What Prenda Law Is Facing In Los Angeles, And How They Got There

Law

In my post about Prenda Law's defamation lawsuits, I mentioned that Prenda is facing an inquiry by United States District Judge Otis Wright in Los Angeles.

A remarkable new order yesterday by Judge Wright moves me to describe that situation in greater detail based on my experience as a litigator and federal practitioner. The bullet: holy crap!

To sum up, yesterday Judge Wright ordered the principals of Prenda Law — and a man who accused them of stealing his identity — to appear in his court next Monday as part of Judge Wright's inquiry into whether anyone associated with Prenda Law should be sanctioned or otherwise punished for alleged fraud on the court. This is, to put it very mildly, unusual, and signifies grave danger for Prenda Law and its attorneys.

It wasn't always like this. Here's how Prenda Law got there.

The Complaint: The trail begins with a September 2012 federal complaint by "Ingenuity 13 LLC" against a John Doe. In the complaint, Ingenuity 13 LLC — a limited liability company organized in the Federation of St. Kitts and Nevis (no doubt for their convenience) said that John Doe illegally downloaded an adult video called "A Peek Behind the Scenes At The Show," the rights to which Ingenuity owns. Ingenuity was represented by Brett L. Gibbs, who was admitted to the California State Bar in 2007, and who billed himself as "Of Counsel" to Prenda Law Inc. ("Of Counsel" is a title that usually signifies the attorney is not a partner, but not a mere associate. No offense to you mere associates.)

John Doe Resists: Ingenuity 13 LLC begins to issue subpoenas seeking to reveal the identity of John Doe. Doe resisted, seeking a stay of the subpoenas. Moreover, John Doe — through his attorney Morgan Pietz — filed a notice of related case. A notice of related case is a mundane document that lets the court know that a particular case is related to another one (because they involve the same parties, or intertwined factual or legal disputes) so that the court might move them all before the same judge or otherwise consolidate them. Sometimes there are strategic reasons for filing a related case notice — if you like the judge that the oldest case is before, for instance — but such notices are not ordinarily the locus of great controversy.

The notice Pietz filed was anything but ordinary. In it he laid out his theory in detail that Prenda Law and attorneys affiliated with it were engaged in fraud on the court in multiple cases. Pietz asserted — and bear in mind these are only assertions, not yet fully adjudicated by any court — that (1) Prenda Law or its attorneys might themselves have undisclosed ownership interests in the entities like Ingenuity 13 LLC they purport to represent; (2) Prenda Law and its principal John Steele may have stolen the identity of a property caretaker named Alan Cooper to use as a figurehead officer of plaintiff entities (an allegation first raised by Alan Cooper himself, which led to the defamation suits against him and his lawyer I described yesterday); and (3) attorneys associated with Prenda Law have made inconsistent representations to courts about their connection to Prenda Law and its cases. In addition, Pietz argued that the Prenda Law cases pending here in Los Angeles presented related issues of law, like the question of whether courts should allow Prenda Law to subpoena ISPs to determine the identities of defendants identified only by IP addresses.

Prenda's Unsuccessful Sanctions Motion: Prenda reacted with fury. On December 17, 2012, Brett Gibbs filed a motion for sanctions against Pietz, arguing that he was grandstanding in multiple district courts to gain clients, promote the blog Fight Copyright Trolls, and improperly advance a cross-case agenda, and that other courts had rejected his efforts. Prenda Law scheduled the motion to be heard in January, but Judge Wright — to whom the case had been assigned on December 20, 2012 — denied it summarily on December 21, 2012. It's a bad sign when the judge denies your motion summarily before the other side can even oppose it.

John Doe Seeks and Is Granted Special Discovery: Meanwhile, John Doe filed an ex parte application (that is, a special request not on the normal noticed motion schedule, which takes at least 28 days in federal court in Los Angeles) for special discovery. Discovery in a federal civil case is strictly circumscribed by the Federal Rules of Civil Procedure; among other things, you can't simply leap into interrogatories and depositions until the court has set a schedule and the parties have made certain mutual disclosures purportedly designed to simplify things. Pietz, on behalf of John Doe, sought leave to conduct limited immediate discovery into the true identity of "Alan Cooper" and his role in companies that Prenda Law used as plaintiffs in illegal downloading cases. He also asked the court to extend the stay on Ingenuity 13 LLC's subpoena calculated to reveal John Doe's identity. Once again, Prenda Law responded furiously through Brett Gibbs, opposing the request, arguing that Pietz' documents did not prove any fraud in connection with "Alan Cooper," accusing Pietz of a multi-district campaign of libel and sanctionable behavior, and pointing out that another court had not credited Pietz' claims and had not taken action based on them.

I've been a lawyer for almost 19 years now. I've practiced in federal court that entire time. Here's what's very strange to me about Gibbs' opposition to the ex parte application, and about Gibbs' sanctions motion: they conspicuously avoid direct engagement with the most incendiary accusations Pietz makes. It's one thing to argue that Pietz' evidence is insufficient, or that other courts have failed to act based on them. It's quite another to evade the question of who "Alan Cooper" really is. I find it very difficult to imagine a scenario in which an experienced litigator would have a good reason to avoid confronting such a serious charge of fraud head on by saying, for instance, "the Alan Cooper who is a principal in Ingenuity 13 LLC is a real person who is resident of the State of X, living at Y, and has no relation to the Alan Cooper who has made scurrilous allegations against Prenda Law. Here is a declaration from the Alan Cooper who is a principal of Ingenuity 13 LLC, and here are reasons why the other Alan Cooper has a grudge against Prenda Law and is lying." It is very difficult to imagine an innocent scenario explaining why Prenda Law would not offer such a response if it could.

But it didn't. Perhaps that's why on the day after Christmas Judge Wright granted Pietz' ex parte application entirely, allowing him to take special discovery outside the normal Federal Rules of Civil Procedure into the identity of "Alan Cooper."

Judge Wright Orders Ingenuity 13 LLC To Justify Its Case Meanwhile, Judge Wright was questioning, of his own accord, Ingenuity 13 LLC's efforts to discover the identity of John Doe — and with it, Prenda Law's entire litigation strategy.

In an Order to Show Cause issued on December 20, 2012, Judge Wright ordered Ingenuity 13 LLC to show – in the multiple cases it had filed in Los Angeles — what steps it had taken already to identify defendants, and its basis for accusing those particular defendants of copyright violations:

The Court is concerned with the potential for discovery abuse in cases like this. Ingenuity 13 accuses the Doe Defendant of illegally copying a pornographic video. But the only information Ingenuity 13 has is the IP address of the Doe Defendant. An IP address alone may yield subscriber information. But that will only lead to the person paying for the internet service and not necessarily the actual infringer, who may be a family member, roommate, employee, customer, guest, or even a complete stranger. Malibu Media LLC v. John Does 1–10, No. 2:12-cv-01642-RGK-SSx, slip op. at 4 (C.D. Cal. Oct. 10, 2012). And given the subject matter of Ingenuity 13’s accusations and the economics of defending such a lawsuit, it is highly likely that the subscriber would immediately pay a settlement demand—regardless whether the subscriber is the actual infringer. This Court has a duty to protect the innocent citizens of this district from this sort of legal shakedown, even though a copyright holder’s rights may be infringed by a few deviants. And unlike law enforcement in child pornography or other internet crime cases, the Court has no guarantee from a private party that subscriber information will not abused or that it would be used for the benefit of the public. Thus, when viewed with the public interest in mind, the Court is reluctant to allow any fishing-expedition discovery when all a plaintiff has is an IP address—the burden is on the plaintiff to find other ways to more precisely identify the accused infringer without causing collateral damage.

Thus, the Court hereby ORDERS Ingenuity 13 TO SHOW CAUSE in writing by December 31, 2012, why early discovery is warranted in this situation. No appearances are necessary. Under Ninth Circuit precedent, a plaintiff should ordinarily be allowed discovery to uncover their identities, but discovery may be denied if it is (1) clear that discovery would not uncover the identities, or (2) that the complaint would be dismissed on other grounds. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Ingenuity 13 must demonstrate to the Court, in light of the Court’s above discussion, how it would proceed to uncover the identity of the actual infringer once it has obtained subscriber information—given that the actual infringer may be a person entirely unrelated to the subscriber—while also considering how to minimize harassment and embarrassment of innocent citizens. Ingenuity 13 must also explain how it can guarantee to the Court that any such subscriber information would not be used to simply coerce a settlement from the subscriber (the easy route), as opposed to finding out who the true infringer is (the hard route).

I recognize that's a big-ass wall of text. But it's crucial to understanding what is going on. Judge Wright is questioning an assertion that is at the core of Prenda Law's litigation strategy — that identifying the IP address of an infringing download is a sufficient basis to force disclosure of the corresponding subscriber. This represents a challenge to the legal theory underlying Prenda Law's approach to these cases. It's also significant because it shows that Judge Wright believes what Prenda Law's critics have been saying — that it might be using the threat of identification to "coerce" settlements, and that this danger should be a factor in evaluating whether Prenda Law should be able to uncover the identity of IP subscribers.

