Prenda is essentially done

Reblogged from Fight Copyright Trolls:

We have been waiting for this moment for a long time. Congratulations to everyone involved, especially Morgan and Nick.

Media coverage

• TechDirt: Judge Wright Tells Team Prenda To Pay $80k, Refers Their Activity To State Bars, Feds & IRS by Mike Masnick.
• Wired: Judge Asks IRS, Feds to Investigate Copyright-Trolling Attorneys by David Kravets.
• Popehat: Does Prenda Believe In No-Win Scenarios?

Read more… 480 more words

Sometimes there are no words other than silence to best express the thoughts I have about Judge Wright's order essentially referring John Steele and the Prenda Law Inc. gang to the IRS' Criminal Investigation Division (CID) for all the settlements on which no taxes were paid. There is one police agency that a criminal organization does not want to be contacted by, and that is the CID. The $81K in sanctions essentially funds the lead attorneys who spent time on this case. And, the referral to the bar associations means that the principals at Prenda Law Inc. may no longer have their law licenses shortly. In sum, there is not much for me to comment here, except to be silent, because the judge's order itself says all it needs to. Copyright trolling may seem profitable for the attorneys filing the lawsuits, but no money can compensate for the loss of freedom that one experiences when what was once a multi-million dollar law practice lands the principles in prison for tax evasion. This should be a lesson to all other copyright trolls out there. Judge yourselves accordingly.

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DING, DONG, THE HARD DRIVE PRODUCTIONS CASE IS DEAD!

I don’t know how to say this other than in my field of work, it is not often that I am shocked.  I often speak to local counsel who get excited that they are handling a “porn” case.  Just a few days ago, I called one of Steele’s (a.k.a., “Anti-Piracy Law Group”) local counsel.  When I introduced myself, he said to me (with a boyish excitement), “Aren’t you the porn lawyer?” to which I responded, “Aren’t YOU the porn lawyer?!?”

Anyway, I cannot help but to generalize these cases into “okay, one more production company suing a college kid or husband for clicking on a link and viewing copyrighted materials.”  What I often forget is that there is usually some guy behind the scenes who has trailed so far into the world of pornography that he has opened up his own company, produced some porn videos, and now is suing defendants for their download.

The motive is usually the same.  Instead of “let’s punish these pirates” as they would like you to believe, their motive is rather, “let’s hit up as many people for thousands of dollars each until we get shut down by the courts.”  In my opinion, this was the motive of the Hard Drive Productions, Inc. lawsuits.

Digressing, the epic news of the day is that the Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case has been dismissed.  Congratulations to the Cashman Law Firm, PLLC defendants who have been released from this case.  

I don’t need to go into details about the case history — it has been riddled with controversy since they started suing internet users 2+ years ago.  As far as the legal issues were concerned, this was a typical copyright infringement lawsuit plagued with the same procedural issues that most of the other cases of its time suffered from — improper joinder (defendants were not part of the same “swarm”), and improper jurisdiction (defendants were sued in a court which did not have personal jurisdiction over them because the DC court’s reach could not decide the case against most of the defendants who were implicated in the lawsuit because they lived outside of the court’s jurisdiction).

What surprised me about the Hard Drive Productions, Inc. case was not Hard Drive Productions, Inc., but the District of Columbia judges who made a political mess of these cases.  Judge Beryl Howell came on the scene making pro-copyright troll rulings, such as 1) “you don’t need to decide jurisdiction or joinder until a defendant is named and served in a lawsuit,” 2) an ISP cannot file a motion to quash on behalf of their subscribers, and 3) accused John Doe Defendants cannot file motions to quash until they are named as defendants in the case.  Mind you, she was a copyright lobbyist before she was appointed a federal judge.

Then in February, 2012, Judge Facciola came in with a ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case which I was sure was going to kill the Hard Drive Productions, Inc. case and all the other bittorrent cases in DC.  In his order, he ruled that “a defendant who does not live in the District of Columbia cannot be sued in the DC court because the DC court lacks jurisdiction over those defendants.”  However, at some point, it appears to me as if the RIAA/MPAA copyright lobby (probably by using Judge Beryl Howell as their mouthpiece) pressured Judge Facciola into giving into the copyright lobby’s pressure, and with a few contradictory rulings, he transitioned over to being Judge Beryl Howell’s sidekick in these cases.

Judge Bates also came in appearing to protect the procedural rights of the accused defendants who lived outside of DC, but once again, after what appeared to be some pressure from the RIAA/MPAA copyright lobby (once again, my educated guess is that Judge Beryl Howell was the force behind what happened), he was removed from the case which Judge Facciola took over.  Then, after some time, it appears as if Judge Bates too eventually caved in to the RIAA/MPAA copyright lobby (some refer to them as the “mafia,” or the copyright police), and on my September 27th, 2012 post, Judge Bates reversed his decision in Hard Drive Productions, Inc. case and let the “extortion” of the John Doe Defendants at the hands of John Steele and Co. (a.k.a., Steele Hansmeier PLLC, a.k.a., Prenda Law Inc., and now a.k.a., the ”Anti-Piracy Law Group”) continue.

