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Posts Tagged ‘copyright troll’

We already know that it is the business model of CEG-TEK and other copyright monetization companies is to develop relationships with the internet service providers (“ISPs”), and to have them forward copyright infringement / DMCA notices to their subscribers.

I have mentioned this already with regard to the relationships CEG-TEK has with Charter, CenturyLink, and Suddenlink, and as we know, COX Communications, Inc. signed on with CEG-TEK in December of 2015, and has been sending CEG-TEK’s DMCA violation notices to their users.  What we did not notice until now is that Cox Communications has become CEG-TEK’s “golden goose.”

WHY COX IS CEG-TEK’s “GOLDEN GOOSE”:

Why Cox? Because Cox provides its users the same IP address each day. This “one subscriber, one static IP address” trend provides copyright holders and government officials an “ID” of sorts which allows them to identify a particular IP address, watch the activities of that IP address over time as it interacts with different websites (e.g., to see what links that internet user clicks on, to learn where they shop online, what accounts they use, what items they purchase, and what bittorrent downloads they participate in).  Then, when they have developed enough of a profile on that user to convict, they then trace that IP address back to a certain Cox Communications account for prosecution, or in our case, extortion.

For CEG-TEK, they are focusing their efforts on Cox because by doing so, they do not need to obtain from the ISP a past list of IP addresses assigned to that user, and it is very easy for CEG-TEK to go back in time and check their own logs of the past bittorrent swarms to see whether that particular subscriber / IP address participated in any other downloads of their other clients. Some have suggested to me that CEG-TEK can do a search to see what other bittorrent downloads the accused Cox subscriber has participated in. In short, Cox’s “one subscriber, one static IP address” is nothing short of a violation of their subscriber’s privacy, and it is only a matter of time before someone’s IP address gets “followed” and someone gets hurt because Cox is not obscuring the identity of their subscribers.

BRIGHT HOUSE NETWORK IS NOW WORKING WITH CEG-TEK:

Other than Cox, I have recently learned that Bright House Networks (brighthouse.com) is now working with CEG-TEK. I do not yet know in what capacity they are working with CEG-TEK, or in what kind of relationship, but it appears as if they are a new ISP “recruit” in CEG-TEK’s “war” against piracy.

NEW CHARTER COMMUNICATIONS POLICIES AS TO HOW THEY FORWARD DMCA NOTIFICATIONS (THE GOOD AND THE BAD):

For the thousands of you who are Charter subscribers, Charter has recently changed the way they forward the DMCA notices, and this can only be good for subscribers. Instead of forwarding the notices in an e-mail, they are now asking subscribers to “log in” to their website, where only then can then view and copy for themselves a copy of CEG-TEK’s letters.

This is both very good, and bad. On the good side, any “hoops” an ISP makes a subscriber jump through to see the claim(s) against him might annoy the subscriber, but it no doubt infuriates the copyright holders and “monetization” companies (like CEG-TEK) that rely on them seeing their DMCA notices to provide their copyright holder clients their dirty money (I could have said “ill-gotten gains,” but emotionally, calling it “dirty money” seemed to fit better).

THE PROBLEM OF “LOST” DMCA NOTICES:

However, BUYER BEWARE! I have received many calls about people who have physically LOST their DMCA notice because they did not copy it down when they viewed it. And when they called me about it panicked, because I couldn’t see the claims because they did not know who was claiming copyright infringement against them, I couldn’t tell them whether the copyright holder was a “copyright troll” or not, or whether they are suing downloaders in the federal courts. So please, as soon as you access the DMCA violation notices sent to you, either download a copy of it for yourself, or copy-and-paste it into a text file.

GOOGLE FIBER IS A DISORGANIZED ISP WHICH HAS ALSO LOST DMCA NOTICES:

Google Fiber subscribers also — Google Fiber seems to not be organized as to keeping track of the DMCA notices that they are forwarding to their subscribers. So when an internet user inadvertently deletes that notice, it is gone forever. Neither I, nor anyone else can help you fight or settle (or even advise you as to your options) if you accidentally deleted the notice. I suspect that if you are reading this article, it may already be too late.

CANADA — NEW CANADIAN ISP RECRUITS:

Okay, last piece of news and then I need to get back to work. As we know, CEG-TEK has been sending letters for months to Canadians and forcing the ISPs to send these letters to their subscribers under what is known as “notice and notice.” I have written about the problem and the solutions here in my “CEG-TEK: What are your financial risks and considerations of ignoring, settling, or being sued for copyright infringement if you live in Canada or Australia?” article. The news is that just as CEG-TEK is growing their business by signing on new ISPs in the US, this is also true in Canada.

The new Canadian ISPs now working with CEG-TEK appear to be Videotron (a.k.a., Vidéotron), Bell Aliant (www.bellaliant.ca), and Eastlink (www.eastlink.ca) — this will also affect their FibreOP users under the ISP names NorthernTel, DMTS, Telebec (Télébec), and Cablevision. If anyone receives notices from these internet providers, I would like to see them, as I hear that CEG-TEK is not following the notice rules.

As for the older ISP names — Bell Canada, Rogers Cable, Shaw Communications (sjrb.ca), ACN Canada, Electronic Box Inc., TELUS Communications, Start Communications, and TekSavvy, yes, these are still in play. The only one of these that has my respect thus far is TekSavvy which has tried to protect their users by fighting back, but even so, they are still sending CEG-TEK’s DMCA violation / copyright infringement letters, so my respect is limited.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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BACKGROUND: Malibu Media, LLC is a copyright holder who has sued internet users for the download of their adult films under the “X-Art” brand name. In the lawsuits they file, they may sue for the download of one title (asking $150,000 statutory damages for that one title), but then they claim in an addendum that the defendant also downloaded multiple “copyrighted” titles, listing a bunch of other videos that were also downloaded.

