Prenda Law's Attorneys Take The Fifth Rather Than Answer Judge Wright's Questions

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227 Responses

  1. doeknob says:

    Does anyone thing its weird that they got the paralegal to plead the fifth with them? You'd think she'd just want out if at all possible…

  2. James says:

    Great on-going commentary and analysis. Thanks for your coverage.

  3. TexasAndroid says:

    Ho-ly crap. Wow. Just….. wow.

  4. John Henry says:

    "the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution."

  5. Josh C says:

    How many other judges can sanction them for similar conduct? Is each lawsuit filed a separate misbehavior, or is Prenda shielded by the fifth ammendment from anyone other than Judge Wright's sanctions?

  6. Jose Fish Taco says:

    Absolutely fantastic.

  7. rob says:

    Prenda Law may still be standing. But it's dead.

    OK, will somebody with graphics skills do a Zombie Prenda please? :)

  8. z! says:

    Wow. Simply wow. At this very moment, defense attorneys around the country are writing briefs and "take judicial notice" papers for their Prenda-ized cases, and within a year law school ethics classes will be performing detailed studies of the whole mess.

    I look forward to reading the transcript.

  9. John Ammon says:

    Huzzah!

    Everyone knows that pleading the fifth really means you're guilty of everything the person said :P

  10. Vernon Vincent says:

    Holy Crap is right! It's for times like this that the word 'schadenfreude' was invented. You can't buy this kind of entertainment – even on Pay Per View.

    [Begin snark]
    And what kind of name is John Steele anyway? Sounds like a low-rent porn star. What's his son's name? Damascus?
    [End snark]

  11. Aelfric says:

    For what it's worth, I am a lawyer, though in New York, and I don't know a lot about Minnesota law or any of the other jurisdictions herein. That being said, I cannot see any way state bar investigations are not now launched, and do not lead to suspensions if not disbarment–especially if these folks continue with their dilatory/obfuscatory behavior. Unless there is a far more innocent explanation than I imagine, there will be two choices: confess to the attorney discipline bodies or don't cooperate. Neither seems a good option. Happy to hear from those who know more.

  12. Josh says:

    "Prenda Law may still be standing. But it's dead."

    I'm waiting for the now almost obligatory Zombie Prenda reference now.

  13. Jim Tyre says:

    To add one thing: Peter Hansmeier and Mark Lutz (neither of whom had counsel, as Ken says) were not asked by Judge Wright if they would testify or invoke their Fifth Amendment rights. Unfortunately, then, we don't know what they would have said if asked.

  14. IANAL says:

    So, hypothetically, what if they just start brand new entities and put forth fresh new lawyers forward, with them operating behind the scenes?

    Let's hope the prosecutors take the referral if it's offered, as expected.

  15. Dave says:

    "the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution."

    One of the sweeter sentences I've ever read in the history of the English Language.

  16. jfb says:

    Is there a possibility of a class-action suit against Prenda on behalf of the Does who've already settled? Or would the shenanigans in court not have any bearing on the copyright issues?

  17. MattS says:

    When will this end? The world wide popcorn supply is running perilously low.

  18. anon2013 says:

    "John Steele looked conspicuously slick and immaculate in an impeccable suit, like a corporate executive in a bad Robocop sequel"
    LOL

  19. Lucy says:

    "…Judge Wright marched out and took the bench. Before he sat he strode back and forth once behind his chair, surveying the gallery and running his tongue over his teeth."

    Beautifully written. Peter and Paul both look like high school sophomores according to their pictures. The rosie cheeked big leagues.

    Thank you.

  20. MattS says:

    "Moreover, he likely now has an irreconcilable conflict with his putative client. He may seek to withdraw before April 18."

    It would be really funny if the judge in that case refused to allow him to withdraw on the basis that the client is fictional and therefore there is no conflict.

  21. MattS says:

    Vernon Vincent

    "And what kind of name is John Steele anyway? Sounds like a low-rent porn star. What's his son's name? Damascus?"

    It would be funnier if his son's name was Remington.

  22. Nate says:

    Ken, if you and your daughter ever go into screen play writing, I think the result would be fantastic. This is amazing.

    If someone is disbarred, can they ever be readmitted to the bar in the same or a different state? Or does it depend on the circumstances?

    If there is a class action lawsuit against Prenda what are the odds Paul Hansmeier files an objection on behalf of his third cousin twice removed?

  23. Average Citizen says:

    What is really concerning to me is that Paul Hansmeier appears to have learned nothing from this ordeal. He is now actively promoting himself as a class action settlement attorney. In other words, he is thinking about the next way to play the system to make himself lots of money. What he should be doing is trying to rehabilitate himself. He should hunker down and follow the lead of the vast majority of lawyers who make a good living, but aren't compromised by a desire to be rich. In my opinion, Paul is focused on the ends, at the expense of the means. Work hard. Make a good name for yourself. That's how opportunity will happen. Most young lawyers aren't nearly as smart as they think. Some are able to take a unique path and do well. Paul does not appear to have the professional judgment to succeed when he follows his own career ideas.

    The fact that he is looking for the "next big thing" – and knowing what he is willing to do to make a "score" terrifies me. Even the big leagues has rules and referees. He needs to learn to govern himself accordingly.

  24. Kirk says:

    As a tax guy, I'm quite curious as to the IRS guys presence. You might be surprised how much power a revenue agent has…

  25. John Regan says:

    Again, not to rain on the parade, but these guys are easy targets. I'd be much more impressed if public prosecutors or attorneys for, say, too-big-to-fail banks were called on the carpet by a federal judge over some of the crap they're prally doing.