So.  The story with this dismissal is not necessarily a Hard Drive Productions, Inc. story, but a story of the forces behind the public interest groups and lobbyists who pressure Washington to always rule in favor of the copyright holder, regardless of whether the copyright holder is a pornography company, or whether the copyright holder is involved in making B-movies.  Bottom line, these lobbyists insist that WASHINGTON MUST CONTINUE TO BE PRO-COPYRIGHT AND MUST CONTINUE TO RULE IN FAVOR OF THE COPYRIGHT HOLDERS, regardless of who the copyright holder is, or at what cost.

So as things stand in DC, there is still a split as to the rights of unnamed John Doe Defendants between the rulings of Judge Wilkins (relating to the “motion to compel” lawsuit by Prenda Law Inc. against Comcast relating to their Millennium TGA, Inc. cases [BTW, dismissed last week]) and the rulings of Judge Beryl Howell, because as you read, Judge Howell certified an interlocutory appeal to answer questions relevant to these cases, but it appears to me that someone is dragging their feet there in DC and hoping for a dismissal so that they don’t have to decide the issues.

Lastly, there is a lot of activity on Twitter as to the 28 or so defendants who have settled their case, and some anger directed at these anonymous defendants who have settled.  Quite frankly, they are not all anonymous.  What happened with these is that without warning, Prenda Law Inc. turned around and sued one of these defendants (or threatened to imminently sue these defendants) in lawsuits in their home states.  I understand that many, if not most of the defendants in the “Hard Drive Productions, Inc. v. John Doe” cases which were filed towards the end of 2011 probably settled (I’ve listed a few of the named defendants in the “At What Point Does a Copyright Troll Stop Being a Troll” article.)

In closing, people are asking me whether I think Hard Drive Productions, Inc. is dead, or whether this is just the next logical progression before a slew of defendants being named.  I must note that Hard Drive Productions, Inc. got their butts kicked quite a few times, especially with the Hard Drive Productions, Inc. v. John Doe, 3:11-cv-05634-JCS (Seth Abrahams) case and the Hard Drive Productions, Inc. v. John Doe, 4:11-cv-05630-YGR (Liuxia Wong) case, both in California.  If you look at the http://www.rfcexpress.com website, there have been ZERO filings since March, 2012.  A defendant must also understand that with the egos of these copyright troll attorneys, there is the saying, “As the ego of the attorney inflates, so does his hourly rate.“

We also know there have been squabbles between Prenda Law Inc.’s local counsel and Steele, and we know that their own attorneys have been jumping ship (and in some cases even testifying against Prenda Law Inc. in their attempts to withdraw as local counsel.)  Thus, there are problems all around, so my best advise is to watch the http://www.rfcexpress.com website and see whether Hard Drive Productions, Inc. starts a flurry of lawsuits across the U.S. or not.  And remember — behind every lawsuit there is a person (joking using the term “person” to mean a human, a fictitious person (who might not exist), or an offshore entity) who needs to pay Steele’s legal fees so that he can pay for his Las Vegas lifestyle of traveling the country “not” representing his clients in these matters.

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Borrowing the analogy from SJD: “The Steele Snake Changes Its Skin Once Again.”

Don’t get excited.  Prenda Law Inc. appears to be dead… just like Steele|Hansmeier, PLLC was dead last year (November 18th, 2011), and just like Steele Law Firm, PLLC was dead the year before…  Their new name will be called the “Anti-Piracy Law Group.”

I would joke around and say that these guys don’t want to file their tax returns so every year they shut down their entity and open up a new one.  Joking aside, it is my opinion that the reason they keep changing their name is to evade the courts’ recognition of their copyright trolling business strategy because the tough lesson they have learned is that their firm’s bad name follows their lawsuits.

If you receive a notice from your internet service provider (ISP) containing a subpoena for copyright infringement, or if you receive a “scare” letter directly from the Anti-Piracy Law Group or one of their local counsel, do not be scared.  It is still the same John Steele / Paul Duffy Illinois racket foisting the same copyright trolling scam on us taxpayers.  As Sophisticated Jane Doe put it in her article, this is merely an example of a snake changing its skin… yet again.

While John Steele’s “WeFightPiracy.com” website is still up, their “Prenda Law Inc.” entity according to the Illinois Secretary of State’s page is “NOT IN GOOD STANDING.”  I too don’t think this will change.  To get a glance at their new website which is looking for a home (note, “www.antipiracylawgroup.com” has already been registered by someone else), you can visit what the new site will likely look like at http://wefightpiracy.org.previewdns.com/about-us/.

There is really not much else to say, except that I hear people are getting “scare” letters in the mail with the “Anti-Piracy Law Group” name on the letterhead.  If you are one of these recipients, just know that the game has not changed.  Everything is EXACTLY the same as it was when it was Prenda Law Inc., just as it was when it was Steele Hansmeier, PLLC, just as it was when it was Steele Law Firm, PLLC.  No changes.  No criminal charges.  No disbarments… yet.

ON A PERSONAL NOTE:  Their new “Anti-Piracy Law Group” name is quite official sounding.  I wonder if next year they’ll have the gall to call themselves the U.S. Copyright Group (oh yeah, that’s been done already by other copyright trolls), because choosing scary-sounding names and changing them as soon as the courts catch on to their scam seems to be their modus operandi these days.

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Hard Drive Productions, Inc. DC case NOT DISMISSED.

This morning, the following appeared on the Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741-JDB-JMF) DC docket:

10/18/2012 58 NOTICE of Voluntary Dismissal by HARD DRIVE PRODUCTIONS, INC. (Duffy, Paul) (Entered: 10/18/2012)

I want to point out that this is NOT a dismissal of the case. If you look at the dismissal document, you’ll see that only one IP address was released [-- someone paid Steele off and settled their case].