When settling claims against that defendant, Malibu attorneys ask for settlement FOR EACH AND EVERY ONE OF THOSE ACCUSED DOWNLOADS (and not for just the one title claimed in the lawsuit). So instead of asking for a settlement of $1,000 for one title, they will ask for a settlement of $35,000 for 35 titles allegedly downloaded.

The problem is that of the 35 titles allegedly downloaded, many of them weren’t copyrighted at the time the download took place. Malibu Media, LLC gets around this requirement by stating that since the copyrighted adult film was “published” on their website, thus they have three-months to file the copyright with the U.S. Copyright Office in order to get copyright rights in that video.

Thus, Malibu Media is claiming copyright protection for videos that were not copyrighted at the time they were downloaded. Their logic is that their file was deserving of copyright protection retroactively, BEFORE THEY FILED FOR A COPYRIGHT WITH THE U.S. COPYRIGHT OFFICE, because the video was properly “published” on their website (plain meaning of the word is “posted” on their site), and filed with the copyright office within the three-month statutory period.

Not relevant to this discussion (but equally interesting) is the fact that the file somehow “leaks” from their website onto the bittorrent networks to be downloaded by the internet users who then download large .zip or .rar files containing sometimes 100+ Malibu Media videos (or one .torrent file containing multiple video files).  These internet users are then sued in the federal courts for copyright infringement in what are known as the “Malibu Media LLC v. John Doe” lawsuits.

NEW MATERIAL (THIS IS THE ACTUAL ARTICLE):
Malibu Media, LLC has formed a habit of suing defendants for downloads that appear on the bittorrent networks literally a day or so after they are supposedly “published” on their website. The videos themselves are not copyrighted often for another three-months.

When questioned about this tactic, they claim that their activities are legitimate because U.S. copyright law gives a content creator up to three months after “publication” to file their copyright with the U.S. Copyright Office. They are correct about this three-month rule.

The scam is that Malibu Media, LLC is basing their “right” to solicit settlements for MANY videos because they “PUBLISHED” each video [according to the plain definition of the word] on their website before it was downloaded by the John Doe defendant.  Thus, they claim that their copyright rights existed in each of the videos at the time the videos were downloaded, even though 1) the downloader couldn’t find the video as being copyrighted when searching the US Copyright Office’s copyright registry, and 2) even though the copyright was not yet filed for when the download took place.  Thus, they can ask for settlements for each and every video because they all were deserving of copyright protection retroactively at the time the downloads happened BECAUSE that video was “published” prior to being downloaded.

However, I am convinced that their stated “publication” is really no publication at all. It’s a scam to make the accused downloader think that Malibu Media, LLC has copyright rights over ALL of the videos they claim in their “list” of infringed videos, including even those videos that were “published” just a day or so before they appeared on the bittorrent websites.

Why do I think that Malibu Media is faking the “publication” requirement in their lawsuits? Because according to the statutory definition of “Publication,” posting a new porn video onto their website is more of a “public performance,” and that does not satisfy the requirement for “publication.” (see, 17 U.S. Code § 101 – Definitions).

Here is the text of the statute:

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

 

Remember, in law, words do not always mean what they do according to the plain meaning of the word.  Tongue-in-cheek, stating, “I did not sleep with that woman” might be telling the literal truth, even if you had sexual intercourse with her.  The understanding to pull from this example is that the legal definition of “sleep” might be very different from the plain meaning of the term.

In the context of the Malibu Media, LLC lawsuits, it is not enough for a lawyer to look up the definition of “Publication” (defined above) in the statute and decide according to the plain meaning of the written definition whether publication is or is not taking place.  (By the way, looking up the definition of a word is a very good start, and is something that is often NOT done!  But the investigation of “the law” should not end there.)

To properly explain the term in the context of bitttorrent lawsuits, the terms “publication,” “to the public,” “distribution,” “public performance,” “public display,” etc. also have to be defined within their context.  How?  In addition to the plain meaning of the term, each term in the legal world has specific LEGAL DEFINITIONS which change as case law interprets them in the context of various situations (and if there is no case law, it is the job of the lawyer to carve out that changed definition for each particular context where justice sees it fit to do so).  These definitions can often be different, or even opposite to the plain meaning of the term.  Again, the “legal definition” of a term is often not the same as the “plain meaning” of that same term.

In sum, I suspect that there is a legal argument that “publication” is not actually happening with the Malibu Media, LLC lawsuits (even moreso if they are found to be leaking their videos onto the bittorrent networks prior to their release, as is described in Sophisticated Jane Doe’s article, reblogged below). While I have not hashed this out yet completely, I have been working on this theory for some time now, and I believe it may be a viable argument. However, for those attorneys who troll this blog and will immediately jump on me saying “of course it is published,” step out of your box containing only plain meaning definitions, and come over to my side of the room. The view is a bit better here.

