Tuesday, November 5, 2013

Read Your Kindle On the Plane!

Not exactly copyright news, but it's still pretty exciting.  The Federal Aviation Administration just rescinded its long-time ban on the use of electronic devices during take off and landing.  Yeah!

In hindsight, it was a stupid ban, really. There was no way a cell phone or your e-reader were going to take down a jet airliner.  But out of an abundance of caution, the FAA imposed the ban back in the early 90s just in case.  Fine.

But why did it take 20 years to lift the ban? 

Here in Seattle, it appears that Amazon is pretty happy about the news.

So am I.

Friday, August 30, 2013

Who Is Really Responsible For Excessive Legal Bills?

Litigation is expensive, and federal litigation is especially so.  In cases we file, defense counsel frequently make reference to the fact that we represent our clients on a contingent fee basis and that is why the litigation is so expensive--because the plaintiff does not have to pay any legal bills and therefore the defendants bear a disproportionate financial burden.  Even Judge Rader, Chief Judge of the Federal Circuit Court of Appeals, said so in an op-ed piece in the New York Times.  Judge Rader's opinion suggests that contingent fee lawyers bring meritless cases, thus causing defendants to incur substantial legal bills unnecessarily. 

Thankfully, some developments in a dispute between Adam H. Victor and his (hopefully former) law firm belies the myth being advanced by so many who should know otherwise.  It's not the contingent fee lawyers who cause excessive legal fees; excessive legal fees are caused by the lawyers who bill those excessive fees. 

So in a nutshell, here's what happened:  
  • Mr. Victor engaged his firm for a legal project on April 22, 2010
  • The firm's initial estimate for the project was $400,000
  • Less than one month later, on May 20, 2010, the firm's bill was already at $600,000
  • Mr. Victor refused to pay the firm's bill, claiming it was too high
  • The firm sued Mr. Victor for the unpaid bill
Those are operative facts; now let me put a little more meat on the bone. . .

Friday, July 5, 2013

R&D Film Cases Dismissed in WA

If you are one of the Does in the R&D Film cases here in Seattle, you should know that Judge Lasnik dismissed all those cases today. All the subpoenas were quashed earlier, and today Judge Lasnik put the final nail in R&D Film's coffin. Check my Seattle copyright cases page for the status of your case.

Read the order below...


Thursday, June 13, 2013

Bellwether Trial: Why It Was A Bust

So there have been a number of good opinions given about the recent bellwether trial in Malibu Media v. Does, Case No. 12-cv-02088 (PAED). For what it's worth, here's mine.

This wasn't a real trial.

If anyone continues to labor under the delusion that the trial was actually contested, just take a look at this post by Jordan Rushie. In it, Mr. Rushie says things like:
Porn is copyrightable. Period. 
[K]udos to Malibu Media’s counsel, Keith Lipscomb and Chris Fiore, who demonstrated that they are exceptional litigators and trial lawyers. It was a hard fought battle among worthy adversaries. 
So, if you have been targeted in a bittorrent lawsuit, there is an exceptionally high chance that the material was infringed on using your internet. 
Even though an IP address isn’t a person, evidence that infringement occurred via that IP address is enough to get into court. 
I know you’re not going to want to hear this, but if you downloaded a copyrighted work off of bittorrent and got caught, you should probably consider a settlement very seriously.
If you read that article, you could pretty easily conclude that Mr. Rushie was one of the Plaintiff's lawyers (like I did). Problem is, he actually represented one of the defendants!

What?!?!? Are you serious?!?!?

I've had several trials. I'm not bragging, but there was only one which I would legitimately say we lost. What I will tell you this: The day after that trial, the absolute last thing on my mind was writing an article about how great a job the other side did and how my own client had no chance of ever winning.

What?!!? Seriously?!?!

This illustrates my point. Even the lawyer for one of the defendants is making things up about how well it went for the plaintiff. It feels like everyone involved was on the same side.

So let's examine the reality.

The parties all agreed to waive their right to a jury. Who does that? People afraid of a jury, that's who. In a case where the thrust of your case is relying on the common sense and decency of common folk to say "this just ain't right," you don't waive a jury. Ever.

Mr. Lipscomb told Judge Baylson at the June 6 hearing that Malibu Media had already settled with two of the defendants (including Mr. Rushie's) but wanted the judge to enter a "final judgment" against them. Then Mr. Lipscomb told Judge Baylson that Malibu Media and Bryan White (Doe 16) had already reached a so-called high/low agreement so Mr. White wouldn't be paying the whole damages amount anyway, regardless of what the judge said.

In sum, all of the defendants stipulated to liability before the trial. Plaintiff had already agreed not to seek damages against two of the three defendants. The third defendant stipulated to liability. Malibu Media and the third defendant asked the judge to enter a finding on damages, even though they had already agreed on what he would pay.

