Judge Wright issues Prenda Law order

http://www.popehat.com/2013/05/06/does-prenda-believe-in-no-win-scenarios-because-judge-wright-just-gave-them-one/

by faithful_droog • 13 years ago

350 81 13 years ago

ChuckMcM• 13 years ago

Holy smokes. That is some serious smack down. One hopes it causes the entire judiciary to awaken to this dark scourge of extortion through the courts.

rhizome• 13 years ago

You can bet there are a lot of plaintiff lawyers paying attention as well.

dmoy• 13 years ago

My first reaction was "daaaammmnnnn".

Second reaction was to call a lawyer friend to confirm my first reaction.

dmix• 13 years ago

http://en.wikipedia.org/wiki/Prenda_Law

> Prenda Law, also known as Steele | Hansmeier PLLP and Anti-Piracy Law Group,[1] is a Chicago, Illinois-based law firm that claims it battles copyright piracy, but is also strongly identified with copyright trolling

betterunix• 13 years ago

I have not read many court orders/rulings/etc. in my life (IANAL), but of those that I have read, this is by far the angriest and most vicious.

noonespecial2• 13 years ago

Righteous indignation, distilled and aged to a fine vintage... and then served up in Ten Forward by a United States district judge.

So this is the other side of the looking glass... when do I meet the disappearing cat?

ajtaylor• 13 years ago

I've enjoyed following the ongoing saga of this case. Many thanks for the detailed followups of each court session. It would be safe to say that the judge has gone with the "nuke them from orbit" option, as it's the only way to be sure these predators won't continue their dirty actions.

emeraldd• 13 years ago

If you remember, the Xenomorphs survived being nuked ...

jlgreco• 13 years ago

I wouldn't say they survived being nuked. One hitched a ride off the planet, infected a dog/cow, and was later killed; and apparently another hitched a ride inside of Ellen. Since neither were present for the nuclear blast I wouldn't say they survived it. Ellen/It were later cloned to recreate xenomorphs, but I don't think there is anything in the canon to say that the xenomorphs which were nuked were able to survive.

Nuking xenomorphs from orbit does seem to be a very good way to be sure.

not_that_noob• 13 years ago

It's the end of the road for this brand of copyright shakedown. This is an amazing good-guys-win outcome for sure, but much more than that, it signals the end of of the random copyright troll lawsuit.

patio11• 13 years ago

Footnote number 5 is so acidic I feel burned just by reading it. (Context: read paragraph #1 in the introduction first, summarizing the conspiracy's business model.) http://www.popehat.com/wp-content/uploads/2013/05/PendaSanct...

rurounijones• 13 years ago

It is not often I derive huge amounts of amusement from legal proceedings but this case (and especially this judge) has been very fun to watch in a slow-motion train-wreck kind of way.

We all knew this judgement would be good and the judge delivered.

Steko• 13 years ago

No sympathy for Prenda but damn if this line didn't remind me of Aaron Swartz:

"Federal grand jury investigations are very slow, but represent experienced practitioners bringing almost unlimited resources to bear against their targets."

ghshephard• 13 years ago

I wonder if there was ever a movie in which the Cavalry came calling to the rescue, but went after the wrong target? I seem to recall a Twilight Zone episode (or maybe it was a Stephen King Short Story) in which an infantry platoon razed a village, only to discover that it was actually their own hometown, somehow masqueraded as some foreign land.

I willing to wager that if we looked at it with objective perspective, 95% of the time the Federal Grand Juries are doing work for good, it's only 5% of the time that they are misguided - but it's that 5% that we all seem to remember.

aidenn0• 13 years ago

If you give someone a basket of grenades and 5% of the time they hit friendlies, you'll probably take the basket away...

shabble• 13 years ago

You might be thinking of 'The Outer Limits' episode 'The Light Brigade'[1] va juvpu jr yrnea nobhg gur vzcbegnapr bs vapyhqvat orggre snvyfnsrf va bhe cynarg-ohfgref. [rotted for spoilers]

[1] https://en.wikipedia.org/wiki/The_Light_Brigade_%28The_Outer...

lettergram• 13 years ago

I am grateful that judges can bring down the hammer from time to time.

jopof• 13 years ago

Confused -- Why all the rigamarole, instead of going RIAA-style after the thousands-to-millions of actual porn copyright-infringers?