I am merely mentioning this issue as food for thought. Anyone who wants to contribute to this legal argument, I’m more than willing to hash this out. And of course, read SJD’s article because it demonstrates the publication issue very nicely.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Fight © Trolls

It was proven beyond any doubt that Prenda seeded their smut on Bittorent to entrap hapless file-sharers. Given the striking similarities between Prenda and Guardley-driven copyright shakedown outfits, including Lipscomb/X-Art/Malibu Media, it wouldn’t be unreasonable to believe that the Karlsruhe-Miami-Malibu cartel’s hands are not so clean in this respect either. Indeed, numerous defense attorneys asserted that Malibu either seeds their porn itself, or someone does it with its blessing. Even Jordan Rushie, before he started doing errands for Lipscomb, suggested that

When considering litigating the “swarm theory,” Malibu was faced with the prospect of dozens of defendants, joined in their common defense against the plaintiff, with an initial seeder who very well may have had a license to publish the works to BitTorrent or elsewhere. [FN: Malibu’s investigation company, IPP, Ltd., was previously called Guardaley, Ltd. While it had that name, it was accused of being the seeder for swarms…

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2/8 UPDATE: This post was written as a “rant” against volume-based “settlement factory” attorneys because of the damage they cause to other accused defendants (by feeding them false information, causing increased settlement prices, etc.).  This afternoon, Ernesto from Torrentfreak wrote an article entitled, “BEWARE: PIRACY DEFENSE LAWYERS CAN BE “TROLLS” TOO.”  Because my article (below) was a “stream of thought” article (and because I am still emotional about the problem), as chock full of information this posting might be, his article better describes the issue.  -Rob

I started writing this article because there is too much conflicting information floating around the web (likely from attorneys who are trying to use fear tactics to scare you into settling with their firm), and my point was that there are credible websites, such as “Fight Copyright Trolls,” “Die Troll Die,” and a few others who have been helping individuals understand that IGNORING A COPYRIGHT INFRINGEMENT CLAIM AGAINST YOU CAN OFTEN BE A VIABLE OPTION TO RESOLVE THE PROBLEM (WITHOUT SPENDING $$$$ ON A LAWYER), so beware of the attorneys who tell you that you will lose your home, your life savings, or any other fear-of-embarrassment-and-exposure-or-financial-ruin-based argument as to “why you should settle anonymously through them for cheap, or else you might lose everything.”

I circled back to this topic in the end, but this article ended up being a “buyer beware of attorney settlement factories” article, where an attorney or his team of lawyers is trying to lure you into being part of their high-volume settlement business.  In this article, I give you the red flags to look for to spot these attorneys, and I hope this helps clarify some of the conflicting information you get from speaking to different attorneys where one attorney pushes you to settle and where another (e.g., I) suggest that you just ignore it.

“SETTLEMENT FACTORIES” are what I call these law firms. These law firms hire multiple attorneys to track down, solicit, and lure accused defendants into hiring them “for a cheap and anonymous settlement.” From a business perspective, more attorneys for the business owner means the ability to make more phone calls to solicit more accused defendants [to process more settlements], and the ability to “capture” more clients for their law firm means more profits. And, rather than actually negotiate a good settlement for their client, they run what I refer to as a “volume business” where they pre-arrange a price with the copyright holder which is above the market (copyright troll profits). Then, instead of actually negotiating a settlement, they’ll hand over the names to the plaintiff attorney and get the high-priced mediocre settlement for their client.  In return, the copyright troll allows that so-called attorney to not have to negotiate the settlement for each client, since they have a “fixed settlement amount.”  As far as I am concerned, this means that the so-called defense attorneys are part of the copyright troll problem, in a “cottage industry” sort of fashion.

What compounds the problem is that negotiating the settlement is only HALF of the solution. The SETTLEMENT AGREEMENT itself must also be negotiated, particularly because the “boilerplate” settlement agreements contain ADMISSIONS OF GUILT and UNFRIENDLY LANGUAGE which does not properly release the client from liability, nor does it properly protect the client’s rights.

For me, where writing this article will become infuriating is that suddenly these attorneys and their “beefed up” staff of hired attorneys will now start advertising 1) that they spend the time to actively negotiate the best settlement for their client, and 2) that they take the careful time to negotiate the terms of the settlement agreement so that the accused John Doe Defendant will be released from liability and the negotiated terms will properly protect the client’s rights.

If I see this, all I could say is “caveat emptor,” do your own research on:

1) How long that attorney has been in practice [REMEMBER: “Copyright Troll” mass bittorrent lawsuits targeting multiple “John Doe” defendants have only been in existence only since 2010, so any attorney who claims he has been fighting copyright trolls for 20 years is obviously lying.],

2) Check the attorney’s blog to see the HISTORY of his articles — was he one of the first attorneys who fought these cases, or is he a new “me too” copycat attorney who is standing on the shoulders of giants? (after reading this, no doubt these attorney will now add “older” articles to make their website look older), and

3) Check the blog article itself for “SEO OPTIMIZED” content, or “KEYWORDS” placed into the article.  Ask yourself, “was the purpose of this article to provide me valuable information? or was the purpose of the article to bulk it up with keywords so that search engine spiders will reward the author with first page rankings on the search engines?

4) Last, but not least, check the EARLY ARTICLES of the blog to see whether the attorney actually tried to fight these cases and hash out the legal arguments, or whether they were merely reporting on the lawsuits already in existence to attract new business.  I call these attorneys “me too” attorneys, and you can usually spot them because all they do is report the cases.

NOTE: I write this article cringing a bit because I myself just added an e-mail form at the bottom of my articles so that people can contact me if they had a question. I also dislike trashing another attorney or law firm because that simply makes me look bad. I also have a secret, and that is that I was one of the first group of attorneys contacted by EFF to figure out the “John Doe” mass bittorrent lawsuits, and so I have an advantage over the “me too attorney” both legally and information-wise as to the history of these cases, who is who, and which copyright “troll” uses which strategy in fighting a case, and under what conditions will a copyright holder accept a settlement, and how far they will bend in their settlement price. I also spend a lot of time on what I call “situational awareness,” knowing not only the law, and not only the personality of the copyright holder AND the mannerisms of the local copyright attorney hired to sue defendants in a particular set of federal courts, but I also know when a judge is going to dismiss a case (based on his past rulings), and I know when the copyright holder’s local counsel is pressured because of activities that happened in other cases, or whether they are under pressure to resolve a case because they have already have asked for two extensions from the court and I know they will likely not receive a third extension because the judge has expressed an intent for the plaintiff to begin naming and serving defendants.  This is the difference between a copycat and an original.