This level of judicial initiative in early discovery matters is quite unusual. For one thing, in federal court — at least in vast and busy districts like the Central District of California — most discovery issues are resolved by Magistrate Judges, who are appointed by the Article III district judges. Magistrate Judges do the less glamorous work of the federal justice system — non-substantive hearings, discovery disputes, and the like. But here, a district judge — black-robed, with a lifetime tenure, appointed by the President and confirmed by the Senate — is getting involved in very specific discovery issues. At this point, Prenda Law was no doubt becoming very concerned.

Prenda Law Tries To Disqualify Judge Wright: Prenda Law believes that the best defense is a good offense, and responded to Judge Wright's orders by attempting to disqualify him upon allegations that he is biased against them and porn copyright holders. Prenda Law's motion was — well, I respectfully submit that it is ill-considered. You can't get rid of a federal judge because he rules against you. Prenda Law's motion tries to do just that, arguing that Judge Wright should be disqualified because of a series of rulings in copyright cases in which he questioned Prenda Law's requests to identify subscribers and because of his suggestion that Prenda Law's model may rely on coercion. United States District Court Judge Michael Fitzgerald (a former colleague at the U.S. Attorney's Office) reviewed the motion and issued an order denying it on January 15, 2013, summarizing the matter as follows: "Plaintiff’s argument boils down its disagreement with the merits of Judge Wright’s discovery orders. This is not a cognizable basis for disqualification." That's correct.

Things were now going badly for Prenda Law at a faster pace.

Prenda Law Dismisses The Case: On January 28, 2013, Prenda Law — still through Mr. Gibbs — filed a voluntary dismissal of Ingenuity 13 LLC's case against this particular John Doe. Federal plaintiffs can dismiss a case voluntarily without prejudice (that is, maintaining the right to bring it again) fairly freely. Generally a notice of dismissal is a form; Prenda's was a petulant swipe at Judge Wright:

The Court before which the instant action presently sits has recently held that “[T]he Court is not convinced that that there is no way of identifying John Doe through an IP address other than obtaining ISP subscriber information—Plaintiff has presented nothing but argument suggesting that it is so. Plaintiff maintains its contention that it is factually impossible to identify a John Doe through an IP address without obtaining ISP subscriber information; as such, Plaintiff now dismisses this action without prejudice in order to avoid the futility of attempting to litigate these cases under such circumstances.

But here's the thing: even when a plaintiff dismisses a case, a federal judge does not lose jurisdiction and power to inquire into the conduct of the attorneys and parties in the case. When a federal judge is angry at you, filing a dismissal is akin to dropping the red flag, backing away, and telling the charging bull "hey man — we cool, we cool." As we'll see, Judge Wright intended to exercise his power.

Judge Wright Demands Answers: On February 7, 2013, things got much worse for Prenda Law.

Judge Wright issued an OSC — an Order to Show Cause — in this case and in connection with multiple related cases brought by Prenda Law on behalf of Ingenuity 13 LLC and AF Holdings LLC. Judge Wright cited Federal Rule of Civil Procedure 11 — which governs sanctions for misconduct — and articulated his inherent power to investigate and punish misconduct in cases before him:

The Court has a duty to supervise the conduct of attorneys appearing before it. Erickson v. Newmar Corp., 87 F.3d 298, 301 (9th Cir. 1996). The power to punish contempt and to coerce compliance with issued orders is based on statutes and the Court’s inherent authority. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). And though this power must be exercised with restraint, the Court has wide latitude in fashioning appropriate sanctions to fit the conduct. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 764–65 (1980).

Judge Wright's order suggested that he is very concerned with Pietz' allegations about Prenda Law. In fact, he invited Pietz to submit a brief and to appear at the March 11, 2013 hearing on this OSC. In the order, Judge Wright suggested that he was concerned with (1) lack of adequate investigation of infringement before bringing suit for infringement, (2) lack of adequate investigation of the true identity of infringers, and (3) alleged violation of his orders restricting efforts to discover the subscribers of IP addresses. These, so far, are not atypical subjects of Rule 11 motions — they are allegations (not yet adjudicated, bear in mind) that someone filed suit without adequate investigation or violated a court's order. But more ominously, Judge Wright said the following:

Upon review of papers filed by attorney Morgan E. Pietz, the Court perceives that Plaintiff may have defrauded the Court. (ECF No. 23.)4 At the center of this issue is the identity of a person named Alan Cooper and the validity of the underlying copyright assignments.5 If it is true that Alan Cooper’s identity was misappropriated and the underlying copyright assignments were improperly executed using his identity, then Plaintiff faces a few problems.

First, with an invalid assignment, Plaintiff has no standing in these cases. Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious, as these cases were filed for a facially improper purpose. And third, the Court will not idle while Plaintiff defrauds this institution.

Judge Wright concluded as follows:

Based on the evidence presented at the March 11, 2013 hearing, the 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 Mr. Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt.

[Emphasis added, pants-shitting terror in the original.]

From the perspective of Prenda Law, this order is what we call in the convoluted nomenclature of federal practice a Very Bad Thing.

Most of the text of Judge Wright's OSC is devoted to his questioning of the legal theories underlying Prenda Law's litigation strategy — to questioning whether an IP match is a sound basis to bring suit, let alone compel identification of a subscriber. But Judge Wright's conclusion that there is cause for him to inquire into alleged fraud on the court is far more unusual and far graver for Prenda Law. I have not seen an order like that in 19 years of practice.

Gibbs Responds, But Judge Wright Is Not Satisfied: Mr. Gibbs — now, wisely, represented by his own counsel — responded to the OSC on February 19, 2013. Mr. Gibbs indicated that he always intended to act honestly and forthrightly, and in his declaration explained how he became involved with Prenda Law. He was first hired by Steele Hansmeier PLLC ("S&H") (that would be the Steele of John Steele, referenced above, I believe), and says he began working for Prenda Law when it bought S&H's business. He describes working without direct contact with any of the principals of Prenda Law's clients and getting instructions from unspecified principals of S&H. For instance, with respect to Alan Cooper, he says this:

I have never met Alan Cooper, and do not know what the extent of Mr. Cooper's role is in A F Holdings aside from seeing a signature from an "Alan Cooper" on the copyright assignments and pleadings. Based on the assignment agreement, A F Holdings held the valid and exclusive rights to reproduce and distribute the film Popular Demand. I was not present when the assignment agreement was executed. I also never had any direct contact with either Raymond Rogers or Alan Cooper. I have never executed a document as "Alan Cooper." I did not play a role in or have knowledge of the assignment transaction at issue. Senior members of S & H provided the assignment agreement to me and informed me that the copyright assignment was a true and correct copy of the copyright assignment and to include it as an exhibit in complaints filed on behalf of A F Holdings L L C . Before filing any such complaints, I confirmed that A F Holdings L L C was in fact listed as the valid copyright holder.

Here's the thing — when a federal judge asks you whether you committed fraud and mentions incarceration, you need to do better than "some guys told me." Gibbs' "senior members of S&H," without naming them under these circumstances, is asking for trouble.

If Mr. Gibbs asked for trouble, he got it. Judge Wright responded with a February 27, 2012 order requiring him to show up in person at the March 11, 2013 hearing and requiring him to make a supplemental filing explaining who the unnamed people in his declaration were and to specify the owners of Ingenuity 13 LLC and AF Holdings LLC and their contact information. This is a sign that Judge Wright is following the pleadings very closely and is very determined to uncover the specifics behind Pietz' allegations.

Mr. Gibbs responded with a supplemental declaration, in which he said that he understands that attorney Paul Duffy is the principal of Prenda Law and that attorneys John Steele and Paul Hansmeier gave him his instructions as to what to do on behalf of Prenda Law. He also indicated that he understood that Mark Lutz is the CEO of AF Holdings LLLC and Ingenuity 13 LLC.

(Who is Mark Lutz? Mr. Lutz is alleged to be a former employee of Mr. Steele and of Prenda Law. Mr. Lutz showed up in court in that disastrous Florida hearing, where he was scolded for not wearing a jacket or tie — though he was, I am reliably informed, wearing shoes. At that hearing, ably described by Mike Masnick at TechDirt, Mr. Lutz appeared as the "corporate representative" of a company called "Sunlust," but could not answer any meaningful questions about the company or its leadership. Also at that hearing — at which John Steele was present — the attorney appearing for Sunlust claimed he was hired through Prenda Law, but Paul Duffy sent a letter claiming that Prenda Law was not involved. The resulting hearing was . . . unusual.)

Meanwhile, Pietz filed a scathing brief attacking Mr. Gibbs' response to the OSC.

