJD, but that is an absolutely abysmal rate (1.8%) for a massive case that has been open for over a year in a troll-friendly district. It just goes to show how effective this site is vs troll PR.
“[T]he only way to truly win is to not be in a suit in the first place.” Really? That’s like saying “don’t get mugged.” The whole issue here isn’t about being sued for copyright infringement, This is about Prenda and their ilk suing the innocent. If these troll’s were about stopping piracy, if their evidence was any good, if they relied on anything other than FUD, then more power to them. But that’s not the case. They do not care about stopping piracy: they care about getting money. Their evidence has never been tested in court: they drop these cases before they ever get discovery. And when discovery has been offered up on a silver platter, they refuse. Instead they send out letters demanding an amount of money that is clearly disproportionate to the alleged infringement. Never are the proper authorities notified, even though copyright infringement is a federal crime. Instead these trolls threaten one’s mortgage, reputation, family and friends, etc. A doe spending more to defend himself rather than settling does not cause a troll to win. And while I dread going through a suit, I would rather be named and spend 10,000 to put these trolls to some accountability rather than 3,000 to settle and allow them to continue. So, don’t try to feed us with that line about not getting sued in the first place. By and large, it is not the does who are at fault for being sued any more than it is the fault of any victim for being mugged. I draw that comparison because it’s exactly what’s happening here. The trolls are mugging people, extorting them for thousands. We are being held up, not with a gun or knife, but with court approved fear-mongering. We are being held hostage by a threat on our homes, our jobs, our families, our friends, etc.
This is silly talk.
Jordan:
1. Name one case by the porn trolls that was decided on it’s merits that was a victory for the trolls. Nobody on any of these sites have ever said ignore a case that you have been named and served in.
How is anyone going to lose their house if zero of these cases have ever been decided on their merits? The majority of the defaults have been against non-citizens or those who move frequently who could be totally unaware. Service has always be dubious on all the defaults.
2. Security Clearance. So you’re saying I could sue Jordan Rushie tomorrow in federal court for some made up charge. Let’s say you are infringing on one my copyright’s. I let the case go for a few months and then dismiss it. (LIKE ALL THE TROLL CASES), and now you are telling me you can no longer get security clearance? There’s a good racket, you might want to suggest to some friends. Fake lawsuits against people who could potential want security clearance.
Again, nobody has ever lost these cases on their merits, so all of these risks are make believe stories to scare uninformed people.
Re: security clearance. Unfortunately you can lose security clearance from a false accusation without even having to go to court. Not only that, you are generally without recourse. During the course of the investigation for example, a vindictive neighbor could claim you drink too much, have a gambling problem, commit computer crimes etc. You could be denied clearance and never told why or who accused you. Its completely up to the deiscression of the investigator.
It is actually up to the adjudication board, as far as if a clearance is granted. As long as you are up front and don’t try to hide the fact that it is ongoing, it isn’t a big issue by itself. Telling the investigator up front that it is a BS claim goes a long way. They can also look at the case and the FACT that NO case has ever been judged on its merits – only few default judgments.
DTD 🙂
If you are interested in the security clearance process, rights and appeals, I’d recommend clearancejobs.com.
The Defence Security Service is the place to go for such information. For people with security clearances, talk to your Security Office. Unless you are TS SCI, most of this is moot. The Web site you have is a commercial site.
DTD 🙂
I was just suggesting the site as an easy place for the curious to learn a little about the process. Not for legal advice. I found it when my wife was going through her security screening. I have no commercial
Interest in the site, I’m a teacher.
InnocentBystander, some on here may take issue with me doing this, but I have to call you out here. That first paragraph you posted reads like it was copied and pasted out of “Copyright Troll Apologetics Fro Dummies”. Now you’re plugging a website? This just smells like last week’s tuna.