The status of the case is that Judge Facciola is still presiding over this case, and the last thing he did was DENY Prenda Law Inc.’s request to suppress EFF’s AMICUS BRIEF. Thus, EFF’s brief is still on the docket, and the brief should be read and considered by the judge (although knowing Judge Facciola, he’ll probably ignore it and let the case continue).

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At what point does a “copyright troll” stop being a troll?

At what point does an attorney stop being a copyright troll?

Anyone who knows me knows that John Steele [one of the original trolls from 2010] and I are not the closest of friends. In our many conversations, I have told him quite frankly that I considered him an enemy, and I have told him [and the world] what I think about his lawsuits.  We have sparred over the years over the forums, over clients, over settlements, and to date, everyone knows what I think about his copyright trolling efforts — the “grand extortion scheme” him and his local counsel have foisted over countless victims.  Together, Steele’s law firm — whether it is under the name “Steele Law Firm, PLLC,” “Steele Hansmeier, PLLC,” “Prenda Law Inc.,” (or even more recently, “Joseph Perea, P.A.” [although I have no idea if Joseph Perea is acting on his own, or whether this is a "fake" company, and he is still working under Prenda Law Inc.]) — has inflicted painful damage over the retirement accounts and savings accounts of COUNTLESS people (many of whom had NOTHING to do with the downloading or the hacking they were accused of doing).

The big elephant in the room has always been “open wi-fi”. Yet guilty or not, people still pay up, and John Steele profits.

The concerning thing about John Steele is that even he refers to himself as a copyright troll, and he appears to be proud of it.  However, while the classic definition of a “troll” is an enterprising attorney who has taken advantage of the legal system (or a loophole or a weakness in it) for his client’s material benefit, I understand a “copyright troll” term in the bittorrent lawsuit context to more commonly mean “an attorney or a company who sues many internet users for the purpose of extorting multi-thousand dollar settlements from the accused, regardless of whether or not they are guilty, AND who has NO INTENTION OF MOVING FORWARD AGAINST ANY OF THOSE DEFENDANTS IN THE FORESEEABLE FUTURE.” In short, a copyright troll is someone who sues a lot of people and demands settlements through robocalls, “scare” letters, and threatening phone calls, but who has NO INTENT to move forward against those individuals should they decide not to settle.

The problem is that I’m not so sure that definition still holds, because John Steele, along with his threateningly growing number of local counsel across the U.S. are naming defendants.

RECAP: Initially, John Steele sued hundreds and thousands of defendants at a time, most of whom did not live in the state in which they were sued. Those were the older cases, most of which have all gone bust because the courts lacked PERSONAL JURISDICTION over the defendants. That was where we saw the “Congratulations to the Cashman Law Firm, PLLC clients who were SEVERED AND DISMISSED from [whatever] lawsuit” posts in 2010-early 2012. Then Steele smartened up. He (though his local attorneys) started filing SMALLER CASES where in many cases, the defendants lived in the states in which they were sued. Hence JURISDICTION WAS PROPER. However, even there, John Steele was still a copyright troll.

But, eventually people caught on that JOHN STEELE WAS NOT “NAMING” ANYONE AS A DEFENDANT, and no doubt his cases lost any credibility the might have had. Even judges started calling his cases a grand extortion scheme, and even in the news today, SOME JUDGES are shutting down his cases IMMEDIATELY before you — the accused bittorrent user — learned that you are sued. In other words, their initial “MOTION FOR EARLY DISCOVERY” to send subpoenas to the ISPs to learn the identities of the IP addresses / John Doe Defendants are here-and-there beind DENIED. But even here, John Steele is still a copyright troll.

Where John Steele loses the status of “copyright troll” is when he starts going after individual defendants in the courtroom. Once he files a First Time Videos, LLC v. James Swarez (a fictitional name), and James is now dragged into a lawsuit kicking and screaming and is forced to hire an attorney to file an “answer” with the court, and then James needs to give up his computer to some sleazy digital forensics experts hired by the attorneys (or he can hire his own), and he has to actually fight a real copyright case on the merits of whether or not he actually downloaded the copyrighted works he was accused of downloading in the lawsuit, well, at this point, John Steele is no longer a copyright troll, but rather, John Steele becomes merely a predatory attorney who is suing someone on behalf of his client for the violation of his client’s “copyright rights.”

Now the shift that is important to note is that in the olden days, John Steele did not name anybody. He never did, and for a while, many thought he never would (except perhaps one here or there just to prove to the courts or the world that he could and would name defendants).

However, the new strategy is that he *is* naming defendants. In fact, below is a list of defendants (for their own privacy [so that their names do not show up on search engines following this post -- because PACER court documents often don't get indexed on the search engines, but my posts do], I have edited out their last names, except for a few notorious cases) who have been named in their lawsuits (and this list is a crude list, some of which are state cases, and I even know of a few cases which are not on here):

DEFENDANTS NAMED IN ALABAMA
Lightspeed Media Corporation v. Dewey W., 05-CV-2012-900893 (Dewey W.)