So there was absolutely nothing at issue during the trial. Not liability. Not damages. Nothing.

Then there was the 'trial' itself. The only party to actually put on a witness was Malibu Media. None of the defendants even cross-examined a witness. Really?

What kind of trial is it where the defendant doesn't challenge any of the plaintiff's witnesses or even put on any witnesses of its own? A sham, that's what.

So why was there even a trial? I have no idea.

Actually, I do have an idea. It was all about Malibu Media trying to get Judge Baylson to write a document that Malibu Media could use in all its demand letters from now on. I'll point out that, to his credit, Judge Baylson had to tell Lipscomb numerous times that he would not be Lipscomb's advertising spokesman. I think what he said was he wasn't interested in writing anything that was "commercially valuable" to Malibu Media.

So what does this case mean for those of us who legitimately defend innocent people wrongfully accused of downloading unauthorized stuff by bittorrent?

Absolutely nothing.

In fact, after listening to most of the proceedings, I feel even more confident that my clients have nothing to worry about from Lipscomb's machine.

I have strong feelings about how this case went. It showed a lot of promise early on, but in the end, it was nothing but a bust. None of the defendants actually contested any of the relevant facts; they all admitted liability in order to settle; and we still don't know how an actual bittorrent trial will go.

My hope is that a defendant who gets one of these letters will have the fortitude to stand up for what is right and push the issue all the way to a real trial in front of a real jury. Only then will we know how strong the plaintiff's case really is.

But one this is certain: We still haven't had a real bittorrent trial.

Tuesday, June 11, 2013

$112,500 Verdict For Copyright Infringement in Bellwether Case

So the so-called bellwether trial started and ended today. It really was sort of a bust after essentially everyone settled before trial and all the defendants stipulated to judgments. End of the day, the case was a huge disappointment.

All that said, the judge entered a verdict against the one final Doe (Brian White, I think was his name) for his role in the matter. I should point out that Mr. White made the monumental mistake of lying under oath and forcing Lipscomb to prove it. The judge really, really didn't like that. I've said it many times before, if you lie in federal litigation, someone will eventually prove it and you will be in much deeper trouble than before.

Back to the verdict. Judge Baylson entered a verdict against Mr. White for $112,500. Here's how the judge got at that number:

$750 is the statutory minimum.

He trebled that number based on essentially the nature of the infringement (kind of willful) for $2,250 per infringement.

Mr. White was charged with five infringements for a total of $11,250.

But here's the kicker: Judge Baylson multiplied that number by ten because Mr. White lied under oath about the infringement. So his perjury turned an $11,250 verdict into a $112,500 verdict.

What is the moral of this story? Well, first, don't infringe someone's copyrights! That should be the first lesson. The second lesson? Don't lie under oath!

I'm really embarrassed that I even have to say that last part, but really? What was Mr. White thinking? Breaking Bad, maybe?

I may try to make the audio recordings available, but it's late and I don't have the energy right now.

Tuesday, June 4, 2013

Alston & Bird Disqualified as Trial Counsel

I know this blog is typically about copyright issues, but this one is really just a general litigation issue which could, theoretically, apply even in copyright cases. This post is about a lawyer's duty of loyalty to former clients.

The law firm of Alston & Bird originally represented Malico, Inc. in some patent prosecution matters that ended about 2010. At about the same time, Malico had brought suit against Cooler Master USA, Inc. for patent infringement. The patent-in-suit was not one that Alston & Bird had worked on. Cooler Master was represented first by a different firm. But after a couple of firm changes, Cooler Master ultimately hired Alston & Bird to represent it in the suit that was brought by Malico.

Malico objected that Alston & Bird could not represent Cooler Master against Malico because Alston & Bird had an ongoing duty of loyalty to Malico. Malico moved to disqualify Alston & Bird, and Cooler Master naturally objected. Cooler Master argued that Alston & Bird's representation of Malico was long over and it didn't really have access to any confidential information of Malico. Besides, the lawyer who represented Malico was in North Carolina, not California where the law suit was pending.

Judge Seeborg disagreed.

Finding Malico's argument persuasive, Judge Seeborg concluded that because the patents that Alston & Bird had worked on for Malico in the past were substantially similar to the patent-in-suit, Alston & Bird was required to have obtained a written conflict waiver from Malico, which it did not. Accordingly, Judge Seeborg disqualified Alston & Bird from representing Cooler Master against Malico.

I point this out to illustrate the serious issues that can arise from failing to respect the ongoing duty of loyalty to former clients. All too often, a lawyer's desire to bring in that new, big client clouds his judgment and causes him to do things that he shouldn't. But sometimes, the left hand just doesn't know what the right hand is doing. I think this case is more like the latter, but the result is the same.