adventured• 13 years ago

Because the porn industry doesn't have the representation in DC; it doesn't have the centralized power to pursue highly expensive legal warfare; it doesn't have any sympathy vote; it has very little power; it has relatively little money compared to Hollywood or the recording industry (to attract K Street lobbyists). There is no porn industry equivalent of the RIAA.

wmf• 13 years ago

I'm not sure what you're asking, but Prenda's lawsuits sound very RIAA-style to me (although it's not clear that any of the settlement money ever went back to the porn makers). I assume Prenda didn't just make up the IP addresses they were suing, although that doesn't mean their defendants actually torrented the porn in question either.

bjustin• 13 years ago

Because they (the lawyers) didn't care about copyright infringement, they just wanted settlements. Copyright trolling is typically lawyer-, not rightsholder-, driven, with no intent to take cases to court.

DanBC2• 13 years ago

They did go after very many people. They did these cases one at a time because it's easier to do that for them. People either paid up, or they didn't pay up in which case PrendaLaw dropped the case.

This case is awesome because they tried to do exactly that, but an alert Judge thought something not just unpleasant but actually fraudulent was going on.

What that says about all the other cases (where Prenda got millions, apparently) is open for discussion.

smackfu2• 13 years ago

I think they had some trouble keeping their real porn-producer clients. Since the real clients were real parties to the suit, they could be countersued directly, which happened a couple of times. I think they ended up settling and paying out, rather than risking it.

http://fightcopyrighttrolls.com/2012/01/31/defendant-strikes...

downandout4• 13 years ago

While I sympathize with the disdain everyone has for these guys, this judgement is the result of some lawyers that took several possibly illegal shortcuts. This case sets no precedents about the viability of copyright trolling going forward, and in fact the judge's obvious bias may serve as grounds for a successful appeal in this case. So, while this makes for amusing reading, at the end of the day it won't mean much. Everyone should still CYA when downloading torrents.

bickfordb• 13 years ago

What is the judge's bias?

ewoodrich• 13 years ago

Against deceitful lawyers/plaintiffs. (I agree with you). When a federal judge allows it to visibly boil over into obviousness, as in this case, should indicate how lopsided of a case it really is.

Ignoring the Star Trek references, the judge established a large number of "findings of fact", where specific factual elements and legal repercussions were identified or quantified. This is a very compelling approach for appellate/higher courts, and should suggest the intent of resiliency in the language by the judge.

downandout4• 13 years ago

A good appellate lawyer would likely argue that the judge's over-the-top reaction, along with his written commentary showing clear disdain for the business model of the plaintiffs and the attorneys, shows that the judge was unfairly biased against them from the outset of the case. I don't know if they would ultimately prevail on appeal, but the judge certainly opened the door for it.

justinlink3• 13 years ago

FYI, Prenda already argued that the Judge was biased in this case. The issue went before another judge, and was denied.

Source: http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.54...

downandout4• 13 years ago

I have a feeling that the language in this order will give rise to a renewed effort in this regard. This order and its breathtaking vitriol didn't exist at the time of that hearing.

rdl2• 13 years ago

I hope all the people who paid to settle get their money back with extra damages.

sudhirj2• 13 years ago

Is there now any way that Judge Wright might turn his eye (and hopefully his hammer) on patent trolling? The arguments he makes against Prenda's process in general - not the illegal parts, but the intent and procedure - is pretty much what the patent trolling industry does. If he sees something that he pass commentary on in a legal capacity, then I'm sure courts can and should take note that they're being played in the patent game too.

sudhirj2• 13 years ago

> I. INTRODUCTION > Plaintiffs1 have outmaneuvered the legal system. They’ve discovered the > nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable > defense costs. And they exploit this anomaly by accusing individuals of illegally > downloading a single pornographic video. Then they offer to settle—for a sum calculated to be > > just below the cost of a bare-bones defense. For these individuals, > resistance is futile; most reluctantly pay rather than have their names associated with > illegally downloading porn. So now, copyright laws originally designed to > compensate starving artists allow, starving attorneys in this electronic-media era to > plunder the citizenry. > Plaintiffs do have a right to assert their intellectual-property rights, so long as > they do it right. But Plaintiffs’ filing of cases using the same boilerplate complaint > against dozens of defendants raised the Court’s alert. It was when the Court realized > Plaintiffs engaged their cloak of shell companies and fraud that the Court went to > battlestations.

Right at the top. Looks exactly like a writeup about patent trolling except for the porn part.

chc• 13 years ago

It looks exactly like a writeup about patent trolling except it doesn't have anything at all to do with patents.

rst• 13 years ago

A judge is not a free agent; they can only rule on the cases they're assigned.