I also say with no shame that in 2010, I and a small handful of attorneys were contacted by the Electronic Frontier Foundation (better known as EFF) to help understand and resolve the developing copyright troll problem back when ISPs began sending letters out to their subscribers informing them that their ISP would be handing out their contact information and their identity to the plaintiff attorney / copyright holders unless they filed objections (or, “motions to quash”) with the courts. Thus, I credit the EFF for even noticing the copyright troll problem and contacting us to figure out what to do about it.

Unfortunately (or, fortunately, however you see it), that initial list of 20 attorneys has grown to over 100+ names, and some attorneys have negotiated with EFF to list them as representing clients in multiple states, hence increasing their visibility in an ever-growing list of lawyers. These are usually the “settlement factories” I referenced above, and again, caveat emptor.

Let’s pretend, for a moment, that you did not like me or my use of pretrial strategies (often making use of federal procedure) to defend a client. Or, let’s pretend for a moment that I could not take you as a client (e.g., because my case load was full, or because I did not have time to speak to you about your matter). Because there were only a handful of us attorneys on the original EFF list who knew anything about these copyright infringement lawsuits, over the years, we have become friends and have helped each other out on many of the lawsuits in which we represented both John Doe Defendants and “named and served” defendants. Some of these attorneys are still around today, and some have moved on to other areas of law, or they have stopped taking clients because fighting mass bittorrent cases has become more burdensome than the effort was worth (especially when some copyright holders do not play fairly in discovery [think, Malibu Media, LLC]).

Finding “that special client who will pay my fees to fight this case to trial” for many attorneys has become an unrealized pipe dream, and is something us attorneys often discuss.  If you truly want to fight your case, I have nothing wrong with either me, or anyone else I trust representing you in your lawsuit (I will happily tout another attorney’s merits and advanced skillsets when speaking to clients). AND, I will happily refer you to someone if I find that one of my peers would better assist you.  I *DO NOT* believe in referral fees, nor do I “share the workload” with other attorneys (this is code word for “I referred you this client, so pay me a piece of the legal fees you receive and call it paying me for my “proportional efforts.”), something that is often done in my field which, in my opinion, needs to stop. This is also why I have upset a handful of non-copyright attorneys who know nothing about these cases who have called me with a client they would like to refer to me (coincidentally, asking to share in the fees, but not in the work).

So in hindsight, while I thought I’d be reintroducing “copyright troll” subpoenas and basic copyright infringement concepts to clear up some conflicting information found on the web, instead I am providing a clear warning to those who are being actively solicited by law firms. A law firm simply should not be calling you or contacting you to solicit your business.

There is a lot of conflicting information on the web about copyright trolls, and what to do when you receive a subpoena from your ISP, what to do when you receive what is often known as a “DMCA notice” (usually signed at the bottom by Ira M. Siegel) that you have violated a copyright holder’s rights [by what is often the download of a “B-rated” film or more shockingly, that you have been accused or caught downloading pornography through the use of bittorrent (and you thought you were private), and now you want to settle the claims against you anonymously, or you want to make this go away as quickly as possible].

All I could say is STOP AND CONSIDER YOUR OPTIONS, BECAUSE IGNORING A CLAIM OF COPYRIGHT INFRINGEMENT CAN OFTEN BE A GOOD IDEA (and, when I speak to clients, I do ask them questions about the claims against them, and IF THEY CAN IGNORE, I do suggest that they DO NOTHING.) Even in a lawsuit — DOING NOTHING MAY OFTEN BE YOUR BEST STRATEGIC MOVE, as counterintuitive as that might sound.

But when you are bombarded with attorneys and law firms who actively market their fear-based services by using “Google AdWords” (ethically or unethically “buying” more well known attorney’s names as keywords so that THEY show up at the top of a search when you search for another attorney after doing your own research on who to trust, yes, you know who you are), and those attorneys then have their “assistant” attorneys calling you and pushing you to anonymously settle the claims against you, think twice. Is this person trying to get you to be yet one more client in their “volume” business??

In every one of my calls, I discuss what I call the “ignore” option which in many people’s scenario is a viable option. In many cases, I even push a client towards the “ignore” side of things.

[NOTE: There are many political reasons I have for this, such as “not feeding the troll,” or “not funding their extortion-based scheme,” or simply because I have been trying to change the copyright laws to limit or hinder a copyright holder’s ability to accuse or sue an internet user for the violation of that copyright holder’s copyrights, but NONE OF THOSE REASONS ARE REASON WHY I SUGGEST SOMEONE I SPEAK TO IGNORES THE CLAIMS AGAINST THEM.]

Sometimes an individual’s circumstances allow them to ignore the lawsuit filed against them (or the copyright violation claimed against them in the DMCA notice) simply because of 1) the individual’s financial situation, 2) the location of their home, 3) the location of the plaintiff attorney, 4) whether that copyright holder authorizes his attorneys [and pays their fee] to “name and serve” defendants and move forward with trial, 5) for strategy purposes, e.g., the psychological impact of having one or more John Doe Defendants ignore the claims against them (while other defendants rush to settle in fear of being named and served), or 6) simply because ignoring is the better option in that person’s situation.

But my point, MY POINT, ***MY POINT*** IS CAVEAT EMPTOR. If the attorney you are speaking to is running your case as a volume business, or he is pushing you towards a “quick anonymous settlement” without showing you the merits of either 1) IGNORING, or 2) if in a lawsuit, defending the claims against you, beware, beware, beware.

