Guardaley | Voltage
Alexandra Capachietti of Burson and Levinson LLP is NOT a porno troll
To catch up, I decided to introduce one of such filmmaking fiascoes and its lawyers who, most likely, took the bait and replied to one of the spam-like offers promising loads of money for little work. Well, people still fall for the Nigerian scam, so it is not too surprising. What is surprising (and sad) is that otherwise respectable attorneys decide to wander into the shady world of the trolling business model, the model that is “essentially an extortion scheme,” according to Judge Otis Wright.
Meet Breaking Glass Pictures and its “masterpiece” — a horror movie “6 Degrees of Hell” (IMDB rating: 2.8 out of 10). We don’t know the exact price tag¹ and box office numbers, but simply reading a couple of user and critic reviews, we can conclude that producers have been able to collect just a fraction of what they invested into the production:
My take away here is simply walk away, enuff said. (6 degrees of boredom…) — HorrorNews.net.
But you know… you can always blame the consequences of lame filmmaking on bloody pirates. So, a trolling lawsuit has been filed by Alexandra Capachietti of Burson and Levinson LLP in the Massachusetts District: Breaking Glass Pictures v. Swarm (MAD 13-cv-10735). Another attorney listed in the complaint is Shepard Davidson of the same firm.
The complaint lists 91 Does, and the timestamps of alleged infringements span two months. This lawsuit dead on arrival in my opinion: in light of the last year rulings, swarm-based joinder is a no-go in Massachusetts. Recently this case was referred to Judge Leo Sorokin, which makes me almost certain that 90 Does will be severed from this case rather soon. But what really made my day (and what explains the title of this post) is the first paragraph of the complaint, where the second sentence is all-capital and bold:
THE MOTION PICTURE IS NOT A PORNOGRAPHIC FILM.
One cannot make it up. Reading this yell-out, I can’t help hearing:
- Since this lawsuit is not about “Teen anal sluts,” your honor must ignore the solid case law regarding joinder, and allow me to rob the court district of $31,500 in filing fees ($350 for each Doe if filed individually).
- Since this lawsuit is not about “Big Black Beef Stretches Little Pink Meat #7,” it is not a shakedown campaign, so it is appropriate to send out letters threatening $150,000 statutory damages and demanding a couple of thousand dollars to make this nightmare to go away (which is less than the cost of defense even if a Doe is innocent).
- Since this lawsuit is not about “Mom’s Black Cock Anal Nightmare 2,” it is OK to lie in these letters that “unless you send us money, you will be named as a defendant.”
- Since this lawsuits is not about “Jeff Cums in Colby’s Mouth,” a subscriber can be treated as an infringer and it is fine to threaten and harass him or her.
- Since this lawsuit is not at all about pornography, we only protect the rights of starving artists, and do not abuse the loopholes in the copyright law. Not at all.
I want to conclude this post with a quote from the abovementioned Rob Cashman’s post:
[…] If I’ve offended anyone, I’m not sorry — new attorneys shouldn’t be taking on copyright trolling cases. If you are really interested in stopping piracy of your copyrighted content, then there are better ways to police your client’s copyrights than to let the infringement continue and then sue the downloaders. Try a DMCA take down letter one day. You might find that it works.
Making awful movies does not make you entitled to profit. There is a sad correlation: the majority of movies that are subject to copyright trolling lawsuits are box office failures, and while I do not advocate illegal downloading, only a cynical, lying, hypocritical troll can argue that piracy is a major contributor to those failures. This and similar lawsuits are about easy money at the expense of disturbed lives, damaged careers and relationships, as well as serious overall harm to the productive society.
Shame on you, Alexandra Capachietti and Shepard Davidson, — baby copycat trolls.
Updates
04/07/2013
- Thanks to John Henry for a nice catch: it happens that these two troll attorneys are not strangers to this shakedown “business”: NGN Prima Productions, Inc. v. Swarm and Does 1-17 (MAD 12-cv-11877) was filed on 10/05/2012, nothing has been happening on this case since then. A copycat complaint alleges infringement of “Recoil” — a movie by NGN Prima Productions, a Canadian company that also targets Canadian Internet subscribers.
- Another John Henry’s nice catch: the complaint is plagiarized from Horny Black Baby Sitters #3 (Texas crooks Chalker Flores LLP, who, in turn, plagiarized it from Marc Randazza’s pleading). Paragraph after paragraph verbatim. Judging on the title, it is a pornographic movie, which doubles the irony of the fact that “combatants against piracy” Alexandra Capachietti and Shepard Davidson don’t think twice before pilfering others’ pleadings.
¹ A commenter claims that, according to the BGP Facebook page, the movie’s budget was 133K.
Fight © Trolls 
As another alternative to copyright trolling as a source of revenue, if your picture is bad enough you can always sell it to RiffTrax.
Too bad the Prenda case isn’t on video. Love to hear Mike and the bots riffing on Steele and company!
>Too bad the Prenda case isn’t on video
Stay tuned…
i have not seen this film, but i am pretty sure most low rate “horror” films contain at least some pornography. so although it is not solely a pornographic film, it is probably not devoid of it either…..
Basic math reveals just how flawed the copyright system is. Let’s say that the evidence was concrete (which it isn’t.) Let’s say ALL 91 of these people actually stole the movie (highly unlikely.) So, $150,000 from each of them because, well… profit loss. What does that total out to?