Beyond that, if you are somehow associated with the Trolls or have some other vested interest, you just admitted that they are essentially a mafioso racket, but advised people to cave in anyway. Fighting a copyright troll is not as dangerous as fighting a mugger, and you don’t have to be a “commando” to take one on; I do agree they are on the same level morally, though. So by your logic, are we to just wait on a modern day RFK to bust up the racket and live each day in fear of their retribution as if this were 1940’s Chicago? And where are you getting your numbers, they are more fabricated than Jordan’s. I can guarantee you that in this economic climate with so few people filing patents, you could find multiple attorneys to field one of these cases for $3500, and considering that a lot post their rates online, you can see that I could hire Pietz, Booth and Sweet, houstonlawy3r, etc. (all top attorneys in their field, by the way) for well under $10,000. And even beyond that, the fact that you went out of your way to call yourself “InnocentBystander” just reeks of trying too hard to seem impartial. Something about this just screams chicanery.
I am not recommending ANYTHING. I am just pointing out that as a disinterested party, It makes perfect sense that some people may not want to be the one to stand up to the criminals. Do I think they are a mafioso racket? Absolutely. Because YOURE involved and fighting, you want everyone to be brave and selfless and fight for your cause. The REALITY is that most people aren’t selfless heroes. Like I said earlier, innocent or not, its obvious this entire process sucks. NO ONE gets up in the morning saying “I hope I get sued today.” I can’t fault a lawyer for accurately outlining the processes, probabilities and options for their clients. I admire those who fight the crooks, but I can’t fault a doe for not spending their child’s tuition or health insurance premiums for the “greater cause”. I have admiration for those who fight and sympathy and understanding for those who don’t. I don’t have sympathy for a lawyer who would mislead their client for the sake of OTHER does. As for me, I am exactly who and what I pro port to be. When any deviation from the “party line” is met with paranoia and accusations, you are cutting off communications and information transfer which is the primary power of this website. As for accuracy of financial figures. My only sources are anequdotal from this and similar websites. To me, this is just an intellectual hobby, like reading climate change blogs (another personal obsession).I’ve seen figures on IP litigation costs, initial retainer estimates and other info on this site. The 10k number I was using was based on the Florida Sun lust request for attorney fees. It would be very interesting to get an estimate of attorneys fees for a named case up to the point of discovery.
There are advantages to fighting back, for the very rare times that the trolls move forward beyond both threats and, after naming an individual, more threats. Trolls have stuff to lose in taking a case toward trial. They lose money by taking time that could have been used to extort settlements from 20 more Does. Effective Doe defense evidence, such as revealing faulty parts of so called troll forensics, could wreck future cases even if the troll won one. Trolls are liable for legal fees and expenses of the defendant if they lose. (Even small expenses seem over-important to trolls, as evidence by the shoddy assistance they have assembled for some of their filings.)
Beyond money, winning against the trolls gives a different peace of mind. A Doe who has fought back effectively would probably be avoided in the future by trolls. There’s no record of a troll going after a Doe after the troll has backed off the case against an individual. Otherwise, why wouldn’t a troll go after an easy target again? What’s to prevent another unjust allegation, or another dozen?
There’s also peace of mind in not facing the guilt and anger of having to pay off malicious people. This is even more important for the Doe than knowing they’ve also done something for the good of many.
To put it simply, is it an attorneys duty to enlist a doe into the CAUSE of defeating the TROLL EXTORTION racket, or is it the attorneys duty to represent their clients interest AS THEIR CLIENT SEES It?
InnocentBystander, it is their duty to avoid using made up statistics. It is also problematic that Rushie is settling these cases pro bono, and charging to fight. I’m still waiting for his response to that.
It is the duty of an attorney to represent the FACTS. I am not paranoid, I just don’t buy that you’re an Innocent Bystander. To put it plainly, you doth protest too much, and you seem to be really rattled making blind accusations at me. Also, you stated “I am exactly who and what I pro port to be.” Who are you, and why do you care so much about this? You can visit my blog and see that I clearly state my agenda. I am biased, I am fighting a cause, but I’m being upfront about it and using facts to make my case. You can’t refute any of my arguments, much like Rushie you keep falling back.