Judge Wright's Fateful March 5, 2012 Order: This brings us to yesterday's remarkable order from Judge Wright. In that order, Judge Wright ordered as follows based on all the parties' submissions:

1) The following persons are hereby ORDERED to appear on March 11, 2013, at 1:30 p.m.:
a) John Steele, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;
b) Paul Hansmeier, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;
c) Paul Duffy, of Prenda Law, Inc.;
d) Angela Van Den Hemel, of Prenda Law, Inc.;
e) Mark Lutz, CEO of AF Holdings LLC and Ingenuity 13 LLC;
f) Alan Cooper, of AF Holdings LLC;
g) Peter Hansemeier of 6881 Forensics, LLC; and
h) Alan Cooper, of 2170 Highway 47 North, Isle, MN 56342.

He also ordered Pietz and Gibbs to serve the order on all of those people.

The order shows that Judge Wright (1) wants to talk to both the "Alan Cooper" who is a principal of Prenda Law's clients and the Alan Cooper who claimed his identity was stolen, and (2) wants to ask questions of attorneys John Steele, Paul Hansmeier, and Paul Duffy about Prenda Law, as well as "CEO" Mark Lutz of Prenda Law's clients.

What will happen now? Here's what I expect:

1. Some of the individuals named could object that Judge Wright lacks jurisdiction over them because they are not parties to this case or attorneys before the court. Leaving the merits of that aside, it's an epically disastrous argument to make with respect to the credibility of Prenda Law or any of its associated attorneys. The question of whether Judge Wright has jurisdiction over the individuals is beyond the scope of this post; suffice it to say that I think the evidence presented to Judge Wright gives him a colorable basis to say that he does on several legal theories.

2. Some of the individuals named could appear, but assert their Fifth Amendment right against self-incrimination. That could be prudent, but also disastrous.

3. Some of the individuals named could assert that exigent circumstances or medical conditions prevent them from attending, or could ask for an extension to allow them to retain counsel and get their new counsel of up to speed.

4. Some of the individuals named could show up and answer Judge Wright's questions.

My prediction is a combination of 3 and 4.

The individuals summoned before Judge Wright may yet demonstrate to him that they have not done anything wrong and that Mr. Pietz' allegations are untrue. But what can Judge Wright do if he is not satisfied with what he hears at the March 11 hearing?

Judge Wright could certainly issue monetary sanctions against, at a minimum, Mr. Gibbs. The question of what other attorneys he could sanction under Rule 11 and his own inherent authority depends on a tedious discussion too long for this post; suffice it to say that he might conclude that he can sanction supervisory attorneys with Prenda Law.

Judge Wright's terrifying comment aside, his ability to jail people before him for contempt is quite limited when they have not been charged with a crime by the executive. That, too, is a discussion too complex for this post. But Judge Wright might well refer the case to the U.S. Attorney's Office for criminal prosecution if he concludes that criminal contempt or fraud has occurred. Such referrals tend to get immediate and intense attention. Moreover, if Judge Wright finds misconduct, he could refer the matter to various state bars.

Whatever happens on March 11, one thing is clear: Judge Wright has concluded that the evidence before him justifies an intense inquiry, including summoning multiple people associated with Prenda Law to his court. Judge Wright's actions are, though within his power, quite rare and exceptionally ominous for Prenda Law and its principals.

I plan to observe the hearing if possible.

Edited to add: Mike Masnik's writeup is not to be missed. See also Ars Technica coverage.

Second edit: I see some people have pointed out that Mr. Gibbs' attorneys have sought and obtained leave to make a "special appearance" for him. That doesn't excuse him from showing up. Making a "special appearance," at least in federal court, means making an appearance for a limited purpose, as opposed to making an appearance as counsel of record for the rest of the proceedings in the case. Lawyers make special appearances to limit their exposure to being kept in the case past the particular event on which they have been asked to assist.

Last 5 posts by Ken White

129 Comments

121 Comments

  1. Jonathan  •  Mar 6, 2013 @11:58 am

    Burn Baby Burn…

  2. mojo  •  Mar 6, 2013 @12:03 pm

    Well, well. There's the cat amongst the pigeons, sure enough.

  3. cindy  •  Mar 6, 2013 @12:16 pm

    the suspense is killing me. can't wait to read the follow-up.

  4. Ravious  •  Mar 6, 2013 @12:18 pm

    I love you! That is all.

    Just great, great post.

    This is also not spam because…. uhh… your associates suck for not reading this blog every day.

  5. Patrick  •  Mar 6, 2013 @12:22 pm

    This is where I get preemptively mean again and suggest to you, our readers, that you be careful what you write, because the last thing I need, at this moment in my life, is to have some fucking stranger engage in discovery aimed at establishing I'm a co-conspirator with Ken in publishing your libel-slanders.

    I've had a rough few months these past few months, so don't tempt me. Be civil, and stick to the facts. Someone from Prenda Law is reading this.

  6. tsrblke  •  Mar 6, 2013 @12:26 pm

    Is anyone else totally confused by this? I mean IANAL, but I can usually follow a case. But this is like some sort of Copyright James Bond flick.
    Where did Prenda law even come from in the first place? Were they an established firm before all this mess or did they spring into existance about the same time as "Ingenuity 13 LLC."
    And on that note, how did Ingenuity 13 end up with the copyright for the porn film in the first place (since it seems they aren't really a production company…if such a word works for porn, but rather a copyright holder/clearinghouse type thing. Again, if such a term even works here.)
    Where did AF holdings come onto the scene? (No really they just sorta came out of no where.)
    Finally, if (given all the good reasons I might add) you can't just use an IP address to ID an internet user (makes sense) how come a Red light camera can use a license plate to "ID" a driver (or demand they turn over the person actually driving the car?) Ok, that once is more of a pet peeve.

    So what of the Allen Cooper currently claiming his name has been stolen. He's now ordered to appear, because (if his claims are to be believed) someone dragged him all into this against his will. That seems a little much. After all ostensibly he's fighting Prenda (or AF holdings) on different front unrelated to this lawsuit. Unless I'm misunderstanding Judge Wright's intent here (which seems to be to determine if there are in fact 2 Allan Coopers.)
    All I can say is I hope we get to the bottom of this and if there is any wrongdoing that the parties involved are held responsible. I hate those who basically use the law as an improvised weapon.

  7. Terry Towels  •  Mar 6, 2013 @12:29 pm

    Thank your for the analysis of the documents. I read them, but am unfamiliar with the context of legaldom to understand what they imply in the larger sense. So, it is as bad as I thought.

    I hope some day, you or someone else (if for legal reasons you can't) will do the same for the John Doe v Carreon case. I've been keeping up on the filings, but I don't understand what they mean. I can't decide what the judge is doing with his rulings.

  8. MattS  •  Mar 6, 2013 @12:30 pm

    As a non lawyer I have occasionally wondered what it would take to terrify a lawyer enough to mess his/her pants. Now I know. :)

  9. David  •  Mar 6, 2013 @12:30 pm

    How exciting!

  10. nentuaby  •  Mar 6, 2013 @12:31 pm

    … and what happens if party f in the March 5 order is, indeed, fictional?

  11. Ken  •  Mar 6, 2013 @12:39 pm

    … and what happens if party f in the March 5 order is, indeed, fictional?

    Well . . .

  12. tsrblke  •  Mar 6, 2013 @12:41 pm

    Also, I'm a little unclear as to how "John Doe" found out someone (I still can't figure out who) was trying to get his identity from an IP address, but Kudos to him for putting up a fight. I have to imagine that takes resources. I was never a fan of the drive by settlement attacks that Wright describes in his "easy route…hard route" bit. It's not clear that was Prenda's goal in the first place (the judge merely notes that it could go that way), but sometimes the only way to find out is the fight the original filing. In some respects it reminds me of the RIAA battles of yesteryear. And Kudos to Wright for making them show their intent.

  13. John O.  •  Mar 6, 2013 @12:46 pm

    Playing thermonuclear chicken with a federal judge means you're gunna get nuked.

  14. Rob  •  Mar 6, 2013 @12:46 pm

    @tsr,

    if you want to spend the time to get up to speed, I'd suggest starting with arstechnica's coverage. This is the Top Story at the moment, and all the previous stories are linked from there, or use the copyright tag to search.

    If that isn't enough, http://fightcopyrighttrolls.com is your next stop.

  15. naught_for_naught  •  Mar 6, 2013 @12:49 pm

    OK, this is sooo much better than TV. For the record this is the line were I lost it:

    From the perspective of Prenda Law, this order is what we call in the convoluted nomenclature of federal practice a Very Bad Thing.

  16. Jeff  •  Mar 6, 2013 @12:52 pm

    tsrblke: I would speculate that Prenda/Ingenuity/whoever sent a notice to the ISP, refused to give up the name, and who then informed the subscriber.

  17. tsrblke  •  Mar 6, 2013 @12:56 pm

    Thanks Rob,

    I don't think it would be factually inaccurate to say this case (or cases) have a ton of moving parts and a timeline slightly more complicated than you're average time travel movie.

  18. Dan  •  Mar 6, 2013 @1:03 pm

    Wow. I am a lawyer (who never goes to court) and this order is my personal nightmare. I don't usually read the super-long Popehat posts, but I couldn't stop. Eager to hear the results.