$13,650,000.
You read that right. That’s at least ten times the production cost of the film. Now, keep in mind, Corey Feldman’s much more high profile film of recent memory was a sequel: “Lost Boys: The Thirst” which made roughly $2.5 million. So this firm and production company are trying to say the value of this movie is of an even higher level. Compare this “tour de force” that is “Six Degrees of Hell” to virtually any B-movie. B-movies rarely ever crack a million.
Maybe they’re trying to recoup production costs? Nope. From their own Facebook page:
” We know we have a small film, but we worked hard to make a quality one! The whole budget was only $113,00.00.”
You read that right. Just a single default judgement of $150,000, which would be criminally high, would be more than 100% of the production budget.
I agree that piracy should be stopped. However, the punishment should fit the crime. If they send out demand letters for $3,500, it should be considered a crime. 91 people divided by $113,000 is $1,241. That sounds like a more reasonable figure… if they are able to prove beyond a shadow of a doubt that these are the people who pirated it. However, let’s be honest here: Massachusetts likely won’t be their first stop. That 91 person count is sure to grow.
This is why copyright law needs to be rewritten and have the default be based on actual statistical models that prove what a movie was likely to make if piracy wasn’t in the picture, divided by the amount of pirates you intend to take to court. If such a model was used, lawsuits like these would never happen.
Let’s not forget that the purpose of the U.S. copyright statutes is “to promote the progress of science and useful arts” and not to promise a profit to a copyright holder or their corporate entity. Copyright has been stolen from those who want to promote useful arts and has been held hostage by trolls looking to use the copyright statutes as a business method of making quick (and UNEARNED) profits. Breaking Glass Pictures should try selling their movie (or tickets to their film) on the market — see how much their film is REALLY worth.
Exactly. This model essentially means I can film an hour long video of myself holding a banana, title it “THE BANANA CAPERS”, put it on DVD and release it on Amazon… then monitor torrent sites for its appearance where I can threaten 150k per “infringement.” As if a video of me holding a banana is worth even one dollar. These cases really have zero merit.
That would depend on the banana.
what i wouldn’t give to be in the “respectable court” when they read off these titles.
Ohai!
SJD dear, copypasta failure in the jeff/colby link.
Well its not pornography, so you should let us do this.
Lets all ignore that Breaking Glass is known for putting out gay themed films. I mean its not like someone would murder someone they suspected of being gay in this country.
And let us ignore that Breaking Glass didn’t make this dog of a film, they just have the US DVD rights, what if the source was the Argentina DVD? Shouldn’t the money be going to that distributor instead?
And let us ignore that the law was written for a time when making a copy was expensive and time consuming and was only done by people who were going to sell the content for profit.
Let us ignore the movie stars Corey Feldman.
It really is time that Judges start making noise to get Congress to fix this crap. Don’t Judges have discretion? Can’t they override some portions of this broken law to make a serious point?
While we will never all agree on most points in copyright law, I think we can all agree on the idea of $150,000 judgements from multiple people is obscene. Who cares if the law says that award is per work, we want it over and over and over.
Ms. Alexandra Capachietti was hired in February, and is proving she’ll do anything to make her firm, Burns & Levinson LLP money, even if it requires no ethical standards (suing over 90 people on the flimsiest evidence) and being a douche bag ambulance chaser.
I wonder who else was at this discussion:
https://www.bostonbar.org/membership/events/event-details?ID=10765
Post is updated with two new facts.
I forgot to include a source on my post re: the budget.
The Six Degrees of Horror fb page is here https://www.facebook.com/pages/Six-Degrees-of-Hell/242739789078346 – scroll down to feb 8 where they mention the budget.
Editing note: you put 2013 as their previous filing of a suit, you meant 2012. Feel free to erase this editing note. Lol
Thanks! Fixed.
And thanks to TAC for pointing to the broken link: fixed as well.
Reading the complaint more, it looks like it was largely taken (without attribution) from Liberty Media vs Swarm and 4 Does. Case 2:11-cv-00395 Filed 04/22/11. http://bit.ly/e5MrCz
I am going through Alexandra’s complaint line-by-line and it is verbatim copied. Nature of The Case, Jurisdiction and Venue, The Parties, Copyright and BitTorent (sic). Copied, copied, copied, copied. I’ve seen enough and am getting incredibly bored so I am stopping.
I actually hope that Alexandra had permission to use the work. It’s one thing to plagiarize, that is just an ethics problem. But if she copied without permission that is copyright violation.
I am working on a document explaining plagiarism and copyright in litigation. I acknowledge that it is a legal gray area to an extent, but I have found plenty or sources (10+) which indicate that copying other attorneys’ work without attribution is plagiarism.
Copying things is only a crime if your one of the little people.
plagiarism is not a crime. it’s unethical and makes you look silly, but it is not a crime.
How much do cut & paste lawyers charge per hour and how is this being a professional?
“The DMCA complaint Paul received came from R&D Film 1, LCC, represented by attorneys Michael Heirl and Todd Pankhurst of Hughes Socol Piers Resnick & Dym, Ltd. in Chicago.”
http://techcrunch.com/2013/03/25/how-copyright-trolls-run-bait-car-operations-to-grab-pirates/