DEFENDANTS NAMED IN ARIZONA
First Time Videos, LLC v. Gary P., 2:12-cv-01488-ROS (Gary P.)
Lightspeed Media Corporation v. Adam Sekora, CV2012-053194 (Adam Sekora)

DEFENDANTS NAMED IN CALIFORNIA
AF Holdings LLC v. John Doe, 2:11-cv-03076-LKK-KJN (Francisco R.)
AF Holdings LLC v. John Doe, 3:11-cv-05633-JSC (Vu C.)
AF Holdings, LLC v. John Doe, 3:12-cv-02049-EDL (Josh H.)
AF Holdings, LLC v. John Doe, 5:12-cv-02048-HRL (John B.)
Boy Racer Inc. v. John Doe, 4:11-cv-06634-DMR (Daniel C.)
Boy Racer, Inc. v. John Doe, 1:11-cv-01935-LJO-SKO (Anthony N.)
Boy Racer, Inc. v. John Doe, 3:11-cv-05628-JCS (Samuel T.)
Boy Racer, Inc. v. Philip W., 2:11-cv-03072-MCE-KJN (Philip W.)
Hard Drive Productions, Inc. v. John Doe, 2:11-cv-03074-KJM-CKD (Jeff G.)
Hard Drive Productions, Inc. v. John Doe, 2:11-cv-03075-JAM-JFM (Kenneth S.)
Hard Drive Productions, Inc. v. John Doe, 3:11-cv-05634-JCS (Seth Abrahams)
Hard Drive Productions, Inc. v. John Doe, 4:11-cv-03826-DMR (Soukha P.)
Hard Drive Productions, Inc. v. John Doe, 4:11-cv-05630-YGR (Liuxia Wong)
Hard Drive Productions, Inc. v. John Doe, 5:11-cv-05631-PSG (Isaac K.)
Lightspeed Media Corporation v. Reza S., 37-2012-00100384-CU-BC-CTL (Reza S.)
Millennium TGA, Inc. v. John Doe, 2:11-cv-03080-MCE-KJN (Joe V.)
Millennium TGA, Inc. v. John Doe, 3:12-cv-00792-MMA (Tyree P.)
Pink Lotus Entertainment, LLC v. John Doe and Steve P., 2:11-cv-03073-WBS-KJN (Steve P.)
Pink Lotus Entertainment, LLC v. John Doe, 2:11-cv-03077-JAM-KJN (Jason A.)
Lightspeed Media Corporation v. Myron H., 12-CV-0952 (Myron H.)

DEFENDANTS NAMED IN ILLINOIS
First Time Videos LLC v. John Doe, 1:11-cv-08334 (Arthur S.)
First Time Videos LLC v. John Doe, 1:11-cv-08335 (Arthur H.)
First Time Videos LLC v. John Doe, 1:11-cv-08336 (Christopher P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08333 (Jason S.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08337 (Jamie P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08339 (Gerald G.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08340 (Edward N.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08341 (Erik S.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08342 (Stilan P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08343 (Hyung K.)
Hard Drive Productions, Inc. v. John Doe, 1:12-cv-01053-MMM-JAG (Matt R.)
Hard Drive Productions, Inc. v. John Doe, 1:12-cv-01104 (Robert R.)
Pink Lotus Entertainment, LLC v. John Doe, 1:11-cv-08338 (Klint C.)
Lightspeed Media Corporation v. Lucas S.,2012L000927 (Lucas S.)
Lightspeed Media Corporation v. Michael A., 2012L000530 (Michael A.)
Lightspeed Media Corporation v. Ronald T., 2012L000531 (Ronald T.)
Lightspeed Media Corporation v. Tom B., 2012L95 (Tom B.)

DEFENDANTS NAMED IN NEVADA
Lightspeed Media Corporation v. Adam G., CI12-2625 (Adam G.)

DEFENDANTS NAMED IN TEXAS
First Time Videos, LLC & AF Holdings, LLC v. John Doe, 4:12-cv-00535 (Tingwei & Chinatsu L.)
Lightspeed Media Corporation v. Austin C., C-133,846 (Austin C.)
Pacific Century International, LTD v. John Doe, 4:12-cv-00536 (Stephen C.)
Lightspeed Media Corporation v. W.T., Inc., CV2012-053230(W.T., Inc.)

In sum, as you can see, John Steele (through Prenda Law Inc. and his local counsel) are naming defendants, and one-by-one, they are hiring new counsel in a number of states to file against individuals. Now does this mean that John Steele is no longer a copyright troll? Maybe, maybe not. The point is that he is taking the “next step,” and he is forcing more and more individuals into litigation.  This is a concerning trend.

MY OPINION: Will he come after you? Quite frankly, with the tens of thousands of individuals he has sued, this small list is only a sliver of the huge pool of defendants who have been sued (NOT “NAMED”), who have been dismissed, and who are somewhere in between. The point though, is that while once upon a time John Steele did not name defendants, now he does.

On a personal note, I am saddened by writing this post, and as much as I always love to write the “we won!” articles (and THERE ARE SO MANY OF THOSE OUT THERE that don’t make it onto this blog), a defendant that calls my office needs to understand that there IS a risk that they might be named as a defendant at some point in the future. As we have said before, it is important that both current defendants AND DISMISSED DEFENDANTS should keep an eye out for Prenda Law Inc. filings in their state. The way they can do this is by going to the http://www.rfcexpress.com website, and watching what is going on in their state. Until a Prenda Law Inc. client (e.g., Hard Drive Productions, AF Holdings, First Time Videos, LLC) files against a John Doe or against a named defendant in a particular state, it is safe to assume they are not yet there and quite frankly, in my opinion, the risk of getting “named” is quite low. But then again, you need to be vigilant even after a dismissal, and for this reason, I have written this blog post.  This simply was not the case just a few months ago.