Moreover, what got this judge's goat was specifically "the illegal parts" of what Prenda was doing, most notably repeatedly lying in court. It wasn't the tangled ownership structure (a feature they share with some of the trolls in the news, like, say, Lodsys), but specific lies they told about it.

(The reason the ownership mattered in the Prenda case is that the lawyers and the owners were one and the same, which is against some court rules. Whoever owns Lodsys, it's pretty clearly not the attorneys representing them in court. And the lies about the ownership structure were not necessarily the most extravagant or significant --- Judge Wright also has a lot to say about misrepresentations of evidence, etc.)

rdl2• 13 years ago

What confuses me is that the only stuff they got smacked for was deficiency in how they operated, not anything fundamental to the business of copyright trolling. Another group of lawyers could easily do exactly this, while maintaining more arms-length relationships with the copyright owners, and not taking shortcuts on the cases, and be completely within the law.

noonespecial2• 13 years ago

That was the only thing they could be smacked for, so the judge smacked hard. It is possible to conduct this extortion within the law and that is a problem, but judges can't change law. Notice has now been sent however that if you're going to flaunt the law's deficiencies for personal gain at the expense of the legal commons, you damn well better bring your A game.

belorn• 13 years ago

Beyond that, they also showed that such actions now has risk involved. Hopefully this will lead to the lawyers getting jail time, and that will in turn discourage more legit lawyers from trying a similar scheme even with a A game performance.

smackfu2• 13 years ago

This part is relevant to that:

But Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video. Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access.

The first part, proving that they downloaded a complete copy, seems to be a bit more difficult than just grabbing a snapshot of all the IPs at a point-in-time as they had been doing.

ultimoo• 13 years ago

popehat is great, and in spite this being one of their smaller articles, I fail to follow what it boils down to. Can someone please summarize what Prenda has to now do -- Do they serve time? Do they pay millions? Are they not allowed to practice again?

wyck• 13 years ago

1. They have to pay for the attorney fees with a punitive multiplier, basically double. So instead of paying 40k they have to pay 80k for this case. Other cases will likely follow suite.

2. Judge Wright says he is referring Steele, Duffy, Hansmeier, and Gibbs to their respective state bars and federal bars. They can very well be debarred from practicing law, there will be a very thorough bar investigation. This is what lawyer's nightmare are made of.

3. He is referring the case to the U.S. Attorney's Office for RICO (Racketeer act) and the IRS. This is what Hells Angels/Mafia nightmares are made of.

4. All judges that have pending cases with these lawyers will be notified of the above (and most likely more).

Worse case scenario: More attorney fee x2 (how many cases did they prosecute?) , debarred, send to jail for racketeering.

tl;dr the Judge fined them 2x and then set 3 organizations you don't want to mess with on their asses, and told everyone about it.

Sanddancer• 13 years ago

They have to pay attorney fees of about 40 grand, and another 40 grand of punitive damages. At this point, that's about it, but with a ruling like this, there's no doubt that there are going to be many more problems for the Prenda gang in the future. Don't worry though, given the gravity of the recommendations Wright's sending to the DA and to the IRS, you can be certain there will be much more popcorn to be had from this case.

TylerE• 13 years ago

Actually, the biggest bit in the judgement might be the "referral" (and not the _good_ kind of referral) to their state bar(s).

Natsu3• 13 years ago

Well, first they have to pay the defense lawyers for their time. It's not a lot, really, but enough to compensate them. Then he stripped them of various legal defenses by finding them to be party to fraud upon the court. And he accused them of "moral turpitude" which could get them disbarred. And he sent a copy of this order to every judge they have a case before. And to every bar association. So ALL of them can go after them independently. Then he referred them for a criminal investigation, mentioning RICO. Oh, and he pointed out how they said they paid no taxes and have all these shells and mystery trusts in a tax haven, so he called in the IRS to investigate, too.

So they have to face this all over again in front of every single judge where they have a case, with every bar association they're a part of. All while facing the feds AND the IRS.

This is akin to being stripped naked and thrown to the wolves, except that Judge Wright didn't stop with wolves, he looked up every carnivore in the country and gave it a dinner invitation.

grellas• 13 years ago

Judge Wright took tremendous offense to the idea of lawyer-sharpie types trying to use his court (among others) as home base for a naked scheme of extortion.