  19. John Thinkishness  •  Mar 6, 2013 @1:03 pm

    Ken,

    Is there an opportunity for one or more of the guilty parties to come forward and try to throw themselves on the mercy of the court by ratting out the rest?

    I only ask, because my entire knowledge of the law comes from Law & Order; and as I don't watch cop dramas like Law & Order, I only gleam little bits from the commercials.

  20. Nicholas Weaver  •  Mar 6, 2013 @1:08 pm

    Patrick: With the two postings by Ken, you've all but guaranteed that Prenda is going to send third party subpoenas your way for deleted posts, the IPs of all posters, etc, if they don't outright name Ken as Doe 3.14159….

    So since your screwed anyway, you might as well enjoy being Libel, and practice saying "Yo, California Anti SLAPP law… BITCH"

  21. Nicholas Weaver  •  Mar 6, 2013 @1:19 pm

    tsrblke: Most ISPs notify the customer first on such requests these days, unless the warrant or subpoena specifies that they can't, in order to allow the customer a chance to fight the subpoena or take other action themselves.

  22. Ken in NH  •  Mar 6, 2013 @1:25 pm

    Ken,

    I think you missed option 5, one or more of a through g realize the jig is up and start researching extradition treaties and last minute airfare.

  23. tsrblke  •  Mar 6, 2013 @1:27 pm

    @Nicholas Weaver,

    Ahhh that makes sense. Well Kudos to him for fighting it, I suspect most people ignore those and hope nothing happens.
    Also did you call Patrick "Libel?" Then "You R Slander!" (or something.)

  24. Kevin  •  Mar 6, 2013 @1:27 pm

    My favorite bit is where Pietz actually created a graphic illustrating the players involved. Note the image he used to illustrate Anthony "Salt Marsh" Saltmarsh. I like the cut of this guy's jib.

  25. Peter  •  Mar 6, 2013 @1:28 pm

    I assume food and drinks are not normally permitted in federal courts, but judge Wright seems like a fair minded fellow, and I bet he would permit popcorn for the people watching the hearing. In the interests of justice, you know.

  26. SJD  •  Mar 6, 2013 @1:28 pm

    Very good summary, an always-missing holistic post in the world of extensive yet scattered coverage.

    I wanted to note that you referred extensively to TechDirt, but neglected another source that covered this saga restlessly, ArsTechnica. But in the end I was relieved to see the link to Tim Lee's coverage.

  27. That Anonymous Coward  •  Mar 6, 2013 @1:40 pm

    *whistles while refilling the popcorn maker*
    Saltmarsh is very photogenic.

    I have asserted and continue to maintain that the efforts of "Prenda" (or whatever new name they are using this week) were not on the up and up. I am excited that a court finally has taken notice of some of the "issues" with this "litigation" system.

    Its not like they never angered a Judge before…

    We haven't served anyone, but go ahead and let me search all the computers in the account holders home so I can find the bad guy. Oh Mr. Gibbs when will you learn not to anger Judges?

  28. Orv  •  Mar 6, 2013 @1:58 pm

    Get the popcorn, this is gonna be good.

  29. Justin  •  Mar 6, 2013 @2:00 pm

    A (slight?) tangent, but how would Pietz get involved before Prenda has had a chance to identify his client? How, before then, would the client even know he is being sued? Someone's reading through court filings, notices their IP address and gives Pietz a call? I'm sure this is obvious and I'm missing something simple, but I'd appreciate it if someone could straighten me out.

  30. SJD  •  Mar 6, 2013 @2:06 pm

    John Steele has dismissed "his" lawsuit (the one filed in Florida) without prejudice today.

  31. perlhaqr  •  Mar 6, 2013 @2:08 pm

    I was kinda wondering something tangential to what tsrblke mantioned: If it turns out that this Alan Cooper fellow really did get his name misappropriated, and that the other Alan Cooper doesn't even exist, will Prenda at least have to reimburse him for his time and money for flying to LAX from MN? I mean, I think I recall hearing from some other post about this that the fellow in question is a gardener or landscaper or something, he might not really have the extra scratch to take a random trip to Hollywoodland.

  32. Chuck  •  Mar 6, 2013 @2:31 pm

    My first thought upon reading the order is that I don't see how the court has jurisdiction over the Minnesota Alan Cooper, though he may well want to attend anyway.

    Anyway, as an unemployed lawyer in downtown LA (world's smallest violin, I know!), I intend to check this hearing out on Monday.

  33. George William Herbert  •  Mar 6, 2013 @2:37 pm

    If the Alan Cooper in Minnesota were too poor and need contributions to provide airfare and a hotel room in LA, I am sure that honest uninvolved folk who are interested in fair justice could donate for that purpose.

  34. Ken in NH  •  Mar 6, 2013 @2:39 pm

    Chuck,

    IANAL, but since this is federal court, jurisdictional issues do not apply within the borders of the US, its territories and possessions, is my guess.

  35. Anonymous  •  Mar 6, 2013 @3:19 pm

    @Ken:

    You wrote many things up there to try to explain to us, your lay audience, how terribly far up Shit Creek that Prenda Law and their client(s) might potentially have sailed.

    I just want to applaud you for the subtle use of the article tags; the words on their own are powerful, but I feel more moved by the fact that this is the only article they link to. Bravo.

  36. Ygolonac  •  Mar 6, 2013 @3:38 pm

    And it's official, ladies and gentlemen, the balloon has dropped!

    We invite you to enjoy the ominous whistling sound and the frantic bleatings and scrabblings of the doomed, and remind you that there's still plenty of time for fresh buttered popcorn and refreshing beverages from the concession stand…

  37. Patrick  •  Mar 6, 2013 @3:53 pm

    Nicholas Weaver, I don't live in California, bitch.

  38. Andrew  •  Mar 6, 2013 @3:59 pm

    A couple unrelated, mundane notes…

    First, the real Alan Cooper from Minnesota (whose address is, unfortunately, in one of the orders) lives nowhere near a truly major airport, and getting to California from the closest regional airport will be one expensive proposition. A quick search tells me that, round-trip, he could expect to pay over $1,500 for air fare alone. Driving to the Minneapolis airport could save about $1,000. I'm not in the best position to help with that, unfortunately.

    Second, on page 2 of ECF No. 59, there is a reference to "interest in a
    subpoena to obtain testimony and records from the Minnesota bank that employs the notary who supposedly notarized Mr. Mooney’s signature on legal pleadings." I am not a lawyer. However, it has been my experience as both a litigant (pro se and represented) and as a political candidate (for which a number of affidavits are required by statute) that the diligence of Minnesota notaries varies widely. According to the frequently asked questions for Minnesota notaries (click "Frequent Questions" on the left side of the page), a journal is recommended but not required by statute. When I have had documents notarized at a bank, more often than not, the notary did not record any information. I always presented identification to the notary regardless of whether the notary requested it, but it is conceivable that a busy bank teller may pay little attention to the authenticity of the identification. I'm sure I'm telling Minnesota lawyers nothing they don't know already.

  39. Dan Weber  •  Mar 6, 2013 @4:29 pm

    Is it ever acceptable to show up at a court in one's home state in lieu of showing up at a court in a faraway state?

    I feel for the original guy who had his identity (allegedly) stolen.

  40. Ken  •  Mar 6, 2013 @4:47 pm

    Pietz just filed a transcript of a deposition of Paul Hansemeier, who was designated as the representative of AF Holdings LLC for a depo in the Northern District of California.

    It's — wow. It's just — it's –

    Is this real life?

  41. Dan Weber  •  Mar 6, 2013 @4:50 pm

    I'm a bit confused by things happening in both California and Florida. If I understand the "main event" is in California and Lutz is doing some stuff in Florida. What's the relation?

  42. RogerX  •  Mar 6, 2013 @4:52 pm

    If I may be so bold, are you permitted to take audio recordings of the proceedings? The applications available for iPhones and Android devices these days are quite useful for such purposes, and as a techie who's never been summoned for jury duty, I'd love to consume some actual, real-life courtroom drama.

  43. Shane  •  Mar 6, 2013 @4:52 pm

    Ken – Is the Deposition transcript posted anywhere besides PACER?

  44. Ken  •  Mar 6, 2013 @5:01 pm

    1. The depo is only on PACER

    2. I will try to write it up tonight.

    3. NO YOU CAN'T RECORD IN FEDERAL COURTHOUSES. DANGER WILL ROBINSON.

    4. Wow. Holy shit. Holy holy shit. (In re: the depo.)

  45. Matt  •  Mar 6, 2013 @5:09 pm

    Ken — will there be a video stream of these proceedings? I would love to be there in person, but alas, I live in Nebraska…

  46. SJD  •  Mar 6, 2013 @5:10 pm

    When I posted about Coopergate for the first time, it was a shock and 5 days waiting before Tim Lee wrote about it in ArsTechnica. The accusations were so unbelievable, that some of the popular news outlets explicitly said that they would wait when I contacted them.

    Now everyone wants to deliver news pieces and comment ASAP. Makes me happy.