Example: You stated ” I can’t fault a lawyer for accurately outlining the processes, probabilities and options for their clients.” Rushie didn’t accurately outline anything. He greatly exaggerated the speed at which one of these cases could go to trial, which none have, and completely fudged the numbers to fit his point of view. He consistently ignored my counterpoints and became flustered, making more generic statements that have been soundly rebuked. If you are who you claim to be, and you haven’t claimed to be anyone other than an oddly useful archetype for a troll apologist, you must by your own logic fault Rushie for inaccurately outlining the process, making up false probabilities, and trying to falsely discredit viable options for potential clients. Bottom line, if it looks like a troll and it smells like a troll…well, you know the rest.
I will represent anyone who didn’t have bittorrent on their system (nor did anyone in the household) on the day of the alleged infringement on contingent fee if it’s a PA or NJ case, where I am licensed. That is a standing offer. You’re completely innocent? I will represent you on my buck. If you’re willing to put the time and energy into fighting this, so am I.
The reason I represent most Does who want to settle pro bono is because settling cases isn’t what I do. A settlement usually takes a few phone calls, some negotiations, and then a payment. However, I’m not a settlement attorney. Many Doe Defenders are, and they do a lot better job than I would. If that’s what you want, hire someone else. I’m just not good at it. I’m looking for clients who want to put their case on before a jury – I want to fight these all to the death.
If you’re broke, destitute, or have a medical problem, I’m willing to help you out as a public service. Everyone deserves access to competent representation.
I founded my firm on a commitment to justice. That’s never changed, and it never will.
Jordan, your rhetoric in this statement is to be commended, but it comes across as damage control and I don’t buy it.
You said earlier “And personally, I don’t charge any money to people who want to settle.
The catch 22 is there are a lot of Does who SHOULD settle, but the lawyer encourages them to file a stupid motion to quash / sever because they just want to get paid”. Why didn’t you mention that you will also fight pro bono then? If it’s so high up on your priorities as you now claim, why leave it out?
Also, if I am a doe, why should I trust your advice on this? You just said “settling cases isn’t what I do”, yet you feel qualified to say that A LOT OF DOES SHOULD SETTLE? I definitely wouldn’t trust legal advice from an attorney who admits that settling isn’t what does (yet he does it for free?) anymore than I would trust advice from the Internet, which you attacked earlier. And I still want to know why you feel that you haven’t done anything unethical by making up statistics that you know could be used to intimidate a potential client into settling, or are you still clinging to the concept that “rules” and “ethics” are different? Keep ignoring my points if you must, but you come across as a bit schizophrenic as the Jordan Rushie now commenting doesn’t match the one from two days ago.
What you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
Jordan, how does quoting Billy Madison address your making up statistics, which you did? Just answer me the question of why you felt it was okay to do it, and I’ll let it go, but you’re the one appearing childish here. I still don’t think you’re necessarily a bad guy, but you don’t carry yourself properly as a professional and you’ve just provided perfect fodder for a troll to copy and paste into an extortion letter. For example, “Even noted copyright infringement defense attorney Jordan Rushie estimates a 2% risk of losing your home, vehicles and other titled posessions.” It’s out there in the ether, it’s irresponsible, and you don’t want to address it.
As to Innocent Bystander, I still think you’re probably somehow connected to the trolls or have a financial interest in these security clearances, but I’m letting it go since I can’t prove it.
I think you guys are being too hard on Jordan here, honestly. The way I’m reading his statements, he’s talking openly and honestly about the risks if you ARE named. Yes, there is a tiny percent chance of that happening, but if it DOES happen, where are you left?
Situation: Cannot afford legal representation
a) Allow a default
b) Settle for more money than you could have before
Situation: Can afford legal representation
a) Pay a lawyer a lot of money to get a lower settlement
b) Pay a lawyer a shitload of money to fight it
It’s all well and good to talk about fighting tooth and nail, but it DOES cost a lot of money. The chances of being named are very very slim (and have to be calculated further based on the lawyer/group/client combination that you’re up against) but if it comes to pass, you are looking at either defaulting and trying to discharge it in bankruptcy court, or emptying out your 401k to fight it and hope you get that money back, unless you happen to just be very wealthy. Unfortunately justice in this country is only available to the wealthy, and it’s rare that a lawyer with the level of understanding that Jordan has of these cases would even make the offer he made in here (pro bono defense to the very bitter end of anyone who is accused and DID NOT have bittorrent installed on their computer) – otherwise you are looking at footing the bill for a lot of discovery/depositions/trial time/etc.