Think about how he characterizes the lawyers and their conduct: (1) they were lawyers with failed practices; (2) they figured a way to shake down victims out of an aggregate of millions of dollars; (3) they did this by threatening to expose them as downloaders of pornographic material via the filing of lawsuits ostensibly asserting copyright violations; (4) yet, the people asserting the claims did not have any good evidence actually proving any form of violation in any given case; (5) and, when someone offered any real resistance, the case was dropped; (6) and when the ostensible holders of the claims needed to be real holders of the copyrights in question, shell entities were set up (controlled and dominated by the lawyers) in order to create a false appearance that this requirement was met; (7) and when the federal court's procedural rules specifically required the lawyer bringing the case to identify all known related cases so that the court can understand the true party relationships, the lawyer suppresses all the known facts about the relationships in order to deceive the court; (8) and when a formal assignment of copyright is needed to meet the legal requirement of standing, the lawyers set up a dummy name and forge the person's signature in order to meet the requirement; (9) and when the scheme turns on a fishing expedition by which the lawyers hunt out a list of IP addresses and then ask the court for the right to subpoena the ISP to get the names associated with those addresses, and the judge issues a discovery order saying, in effect, "hold on, you can't do this here," and yet the lawyers still proceed to serve the subpoenas on the ISPs in order to keep generating opportunities to extort settlements from even more victims; (10) and when the court finds out that the lawyers are deliberately flouting the court's orders and authority, the lawyers refuse to appear until forced to and, when they do appear, refuse to account honestly for their conduct.

Summing up and paraphrasing what the judge concluded based on these findings: This is not lawyering. It is naked extortion covered by a thin veneer of lawyering. Rules don't matter. Honesty doesn't matter. Decency doesn't matter. Whatever it takes to keep the scheme going, right or wrong, fair or foul, justified or not.

The result: not a severe money sanction, which would have been but a slap on the wrist when many millions had been gathered under the lawyers' scheme, and apparently gathered tax free to boot. Instead, something much worse, to wit, a clear conclusion that the lawyers had engaged in acts of moral turpitude, justifying referral to the state bar of every jurisdiction in which they are authorized to practice, and likely eventual disbarment; a criminal referral to the U.S. attorneys' office for possible RICO violations; a referral to the tax authorities; and an order that this devastating order be served and filed in every single legal action that has been filed by these attorneys anywhere in the nation.

This, to put it mildly, amounts to evisceration. This judge got mad. This judge had guts. This judge is smart. And that, for these lawyers, is a lethal combination.

jacquesm• 13 years ago

It is a real pity that it takes such naked extortionist behaviour to get a judge angry. If you look back through for instance the SCO lawsuit there were several points where I thought something like this was going to happen but it never did. Judges in general are terribly patient with plaintiff misbehaviour.

That's probably a good thing but many a life has been ruined like that.

haberman• 13 years ago

It's interesting to me that the judge lets so much raw contempt show. I am more accustomed to judges presenting a dispassionate attitude; I always figured that this was an important part of their role of making impartial rulings in an adversarial system.

Would showing this much unmasked disgust towards one party leave a ruling more vulnerable to accusations of bias on appeal (presuming this can even be appealed)?

r00fus• 13 years ago

Perhaps he shows such contempt because he feels Prenda law is besmirching their profession, and the basis of law in general?

cstross• 13 years ago

I suspect the turning point was the Prenda Law people turning up in court and taking the fifth.

By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime. At which point, the judge can see the smoke, and though he may not be allowed to investigate the ignition source he can certainly point the DOJ in the general direction of the fire.

justinlink3• 13 years ago

They already argued he was biased, and lost.

Source: http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.54...

As for appeal, he set the monetary awards at a figure just below the cost of a successfully appeal. So they may appeal, but they will not reap any benefits.

They can't appeal the fact that he's going to report them to the IRS CID and the feds.

netcan2• 13 years ago

2 things jump out at me:

1 - From the perpetrators' POV, this kind of white collar crime is orders of magnitude safer and more lucrative than a blue collar equivalent. This may amount to evisceration, but it's nothing compared to a judge getting angry at drug dealers turning that kind of a profit.

2 - From the victims' POV (or at least many of them), the lawyer-extortionist, defense lawyers, laws & judges are all really part of the same "system." It's the system that is abusing them. The judge has tried to make it clear that it's the perpetrators abusing the system, but I wonder if victims feel that distinction. It sounds like a cleaned up version of this scheme might still be legal and profitable: Get actual porn copyright owners on board, pay their taxes, maybe actually litigate a case or two.

dchest• 13 years ago

Regarding the "cleaned up" version, perhaps, it just won't be profitable? From judge's order:

"Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access. Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video."

jerf• 13 years ago

"This may amount to evisceration, but it's nothing compared to a judge getting angry at drug dealers turning that kind of a profit."