The EFF list of attorneys who handle “mass bittorrent John Doe lawsuits for copyright infringement violations” has grown to over 100+ attorneys, and I have never even heard of some of these attorneys (which means that they are not defending cases, but rather, are running a volume-based settlement factory). I also see a number of names where I know for a fact that some of the attorneys listed in various states are NOT LICENSED to practice law in that state (neither on the state level, nor on the federal level) — this is a clear sign of being a volume-based settlement factory. I also know from my own experience defending clients that some of the attorney names on this list have switched sides and are now suing defendants.

…Just do your research, ok? And when a lawyer calls you, and then calls you again (and again), please ask yourself why they are following up with you.

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For those of you involved in Keith Vogt’s Cobbler Nevada, LLC cases, a huge ambiguity showed up yesterday on the court’s docket which I needed to clarify. I actually needed to call the clerk because at first glance, it looked as if all of the Cobbler Nevada, LLC cases in the Southern District of Texas were dismissed.

To back up just a bit, Cobbler Nevada, LLC suffered a large setback when on August 10th, 2015, Judge Alfred H. Bennett CONSOLIDATED all of their Texas cases into one case (TXSD, Case No. 4:15-cv-01308). As soon as we heard this, [especially after writing the “Dallas Buyers Club, LLC is a modern-day Icarus Story” article relating to this same plaintiff attorney], champagne glasses were clinked, and cheers rose up from the homes of many Texans who were caught up in what was often the streaming and/or download of the “The Cobbler” movie using Popcorn Time.

As a general rule, consolidations are ALWAYS* a good thing for bittorrent cases because:

1) they take each of the cases and place them under the direction and control of one judge (meaning that there will be no conflicting orders where one judge allows something whereas another judge forbids it, or more specifically, where one judge gives a copyright holder free reign to do whatever he wants [granting extension after extension, ignoring procedural violations, etc.], and another judge clamps down on the copyright holder forcing him to observe the rules, eventually dismissing his defendants because he missed a deadline or violated a federal procedure or local rule, etc.), and

2) having so many defendants bunched together in one lawsuit changes the dynamic of the lawsuit from having an aggressive “copyright troll” attorney to having a more passive plaintiff attorney who tiptoes around the court, who avoids filing documents in fear that one misstep (such as the one that happened to his Dallas Buyers Club, LLC cases with Judge Hughes) might cost him his entire batch of defendants.

For a plaintiff attorney, losing 20 John Doe defendants in one case is a tolerable defeat. Losing 400 defendants who have been consolidated into one case creates a “china shop” mindset for the plaintiff attorney, where the “don’t touch it or else it might break” rule suddenly becomes relevant when handling this newly large and fragile set of defendants.

Well, as of yesterday, “Document 70” showed up on Vogt’s Cobbler Nevada, LLC consolidated case, and the document was entitled “ORDER DISMISSING DEFENDANTS.” When I reviewed the document, it purported to dismiss John Doe defendants from a number of Keith’s older cases (e.g., 4:15-cv-01322 through 4:15-cv-01333), but it also appeared to dismiss EVERY SINGLE ONE OF THE JOHN DOE DEFENDANTS FROM EVERY COBBLER NEVADA CASE FILED IN TEXAS [AND WHICH ARE CONSOLIDATED INTO THIS ONE CASE].  Essentially, ALL of the defendants from the consolidated case itself, 4:15-cv-01308, appeared to have been dismissed.

010516 CobblerNV Doc70

At first, I shouted “woo-hoo!” because the case was dead. But then, I took a second look, and the order was originally written by Keith Vogt himself in November (Document 58), and there is no way he would dismiss his entire golden goose of defendants.  Plus, the case itself wasn’t marked “closed” by the clerk [as it would be if there was a mass dismissal], so there was an ambiguity. Reading the document, I asked, “if the defendants from this consolidated case were dismissed, did this dismissal also include the many, many defendants from ALL THE OTHER TX COBBLER NEVADA, LLC CASES which were all consolidated into THIS case!?”

After calling the clerk and eventually calling Keith himself, I confirmed that the case itself is still alive, and sadly, the John Doe Defendants are still John Doe Defendants. In short, nothing has changed, move along, there is nothing to see here. Sorry to be the bearer of bad news, but if the wording of the order in such an important case tripped me up, it probably confused a few other attorneys, and for this reason, I have written this article.

So yes, for now the Texas Cobbler Nevada, LLC cases still lives, and the next court date for this case (which affects every TX Cobbler Nevada, LLC John Doe Defendant) will be on 2/10/2016 at 10am in Courtroom 704 in Houston, TX.  If anything relevant happens at the hearing or in the meantime, I’ll be sure to let you know.