Monday, May 13, 2013

Subpoenas Being Quashed in Seattle

If you are one of the unlucky ones here in Seattle to have received a letter from your ISP accusing you of copyright infringement, then you should be aware that the Court has started staying all those cases pending some explanation by the plaintiffs about why so many Does have been joined in one action.

The Court has been issuing Orders to Show Cause why the cases should not be severed, and has included some interesting language:
All BitTorrent cases filed in the Western District of Washington have been referred to [Judge Lasnik] for pretrial handling. As the full extent of this assignment has become clear, the Court admits to some concerns regarding both the appropriateness of joinder and the possibility that the judicial authority of the United States may be used to wrest improvident settlements from pro se litigants under threat of huge statutory penalties. The Court is not alone: other judicial officers in the Ninth Circuit are beset by the same concerns and have taken various paths to mitigate the potential for abuse. See, e.g., Ingenuity 13 LLC v. John Doe, No. 2:12-cv-9333-ODW(JCx) (C.D. Cal. May 6, 2013); Voltage Pictures, LLC v. Does 1-12, No. 2:13-292-AA (D. Or. May 4, 2013).

So when the first case cited by the judge in his order quashing the subpoenas and staying the case is the Prenda law sanctions order, you better take notice. 

Understand this does not mean all those cases have been dismissed. Not at all. In fact, quite the opposite. The judge stayed the cases and has asked the plaintiffs to demonstrate why they shouldn't be dismissed as to all the Does except one.  So even if the judge does what it appears he is likely to do, there will still be one defendant in each case and the plaintiffs will be free to re-file new individual cases against all the other defendants--all 2300 of them. Unlikely that will happen, but still a possibility.

So if you want to find out the status of your particular case, you can start with my list of Seattle copyright cases and check that. I'm trying to keep that up to date, but I can't guarantee that it is. There are a lot of cases to keep track of.

Monday, May 6, 2013

Dammit, Jim! I'm a doctor, not a respectable attorney!

Judge Wright handed down his order today. I'm pasting it below. I'll comment later. For now, it's enough to note that Penda got hit with about an $82,000 in attorneys' fees, plus several criminal referrals.
But the coolest thing about the whole order is all the subtle Star Trek references. Redshirt? Awesome.


Monday, April 29, 2013

ISP Sent You A Letter? Don't Freak Out!

Don't let copyright infringement letter scare youIn Seattle, like elsewhere, there are hundreds of people getting letters from their ISP right now saying that a federal lawsuit is pending and their personal information will be handed over to the plaintiff unless they "move to quash." Usually when I get these letters the caller is in a minor state of shock at receiving such a thing. Most didn't do what they are accused of doing, but the prospect of a federal lawsuit against them is scary.

There's a word for what happens next:  Catastrophizing.

It is an irrational fear that when something bad happens to you, the worst possible outcome is the only possible outcome. It happens to everyone to some degree.

But haven't you heard: Our worst fears and greatest hopes are seldom realized? It's true. Read this, and calm down.

There are two basic questions that I get from everyone who calls. I get them so frequently that I thought it would be easier to just post my canned answers here to try and pre-inform everyone who calls. What should I do? What will it cost? Here are the things you need to think about.

What Should I Do?

Everyone wants to know what they should do. The problem is most people think there is one best answer to this question.

There is not.

What you should do depends on lots and lots of things. Here are the criteria I usually try to go over with my new clients when answering those questions.

Do you need (or just want) to stay anonymous?

I point out that there is a difference between needing to stay anonymous, and just wanting to stay anonymous. A big difference.

I have clients who actually have a very good reason to try and keep their name out of a federal lawsuit. Public officials generally don't want their names involved in federal lawsuits. People with security clearances tend to need to keep their names out of public filings. People with state licenses that require reporting litigation need to avoid lawsuits.

But if you just think it would be better if the plaintiff didn't know who you are, then you probably don't need to stay anonymous. You just want to stay anonymous.

If you decide you need to stay anonymous, then you basically have only two options: move to quash the subpoena or settle the case. Those are your only two real options. And the only one that guarantees you keep your name out of the public filings is to settle. If you don't even want the plaintiff to know who you are, then you will need to use a neutral third party, like a lawyer, to negotiate a settlement. If you don't care if the plaintiff knows who you are, but you just don't want your name in public filings, then you could probably negotiate your own settlement.

As for a motion to quash, I'm not a big fan. The main reason is because the law is generally not on your side. Most judges will not grant them, so it frequently becomes a waste of money. That said, a motion to quash is an effective way to delay proceedings and to educate the judge about the case. But on balance, I don't recommend them.

Did you do it?