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Comcast Fights Prenda… Victory for its subscribers!

Congratulations to the Texas Millennium TGA, Inc. defendants who (with the assistance of their Comcast ISP) will never have their information shared with Prenda Law Inc., Doug McIntyre (Prenda’s local counsel), or Millennium TGA, Inc. Essentially, you have won your case because the copyright trolls will never know who you are (without great effort).

In short, as we discussed back in our “Forum Shopping” article on 5/16, Millennium TGA, Inc. made the mistake of suing the same “John Doe” defendants in Texas as they did two weeks before in DC. This wasn’t a mistake — the judge that was assigned to their DC case (referred to as “MILLENNIUM TGA I“) — Judge Wilkins — was known to be unfriendly to copyright trolls. As soon as Prenda Law Inc. figured this out, they dismissed MILLENNIUM TGA I, and using their local attorney Doug McIntyre in Texas, they filed “MILLENNIUM TGA II” [Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)] here in the Southern District of Texas.  When the Texas judge gave the okay for Prenda to demand the names of the subscribers from their ISPs, Comcast recognized the similarities of the John Doe Defendants to the DC case just dismissed, and they refused to comply with the rubber stampped subpoena given to Millennium TGA, Inc. by the Texas judge. Millennium TGA, Inc. (through Prenda Law Inc., their attorneys) filed a lawsuit against Comcast in DC (MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150), also referred to as “MILLENNIUM III“) asking the court to force Comcast to comply with the Texas judge’s subpoena and hand over the names, addresses, and contact information for the subscribers implicated in the MILLENNIUM TGA II Texas case.

Then, after an adverse ruling by the DC court which [in its order by Judge Alan Kay, order now overturned] forced Comcast to comply with the subpoena, John Seiver (Comcast’s attorney) wrote an amazing appeal which resulted in the DC case being transferred back to Judge Wilkins — the enemy of the copyright trolls. We wrote about this in our “Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.” article on 5/29.

Now, almost one month later, I am happy to share that Judge Wilkins issued the order we have been looking for all along. In his ruling this Monday, he DENIED Millennium TGA, Inc.’s motion to compel Comcast to comply with the subpoenas (and hand out the subscribers’ information). In other words, congratulations to the Cashman Law Firm, PLLC clients who have been entangled in this mess — your plaintiff attorneys Prenda Law Inc. and their local counsel Doug McIntyre will likely NEVER know who you are. In addition, congratulations on your victory in your Texas case, because without knowing who you are, they cannot name you as a defendant, and they cannot move forward against you. Score!

Food For Thought Moving Forward:
Okay, here is the silver lining. For those of you who do not have Comcast as your ISP, your Texas case is moving forward as usual. Similarly, for those of you who do not live in Texas, Judge Wilkins has ordered that Comcast turn over to Prenda Law Inc. ONLY the CITY AND STATE which is linked to your accused IP address. That way, if Prenda wishes to file a follow-up lawsuit against you, they can sue you in your home state’s federal court… or not. Here is my thinking.

Remember the “two-strike rule” in the Federal Rules of Civil Procedure (“FRCP”) Rule 41?? — a dismissal in the Texas court in a number of John Does’ cases would be the second dismissal [which is deemed to be "on the merits."] This could preclude your copyright trolls from filing suit against you a THIRD time in your home state’s federal court. See DieTrollDie’s “Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls” article, and for more discussion on the topic, see Sophisticated Jane Doe’s “A Trolling Lawsuit Ends With Style” article here.

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Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.

It is always nice when one judge reaches into another judge’s docket and removes a case from his docket.

While I cannot tell if this is exactly what happened here, all I can say is that Comcast essentially just won their “forum shopping” case against Prenda Law Inc. relating to their Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case in the Southern District of Texas (a.k.a. “MILLENNIUM II”). BUT before you go off celebrating, Comcast is STILL under an obligation to hand out your information. Watch out!

To recap, if you remember from my “Forum Shopping” article on 5/16, Millennium TGA, Inc. sued 939 John Doe Defendants in DC (“MILLENNIUM TGA I”). When they learned that Judge Robert Wilkins (who killed a prolific bittorrent case) was assigned to the “MILLENNIUM TGA I” case in DC, the Prenda Law Inc. attorneys for Millennium TGA, Inc. dismissed the case and then re-filed it in the Southern District of Texas (Case No. 4:11-cv-04501) (“MILLENNIUM TGA II”) suing essentially the same John Doe Defendants as they did in the “MILLENNIUM TGA I” case in DC which they voluntarily dismissed when they learned that Judge Robert Wilkins was the judge assigned to that case.  The Texas judge rubber-stamped their request to serve the ISPs with subpoenas to obtain the contact information of the 939 John Doe Defendants, and Prenda Law Inc. sent out the subpoenas to the ISPs. Comcast (one of the ISPs) saw the obvious forum shopping (actually, “judge shopping”) issue (among others) and refused to comply with the subpoenas. Prenda Law Inc. sued Comcast in DC (what I called “MILLENNIUM TGA III” in my 5/16 article).