Like it or not that’s not a viable option for some people! Especially when there are risks involved to your life and career just from getting named in the first place – look at the documentation Fantalis provided about being rejected by job recruiters and denied a mortgage.
It totally sucks that some people don’t really feel they have a choice but to settle, but that is life. We just have to hope that the little fights here and there end up chipping away enough eventually to bring the whole thing down, and not get so angry at the people who feel they have no choice and the lawyers who offer them advice.
“I will represent anyone who didn’t have bittorrent on their system (nor did anyone in the household) on the day of the alleged infringement”
I’m sorry, but I take offense at this. It assumes that the use of bittorrent is illegal. It isn’t. I use it EVERY DAY. I download and test linux distributions for friends, family, and work. Bittorrent is the best, and fastest, way to get the .iso file downloaded.
I think you’re reading too much into this – I think he’s saying that because if it can be forensically proven that the household computers didnt/never had bittorrent installed, it becomes sortof a slam dunk case for the defense, which means he’s not risking as much on a pro bono defense.
A case like that being tried would also help EVERYONE, because it would be “proof” that when the trolls talk about all the defenses people raise (wireless intruder, spyware, etc) being fantasies that never happen, they are wrong wrong wrong.
I don’t interpret his words as being “if you have bittorrent clients installed you obviously are guilty , so step off”
If you have any bittorrented pirated material on your computer, try convincing a jury that sure, you downloaded OTHER pirated stuff, but you just didn’t happen to download THIS pirated stuff. That’s a tough sell under a preponderance of the evidence standard. How would you react if you were a juror? If you knew that a defendant had bittorent, had it on the day that the file was downloaded, and had used bittorrent in the past to download all kinds of other copyrighted stuff? Whose favor would you find in?
If you’ve only used bittorrent for content that isn’t copyrighted, that’s a different story. That’s a case that might be worth defending before a jury.
Again… it’s all a case by case basis.
I use BT all the time when I buy my humble bundles. I’m not going to tax their servers more than necessary, especially since I usually give most of the money I spend to the charities and then to the developers.
I know it probably costs them a lot in bandwidth, but I can’t pass up the charities so I help by using the torrent files instead of their servers.
I guess this makes me a bad person in terms of the law when it comes to these kinds of things?
I get where you’re coming from Mr. Rushie. I really do. And my contention isn’t necessarily with you, but the situation these people are putting you in (but obviously moreso the does). It just seems to be such a cruel variable to include in these types of cases. BT isn’t illegal.
I mean, to use the same kind of twisted logic the trolls try to use when they engage in when they twist civil and criminal law: “Just because I own many kitchen knives when when someone on my block was killed with a knife, doesn’t mean I’m responsible.”
And you’re there saying, “Well…I guess I’ll defend someone who doesn’t have a knife in their kitchen on contingency”
“Whose favor would you find in?”
Is the penalty for copyright infringement something reasonable, like say the cost of a DVD? No? Then I would side with the defendant.
You’re being a useless prick of a troll Rushie.
I must be confused, there is talk of convincing a jury. When has one of these cases went to a jury? When would a troll even want one of these to go to a jury.
The point Jordan keeps making is you don’t want to lose these cases. But we’ve never seen one even get close to being decided on it’s merits because the trolls do not want to take it that far. The closest was the one in CO, and looked what happened there. They bailed as soon as discovery opened up.
I understand Jordan has a relationship with Marc Randazza and he’s one of the more serious and legitimate ones. But we’re talking about Prenda here. You read the transcript, these guys are clowns.