I won't ask you this question; only you know the truth. But if you did what you are accused of doing, then think about your real options.  Are you going to deny doing it in the hopes that the whole thing just fades away? Think again. Federal lawsuits are no joke. The truth will likely come out sooner or later. If you did it, seriously consider settling for the best deal you can get.

But if you didn't do it, then you should seriously consider fighting. If you didn't do it, then why should you pay anything? It's difficult to imagine why you should give your hard-earned money to a copyright plaintiff for no reason other than because you got a letter accusing you of something you didn't do. Understand this is the copyright troll business model: Accuse everyone; settle with anyone; drop the rest.

If you didn't do it, you have many options. In fact, you have all the options in the world. Just answer the complaint and deny any wrongdoing. Move to quash if you want. Settle. You can really do anything you want with almost no fear that your course will come back to haunt you.

So if you didn't do it, I highly, highly recommend you consider fighting. If you truly didn't do it, you have very little to lose by fighting. If you didn't do it, you should just answer the complaint and demand that the plaintiff drop you from the case.

Do you have the time, energy, and money to fight?

As a practical matter, if you don't have any money, any energy for a fight, or no time to devote to this, then those facts may dictate your choice. If you don't have any money to pay a settlement, then you can't really settle. If you don't have any money to pay for a motion to quash, then that isn't an option either. If you just don't have any time to dedicate to trying to win this lawsuit, then that also matters.

Bottom line, your options depend on what you can devote to your case. The fact that you have been sued doesn't magically put money in your pocket or time in your day. So if you really have absolutely no resources to devote to this case, then I'm not exactly sure what to tell you except that the plaintiff doesn't want to fight a battle that will ultimately put nothing in their pockets.

How Much Will It Cost?

How much will it cost? Well, how long is a rope?

There is no way I can tell you in advance how much it will cost. The cost is out of my control. You've been sued. Getting un-sued is a tricky thing.

That said, here are some general guidelines. First, do you want to stay anonymous or not? If you don't want your identity to be disclosed to anyone, including the plaintiff, then expect to pay more. Trying to stay anonymous is the most expensive of all your options. The reason is because staying anonymous requires the greatest number of court filings. The more documents you have to file, the greater the expense. Expect your legal fees to be greatest if you want to keep your identity a secret.

If you don't care about staying anonymous, then did you do it? If so, then consider settling out of court. Often settling is the cheapest option in the long run. Fighting a case in the hope that the plaintiff just won't be able to prove its case is a dangerous gamble. That said, the plaintiff must prove its case, and more often than not in these cases, the plaintiff has no desire to actually prove it.

But the real kicker is that the copyright laws provide for fee-shifting. What that means is if you are forced (or just decide) to stand on principle and fight your case, then at the end of the fight you should be able to push your legal fees back on the plaintiff. That means that the plaintiff may ultimately have to pay your legal fees for suing you.

So before you start catastrophizing, let me dispel some of your anxiety:

Are you going to jail? NO!

Are you going to lose your house? NO!

Are you going to lose your job? NO!

Will there be a huge default judgment against you? Well, as long as you are a reader of this blog, NO!

Will this cost you a huge amount of money? Depending on your definition of huge money, probably not.

Will this be free?  Probably not.

Will this situation be a pain in the butt until it's over? Probably, yes.

Is it fair that you have to deal with this even though you didn't do anything wrong? Life is not fair.

So all this said, if you find yourself in this situation, I recommend that you consider using this experience to learn about the legal system. Silver linings.

But above all, Keep Calm and Carry On. It will be over soon enough.

Thursday, April 18, 2013

Lessons learned: How Not To Get a Default

I and others have repeatedly written about how dangerous it is to let a default judgment get taken against you and how easy it is to avoid them. We can all learn an awful lot from the things people do even without the assistance of a lawyer. So I'm calling this article "Lessons Learned: How Not To Get A Default." Hopefully someone will learn something useful from those that have gone before them.

Let me discuss a couple of examples.

Alexander James Butler

Mr. Butler received a letter from his ISP (Comcast) informing him that Voltage Pictures was accusing him of illegally downloading "Maximum Conviction," and that unless he filed a motion to quash, his ISP would give up his personal information. Mr. Butler apparently did not download the movie, so he wanted the subpoena quashed to protect his personal information. So what did Mr. Butler do? He mailed a letter to the Court asking that the subpoena be quashed. Here's a copy of the letter.

What Mr. Butler Did Right

Kudos to Mr. Butler for taking the initiative to respond directly to the allegations that he did something wrong. If Mr. Butler didn't do it, then he shouldn't have anything to worry about. When most people receive these letters, they do nothing because they are paralyzed with fear that they will get hit with a $150,000 default judgment. They just bury their heads in the sand and hope this will go away by itself. Well it won't. It will only get worse unless you address it head on.