Known Cobbler Nevada, LLC cases in the TXSD:
Cobbler Nevada, LLC v. Does 1-22 (Case No. 4:15-cv-02060)
Cobbler Nevada, LLC v. Does 1-23 (Case No. 4:15-cv-02061)
Cobbler Nevada, LLC v. Does 1-27 (Case No. 4:15-cv-02046)
Cobbler Nevada, LLC v. Does 1-11 (Case No. 4:15-cv-02053)
Cobbler Nevada, LLC v. Does 1-27 (Case No. 4:15-cv-02047)
Cobbler Nevada, LLC v. Does 1-26 (Case No. 4:15-cv-02045)
Cobbler Nevada, LLC v. Does 1-24 (Case No. 4:15-cv-02062)
Cobbler Nevada, LLC v. Does 1-21 (Case No. 4:15-cv-02059)
Cobbler Nevada, LLC v. Does 1-28 (Case No. 4:15-cv-02048)
Cobbler Nevada, LLC v. Does 1-29 (Case No. 4:15-cv-02050)
Cobbler Nevada, LLC v. Does 1-25 (Case No. 4:15-cv-02043)
Cobbler Nevada, LLC v. Does 1-20 (Case No. 4:15-cv-02058)
Cobbler Nevada, LLC v. Does 1-24 (Case No. 4:15-cv-02041)
Cobbler Nevada, LLC v. Does 1-10 (Case No. 4:15-cv-02051)
Cobbler Nevada, LLC v. Does 1-14 (Case No. 4:15-cv-02055)
Cobbler Nevada, LLC v. Does 1-25 (Case No. 4:15-cv-02044)
Cobbler Nevada, LLC v. Does 1-14 (Case No. 4:15-cv-02057)
Cobbler Nevada, LLC v. Does 1-25 (Case No. 4:15-cv-01332)
Cobbler Nevada, LLC v. Does 1-15 (Case No. 4:15-cv-01322)
Cobbler Nevada, LLC v. Does 1-26 (Case No. 4:15-cv-01333)
Cobbler Nevada, LLC v. Does 1-15 (Case No. 4:15-cv-01323)
Cobbler Nevada, LLC v. Does 1-17 (Case No. 4:15-cv-01327)
Cobbler Nevada, LLC v. Does 1-16 (Case No. 4:15-cv-01324)
Cobbler Nevada, LLC v. Does 1-16 (Case No. 4:15-cv-01325)
Cobbler Nevada, LLC v. Does 1-20 (Case No. 4:15-cv-01328)
Cobbler Nevada, LLC v. Does 1-12 (Case No. 4:15-cv-01308)

Dallas Buyers Club, LLC cases in the TXSD (also affected):
Dallas Buyers Club, LLC v. Does 1-19 (Case No. 4:15-cv-00050)
Dallas Buyers Club, LLC v. Does 1-13 (Case No. 4:15-cv-00049)
Dallas Buyers Club, LLC v. Does 1-12 (Case No. 4:15-cv-00047)
Dallas Buyers Club, LLC v. Does 1-7   (Case No. 4:15-cv-00044)
Dallas Buyers Club, LLC v. Does 1-11 (Case No. 4:15-cv-00046)
Dallas Buyers Club, LLC v. Does 1-18 (Case No. 4:14-cv-03389)
Dallas Buyers Club, LLC v. Does 1-10 (Case No. 4:14-cv-03387)
Dallas Buyers Club, LLC v. Does 1-14 (Case No. 4:14-cv-03388)
Dallas Buyers Club, LLC v. Does 1-19 (Case No. 4:14-cv-03393)
Dallas Buyers Club, LLC v. Does 1-25 (Case No. 4:14-cv-03394)

*NOTE: I mentioned above that case consolidations are ALWAYS a good thing for mass bittorrent copyright infringement lawsuits having multiple John Doe Defendants.  Nothing is always the case, and one can usually find strong exceptions to the rule.

For example, the judge which consolidated all of the cases in a district under his or her control might mishandle the case (as we saw with the Malibu Media, LLC bellwether cases from 2013 where the judge forced cases into what ended up being a “show trial,” because the defendants selected for trial already came to an arrangement with the plaintiff), or, as we saw a few years ago in DC, the judge can be biased towards one side or another, or she could even be a former lobbyist for the MPAA as we saw with the Judge Beryl Howell rulings from 2011-2012.  Similar-minded judges from other districts more recently have been causing problems as well.  So, no, case consolidations are NOT ALWAYS a good thing.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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It has been almost a full day since yesterday’s historic Prenda flop where the attorney for Prenda Law Inc. (formerly, Steele|Hansmeier, PLLC and before that, Steele Law Firm PLLC) appeared to be woefully unprepared to overturn the sanctions that were ordered against Prenda Law and their team. (Flashback: “The 12 minute hearing and the end of Prenda Law Inc.” on 4/3/2013)

For those of you who missed it, you can watch the entertaining video here (fast forward to the tall guy).

As a quick recap, two years ago, Prenda Law was caught forging the name “Alan Cooper” on the copyright assignment documents which gave them the apparent authority to sue on behalf of their clients. The “real” Alan Cooper (John Steele’s gardener) who was the victim of identity theft hired an attorney, showed up at one of Prenda’s hearings, and served John Steele with his own lawsuit.

I don’t know how to explain what happened in a recap other than that the whole “house of cards” that was Prenda Law Inc. was unraveled — not because of the Alan Cooper forgery issue, but because John Steele couldn’t stay away from the cases when he successfully made the courts believe that he sold his Steele Hansmeier PLLC law firm to Paul Duffy. Shortly afterwards, he resumed making phone calls and openly running things himself, and he started showing up at hearings and speaking to the judges. This is what tipped off Judge Otis Wright to ask who the real parties in interest were in these lawsuits.

Personally, it jaded me a bit to see that after being caught (having their grand scheme exposed by good lawyers), the lawyers for Prenda continued their stories of misinformation by lying under oath in their depositions and in court proceedings. Further, I was annoyed when I learned about the scheme unfold in its entirety, including the creation of various offshore entities created to funnel settlement payments, and where Prenda peddled the blatant lie that Mark Lutz (the paralegal) was the mastermind behind the lawsuits.

Being behind the scenes when all this was happening, I was also hearing about issues of Prenda Law lying to, not paying, and in one notorious case, turning against their own local counsel who put their law licenses in jeopardy to file the lawsuits on Prenda’s clients’ behalf. Lastly, there were even more issues that I was privy to that never even made it into the courtroom, namely what appeared to be a credible accusation that Prenda Law Inc. was uploading and seeding their own clients’ content on the bittorrent networks — the same bittorrent swarms in which they sued the internet users for downloading the content they uploaded.