In the MILLENNIUM TGA III case in DC (which is essentially Prenda Law Inc. suing Comcast in order to force them to comply), Magistrate Judge Kay ruled against Comcast telling them that they must comply. Comcast appealed, BUT THE JUDGE’S ORDER FORCING COMCAST TO COMPLY IS STILL VALID AND IS STILL IN EFFECT! So what exactly is going on?? What happened today??

On 3/26, Comcast noticed that Prenda Law Inc. violated the court’s “judge shopping” rules (LCvR 40.5(a)(4)) by not reporting that its new case [assigned to Magistrate Judge Kay] was substantially related to the “MILLENNIUM TGA I” case that it voluntarily dismissed when it was before Judge Wilkins.

According to the DC local rules, to prevent contrary rulings by different judges for the same issues, if two lawsuits are substantially related (here, they are essentially identical), all subsequently filed cases get assigned to the original judge.

Knowing this, on 3/26, Comcast filed a “Request For Judge Reassignment” which was ignored until this morning.

As of this morning, District Judge Ellen Segal Huvelle took the case away from Magistrate Judge Kay and reassigned it to Judge Robert Wilkins — the judge it should have gone to originally. Woohoo! Comcast’s victory is palatable at this point, because we can almost predict with certainty that he will rule in Comcast’s favor and will allow them NOT to comply with the subpoenas in the Texas MILLENNIUM TGA II case.

The problem is that all you see on the docket is a granting of the 3/26 motion for reassignment. Comcast appealed Magistrate Judge Kay’s terrible ruling against it, and Prenda Law Inc. filed a response to which Comcast responded to, but THERE WAS NEVER A RULING ON THEIR APPEAL which means that JUDGE KAY’S ORDER IS STILL IN EFFECT! COMCAST IS STILL UNDER AN OBLIGATION TO COMPLY WITH THE SUBPOENAS!

So in short, I have no doubt that Judge Wilkins will side with Comcast. However, I just don’t know if he has enough time to stop what he is doing (judges don’t only spend their days only reading these pornography-based bittorrent cases) and write an order 1) granting Comcast’s appeal and overturning Magistrate Judge Kay’s order [which is still in effect], and 2) granting Comcast’s motion for an extension of time to comply with the subpoena (which for many people, the deadline is today).

So while Comcast has essentially won the battle, they have not yet won the war. Comcast is still under the obligation to comply with the subpoenas.

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MY OPINION:
…On a personal note, I feel that it is important that Comcast subscribers take note of the CONFLICT OF INTEREST that is apparent even in cases such as this one.  Comcast has been blindly complying with Prenda Law Inc.’s subpoena requests for almost TWO YEARS now.  They have opened up their own “Subpoena Compliance” division and have hired new staff (twelve new full-time employees, if my memory serves me correct) just to comply with these subpoena requests. They have entered into private agreements where Prenda pays them a certain sum of money for each IP address lookup (~$45 per IP address, give or take), and thus COMCAST RECEIVES A FINANCIAL BENEFIT FROM COMPLYING WITH THE SUBPOENAS.  On top of that, while I have spoken to John Seiver and I believe he is a very skilled attorney (remember the work he did in bringing down the Digiprotect case almost two years ago?), I cannot help but to be suspicious that this whole lawsuit is a PUBLIC RELATIONS STUNT solely to boost the image of Comcast.  After all, I must ask you — where were they until now? Have they filed ONE motion to quash on behalf of their subscribers? Why not? After all, with all the thousands of failed motions to quash filings attempted by their subscribers, Comcast could have SUCCESSFULLY filed motions to quash on behalf of its subscribers [they had standing in each case to object, and judges were dumbfounded why they never got involved], but they never did. Why not?

I also would like to mention that Comcast was one of the first ISPs to sign on to the MPAA/RIAA’s “six strikes” program (now on hold) which will no doubt be wreaking havoc on their subscribers in the near future.  So while I applaud John Seiver and Comcast for fighting and [what will likely be] WINNING the case against Millennium TGA, Inc. and Prenda Law Inc., I still need to ask myself on behalf of my clients, where were they until now? And, “will they still “accidentally” comply and collect their fee?” I would like to remind you that this has happened before.

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“Forum Shopping” is the link between the TX & DC “Millennium TGA, Inc.” lawsuits.

As a response to the “You Have Been Shopped” article written by DieTrollDie on forum shopping, I do have some insight to add to this.  In short, there are not two Millennium TGA lawsuits in this forum shopping scandal, but three (if you are counting the “motion to compel” lawsuit in DC which is the key to understanding exactly what is going on — this is the missing link which provides the insight I am sharing).

MILLENNIUM TGA I: In short, on 12/7/2012, Millennium TGA v. Does 1-939 (Case No. 1:11-cv-02176) (hereinafter, “Millennium TGA I”) was filed in DC.  It was assigned to Judge Robert Wilkins, the DC judge who killed the “Expendables” bittorrent lawsuit — this was the Nu Image, Inc. v. Does 1-23,799 lawsuit by Dunlap Grubb & Weaver, PLLC which quickly expanded from 6,500 into 23,222 John Doe Defendants before the judge shut down the case.  It took Prenda Law Inc. a week to figure out that their judge was THE Judge Wilkins, and they quickly and voluntarily dismissed the case.