The lesson here? If you didn't do it, don't be afraid to say so. Don't hide in fear that something bad might happen to you and ignore the problem until something bad does in fact happen to you.

What Mr. Butler Did Wrong

What Mr. Butler did wrong is that he undermined the relief he was asking for. In other words, Mr. Butler was trying to get the Court to prevent his personal information from being disclosed to the world. The problem is, he included all the information he wanted to keep secret in his letter.

The lesson here? If you don't want anyone to know who you are, don't mail the Court a letter with all the information you want kept secret. Everything you mail to the Court gets filed as a public document; anything you say will be disclosed to the world. This is the so-called rule against ex parte communication with the Court. One side is not allowed to tell the Court anything that the other side doesn't hear. No secret chats with the judge. It's just a rule. I kind of like that rule.

G.R. Valleau


Ms. Valleau received a letter from her ISP (CenturyLink) informing her that Voltage Pictures was accusing her of illegally downloading "Maximum Conviction," and that unless she filed a motion to quash, her ISP would give up her personal information. Apparently Ms. Valleau did not download the movie, but her son did. So what did Ms. Valleau do? She mailed a letter to the Court denying that she downloaded the movie, admitting that her son did, and offered to pay $13 (the cost of a copy of the movie). Here's a copy of her letter.

What Ms. Valleau Did Right

She mailed a letter to the Court denying that she did what she is accused of. She even offered to pay the fair market value of the movie. That's a stand-up decent offer in my book. And for her effort, she has avoided even the possibility of a default being entered against her.  Good for her.

What Ms. Valleau Did Wrong

Well, there's no other way to really say it: She threw her son under the bus. Seriously? Where's that maternal instinct?

I'm kidding.

Not really.

Although Ms. Valleau has effectively foreclosed the possibility of a default judgment against her, she has now admitted that her son did it. That's a pretty difficult thing to overcome. What do you hear in every cop show you've ever watched on TV?
Anything you say can and will be used against you.

You better believe it!

Now that Ms. Valleau has admitted to everyone, including the Court, that her son did exactly what he is accused of (and even tried to hide it with a "blocker") what is her son going to do? What is his defense now?

I'm not saying anyone should lie. In fact, I'm saying that you should not lie. But still, don't volunteer damaging information for no reason. If you didn't do it, say you didn't do it. But if you know who did, then at least wait until they ask you.

Bottom Line? Don't Get A Default!

Neither one of these Does will now get a default. Why? Because both of them have simply informed the Court that they didn't do what they are accused of doing. Neither of them used a lawyer, although both of them would have benefited from one. But the bottom line is, it's too easy to avoid a default judgment.

You can really do it as easily as scribbling out a note that says "I didn't do this" and mailing it to the Court. If you ever doubted me, just look up. There are two examples of people who did exactly that.

So if you made it to here in this article, now you don't have any excuse for getting a default in your case if it happens.

That said, please also learn from the mistakes made by those who have gone before you.

Wednesday, April 3, 2013

Copyright Troll Cases Come To Seattle

I mentioned before that the copyright troll cases have arrived in Seattle. Until recently, we had been fairly well isolated from all the craziness. But all good things must end; and end they have.

I've been getting quite a few calls about the latest cases filed by R&D Film 1 and Zembezia Film. All of these cases have been filed by the same local plaintiff's lawyer, Richard Symmes. He earlier filed a ton of cases on behalf of a plaintiff named "Kintop Pictures" which were all promptly dismissed before anything substantive even happened. But Mr. Symmes is back, with a vengeance. Below is a list of several of the filings that have been made just in the last couple of months. It's official; the plague is here.

If you have gotten a letter from your ISP regarding a copyright case filed by either R&D Film or Zembezia in Seattle, I would recommend that you get in touch with me. I have several of these cases right now, and I am attempting to pull together a united defense to simplify and minimize the cost.