Let’s see, I referred to the trolls as extortionist and compared them to street thugs. You called me an apologist…. Never said a single word in favor of anything about them. All I’ve said is that I understand why it is in the personal interest of some does to settle and believe it is a lawyers duty to make their clients aware of the economic and personal costs of fighting a lawsuit. For this you call me a troll apologist and imply a hidden agenda. No, you’re not paranoid. 🙂 You present the interaction in terms of a battle. Falling back against your attack. You ignore what I’ve said in order to restate accusations. I have said exactly who I am. A teacher without any involvement in these cases, just an obsessive intellectual curiosity about them. Frankly, your responses are those of a troll. An internet troll, not a copyright one. Your responses are territorial, you view them as battles to be won. Your posts are designed to enforce intellectual purity in the site because most normal people will back away from insult and unwarranted aggression. I admire the purpose of this site. I admire that you are fighting the extortionists. To fight them you need passion, but you passion can be harmful to your cause as well. If a doe visiting this site for information reads your responses, don’t you realize that bullying, insult and aggression will drive them away? Reread my posts. Did I actually say anything pro troll? The only point I ever made was that i had sympathy for does that settled and a belief that the attorneys duty was to his client not a greater societal cause. Everyone with a slightly varying viewpoint is not secretly working for the trolls.
I understand your mistrust of Jordan, but reading Jordan’s post at face value, , shows him to be a strong ally in your cause. IF you accept his honesty, he is simply filtering out potential clients so that he is only representing those who have the most potential for advancing the cause. By representing only committed innocents (as opposed to infringers who might cave due to fear and doubt) he can do the most damage to your enemies.
Well, my strong believe is that a healthy, dedicated community (and I think we are) is self-sustained. I would inflict much more harm by starting moderating — that would cause much more harm than any potential harm you are talking about (“If a doe visiting this site for information reads your responses, don’t you realize that bullying, insult and aggression will drive them away?”). For 1.5 years we managed to stay this way: we witnessed some “bullying , insult and aggression” in the past, but they faded away quickly.
Peace.
SJD, I will simply say that if you do have a problem with the language I’m using or the way I conduct myself, merely give me the word and I’m gone. But I truly feel Jordan crossed a line here, that went beyond playing devil’s advocate and really could have intimidated this Doe to settle. That is where my anger comes from; there are people’s lives and financial futures at stake here, and to think that someone is being coerced into settling with a group the likes of Hard Drive boils my blood. I stand by every point that I made, but I just saw Jordan attempting to automatically shut down my efforts to help this man, even though my first advice was that he consult several attorneys to make an informed decision, and it still doesn’t sit right with me.
Well, the golden rule of any discussion is to “attack the idea,” not its bearer. It maybe strange that I’m saying that while my posts are so emotionally biased and full of ad hominems, but somehow I manage not to dwell on this dilemma, and I don’t experience much discomfort 🙂
I wasn’t asking you to moderate, and egotistically I believe my skin is way thicker than most. I believe the solution is MORE speech. People often get in bad habits and jammingwithiesu is fighting in a good cause. He just needs to recognize that when shooting at the enemy he needs to avoid friendly fire.
> I believe the solution is MORE speech
That’s exactly my believe too.
Innocent Bystander, since you don’t care to drop it I will address you one final time, and I’m done with this. Speech has consequences, we don’t live in a vacuum. The Doe in question was obviously in a frantic state, and if “patting him on the back” calms he down to the point where he doesn’t do something rash, I don’t care if I ooze bias. Secondly, how are we to know who is and is not friendly? Your speech struck me as portraying a sense of imminent doom, and it still does. The language of mob violence has a greater figurative connotation than comparing these trolls to say ambulance chasers, and I think you were highly irresponsible in doing that, as well as pointing people to a for pay site when there are obviously free alternatives.
The bottom line here is that I hold Jordan to a higher standard, as I said before, no one was forced to take the bar. I’m a jerk construction worker with a technical degree at the end of the day, I’m not an attorney, and I don’t represent myself as one. But, as someone who finished two years of law school, I also believe that there is far too much looseness in terms of ABA standards in terms of how attorneys can advise people whom they have not made any sort of physical (i.e. phone line, or documented professional) contact with, and I feel qualified to bring that up. Attorneys too often hide behind the shield of their JD, and I think Jordan was and is being dismissive of me. Maybe I have an axe to grind subconsciously, if so then so be it, but I believe he crossed an ethical line here.