MILLENNIUM TGA II: Four days later, Prenda Law Inc. used their local counsel Doug McIntyre (the same local counsel who was almost fired because he took on the West Coast Productions, Inc. client [remember them in DC and in W.VA with their attorney Kenneth Ford who is now in jail?] in his West Coast Productions, Inc. v. Does 1-351 (Case No. 4:12-cv-00504) case which he filed without telling Prenda Law Inc. about it) and on 12/20/2012, Doug McIntyre filed the Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case here in the U.S. District Court for the Southern District of Texas.  This case involves pretty much identical parties, facts and claims as were alleged in the MILLENNIUM TGA I case in DC.  I suppose they thought nobody would notice their overt forum shopping, especially since they changed the name of their lawsuit.

Everything went smoothly for the plaintiff attorneys in the MILLENNIUM TGA II case in Texas …until Prenda Law Inc. served a subpoena on Comcast, who said “no.”

This is where the story gets interesting.  On 2/29/2012, Comcast objected to the subpoena by stating that 1) the court lacked personal jurisdiction over most of the IP addresses listed in the subpoena; 2) there were serious joinder issues in the lawsuit; and 3) the plaintiff was engaging in “a blatant attempt to FORUM SHOP” since they already dismissed MILLENNIUM TGA I to avoid being in front of Judge Wilkins in DC.

MILLENNIUM TGA III: As a result, Prenda Law Inc. (Millennium TGA, Inc.’s attorneys) filed a lawsuit against Comcast (it was actually a “motion to compel”) in the MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150) case in DC.

It was in this lawsuit that John Steele “surfaced” from pretending (think, “Prenda”) that he was not associated with Prenda Law Inc. since Paul Duffy allegedly took over the firm.  It is also my understanding that Prenda Law Inc. didn’t realize that John Seiver was the attorney behind the scenes on this case, and what they might not have known was that John Seiver has wreaked havoc on bittorrent cases as long as two years ago with the Digiprotect cases in New York.  Perhaps even Prenda Law Inc.’s predecessor firm Steele|Hansmeier, PLLC was not yet in existence when this happened, and John Steele was still running his divorce practice a la the Steele Law Firm, PLLC.  Either way, I suspect that they filed the motion to compel Comcast to comply with the subpoena in order to bully them, and they didn’t realize that Comcast (through John Seiver) would fight back.

Now advancing forward a bit on the timeline, Magistrate Judge Alan Kay ignored pretty much every point that Comcast brought up and he issued an order on 4/18/2012 ordering Comcast to comply with the subpoena for the MILLENNIUM TGA II Texas case.  They were ordered to reveal 351 of the subscriber identities to Prenda Law Inc.  This is, however, where it gets interesting.

John Seiver, obviously realizing that Magistrate Judge Kay made a dumb ruling, essentially called him a moron in appealing his order.  As an attorney, I would hold my tongue myself here in writing this article, especially because I am interested in seeing John Seiver and Comcast prevail, and I know that sometimes a judge can rule his court by ego rather than adhering to the law, but Magistrate Judge Kay’s ruling against Comcast was so dumb I could not contain myself.

In short, according to Comcast’s appeal, 1) the judge erred by failing to consider any of the legitimate defenses that Comcast raised on behalf of its subscribers. 2) The judge erred by failing to address the fundamental issue of whether any of the unnamed Does would be subject to personal jurisdiction (either in Texas, or in DC per the motion to compel).  3) The judge erred by failing to address the possible misjoinder of the one John Doe defendant (and the many co-conspirators) in the Texas case.  4) The judge erred by failing to realize that “conspiracy” is not a sufficient crime to allow massive discovery on the John Doe Defendants, and 5) Magistrate Judge Kay was not the proper judge to accept this case — according to DC’s own local rules (Local Rule 40.5), the case should have been immediately reassigned to Judge Robert Wilkins, the judge who was previously assigned to the MILLENNIUM TGA I case, since MILLENNIUM TGA I and MILLENNIUM TGA II had identical claims.  As of this evening, I am still waiting to hear a ruling on this appeal.

Now for those of you still in Prenda Law Inc.’s MILLENNIUM TGA II (Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)) case here in the U.S. District Court for the Southern District of Texas, if you are a Comcast subscriber, as you can see, there are unresolved questions in the MILLENNIUM TGA III DC case, and your status is uncertain.  Thus, my contribution to the FORUM SHOPPING article by DieTrollDie today is that the DC MILLENNIUM TGA III case holds the key to understanding what is currently going on in the MILLENNIUM TGA II case here in Texas.  Now as for everyone else (e.g., non-Comcast clients who are in the MILLENNIUM TGA II Texas case), understand now that the MILLENNIUM TGA III [motion to compel] DC case directly impacts your Texas case.  Obviously this is something we are watching for our clients.

If you are interested in reading this entertaining appeal by Comcast in order to understand the entire story and its implications, I have attached a copy of Comcast’s motion below.

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AF Holdings, LLC v. Does 1-1,140 — Dismissed, but according to the plaintiff’s plan.

On Friday I wrote a scathing review of the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case dismissal, but I did not post it.  In short, congratulations to the Cashman Law Firm, PLLC clients (and all the others implicated in this case) who have been dismissed from the case.

The difficulty I am facing is that while being dismissed is the goal of any John Doe defendant in a bittorrent case, in my opinion, I am uncomfortable with the way the dismissal happened. 