A listing of most of the cases that have been filed here in the last few months:
2:12-cv-02159 Kintop Pictures v. Does 1-26 filed 12/12/12 closed 01/01/13
2:12-cv-02161 Kintop Pictures v. Does 1-37 filed 12/12/12 closed 01/02/13
2:12-cv-02162 Kintop Pictures v. Does 1-78 filed 12/12/12 closed 01/01/13
2:12-cv-02163 Kintop Pictures v. Does 1-40 filed 12/12/12 closed 01/02/13
2:12-cv-02164 Kintop Pictures v. Does 1-79 filed 12/12/12 closed 01/01/13
2:12-cv-02165 Kintop Pictures v. Does 1-70 filed 12/12/12 closed 01/01/13
2:13-cv-00007 Canal Street Films, Inc. v. Does 1-104 filed 01/03/13
2:13-cv-00050 R & D Film 1, LLC v. Does 1-46 filed 01/08/13
2:13-cv-00051 R & D Film 1, LLC v. Does 1-45 filed 01/08/13
2:13-cv-00052 R & D Film 1, LLC v. Does 1-41 filed 01/08/13
2:13-cv-00053 R & D Film 1 LLC v. Does 1-22 filed 01/08/13
2:13-cv-00054 R & D Film 1 LLC v. Does 1-51 filed 01/08/13
2:13-cv-00055 R & D Film 1 LLC v. Does 1-50 filed 01/08/13
2:13-cv-00056 R & D Film 1 LLC v. Does 1-44 filed 01/08/13
2:13-cv-00057 R & D Film 1 LLC v. Does 1-16 filed 01/08/13
2:13-cv-00063 Flypaper Distribution, LLC v. Does 1-19 filed 01/09/13
2:13-cv-00194 Private Lenders Group, Inc. v. Does 1-59 filed 01/31/13
2:13-cv-00228 D3 Productions, LLC v. Does filed 02/08/13
2:13-cv-00255 Riding Films, Inc. v. Does 1-35 filed 02/12/13
2:13-cv-00256 Riding Films, Inc. v. Does 1-12 filed 02/12/13
2:13-cv-00277 Riding Films Inc v. Does 1-44 filed 02/13/13
2:13-cv-00278 Riding Films Inc v. Does 1-44 filed 02/13/13
2:13-cv-00287 Riding Films Inc v. Does 1-65 filed 02/14/13
2:13-cv-00288 Riding Films Inc v. Does 1-65 filed 02/14/13
2:13-cv-00289 Riding Films Inc v. Does 1-64 filed 02/14/13
2:13-cv-00307 Zembezia Film (Pty.) Ltd. v. Does 1-47 filed 02/18/13
2:13-cv-00308 Zembezia Film (Pty.) Ltd. v. Does 1-66 filed 02/18/13
2:13-cv-00309 Zembezia Film (Pty) Ltd v. Does 1-66 filed 02/18/13
2:13-cv-00310 Zembezia Film (Pty.) Ltd. v. Does 1-66 filed 02/18/13
2:13-cv-00311 Zembezia Film (Pty.) Ltd. v. Does 1-66 filed 02/18/13
2:13-cv-00312 Zembezia Film (Pty.) Ltd. v. Does 1-70 filed 02/18/13
2:13-cv-00313 Zembezia Film (Pty) Ltd v. Does 1-48 filed 02/18/13
2:13-cv-00314 Zembezia Film (Pty.) Ltd. v. Does 1-58 filed 02/18/13
2:13-cv-00315 Zembezia Film (Pty) Ltd v. Does 1-51 filed 02/18/13
2:13-cv-00316 Zembezia Film (Pty) Ltd v. Does 1-51 filed 02/18/13
2:13-cv-00317 Zembezia Film (Pty) Ltd v. Does 1-18 filed 02/18/13
2:13-cv-00318 Zembezia Film (Pty) Ltd v. Does 1-57 filed 02/18/13
2:13-cv-00319 Zembezia Film (Pty) Ltd v. Does 1-47 filed 02/18/13
2:13-cv-00328 The Ledge Distribution, LLC v. Does 1-43 filed 02/20/13
2:13-cv-00329 The Ledge Distribution, LLC v. Does 1-44 filed 02/20/13
2:13-cv-00330 The Ledge Distribution, LLC v. Does 1-71 filed 02/20/13
2:13-cv-00455 Voltage Pictures, LLC v. Does 1-18 filed 03/13/13
2:13-cv-00456 Voltage Pictures, LLC v. Does 1-78 filed 03/13/13
2:13-cv-00457 Voltage Pictures, LLC v. Does 1-78 filed 03/13/13
2:13-cv-00458 Voltage Pictures, LLC v. Does 1-22 filed 03/13/13
2:13-cv-00459 Voltage Pictures, LLC v. Does 1-40 filed 03/13/13
2:13-cv-00460 Voltage Pictures, LLC v. Does 1-52 filed 03/13/13
2:13-cv-00461 Voltage Pictures, LLC v. Does 1-78 filed 03/13/13
2:13-cv-00462 Voltage Pictures, LLC v. Does 1-18 filed 03/13/13
2:13-cv-00507 Elf-Man, LLC v. Does 1-152 filed 03/20/13

Tuesday, April 2, 2013

You Have The Right To Remain Silent


Any lawyer who has done any number of jury trials has heard a judge give this instruction:

If you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may explain the presence of water on the sidewalk.

That is the common example of so-called circumstantial evidence as opposed to direct evidence. In other words, direct evidence is direct proof of something. Circumstantial evidence is when you don't have direct evidence of a particular fact, but you can draw a reasonable conclusion about that fact from other direct evidence.