Jordan, after having defended your position of filtering out innocents to defend, I am going to give a paranoid devils advocate interpretation,and see how you respond.
The worst Political fallout to porn trolling comes from their suing innocent victims. The Blind and Elderly make awful defendants and worse TV visuals for the Trolls. The trolls have virtually no evidence against the Does so they can’t (if they wanted to) distinguish between infringers and noninfringers. When everyone was settling it made sense to the trolls to sue everyone. But the landscape has changed. Suing noninfringers can be expensive since they are more likely to fight back and win. This is especially true because most of the trolls are bad attorneys (or they would be practicing law, not be engaging in extortion). There are plenty of infringers out their for the trolls to sue. It would be in the LONG term interest of the trolls to have a mechanism to filter out the innocent. As potential council in consultation with the Does, you have access to more information than the trolls. You CAN filter out the innocent. Now the does are split into two groups, filtered innocents and those you won’t represent. Since you honestly filter out the innocent, they recognize that suing your clients is a bad bet, so your clients get dropped from the cases. By dropping your clients, the trolls can focus on the infringers with lower risk to themselves. You develop a reputation as a proven winner in these cases, so most Does come to you for representation. Therefore, you are working for the Trolls.
Currently the law isn’t setup for that.
Congress is contemplating a small claims court. I think this makes some sense, but we’ll have to see how it works.
The Six Strikes program was also designed to address this. While it’s been criticized, it’s also a compromise between the ISPs, copyright holders, and internet subscribers. I can’t tell you how many calls I get from Doe defendants that go like this: “You mean I don’t even get a WARNING first? If I had known you could get in trouble for downloading porn off bittorrent I never would have done this. Now I’m a defendant in a lawsuit?!?!”
I also get a lot of calls that go like this: “I got this stupid letter from my ISP. Can I just wipe my butt with it?” The respond: “You’ve very lucky you got that. I’d send your ISP a Christmas card. Most John Doe defendants don’t even get a warning before getting wrapped up in a torrent lawsuit.”
Change is most likely going to come at the Congressional level. Unfortunately, they’re not very inclined to relax copyright laws right now.
Jammingwithiesu. The reason I equated the trolls with criminals and mob violence is because that is what I think they are. These cases are a “protection” racket and nothing more. Protection rackets work because it is USUALLY EASIER to pay than to fight. Not better, Not more moral, EASIER. I simply used MY PERSONAL situation as an innocent bystander to point out that I’d choose to pay the extortion. Its COWARDLY, but its what would be best for me. I’d be angry at an attorney who convinced me to fight for the sake of the “cause” without warning me of the personal costs. I believe that while this site is a useful source for support and information for Does, the sheer preponderance of active Troll fighters on the site tends to skew the type of advice on the best course of action. Balancing that advice with alternate viewpoints is the only fair way for the Doe to make up their OWN mind. If you say that anyone who points up this alternative is a traitor working for the trolls, then you are doing a disservice to a lot of people who would prefer this to go away and don’t really want to be martyrs to the cause.
Proudly biased. I need to trademark this phrase. Alternatives to the views presented on this site are welcomed and MUST be considered by anyone who is not intellectually lazy: I repeat over and over again: this site is just a drop of knowledge in the ocean of common sense: research and make an informed decision. If someone needs an easy and unambiguous recipe of his actions, he should consult an astrologist.
There are two reasons why I’m proudly biased:
Saying that, I must to note that I do my best to be factually correct. I.e. I don’t sell speculations and rumors as facts, clearly labeling those. There is a difference between yellow press and opinion blog, and I loathe to become the former.