  47. Ken in NH  •  Mar 6, 2013 @5:11 pm

    Ken,

    Slight hijack, but I would like to hear your take someday on why recording (audio and/or video) should or shouldn't be allowed and why the hell we're still using stenography (or stenotype) when an actual recording should be just as reliable if not more. (I'm not saying we should get rid of court reporters, but they should probably be more audio engineers than typists with funny keyboards. They or their subordinates can type up the transcript later.)

  48. Steve H  •  Mar 6, 2013 @5:19 pm

    OK, I think I follow this, except, who is Angela Van Den Hemel and why does Judge Wright want her to appear for the hearing?

  49. Orville  •  Mar 6, 2013 @6:03 pm

    If this goes badly for Prenda Law, could the results be used to gain restitution by someone who felt compelled to pay them rather than fight?

    I'm not that person – I am just curious.

  50. Rob  •  Mar 6, 2013 @6:29 pm

    I believe the deposition Ken is referring to is here: gov.uscourts.cacd.543744.69.1.pdf

    To tsr @12:56; yes, it's fair to say this is a rather complex matter. :)

    {Edited for better linkage ~D}

  51. Terry Towels  •  Mar 6, 2013 @6:35 pm

    @Rob, thanks, I've been debating paying for PACER.

  52. George William Herbert  •  Mar 6, 2013 @6:49 pm

    Rob, the URL is getting truncated somewhere, can you shortenize it?

    Thanks.

  53. Noah Callaway  •  Mar 6, 2013 @6:57 pm

    @Ken Wow. This write-up is absolutely incredible. I'm very much looking forward to the write-up of the deposition tonight. Thanks for always being an awesome resource for my law-related followings.

  54. cb  •  Mar 6, 2013 @7:09 pm
  55. That Anonymous Coward  •  Mar 6, 2013 @7:15 pm

    @Justin – The process works like this.
    They ask the Judge can we find out who "owned" these IP addresses at this time. Judge says ok. ISP then sends out a letter to the identified accountholder sometimes they explain you can try to fight, sometimes they don't, sometimes they tell you to contact the lawyer trying to find your identity. (boggle on that last one)
    A Doe at that point might retain a lawyer to file a Motion to Quash or as in this case a Motion to burn the entire thing to the ground.

    Often the Doe's are told they are not a party to the case seeking their personal details so they can supposedly be named in a lawsuit.

    They did attempt in this case at some point somewhere to file a motion chucking out the Pietz (sp) filing because his client might not exist and he was just doing this to meddle in their affairs. Funny them claiming other people don't exist…

    @Andrew I noted over on FCT that at least 1 poster suggested that people would help to get Mr. Cooper there if someone would setup a way for people to donate anonymously. I am not rich but if there was a way I could contribute from the shadows I would. Many of the people targeted by Prenda aren't rich, but there are enough that even a $10 or $20 "gift" from each one would put him well on his way there.

    And for the record… ZOMG will people please learn how to ACTUALLY redact a document? I mean seriously… with all of the information that ends up leaked you'd think someone would actually figure out how to do it… But I do enjoy looking at what I'm not allowed to see…

  56. bonez565  •  Mar 6, 2013 @7:15 pm

    For those who are getting a truncated URL in Rob's post here is a short version: http://goo.gl/1NQSZ

  57. sorrykb  •  Mar 6, 2013 @7:55 pm

    I'm reading the deposition now, and wow. There is not enough popcorn in the world.
    P.S. I'm only on page 82, so no spoilers!!!

  58. Sharon  •  Mar 6, 2013 @8:02 pm

    *bytes tongue to avoid spoilers*

    I just finished it a few minutes ago. Holy shit is an understatement! I am eager to see the writeup and subsequent deconstruction.

  59. Dan Weber  •  Mar 6, 2013 @8:13 pm

    As a non-lawyer, it's fascinating how lawyers get deposed.

    I've read like 5 pages where they're trying to figure out if Lutz was paid anything for his job as CEO.

  60. Anonymoose  •  Mar 6, 2013 @8:20 pm

    Purely commenting as a non-lawyer from across the northern border…

    Matlock has nothing on this.

    The only comparison for me is if AMC decided to make a serial dramedy that combined elements of "Person of Interest", "24" and the Shriner's Circus. Clowns, warrants, searches, an ominous figure of government wanting to seek out a specific group of people, all directed by Abbot and Costello. Eric Idle could do the music!

  61. Jim Tyre  •  Mar 6, 2013 @8:20 pm

    Matt, and Ken in NH

    I'm not Ken (and, thankfully, I don't even look like him), but federal courts traditionally have been quite opposed to allowing videos of proceeding. There is a somewhat new pilot program that allows for videos of court proceedings, but only if the the federal district, the judge for the case and all the parties consent. Central District of California is not one of the districts that has opted in, so the other two don't matter.

  62. bonez565  •  Mar 6, 2013 @8:26 pm

    So i have a question, as a person whose sole knowledge of the law basically comes from sites like this is this sort of deposition normal? All this question dodging and misdirection?

  63. George William Herbert  •  Mar 6, 2013 @8:28 pm

    CB and Boenz565 – thanks!

    This is terrifying reading. I've read transcripts of confrontational depositions. Of depositions of the clueless. Of those trying to hide something. This is … something else. And I'm nowhere near done yet.

  64. sorrykb  •  Mar 6, 2013 @8:36 pm

    As another non-lawyer, I'm wondering…
    Are all (or even many) depositions this good?
    Have I been missing out all these years, squandering my time on trivial reading that pales in comparison to this extraordinary document, at one time both comedy and thriller?

  65. Tom  •  Mar 6, 2013 @8:38 pm

    Regarding the deposition: Geez, does anybody know how to redact a document properly?

    But from the un-redacted portion on page 30, I wonder if Mark Lutz has any cause of action against AF holdings since his employer has not paid his any money for his work, which would seem to violate minimum wage laws.

  66. bonez565  •  Mar 6, 2013 @8:43 pm

    Tom, unless i'm more confused than i feel – which is possible – then the question of minimum wage would fall under the laws of Federation of St. Kitts & Nevis which according to their website only cover "domestic servants and employees in stores".

  67. Alan Bleiweiss  •  Mar 6, 2013 @9:01 pm

    if the deposition I'm reading (linked in comments) is what I think it is. holy crap. Page 121 Alan Cooper and "how do we wiggle out of that crap" and "John Steele = under bus".. IANAL but wow. Can't believe I'm reading this depo. It's like going on forever. :-)

  68. Alan Bleiweiss  •  Mar 6, 2013 @9:02 pm

    And for the record, PopeHat, you're awesome! #JustSayin

  69. That Anonymous Coward  •  Mar 6, 2013 @9:03 pm

    When one compares ones business plan to mortage-backed securities how do you not expect it to end in tears?

    So my guess is…
    John Steele, in the Salt Marsh, with the Lutz
    Oh we ain't playing clue? damn…

  70. Shane  •  Mar 6, 2013 @9:03 pm

    It's not redacted, it's highlighted. I can read all the yellowed text on my iPad.

  71. G Thompson  •  Mar 6, 2013 @9:10 pm

    That deposition…. ummm WAT! o_O

    Oh and if this article series isn't going to be part of a case studies in law schools world-wide (well I'm going to push for it) after this case is over I'll eat a pony!

  72. Mark Lyon  •  Mar 6, 2013 @9:12 pm

    I don't understand the comments regarding redaction. The document has highlighting, not redaction.

  73. nlp  •  Mar 6, 2013 @9:37 pm

    Why do I think that Jonathan Torres (the lawyer in Florida who was talking on the phone and who was reamed out by the judge for not doing due diligence) is thanking his lucky stars for getting out of the case when he did?

  74. nlp  •  Mar 6, 2013 @9:45 pm

    Also, I'm sorry that Judge Wright did not include Sonny Leone in his list of people he wanted to meet up close and personal. I realize she would have to rush home from Bollywood, but I think she would add even more interest to the case.

  75. AlphaCentauri  •  Mar 6, 2013 @9:51 pm

    MR. PIETZ: When AF Holdings gets a settlement, who gets the money?

    THE WITNESS: Every dollar of it.

    MR. PIETZ: All I'm trying to find out is the owner of AF Holdings.

    THE WITNESS: Who.

    MR. PIETZ: The guy that gets…

    THE WITNESS: That's it.

    MR. PIETZ: Who gets the money…

    THE WITNESS: He does, every dollar. Sometimes his wife comes down and collects it.

    (apologies to Abbott and Costello …)

  76. lawcritter  •  Mar 6, 2013 @10:43 pm

    Ken,
    You are cruel beyond belief. I was sipping a cup of coffee when I say the graphic and the picture of Mr. "Saltmarsh." Now I must clean coffee off of my monitor and keyboard.
    You've hooked me. Which courtroom does Judge Wright preside over? I feel tempted to drive up from San Diego to observe.