Why am I explaining this? Well, it's because of what happened at today's Prenda Law show-cause hearing and several of the comments and questions that I've read since.

Apparently all the Prenda Law lawyers showed up today in response to Judge Wright's latest order to show cause. Amazing. But when Judge Wright started asking questions, every one of those lawyers invoked their Fifth Amendment rights. Wow.

So let's consider what really happened. Judge Wright accused the Prenda lawyers of basically defrauding the Court by pretending not to be the real party in interest. In other words, Judge Wright wanted to know if Ingenuity 13 and AF Holdings was really just John Steele and Paul Hansmeier. If so, then John Steele and Paul Hansmeier basically lied to the Court by failing to just tell the truth.

Why is that a problem? Well, a couple of reasons.

First, you can't lie to the Court. Do I need to say anything more about that?

Second, lawyers cannot buy lawsuits. In other words, to maintain the integrity of the profession, a lawyer cannot pay a plaintiff for the right to be that plaintiff's lawyer. That is why almost all the states require that a client remain primarily responsible for the costs of litigation even if the lawyer advances them. This general rule is sometimes described as a prohibition against a lawyer being both the plaintiff and the lawyer. There is just supposed to be a difference between the lawyer and the client. It just makes sense.

Judge Wright has basically indicated that everything he's seen, including Hansmeier's deposition transcript, leads to the conclusion that Steele and company aren't just the lawyers, they are in fact the client itself. In other words, the facts suggest that Ingenuity 13 and AF Holdings aren't just represented by John Steele and Paul Hansmeier, they are owned by them.

And here is where it gets a little interesting. Judge Wright called today's hearing to try and get to the bottom of it. Judge Wright just wanted to know the truth: Do John Steele and Paul Hansmeier really own AF Holdings and Ingenuity 13 (and possibly other such companies). So when those lawyers invoked their Fifth Amendment rights, they basically said "we can't answer your questions because we might go to jail if we do."

Oh wow.

But wait, is it really that bad? Is invoking the Fifth really close to an admisison of guilt? Well, in a word, yes. It is. In this case, it is.

Let's step back a second and examine why. The Fifth Amendment stems from a criminal defendant's right to remain silent. The prosecutor in a criminal case cannot force a defendant to take the stand and testify at trial. We've all seen this on TV.

Invoking the so-called "right against self incrimination" just means that you can't force someone to either perjure himself under oath or admit to criminal conduct. In this country, you just can't do that. Basically, the Fifth Amendment allows you to decline to make any statements under oath that could be used to put you in jail. That's it in a nutshell.

So today, in Judge Wright's courtroom, Prenda's lawyers basically said that answering the Court's questions could put them in jail. So they didn't answer any.

Now ordinarily the Fifth cannot be used as evidence of criminal guilt. Many, many years ago, it could. But not now. Not for about the last two hundred years. That's because a crime must be proven beyond a reasonable doubt. In other words, we don't send people to jail unless there is no reasonable conclusion but that the defendant committed a crime. As a matter of public policy, we don't want to send people to jail for no reason other than because they refused to answer some questions. Criticize it if you want, but that's the rule. Personally, I like that rule.

But these copyright troll cases are civil cases not criminal cases. In criminal cases, people go to jail. People get executed. In civil cases, people pay money--that's it.

So now I'll try to bring this all back together.

Many of the comments I've read sort of misunderstand the import of Prenda's lawyers taking the Fifth. I've read many comments to the point that since the lawyers didn't testify, there isn't really any direct evidence that they in fact are the owners of Ingenuity 13 and AF Holdings. Prenda's own lawyer actually made that exact statement during today's hearing. And that's actually true, there isn't.

But this isn't a criminal case. This is a civil proceeding.

Judge Wright isn't a criminal prosecutor trying to throw Prenda's lawyers in jail for committing a crime. Judge Wright is just exercising his inherent authority to govern proceedings in his own courtroom. Judge Wright doesn't need anything proven beyond a reasonable doubt. All Judge Wright needs is someone to show that it is more likely than not that Steele and Hansmeier are the real party in interest. If so, Judge Wright has undeniable power to sanction the shit out of those lawyers.

In other words, Judge Wright doesn't need anything but evidence that it is more likely than not that Steele and company are the real party in interest. And in this case (unlike a criminal trial) circumstantial evidence is enough.

So consider some of the circumstantial evidence:
When AF Holdings put forward a "representative" for a 30(b)(6) deposition (Google it), Paul Hansmeier showed up.
When AF Holdings was ordered to produce an actual representative at a hearing in Florida, Mark Lutz showed up. Mark Lutz is Steele's former paralegal.
No one has ever seen any real person associated with Ingenuity 13 or AF Holdings other than the lawyers.
Practically all the names for everyone associated with Ingenuity 13 and AF Holdings (other than the lawyers) appear to be fictitious names.
The lawyers never transfer any money out of their own bank accounts.
And finally, when asked to explain all this, the lawyers took the Fifth.