As many of you know, there was new precedent set by Judge Facciola’s ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case, and as a result, Judge Reggie Walton gave the plaintiffs until March 9th, 2012 to start naming or dismissing defendants.  In short, instead of admitting improper jurisdiction, yet another D.C. judge opted to invoke the Federal Rules of Civil Procedure, Rule 4(m) which gives plaintiffs 120 days to either name or dismiss defendants.  Understanding that the Prenda Law Inc. plaintiff attorneys had no interest in continuing the lawsuit against individual Doe defendants, they dismissed the case.

Now while it is always nice when opposing counsel opts to kill a case rather than move forward against defendants, Prenda Law Inc.’s local counsel revealed more than he probably should have to the court.  In a move which probably angered Paul Duffy and his superiors, Tim Anderson wrote the following paragraph:

Plaintiff acknowledges the Court’s busy docket; Plaintiff is currently engaged in settlement negotiations with a substantial number of putative Doe Defendants.  Rather than prematurely initiate litigation against individuals who may ultimately wish to resolve Plaintiff’s claims via settlement — and thus needlessly burden the Court — Plaintiff believes that dismissing the claims against the remaining non-settling Doe Defendants in this action without prejudice in lieu of filing actions against non-settling individuals strikes a favorable balance between preserving Court resources and safeguarding its intellectual property rights.

In other words, “Court, we are dismissing the case so that you do not need to waste your time looking over us watching what we are doing.  We would prefer not to have you watch us anyway because you will force us to do something we don’t want to do (e.g., “name” defendants), which would make our extortion scheme much more costly to us and thus we wouldn’t be able to sustain our operation if we had to actually go after defendants.  So thanks to you, since we now have all the names we need from the ISPs of the putative Doe Defendants, we will continue to call and harass those who haven’t settled without having you worry about what we are doing.”

In short, I would have liked to see the judge issue an order indicating that since they have dismissed the case, they are no longer permitted to use the names they acquired from the subpoenas and collect settlements from putative defendants.  The legal system is not a tool to discover private information about internet subscribers only to dismiss the case and continue their extortion scheme offline.

For this reason, I suspect that you understand why I am not so happy with this case dismissal.  Getting your names only to dismiss the action was simply part of their plan all along.

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EFF takes on Judge Facciola in the Hard Drive Productions, Inc. v. Does 1-1,495 case.

Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) has been a controversial case from the beginning.  Judge Bates immediately noticed the faults with the case and he stayed the subpoenas.  Magistrate Judge Facciola (who has since taken over the case) is now facing scrutiny for every step he makes — not only in this case, but also in the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case.  In short, Judge Bates told putative defendants that they could file their motions under seal (meaning the defendants’ identities would remain anonymous), the Doe Defendants relied upon Bates’ order and following his instructions, they filed their motions under seal, and Judge Facciola reversed Judge Bates’ order.  [Facciola's order essentially stated that motions to quash that were filed under seal will be filed publicly on February 1, 2012, revealing the anonymous defendants' identities to the world (and consequently to Prenda Law Inc., where we all now know what they will do with these).] Based on the volume of calls that must be coming into Judge Facciola’s chambers [(202) 354-3130], he is no doubt now stepping on eggshells based on the hundreds of defendants who are actively tracking this case and I’m sure he does not like it.  No judge would.

To make matters worse for the Judge Facciola, the Electronic Frontier Foundation (“EFF”) filed for its attorney to appear in the case and file an amicus brief, (a “letter to the court informing them of the law and the issues,”) on behalf of the various Doe Defendants.  The attorney also requested that the judge “stay” the case (which essentially means to put the case on hold until the issues are resolved).  In short, if EFF is successful, all of the motions to quash which tomorrow are set to become public will be kept private.  At the very least, Judge Facciola will be educated as to the issues surrounding this case (first amendment issues, personal jurisdiction, improper joinder), and perhaps it will inspire him to sever and/or dismiss it [and its sister AF Holdings case].

My favorite part about EFF getting involved in the case is the technology-based declaration which every bittorrent user accused in these cases should be aware of.  While the technology-based arguments of non-infringement may be over the head of Judge Facciola, they no doubt in my opinion provide enough information to kill any bittorrent case, if any Doe Defendant is named.

To hit the nail on the coffin, so to speak, the EFF asked the court to take judicial notice of (meaning, to recognize and hopefully adopt the opinions of) other bittorrent cases which you have been reading about since this blog started back in 2010.  You can read the orders of the other cases in a neatly filed package here.

While this motion as far as I’m concerned should be a “one-two knockout punch” for this case, we must also realize that the character of the judge and his leanings (dare I say bias) also play a factor in whether he’ll allow this motion to move forward.  DC has never been a defendant-friendly state as we saw with the Dunlap Grubb & Weaver, PLLC lawsuits last year, and they have historically been known to disclose the identities of Doe Defendants who filed motions to quash filed under seal when they reject them.  This is why I am both optimistic that EFF has gotten involved, but I am also very cautious when it comes to how Judge Facciola will react to yesterday’s motion which is a clear affront to his previous order.  Again, no judge likes it when someone openly disagrees with his order.

[P.S. - Here is the link to Prenda Law Inc.'s response requesting that the court not allow EFF to intercede in the case based on their "anti-intellectual property" nature.  Other websites covered the topic just fine (see, SJD's article here).]

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