  77. SJD  •  Mar 6, 2013 @10:44 pm

    Reduction/highlight confusion: don't read this document on Scribd: Scribd started mutilating documents recently, messing with fonts etc. In this documents it renders yellow opaque highlight on top of the text, totally covering it.

  78. Ken  •  Mar 6, 2013 @11:17 pm

    Post on the deposition is up.

  79. Rob  •  Mar 6, 2013 @11:37 pm

    Apologies for the borked link above, and thanks to those who provided alternatives.

    And, whew, that's quite a read.

  80. That Anonymous Coward  •  Mar 7, 2013 @12:34 am

    @Mark Lyon – some pdf viewers are rendering the highlighting over the word blocking them out. In the past in redacted records they just drew a block over the words letting them be selected, copied, pasted to notepad and instant unredacted document.

  81. bst  •  Mar 7, 2013 @2:50 am

    For those confused about the comments on redaction: When I click on the link to the PDF document to read it in my Firefox browser, I see some lines that look like they are redacted by being painted over in yellow. When I downloaded the PDF file and read it in Adobe Acrobat, the same lines just looked like they were marked up with a yellow highlighter. From the content of the text I could see in Acrobat, I would guess that it was intended to by highlighted, not redacted, and the error is in some software that does not display the highlighted text.

  82. Fred  •  Mar 7, 2013 @3:13 am

    Typo warning:
    >Judge Wright's Fateful March 5, 2012 Order: This brings us to yesterday's remarkable order from Judge Wright.
    I believe "Yesterday" was March 5, 2013 rather than 2012.

  83. Wayne Borean  •  Mar 7, 2013 @5:30 am

    From the perspective of Prenda Law, this order is what we call in the convoluted nomenclature of federal practice a Very Bad Thing.

    From the perspective of n inveterate court watcher, what we have here is a very entertaining thing, no matter how it plays out.

    Wayne

  84. babaganusz  •  Mar 7, 2013 @7:54 am

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

    ran it in our high school 'graphics courtyard'. good times.

  85. Dictatortot  •  Mar 7, 2013 @10:41 am

    Good Christ. I don't know the over/under for Ken's four "What will happen now?" options, but as ominous as things are looking for the plaintiffs, I wonder if there isn't a fifth he should have added:

    5. One or more of the summoned individuals attempts to beat a very hasty retreat from U.S. soil before Monday's court date.

  86. AlanF  •  Mar 7, 2013 @10:46 am

    I am in Los Angeles and don't have to work on Monday, so I would like to attend this circus. When and where should I show up?

  87. PK  •  Mar 7, 2013 @12:31 pm

    Info for the hearing:

    Monday, March 11 at 1:30pm

    Location:

    Hon. Otis D. Wright
    Courtroom 11
    312 North Spring Street (Downtown LA)

    Wish I could make it but excited to hear all about it!!!

  88. AlanF  •  Mar 7, 2013 @1:02 pm

    Thanks, PK. I'll be sure to show up early so I can get a good seat.

  89. Waldo  •  Mar 7, 2013 @1:17 pm

    Even as a lawyer, this is all quite confusing to me. The one thing that is crystal clear, however, is that Judge Wright is on the warpath. I don't know that Gibbs or Prenda have done anything illegal or unethical. I do know that I'd be shitting my pants if I were them however.

  90. James Pollock  •  Mar 7, 2013 @1:39 pm

    "I don't know that Gibbs or Prenda have done anything illegal or unethical."

    That's what the hearing is for.

  91. Matthew Cline  •  Mar 7, 2013 @1:50 pm

    Patrick: With the two postings by Ken, you've all but guaranteed that Prenda is going to send third party subpoenas your way for deleted posts, the IPs of all posters, etc, if they don't outright name Ken as Doe 3.14159….

    Well, in that case…

    Dear Prenda:

    Your mother was a hamster, and your father smelt of elderberries!

    (Sorry, Patrick)

  92. Kensington  •  Mar 7, 2013 @1:50 pm

    What confuses me in all of this is that I do not see any reason why they they needed such a bizarre and convoluted obfuscation scheme in the first place. Let us say, for example, that Steele and Hansmeier are and have been the sole owners of the "mystery trust" all along. Why would they need to hide the fact that they are indeed representing their own interests in court ("fool for a lawyer" commentary aside)? It seems like this whole game of "thermonuclear chicken" (I *so* need to appropriate that term) with Wright is going to come crashing down on their heads explicitly BECAUSE they've been playing stupid shell games with their own standing in the case.

    I for one do not see any issue with copyright holders vigorously defending their property, and I don't even have a problem with someone creating a business model out of monetizing that defense for profit. If S&H (in this example) want to buy porn flicks so that they can make money by suing BitTorrent users who pirate the movies, how is that wrong? (Yes, yes… It is a really SCUMMY way to make money, but that's not my question.) To lose your standing in a case simply because you cannot or will not come clean about who actually owns the property — as happened in the Florida case — seems incomprehensibly stupid. Why would anyone do that?

    (I am leaving aside the issue of the IP addresses — which is the actual reason the California case got dismissed — for now. The subject is not nearly as salacious or awe-inspiring as the who's-on-first shell game that they brought on their own heads.)

  93. Alan Bleiweiss  •  Mar 7, 2013 @2:18 pm

    Kensington, as an armchair popcorn eating observer, first thing that comes to my mind is they obfuscated with all the shell companies so that if it ever hit the fan (like it's doing now) that at least some of the money would be hidden away and unreachable. In that scenario, if that's at least one of the reasons, it's possible they figured "if it all collapses, we'll just dust ourselves off and be financially set".

  94. JOP  •  Mar 8, 2013 @1:22 am

    @Steve H

    Probably not worth replying as this thread got 'jacked and was superseded by another post, but anyway.

    Angela Van Den Hemel is apparently something like a paralegal or clerk at Prenda (hard to say what anyone's job is on any given day over there though, some of them wear many hats and they don't necessarily identify themselves honestly). The reason Judge Wright wants to talk to her is because part of the reason Gibbs ended up facing this sanctions hearing that has spiraled out of control is because in a couple of related cases in CACD, the court stayed subpoenas to ISPs for subscriber information but Prenda continued to pressure the ISPs to respond and represented to ISPs that the subpoenas were valid. Brett was called out by Judge Wright and passed the blame up the chain to Van Den Hemel, who is responsible for nagging the ISPs.

    Subpoena shenanigans are something copyright trolls have quite a history with, including Prenda. One particularly shameless troll, Evan Stone (not affiliated with Prenda), actually sent out a bunch of subpoenas to ISPs after a judge denied his request for discovery and earned a $10K sanction and major tongue lashing. It sounds like Judge Wright is not impressed with Prenda's apparent indifference to whether or not discovery has been stayed in any given case.

  95. Psyborgue  •  Mar 8, 2013 @3:04 pm

    I did a google search for the title of the offending film. I can't find any evidence it exists. One would think that if it were an actual film, and were popular, it would at least be available to order from a website, if not a torrent site. One begins to wonder if the film exists at all.

  96. That Anonymous Coward  •  Mar 9, 2013 @1:33 am

    @JOP – You left off 1 little part of the Evan Stone story. After he sent out the subpoenas, violating the courts ruling, he was standing before the Judge still arguing why he should be able to send them out.
    It came out because someone targeted discovered they had representation already appointed to them… so they called them.

    @Psyborgue – If you read the deposition, it comes out that they are just "investing" by acquiring the copyrights that are "almost worthless" because of 'piracy', and they value will of them will go up as soon as they stop people sharing them… *blink*

  97. Tom  •  Mar 9, 2013 @6:28 am

    By the way:

    69.109.216.238 is pingable

  98. Psyborgue  •  Mar 9, 2013 @10:27 am

    @That Anonymous Coward.

    I haven't read the deposition yet but my point was more that if the movie was not available on the internet in either legitimate or pirate form, how could somebody have downloaded it? I mean in theory there should be a torrent somewhere, but i'm unable to find one anywhere for that name. Strange. I'm no lawyer, but perhaps there would be a way to request discovery of the film in order to verify it exists at all.

  99. Sharon  •  Mar 9, 2013 @2:46 pm

    I couldn't find any mention of the movie anywhere. The only relevant hits on that phrase "A Peek Behind the Scenes At The Show" were blogs discussing the case.

    At the very least, I'd expect to have a hit on some movie review site ("We give it Two Dicks Up!!") or porn's version of IMDB, maybe a porn industry magazine or video site mentioning the release of the video. Even if the video was later pulled from sale, I'd expect to see some hits along the lines of a cached merchant's page, perhaps with an "Out of Stock – sorry we don't know when it will be available again" note and page of reviews or commentary by previous purchasers, a la Amazon and the like.

    Not saying that it doesn't exist, but the complete lack of hits was … odd.