So in sum, Judge Wright told Prenda's lawyers that all the circumstantial evidence suggests that the clients are really the lawyers. Judge Wright gave those lawyers a chance to explain themselves. They took the Fifth.

Now Judge Wright has to make a decision about whether to sanction Prenda's lawyers or not. The question is not whether to throw those guys in jail, but just whether to fine them a whole bunch of money.

As I see it, there is plenty of evidence upon which the judge could reasonably conclude that Prenda's lawyers violated their duty of candor toward the tribunal.

Enough to throw them in jail? Maybe not.

Enough to fine the shit out of them? Absolutely.

In other words, Judge Wright woke up this morning, saw the grass was wet, and invited Prenda's lawyers to produce a garden hose. Instead, they took the Fifth. Expect bad, bad things to rain down on Prenda.


UPDATE:

Max Kennerly over at The Beasley Firm, LLC wrote another excellent article on this topic from a different perspective.

Sunday, March 10, 2013

It's On!

The March 11 Prenda hearing is tomorrow. I'm heading down to watch the fireworks and see exactly how Judge Wright responds to John Steele and his crew not being there after being ordered to appear.

I'll try to post updates as the day goes on.

[UPDATE] Fail. Well, at the last second I had to bail out of the trip. I'm going to trial in a week and about ten other things came up that caused me to back out of the trip this morning, especially with the latest developments. I can't express how eager I was to watch this hearing, but my workload coupled with the last-second effort by Steele et al to try and avoid the hearing caused me to back out.

That said, some of my very capable colleagues, like Nicholas Ranallo and Stewart Kellar will be there taking notes and keeping us all up to date.

Thursday, March 7, 2013

Bittorrent Copyright Litigation Comes to Seattle

Well, I knew it was too good to be true. Until recently, despite all of the copyright troll cases that have been filed around the country, Seattle has remained relatively unscathed. I've gotten quite a large number of calls from individuals who have received the various ISP letters or actual settlement demand letters. I have even been able to help some of them avoid copyright liability all together (see order below).

That said, very, very few of the cases I've dealt with were actually filed in Seattle. Now, all that appears to be changing. Seattle, we can't avoid the copyright trolls anymore.

Just recently, a local Seattle attorney has begun filing numerous copyright cases here against "Does" for allegedly downloading "The Divide," some B-movie that no one probably ever heard about until they got sued over it. We'll see where this goes, but based on a quote from the plaintiff's attorney that showed up on the local news site, it sounds like the conventional extortion model:

"It would probably be more expensive to go ahead and fight this rather than take a nominal settlement and just make this go away," said Richard Symmes, plaintiff's attorney.

Where have we all heard that before? Here is a list of the cases that were filed so far this year:

Cases Filed In The Western District Of Washington, Seattle Division:
R&D Film 1 LLC v. Does 1-46 (Case No. 2:13-cv-00050)
R&D Film 1 LLC v. Does 1-45 (Case No. 2:13-cv-00051)
R&D Film 1 LLC v. Does 1-41 (Case No. 2:13-cv-00052)
R&D Film 1 LLC v. Does 1-22 (Case No. 2:13-cv-00053)
R&D Film 1 LLC v. Does 1-51 (Case No. 2:13-cv-00054)
R&D Film 1 LLC v. Does 1-50 (Case No. 2:13-cv-00055)
R&D Film 1 LLC v. Does 1-44 (Case No. 2:13-cv-00056)
R&D Film 1 LLC v. Does 1-16 (Case No. 2:13-cv-00057)

Friday, February 15, 2013

Copyright Troll Going To Jail?

These copyright troll cases have gotten crazy! In the last couple months, since I last posted anything, there have been absolutely the most unbelievable developments all over the country.

I could try and summarize all the various goings on, but there have been so many that I couldn't do it justice. But in a nutshell, the Prenda Law scallywags behind the most blatant copyright extortion racket are in deep, deep doo doo.

So rather than try myself, let me point you to an excellent article by Joe Patrice at abovethelaw.com which sums it up nicely.

But in a nutshell, Judge Otis Wright down in the Central District of California (Los Angeles area) had this warning for Prenda's lawyers:

[T]he Court will consider whether sanctions are appropriate, and if so, determine the proper punishment. This may include a monetary fine, incarceration, or other sanctions sufficient to deter future misconduct. Failure by [counsel of record Brett L.] Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt.
All this just because some lawyers stole someone's identity so they could fabricate a fake off-shore company just to extort money from innocent people. No big deal, right?