It may be if they end up on the wrong side of a RICO prosecution.

http://en.wikipedia.org/wiki/RICO : "Under RICO, a person who is a member of an enterprise that has committed any two of 35 crimes—27 federal crimes and 8 state crimes—within a 10-year period can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and sentenced to 20 years in prison per racketeering count. In addition, the racketeer must forfeit all ill-gotten gains and interest in any business gained through a pattern of 'racketeering activity.' RICO also permits a private individual harmed by the actions of such an enterprise to file a civil suit; if successful, the individual can collect treble damages (damages in triple the amount of actual/compensatory damages)."

And actually if you keep reading the summary, the bad news goes on.

Patience.

That said, in general I think you're right about the relative safety of white collar crime. But it is possible to overplay that hand, and that may have happened here.

Natsu3• 13 years ago

Judge Wright definitely had phasers set to kill here. But these guys aren't the sharpest knives in the drawer. Steele (AKA "BittorrentBull") was mocking Judge Wright on Twitter over a news article about his bankruptcy not very long ago. I've never seen a smart lawyer do anything like that.

In the order, I note that Judge Wright used all the most devastating magic words. In addition to discussing their "moral turpitude," as you mentioned, he also said they "defrauded the Court." Ken predicted that might happen and wrote about how important that may be later:

http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take...

"The fraud issue is of such huge importance because there is an exception to the attorney-client privilege from discovery and testimony in cases in which the attorney is alleged to be a participant in the fraud. Even the attorney work product exception from discovery falls by the wayside in such cases."

So this order is devastating not because of the small monetary sanction. Rather, Judge Wright methodically destroyed all of their defenses, threw them to the wolves, and then rounded up every other carnivore in the country to join the wolves in taking a bite out of them.

smutticus• 13 years ago

I think this is my favorite Star Trek reference in the decision.

page 10 line 21: "Third, though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage."

I have never had more fun reading a decision from a judge. It is heartening as well as entertaining.

zarify• 13 years ago

"Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video."

Is this likely to have any implications for a wider range of copyright-by-IP address cases? Since I've only given a cursory glance past the details of other (let's say music and video) cases, this level of 'proof' sounds quite similar to what is being offered elsewhere.

DanBC2• 13 years ago

Reading this I'm kind of optimistic.

Star Trek quotes? Firefox screenshot? Amazing. I read a lot of negative stuff about US law. I hope that's because people are interested in the negative stuff and there's biases operating to not publicise that good stuff.

Fando• 13 years ago

Reading this article gave me great pleasure.

kislayverma• 13 years ago

Smackdown!!!

andyjohnson0• 13 years ago

The Star Trek references in the judgement are rather strange and (to me) diminish the judge's credibility. Is it normal practice for judges in the US to use popular culture references in their written judgements? Anyone care to explain the reasoning behind this?

JonnieCache• 13 years ago

Presumably he knows the internet is watching. Perhaps he's playing to the gallery a bit.

justinlink3• 13 years ago

It's not uncommon, for example here's a recent double-entendre ruling about a strip club:

http://www.woai.com/media/lib/12/5/9/5/59511ba8-415b-4b2e-a7...

The lawyers out there speculated he did it as yet another smack down to Prenda law. This will always be known in law circles as the "Star Trek Order". It'll be more widely read, and the shame will always follow them.

His findings of law are correct, a little toying with them outside of his findings is quite enjoyable.

protomyth2• 13 years ago

Lawyer friend told me its not uncommon so the ruling is remembered and talked about. Here are some other examples of "creative writing" http://blog.simplejustice.us/2007/08/30/texas-where-decision...

mindslight• 13 years ago

Hooray! for an occasion when the system worked. It's of course quite heartwarming to see someone in a position of authority coming to a sane opinion, getting incensed at the ridiculousness, and even going on the offensive.

But what of all the others that have been mired in endless litigation with no such happy ending? And while fitting, is it really desirable for Prenda's punishment to mainly consist of being ground down by the bureaucracy?

Wouldn't we rather an efficient system where ridiculous cases were dismissed outright, unenforceable laws were retired quickly, the lawyer protection racket was unnecessary, and the innocent could be reasonably confident of ultimately prevailing instead of simply settling to avoid years of stress?

Judge Wright issues Prenda Law order

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