  100. Anonymous  •  Mar 10, 2013 @1:52 am

    @Sharon

    We may never know how Prenda's ultimate long term plans would have developed, but based on the way things seemed to be going with Steele's new shell companies, along with some fabulously indiscreet posts he made during a brief love affair with Twitter, it appears the next phase of his operation would be producing his own adult content to sue over. Whether it would have been made available for sale through legitimate streaming or DVD channels is open to speculation, those following Prenda's history assume he would produce this content for the express purpose of setting up honeypots on BitTorrent trackers and then suing anyone who downloaded it. With a completely vertically-integrated trolling machine, he would have total control of the decision making and the proceeds.

    The reason for all these machinations instead of just working with existing porn studios and "protecting" their works appears to be a combination of greed, ego and incompetence. Steele's pre-Prenda cases actually were brought on behalf of existing porn producers, particularly the enclave in Phoenix, AZ, but between drawing negative attention to the producers (who like to live a discreet lifestyle, especially when they appear to be violating the hell out of local laws) and Prenda's own incompetence it seems like their real clients lost their taste for copyright trolling. Prenda was failing to register the works they were suing over with the Copyright Office, harassing their targets, sometimes hounding people with multiple phone calls per day. They even went through a robocalling phase, using essentially debt-collection tactics, and there were some great blunders like dunning letters sent out printed with placeholders instead of the recipient's actual first and last name, and a campaign of sending out "informal discovery requests" basically asking people to incriminate themselves.

    Another thing that has been missed by people coming to the drama late is their CFAA (Computer Fraud and Abuse Act) lawsuit campaign. They found people who were sharing passwords to paywalled adult websites (not a cool thing to do, to be sure) but instead of deactivating the passwords they would keep letting people use them, then sue them, accusing them of "hacking" the web site, and making up basically just a complete load of BS legal threats that were not supported by the CFAA.

    A couple of particularly ill-conceived cases got their clients counter-sued and were settled in the Does' favors, then Prenda apparently got to the point where the couldn't get any clients but themselves, and thus we end up with the tangled web of shell companies that all seem to somehow or other actually be owned by Prenda's people.

  101. Anonymous  •  Mar 10, 2013 @1:59 am

    @Sharon

    We may never know how Prenda's ultimate long term plans would have developed, but based on how things seemed to be going with Steele's new shell companies, along with some fabulously indiscreet posts he made during a brief love affair with Twitter, it appears the next phase of his operation would be producing his own adult content to sue over. Whether it would have been made available for sale through legitimate streaming or DVD channels is open to speculation, those following Prenda's history assume he would produce this content for the express purpose of setting up honeypots on BitTorrent trackers and then suing anyone who downloaded it. With a completely vertically-integrated trolling machine, he would have total control of the decision making and the proceeds.

    The reason for all these machinations instead of just working with existing porn studios and "protecting" their works appears to be a combination of greed, ego and incompetence. Steele's pre-Prenda cases actually were brought on behalf of existing porn producers, particularly the enclave in Phoenix, AZ, but between drawing negative attention to the producers (who like to live a discreet lifestyle, especially when they appear to be violating the hell out of local laws) and Prenda's own incompetence it seems like their real clients lost their taste for copyright trolling. Prenda was failing to register the works they were suing over with the Copyright Office, harassing their targets, sometimes hounding people with multiple phone calls per day. They even went through a robocalling phase, using essentially debt-collection tactics, and there were some great blunders like dunning letters sent out printed with placeholders instead of the recipient's first and last name, and a campaign of sending out "informal discovery requests" basically asking people to incriminate themselves.

    Another thing that has been missed by people coming to the drama late is their CFAA (Computer Fraud and Abuse Act) lawsuit campaign. They found people who were sharing passwords to paywalled adult websites (not a cool thing to do, to be sure) but instead of deactivating the passwords they would keep letting people use them, then sue them, accusing them of "hacking" the web site, and making up basically just a complete load of BS legal threats that were not supported by the CFAA.

    A few particularly ill-conceived cases got their clients counter-sued and were settled in the Does' favors, then Prenda apparently got to the point where the couldn't get any clients but themselves, and thus we end up with the tangled web of shell companies that all seem to somehow or other actually be owned by Prenda's people.

  102. That Anonymous Coward  •  Mar 10, 2013 @9:56 am

    @Psyborgue – They acquired the rights most likely after the majority of the cash had already been made on it. Given copyright currently runs 120+ years or something silly and the life span of porn is typically much shorter than that… (exception to rule – Debbie Does Dallas the latest owner had hired Evan Stone… giggle).
    Its possible it had been off the market for a while. But they still hold the rights and if someone is out there trading it they are horrible peoples. But then that raises a questions in my mind.
    Whats the quality of the rip, using the hash to build a timeline of when it appeared first online, etc etc. If it was encoded with "newer" tech it means it was a recent rip… which would be a neat trick if its been off the market long enough.

  103. That Anonymous Coward  •  Mar 10, 2013 @10:38 am

    Whoops I chewed on my foot a bit. I confused this with some of the other copyrights they hold.
    Registration Number / Date: PA0001802629 / 2012-08-24
    Date of Creation: 2012
    Date of Publication: 2012-07-25
    Description: Electronic file (eService)
    So I am guessing this only exists as a digital file as some of the others held by I13 say DVD.

  104. That Anonymous Coward  •  Mar 10, 2013 @11:04 am

    @Sharon – If one were inclined one can use a hash to search the web to locate a location where one could download it using BT. The only hit on Google is from their own court filing posted. Someone more adventurous might then remote into another machine and create a trackerless magnet link for the hash, then add trackers. 2 seeds and 1 peer reported and 10 downloads recorded by 2 large public trackers… for a filehash not listed anywhere else.

  105. Sharon  •  Mar 10, 2013 @2:50 pm

    @That Anonymous Coward – This one is not so inclined, but is grateful for the interesting information.

    My purpose was mostly just idle curiosity "how much IS that video, normally, legal purchased etc?" and "how easy is it to find an illegal download?" … thus the cursory Google search.

    It looks as if, on the surface, a law-abiding Joe-wants-a-blow citizen going the typical plain-old-Google-search isn't going to find it available legally over the Internet, new or used, or even any sign that it ever was available for sale.

    If it's available for legal purchase now, whoever's selling it needs to fire their marketing department and SEO consultants. If it was available for legal purchase online in the past, whoever had it has done a spectacular, enviable job of cleaning up every last trace and cache. I know people who'd pay big bucks to get that kind of erasure of certain other information. :)

    So it seems as if the only way the video is available to anyone nowadays is if they are savvy enough to go searching for it in a specific way and download it illegally.

    No wonder the claimed owners can't place a value on the item *rolling eyes*

  106. James Pollock  •  Mar 10, 2013 @3:50 pm

    It's also possible that the file is torrented under a completely different name, or several completely different names.

  107. That Anonymous Coward  •  Mar 11, 2013 @1:47 am

    @Sharon – One can query a tracker without actually getting any portion of the file.
    There is a line from one of the first versions of the lawsuit over this movie. They stated that I13 had acquired the exclusive rights to distribute the file on Bittorrent. But I13 is listed as having full ownership of this work for hire made for them.
    There should be serious questions raised by the Copyright Office as to where this content was first released, and why there is no retail outlet known to Google, Bing, etc. that offers it.
    something something make a video, stick online, profit, something something…

    If you add "magnet:?xt=urn:btih:" before the hash the file begins to download. You can embed that as a blind clicky. If someone has a BT client installed that supports magnet links (or the Opera browser) it will just start the download if you use the default install options. You could hit a link disguised as something else and until it actually get the filename from the seeds you'd never know. The title is innocuous so you might just let it run. A Google search of the name isn't going to tell you its porn.

    This reminds me of another famous troll who was trying to collect from people who ended up downloading his clients pron, they might have been trying to get something else as that network allowed multiple file names to be assigned to the same file. So even if you wanted to claim you weren't trying to get that pron you had to admit you were after someone elses content… and well that would look awesome in court wouldn't it? There were always questions about who was renaming the files and how they got there, but it was very profitable for a while.

    @James Pollock – You could rename it all sorts of things, but using the Hash provided in their court filings points to no hits in any of the major BT search engines. If this file is being 'stolen' by pirates costing them millions of dollars why can I find no trace of it in the largest torrent indexes? Why can we not find it offered for sale? Why can we find nothing promoting it? Why did no DMCA notices come up on a title search, when you can average at least 10 for every 'popular' title?
    If not for wanting to avoid being the target of Prenda again, I would have started the magnet link and recorded the 3 reported IP addresses and looked into where they are and attempted to figure out who the source of the files is… I might have a suspicion, but the law stops me from finding out lest it punish me as an evil pirate.

  108. James Pollock  •  Mar 11, 2013 @8:17 am

    "the law stops me from finding out lest it punish me as an evil pirate."
    Actually, I don't think it would, because the fair use analysis would go your way… you don't copy the whole file, you have a noncommercial purpose, and you have no effect on the marketability of the work.

  109. That Anonymous Coward  •  Mar 11, 2013 @9:00 am

    @James Pollock – It is a copyrighted file and it would be wrong for me to 'steal' any portion of anothers property. Mostly I just want to avoid the Prenda robodialer.

    I've had enough of lawsuits this last week.