BTW, Rob Cashman agrees with me:
I second SJD’s reminder that the troll so-called forensics (whether 6881 or other) is very SUSPECT. It’s an unknown, un-proven claim about a supposed technology, with no vetting from a recognized expert in the field. Under the guise of “proprietary”, it may never be tested. Maybe more important, there’s no disclosure about the relation and profit sharing of so-called forensic firms with other parts of the troll plaintiff team.
Has there ever been a comparable blight on the court system? Hundreds of cases filed by essentially unknown plaintiffs, to enrich very few, at the expense of at least tens of thousands of innocent citizens, on behalf of an arguably disreputable industry, making allegations for what amounts to extortionary purposes, based on an unchecked technology claim which could have a full conflict of interest.
No wonder it’s hard for new Does to understand. It’s unbelievable.
While I respect Jordan immensely he represents the victims of lightening strikes which do occur but are quite rare, something he has yet to admit. Once again, look at Prenda’s approximate 25,000 harvested victims and compare that to the number of individual filed lawsuits (guesstimate 250) and you can see the fear mongering is almost hollow. Percentages are far smaller for other trolls as to be almost insignificant. All cases are to be evaluated individually but for most it is an annoyance to be ignored.
While I believe Jordan’s statements about clients he has who have been named, served, etc. are true, when we are talking about Prenda and especially Prenda representing HDP the elephant in the room is that none of these cases have come anywhere near a trial or even discovery of a Doe’s computer(s). If getting a favorable verdict would be a slam dunk under such and such circumstances, or finding convincing evidence of infringement were really such a simple “just do this” proposition, then it should have happened. Such victories would only strengthen the trolls’ position and PR value, it goes without saying that if they were winning jury trials or even just forcing people to turn over their hard drives they would have much higher settlement rates.
The fact that none of these cases progresses meaningfully, beyond a couple cases where they get lucky with a defendant that permits a default judgement, is perhaps the single most important fact about these cases. IMO if Jordan continues to simply ignore this fact while discussing hypothetical outcomes he is being dishonest. There must be a reason Prenda won’t truly litigate these cases, especially if doing so would be so straightforward, so the answer to the question of why they don’t litigate them is the key to the whole scam.
Personally my suspicion is that the trolls understand that discovery is a two-way street, and as we saw with Fantalis vs. Malibu the trolls will not allow discovery to document the machinations of their scam, probably because it would reveal seriously unethical if not outright illegal conduct. Look at how Prenda’s CA lawyer Brett Gibbs won’t even identify his plaintiff. Under these conditions, the reality for even a guilty Doe is that playing chicken with the trolls to put them in a position where they are forced to disclose the details of their scheme is a winning proposition.
I recall reading somewhere (can’t seem to find where now, though I swear it was this site) something to the effect of: the plaintiff, upon receiving subscriber information, has X number of days to file an individual lawsuit. Is that true, and if so, what is the actual number of days? For the Does in this case, is it officially over for them, or do they still have to wait out those X number of days before they can breathe easy?
Anonymous,
It’s a little different than that. You’re supposed to have 120 days from the time they get the information to name and serve a defendant. Although, they can ask for extensions. Plus, the 120 days really doesn’t come into effect unless someone wants to get rid of the case, like the judge or a defendant’s lawyer.
Now, that whole paragraph, only takes about the case they filled, and if that rule goes into effect, the case is dismissed and may still be refiled at a later time.
Now, in HDP 1495, the plaintiff dismissed the case so the 120 day thing doesn’t matter.
You’re next deadline (assuming they don’t file against you personally) is 3 years from the date of alleged infringement. So you’ve got another year and a half or so.
Two more notes:
1. If you are apart of another case alleging the same infringement, that would be the final case. They can’t refile against you again. They could try though, and say you were never really party to the first case. Semantics.
2. I wouldn’t be surprised if in 1.5 years if Prenda is still around they still harass now and again way beyond the 3 year deadline.
But good news:
1. HDP isn’t filing against anyone. So, you don’t need to worry about dates.
2. Prenda is falling apart, they may be done altogether.
Stay vigilant. Return to this site often. Try to check it once a day. If HDP or Prenda start a new tactic, you’ll hear about it here first.
Thanks for the information Donald Duck!