My own thought process was that the proper judicial response was 1) for the federal judges to serve as the “guardians of the gates” of the federal courts [e.g., to kill the copyright infringement cases as they are filed based on principles of improper joinder, etc.], and 2) to prevent the attorney(s) at this point from practicing law through the remedies of suspension and disbarment through their local bar associations. If the attorney persists, the attorney(s) should be charged with the unauthorized practice of law. Yet none of this happened. A lawyer (who for the purposes of this article will remain private) filed ethical charges against John Steele to have him disbarred, and in return, Steele filed ethical charges against him [a story for him to tell, not my secrets to tell].  Then, Steele at some point appeared to have voluntarily disbarred himself and retired from the practice of law, and his organization went inactive in the Illinois state registry. Yet his involvement in the cases persisted.

Thus, I was not surprised when Judge Wright wrote his order sanctioning John Steele, the Hansmeier brothers, and all those involved in the conspiracy. What surprised me was their hubris in that they continued fighting after they already lost. This is why I call the Prenda Law fiasco a “circus.” Everybody continues to argue in circles, but nobody goes to jail.

So, getting back to yesterday’s hearing (YouTube Link), there were THREE ITEMS that I took note of in what was perhaps the most entertaining 3-panel judge hearing I have ever seen.

ITEM 1) John Steele and the Hansmeiers were quite upset that Judge Wright implicated them as having broken criminal laws, and even though they were never charged for the violation of those laws (which I could only guess include identity theft [forgery], extortion, perjury, fraud, and perhaps even money laundering and/or racketeering). [NOTE: There were other acts allegedly committed, including the unauthorized practice of law, violation of countless ethical rules including compensating a non-attorney as a partner of the law firm, alleged tax evasion, and misuse of corporate structures after they were dissolved, etc.] Many of these acts if looked into could make the principles of the law firm personally liable for any charges without the protection of a corporate entity.

They appear to have hired attorney Daniel Voelker for the sole purpose of disputing the $200K+ in sanctions awarded against them because Judge Wright implicated them in a lawsuit which they tried their darnedest to keep at an arms length through the use of legal structures, funneling money into offshore entities, using the paralegal as the “fall guy,” and through the use of local attorneys. But rather than arguing against the sanctions award on the merits of whether it was proper to award the sanctions, they appear to have been offended by the implication of having broken criminal law in what Judge Pregerson called “an ingenious extortion fraud [scheme].” Thus, they instructed attorney Voelker to request that the court REMAND (meaning, return to the lower courts as a “do over”) the case to the U.S. District Court so that they can properly defend the insinuation that they committed one or more crimes while running what was — at the time — the most successful copyright trolling extortion scheme in existence.

ITEM 2) Attorney Daniel Voelker appeared to be woefully unprepared for the hearing. When asked about the details of the various copyright troll lawsuits filed by Prenda Law Inc. / Steele Hansmeier PLLC / Steele Law Firm, PLLC, he was unaware of anything other than what was the subject of the appealed case. This was surprising to the judges, it was surprising to me, and I am sure it was surprising to the hundreds of “fans” who were watching the hearing live and streamed over the internet. How could this attorney not be aware of the hundreds of other filings that his client took part in?!?

I also want to point out that YET AGAIN, STEELE, HANSMEIER, AND MARK LUTZ THE PARALEGAL WERE NOTORIOUSLY ABSENT FROM THE PROCEEDINGS.

ITEM 3) Simplifying the discussions of damage multipliers and other damages issues that were discussed, the jist of what the judges needed to decide were 1) whether to uphold the sanctions award against Prenda Law and company, and 2) whether to remand the case so that the questions of criminal conduct could be hashed out.

IN MY OPINION, again, this whole Prenda Law fiasco is a circus. John Steele and his buddies have been “gaming” the system since they began, and even when their whole scheme came tumbling down around them, they turned to lying, cheating, and misdirection in order to get around the rules.

Nothing will right the wrongs that were inflicted on tens of thousands of internet users except seeing each of these attorneys disbarred and jailed for criminal conduct. Yet I cannot see this happening because notorious criminals today too often go uncharged. Judges too often find the “lazy” alternative of slapping an attorney with sanctions, and then not following up on their order when the attorney weasels their way out of paying those sanctions. This is a sign of a corrupt system, and as much as I have faith in the law, I do not have faith that the judges will inflict stern judgement (“fire and brimstone”) against a bunch of lawyers who look more like a**clowns in the courtroom.

Thus, it is my best guess that the sanctions will not only be upheld, but they will be strengthened and perhaps multiplied. However, as for the criminal prosecution of the clowns who perpetrated this grand heist of an extortion scheme, their activities will go unpunished. Maybe they’ll lose their law licenses (noting that in part, this has partially happened to some of them). Maybe they’ll be held personally liable without the shielding of the corporate entities they tried to use to hide their involvement in these cases. Maybe one or more of them will need to continue to hide their money indefinitely and file for bankruptcy. Maybe one or more of them will need to move out of the country and live out their days on a beach somewhere.

I don’t see orange jumpsuits in anyone’s future here. Not in today’s lawless society.

 

USEFUL ARTICLES ON YESTERDAY’S HEARING:


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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As a quick recap, the Dallas Buyers Club, LLC piracy lawsuits started in Texas and Ohio, and like a cancer, over the past year they have metastasized into the federal courts of Illinois, Florida, Oregon, Washington, Colorado, Michigan, Indiana, Wisconsin, and even Hawaii.  Copyright lawyers employed by Dallas Buyers Club have even moved their copyright enforcement activities offshore into Canada, Australia, Finland, Denmark, and Japan.