    I gave all of the instructions anyone would need if they wanted to do the research and report the findings. A list of the IPs seeding the swarm could prove to be enlightening. The shame is I am unaware if there is a way to see how long they had been seeding the file, had they been seeding the file from the beginning of all of the cases based on that hash it would raise a serious question about why they were never investigated.

  110. Erik  •  Mar 11, 2013 @9:51 am

    Wow. I'm on page 135. This is getting good! Better than fiction. You can't make this shit up. What a weasel this guys is!

  111. James Pollock  •  Mar 11, 2013 @11:12 am

    "It is a copyrighted file and it would be wrong for me to 'steal' any portion of anothers property."

    "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, … is not an infringement of copyright." 17 U.S.C. 107.

    Steering clear of the grinding wheels of legal process is understandable. But I think joining the swarm just long enough to log the IP addresses of the seeders of the swarm, is probably not an infringement of the copyright. If you were willing to fine-tine the firewall, you could even ensure that you didn't distribute any part of the file nor make any copies, while still capturing the source IP addresses of the packets from the seeders.

  112. That Anonymous Coward  •  Mar 11, 2013 @11:31 am

    @James Pollock – I was always jealous no Judge had ever mentioned me in a footnote, SJD and DTD both have mentions. It is another thing entirely to see my avatar staring back from 3 different lawsuits.

    The courts are currently split on that issue, as many of the tracking "firms" only have a single snapshot (that fails to prove the entire file was downloaded) or have multiple snapshots and attempt to portray each incident as a separate infringement.

    My curiosity can't overcome my desire to protect myself.

  113. Psyborgue  •  Mar 11, 2013 @1:51 pm

    I've kept looking over these past few days and can't find the movie anywhere. You can search for the film all you want on google, The Pirate Bay, even private trackers, and I don't think you're going to be able to find it. I have come to believe it does not exist, and here's why:

    1. If it existed, you would expect it to be on Ingenuity 13's website. I can't find such a site or mention of the film outside the context of this case. Sure you could say perhaps it existed at some time and was then removed but then:
    2. If the movie existed at one point and was removed from circulation, as somebody mentioned above, why are there no reviews? Why is there no mention on the IAFD's website (IMDB for pr0n). Most of all, why is there no torrent / magnet link on The Pirate Bay or another private tracker. TPB is notorious for not responding to takedown requests. Unless the torrent died, which does happen, it should still be up there. Even if it did die, other sites which link to the pirate bay should still have some sort of record. Try searching for something really obscure and old. You'll generally find at least one torrent or magnet link.

    There are two possibilities as I see it. The movie existed at one point, in both legit and pirate form, and was magically erased from the internet with such efficacy that I don't think anybody here or in the tech community has ever seen, or it never existed at all except on paper (certainly not in digital form). I find the latter to be far more likely.

    I'm not about to say flat out that Prenda lied and the movie was made up out of whole cloth to extort money from random IPs, but it's certainly a distinct possibility, and given the behavior they've apparently exhibited so far, i'd say it's an avenue worth investigating.

  114. Alan Bleiweiss  •  Mar 11, 2013 @7:18 pm

    @Psyborgue I object! Misleading. Contradicts previous testimony. Compound question. Character assassination. Argumentative. Already answered.

  115. That Anonymous Coward  •  Mar 15, 2013 @1:40 am

    @Psyborgue – I located the file on TPB. I'm very confused by it not showing up before and suddenly I'm getting hits.

    It appeared on TPB 4 days before it was registered with the Copyright office and one of the lawsuits was filed less than a month later.

    The file is 12 minutes long and comes in at nearly 1 GB in size. This is ridiculously oversized for video. Its stored in WMV.

    'Alexis Texas s_s and f_s at a porn show' is the title on TPB, i've taken the liberty of editing out 2 obvious words.

    12 minutes of a porn star sleeping with random fan from a show is worth thousands. Isn't copyright amazing!

    I have no interest in looking further but now you know the star of the movie maybe someone can find out where it was for sale… or Jimmy Hoffa which ever you find first…

  116. Delvan  •  Mar 15, 2013 @9:23 pm

    Interesting. She has only one entry on IAFD for 2012, for a Bang Productions film ("Girls of Bang Bros 10"). The "porn show" in the filename can't be from her NightMoves award that year, that ceremony was in October. Unfortunately, she's been in 400+ movies, so its probably not as simple as firing off an email and asking if she was in any other 2012 videos. No results for Alexis Texas "A Peek Behind the Scenes at a Show" (the actual copyrighted title of the file).

    I'd go see if her website has a list of her work on it that's more up to date than IAFD, but I've probably set off enough red flags on my work network googling that movie already.

  117. That Anonymous Coward  •  Mar 15, 2013 @10:36 pm

    @Delvan – There is an interview with her done by Adam and Eve at AVN awards of some sort on YouTube and in the interview she talks about having gotten there and already shot a scene where she slept with one of her fans… which is what the 12 minute video claims to be.

  118. Delvan  •  Mar 16, 2013 @12:34 am

    A hash is one way: it will always point to the same file, but it tells you nothing about the contents of the file. The file names for said hashes aren't great either (one hash points to "PD.avi"), so far only a SINGLE one of those hashes I've found in their paperwork had some kind of *.nfo or *.txt file to go with the media. Even if the Doe was knowingly downloading that torrent its fuzzier than I thought whether they knew what they were actually downloading. Torrents are not exclusive to pirates, there's plenty of free adult entertainment out there on that Interwebs…I can't verify it from where I'm at right now, but I'd have to guess that applies for the torrents that are out there too.

    The other question, which we've sort of talked around, does that torrent *actually* point to a copyrighted work? Does the owner of the copyright (who could, therefore, legally download the torrent) have any obligation to show the torrent a Doe is connected to is for the copyright they claim? The public filings often mention the hash, but you need the preimage (the file) to know what the hash is actually for. I haven't seen any examples of their evidence beyond "this IP, this hash", but I'd love to see it if its out there.

    If they aren't obligated, if they only have to point to a *.torrent file posted somewhere (which you can rename to anything you like without changing what the torrent points to), what is the Doe's defense options here?

    1- If they *did* download it before the trial and they still have the file, they could bring it to court to show it isn't said work and that the hash matches. Could be a lucky break if they were *trying* to pirate the work and got duped by a fake file, or lucky break if they thought the file was something else and got duped, except in both those cases they would have deleted the file, right?

    2- If they weren't the ones on the torrent at all, or they connected to the swarm but didn't download the file (or 1, above, but they deleted/didn't finish), the only way to establish if said file is said work would be downloading the file and viewing it. How many innocent Does will risk pirating the file they were already charged with stealing? How many innocent Does won't mind watching some porn long enough to verify its the porn they were charged with stealing?

    Its late…I'm probably ranty. Sorry 'bout that.

  119. That Anonymous Coward  •  Mar 16, 2013 @1:44 am

    @Delvan – Trust me I know ranty, I've been at this for a while.
    There is also using magnet links with just a hash to dl from the BT network. The filename doesn't have to appear in a magnet link, and unless its explicit in its title, someone could be unaware.

    As these are civil cases the burden of proof is more likely than not.
    Several trolls have taken the position that if you know what a BT client is, you must have done it.
    If your proficient with computers, you must have done it and hidden the evidence.
    If your male, you must have done it.
    If your household contains a make of the right age, you/they must be guilty.
    If you downloaded even 1 block, you must have downloaded the whole thing.

    These cases are built on the grounds of we said so, and we have this 'technology' that supports our claims so we are right.
    It costs more to try and defend yourself, if they ever bother to serve you.
    Some lawyers 'assistance' is telling clients to settle, and they will get a better price for you… except now your out that fee and the settlement.

    These cases are completely lopsided, and some courts still rule that alleged Does have no standing to raise any issues with the case until they are named… or out themselves to the troll in filing to attempt to raise issues, only to be told those should be decided at trial.

    Its a crazy world.

  120. Albert Einstein  •  Apr 17, 2013 @3:13 pm

    Brigham & Colette Field – Lipscomb – Lipscomb, Baker & Eisenberg P.L- Malibu Media LLC & Streisand effect

    does Lipscomb think the Courts & community have been distracted by Steele's/Prenda & goons ?

    http://dockets.justia.com/search?query=Malibu+Media%2C+LLC+

    Cases filed matching "Malibu Media, LLC "
    Display as Search Results
    Cases 1 – 20 of 701

    "Insanity: doing the same thing over and over again and expecting different results." ~ Albert Einstein

  121. Delvan  •  Apr 17, 2013 @5:04 pm

    In defense of Malibu's sanity, they have been doing the same thing over and over, and expect the same results: bleeding people dry with damages that do not fit with the scale of the infringement (and, of course, lots of questionable practices on whether they're suing the actual offender, what evidence they actually have to suggest that, how they got that evidence, etc.)

    However, last I looked their newer cases were only against Does alleged to have pirated multiple works over a long period of time. Seen any single-infringement Does named recently by them?

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