This is not a Popehat Signal.
If you follow online copyright issues, you've probably heard of Prenda Law, a controversial shop that has filed aggressive piracy cases against porn downloaders. Supporters say they vindicate legitimate copyright interests against pirates; detractors argue they rely on speculation in identifying alleged downloaders and practice what amounts to extortion in demanding targets choose between settlement or public identification. You can follow the controversy at sites like Ars Technica or Techdirt or any number of other blogs.
Recently Prenda Law — and the lawyers associated with it — have been accused of various forms of fraud in connection with their litigation strategy, including allegations that they either stole or made up an identity to serve as the corporate representative of one of their plaintiff entities. Prenda Law and its various associated attorneys hotly deny any wrongdoing. But hot denials have not prevented truly astonishing legal spectacles, like a jaw-dropping hearing in Florida or a extremely ominous inquiry by United States District Judge Otis Wright, whose inexorable wrath you should, if at all possible, avoid.
Prenda Law and its associated attorneys — possibly advised by Charles Carreon, possibly advised by someone recently hit quite briskly on the head with a shovel — have elected to manage this situation through broad and aggressive defamation actions in Illinois and Florida. Jordan Rushie collects them here. You can see commentary here and here, amongst many other places.
Prenda Law is pursuing not just Alan Cooper (who asserts that his identity was stolen for use as a bogus corporate representative) and his attorney, but online detractors including Fight Copyright Trolls and Die Troll Die, blogs devoted to criticizing what they regard as "copyright trolls." Prenda Law and its attorneys are also attacking many anonymous commenters and seeking to unmask them.
The lawsuits — which have been removed to federal court — are drafted in a manner that I can only describe as either malicious, reckless, or incompetent. Among their many problems:
1. In attacking Cooper and his lawyer, the complaints conflate things said outside of court (which might be subject to defamation analysis) with things said in court proceedings (which are almost certainly absolutely protected under the litigation privilege).
2. The complaints jumble and conflate statements which might be taken as statements of fact (and therefore might be susceptible to defamation analysis) with statements that are clearly, obviously statements of opinion, rhetorical flourishes, or hyperbole (and therefore cannot be the basis for a defamation claim).
3. Through vague and ambiguous pleading, the complaints seek to hold all defendants (Cooper, his lawyer, web sites, and anonymous commenters) liable for each others' statements, without any apparent basis for doing so. To the extent that the complaints purport to hold web sites liable for the statements of commenters, they run afoul of Section 230 of the Communications Decency Act. To the extent they seek to hold everyone liable for everything bad anyone else said about Prenda, they run afoul of, well, you know, the law.
I do not prejudge whether or not some of the statements cited in the complaints could be non-privileged false statements of fact susceptible to defamation analysis and attributed to people possibly responsible for them. But in my experience, competently pled defamation complaints pursued in good faith do not bury the proverbial pony in such an epic pile of horseshit. If Prenda Law or its attorneys do have legitimate claims of false statements of fact wrongly made against them, they have chosen for some reason to wrap those claims in a nearly impenetrable cloak of ambiguity and citations to clearly non-actionable statements. Rather, competent attorneys draft their defamation complaints in a manner that scrupulously avoids reliance on statements of opinion, rhetoric, or hyperbole in order to avoid motions to dismiss and anti-SLAPP motions. Complaints drafted like these smack of incompetence, lack of self-control, or malice.
Whether or not the lawsuits have any core merit, they are framed as overt attacks on internet anonymity and expressions of pure opinion. Such cases are best resolved when the defendants are represented by vigorous and competent counsel. As a member of the First Amendment Lawyers Association — and a writer concerned with free speech and the strong defense of defamation threats — I will be happy to offer my services by referring concerned bloggers or commenters to organizations that offer legal assistance in such cases or to pro bono counsel. When the time is right, I may put up the Popehat Signal.
Last 5 posts by Ken White
- Prenda Law: The Sound of One Shoe Dropping - May 20th, 2013
- This Is The Most Wonderful Legal Threat EVER - May 17th, 2013
- OMICS Publishing Group Makes A Billion Dollar Threat - May 15th, 2013
- Rakofsky Versus The Internet: Advantage, Internet - May 12th, 2013
- Hilarious New Team Prenda Argument: Judge Wright's Order Is Irrelevant Because of Gay Marriage - May 9th, 2013