Regardless of where they go, their business model is the same — Voltage Pictures, LLC or Dallas Buyers Club, LLC files a peer-to-peer lawsuit alleging copyright infringement against multiple John Doe Defendants (generally referred to by plaintiffs as “pirates”), they convince a federal judge to rubber-stamp a subpoena demanding that the ISP turn over the contact information of the accused account holders unless the accused account holders file what is known as a “motion to quash.”  The target of the subpoena is almost always the account holder, implying that the account holder is the actual downloader or infringer who downloaded the Dallas Buyers Club (2013) movie.  The plaintiff attorney then sends one or multiple settlement demand letters to the accused downloaders in each case threatening that each will be “named and served” as a defendant in the lawsuit unless they pay a settlement of thousands of dollars (settlement requests average $3,500 to $6,500 [and in one case, $14,000, really?] depending on the state in which the lawsuit is filed).

Where the settlement demand letters blur the line of ethics is that many plaintiff attorneys employ scare tactics, making the John Doe Defendant believe that the lawsuit has already been filed against them personally.  Various attorneys have sent accused downloaders “waiver of service” forms and questionnaires along with their settlement demand letters suggesting that the not-yet-named-defendants answer these questions voluntarily, or that they waive service effectively negating the need for the plaintiff attorney to name and serve them as a defendant.

What bothers me is that because Dallas Buyers Club is not an “adult film” copyright infringement lawsuit (but rather, a “real” movie with a valid copyright and without the stigma of being an adult film), the federal judges are giving them leeway to move in and out of the federal courts to “enforce” their copyrights.  In U.S. copyright law, there is a legal presumption of validity, which means that a judge will initially lean towards favoring the copyright owner until that copyright owner has been shown to be abusing the legal process through a pattern of abuse.  Attorneys for copyright holders who represent the plaintiff generally (in our blog and in the eyes of the courts) get increased scrutiny because they have represented other copyright holders in similar lawsuits employing the same strategy of “sue and settle, but try not to name and serve [and if you do, bluff to the judge that you are prepared to go to trial on the merits of the case].”

These lawyers who file Dallas Buyers Club lawsuits (these are those who sue defendants, NOT those who defend defendants) include a growing list of attorneys, such as: Keith Vogt (Texas), Michael Hierl (Illinois), David Stephenson Jr. (Colorado), Eric Osterberg (Connecticut), Richard Fee (Florida), Paul Nicoletti (Michigan), Carl Crowell (Oregon), Leon Bass (Ohio), and Gregory Ferren (Hawaii).

Many of these names are familiar to those who have followed our “copyright troll” / bittorrent lawsuit blogs over the years, and we often see these names representing one copyright holder after another in the same fashion.  Regardless of who the lawyer is, be aware of the motivation of the Dallas Buyers Club lawsuits — to create a ‘windfall’ profit for the company by pursuing those who download the movie without authorization, and to scare and intimidate the accused downloaders into paying large settlement amounts to avoid defending the claims against them in court.

Related: Dallas Buyers Club launches post-Oscar copyright salvo, sues 615 Does (ArsTechnica)


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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After my “Dallas Buyers Club, LLC is a modern-day Icarus Story (TXSD)” article on August 13th, I called Keith Vogt, the plaintiff attorney for Dallas Buyers Club. In our call, I ascertained his motivations regarding how he plans to approach Judge Hughes here in Texas, and what he plans to do with the other cases (duck and run, or push forward).

As I suspected, he expressed no “duck and run” mentality (not even privately), as we have seen in similar past cases with other past “copyright troll” plaintiff attorneys. In fact, Vogt appeared to be undeterred considering the outcome of the case, mentioning that he has NINE (9) other cases alive and well in the Southern District of Texas, seven of which were in their INFANT STAGES and all current cases are assigned to judges other than Judge Hughes.

Below is a list of those new cases:

Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02119)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02120)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02121)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02124)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02217)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02219)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02220)

and of course, the two older cases:

Dallas Buyers Club, LLC v. John Does 1-31 (Case No. 4:14-cv-00248)
Dallas Buyers Club, LLC v. John Does 1-45 (Case No. 4:14-cv-00815)

Each of the newer cases were filed on either 7/24 or 8/2 (before Vogt’s problems with Judge Hughes surfaced). I have been watching these cases, and the judges in most of them have granted permission for Dallas Buyers Club, LLC to send subpoenas to the ISPs to ascertain the identities of the John Doe Defendants. These people will be receiving letters from their Comcast Xfinity Subpoena departments in the coming days and weeks.

Two interesting items to note: Plaintiff attorney Vogt has roughly 175 potential defendants, each of whom will likely be asked for a settlement of thousands of dollars. He has also not filed any new cases since the August 13th debacle with Judge Hughes, likely understanding that they will be assigned over to him, and this may or may not be a fight he wants to instigate just yet. On a more concerning note, on Thursday, Vogt named and served eight (8) John Doe Defendants in his 4:14-cv-00815 case. This is one of his older cases, and I understand that he needed to do so because Judge Gray Miller was pressuring him to do so before the upcoming hearing. Instead of posting the names of the named and served defendants, I have pasted a screenshot of the docket which lists the named defendants — you can see the named defendants referenced below in Documents 21 & 22.

Named and Served Dallas Buyers Club, LLC defendants

Dallas Buyers Club, LLC attorney Keith Vogt names and serves defendants in the 14-cv-00815 lawsuit.

In sum, on August 13th, I commented to a friend that I did not think the judges in Texas spoke to each other. I am still of the opinion that federal court judges appear to lord over their court as if their court is their own sovereign territory. It would be nice if one judge poked his head into another courtroom once in a while.  If he or she did, they would notice that the proper answer to cases such as these is CONSOLIDATION.

In a perfect world, Judge Hughes would consolidate all of the Dallas Buyers Club, LLC cases into one case, since all of the cases relate to the same common questions of fact.   Doing this would prevent contrary rulings from neighboring judges, and it would create a common rule of how to handle, facilitate, and ideally to dispense with all forms of “copyright trolling” cases in the federal courts.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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