    And the judge is maybe a bit too partisan here for my tastes.

  26. OngChotwI says:

    You mention Prenda's dead.. and while it's quite likely their careers in law are past tense; what's stopping these horrible examples of lawyerdom from starting a new company as corrupt civilians, and hiring a new set of Gibbs to continue this charade in the near future?

  27. TomB says:

    "How many other judges can sanction them for similar conduct? Is each lawsuit filed a separate misbehavior, or is Prenda shielded by the fifth ammendment from anyone other than Judge Wright's sanctions?"

    It's judges all the way down……

  28. Jon says:

    Is there any portion of the death of Prenda that can be used as precedent in similar/future cases? It seems that they are taken to task for the concealment/fraud aspects, but is the model, unctuous as it is, still viable for others to pickup the torch and run with it?

  29. Ygolonac says:

    And now, the teaser trailer for:

    H. P. POPEHAT'S

    THE DOOM THAT CAME TO PRENDA

    Installments coming nationwide this summer…

  30. vb_techie says:

    I'm not sure who to send more man-love to: Judge Wright for (once again) not taking any crap or Ken for his awesome write-up.

  31. Ygolonac says:

    It could also be done in song.

    After all, everyone know that Judge Wright was a Steele-drivin' man…

  32. Mike C says:

    Wow…just…wow. Incredible write up and I'm on the edge of my seat anticipating Judge Wright's order to follow. That being said, I'm surprised you didn't use your awesome description from Twitter to describe Judge Wright: "incandescently angry"

    Seeing a Federal judge that angry would probably…no..definitely have me looking for a new pair of shorts… lol

  33. Dave says:

    Yeah, I can see myself using "incandescently angry" in the near and far future.

    Wow, just…wow. "Plaintiffs" pleading the Fifth. Wow. That seems "off", though IANAL.

  34. AlanF says:

    I was there this morning, and Ken's report is better than anything I could have written. He didn't miss a detail, and his choice of words is perfect. Thanks, Ken!

  35. N. M. Easton says:

    So, does anyone care to speculate why Wright didn't bother to question the other parties he'd ordered to show up?

    Did he just assume they'd also plead 5A, or is there some more arcane reason I'm not getting? Because if I were him, I'd have made every one of them plead the 5th, on the record, before I let them go.

  36. mcinsand says:

    As officers of the court, attorneys are required to be able to answer the questions that the Honorable and Awesome Judge Wright was asking. To repeat, a requirement for being an attorney is to be able to account for these things to such an extent that responding a way to have any allegations dismissed in a single filing should have been a trivial effort. Although an attorney can claim the fifth as a civil right as a person, my understanding was that, on some court-related issues such as these, the attorney aspect of that person has no right to be silent.

    Please correct me where I'm wrong.

  37. Alan says:

    @John Ammon- not sure if you're being sarcastic, but not really. We've seen, often through Ken's writings on this same site, how prosecutors and police can take innocent statements and twist them. I believe Judge Wright already had more than enough evidence to punish them, and that the USAs have enough to prosecute. No one needs to draw any adverse inference from taking the Fifth to find sanctions are warranted here. Instead, Judge Wright gave them an opportunity to explain themselves, and was fairly generous about it.

    @Nate- depends on the circumstances and the state. Generally, an applicant is required to report prior disbarments in an application for admission. It's certainly big points against you, but if you show sufficient remorse and evidence of rehabilitation, you can get past it. Many attorneys have practices focused on representing applicants in front of licensing bodies, and what is required for each individual will vary based on jurisdiction, facts, and preexisting law.

  38. Tali McPike says:

    By the time I get to law school (if I do in fact decide on that route instead of a PhD in History), this case will be written into the text books. It will be enjoyable to read/study this case and be like "I remember this. I followed it closely" and will shun any classmates who think this stuff is "boring"

    Although I am disappointed that it was all over so quickly today. I was hoping for some MAJOR drama

  39. Mookie says:

    Another lawyer here, though this is far from my field of practice. I'd like to hear a little more about how the 5th Amendment pleas can be used in the civil cases, particularly Cooper's suit.

    New permanent Pope Hat reader here. Your Prenda coverage has been spectacular.

  40. Stunned silence says:

    I am pleased to hear that pleading the fifth will not save them but I grave misgivings about the ultimate effectiveness of anything the judge will do. Red John has a disturbing ability to manipulate (apparently) feeble-minded lawyers and get them to do his bidding even to the point of career suicide. He will come back in some fashion
    if he is willing (and able) to hide from the spotlight.

  41. Frankzzz says:

    @Doeknob The paralegal may or may not be on the hook personally, as Ken's March 11 article says she was still contacting AT&T concerning the Prenda subpeaonas even after Judge Wright ordered them to stop. No telling what else they may have had her doing behind the scenes. Is she related to somebody else in the Prenda crowd? On the hook or not, she definitely is sticking her neck out by staying with them.

    @Kirk IRS guy? What IRS guy?

    How long before we can expect an order from Judge Wright?
    2-3 weeks? 1 month? 1 week?
    Will that order detail everything he's doing, such as referrals to the various bars and US Attorney's office?

  42. Rusty says:

    MattS said: "It would be really funny if the judge in that case refused to allow him to withdraw on the basis that the client is fictional and therefore there is no conflict."

    Might be even more entertaining if the judge makes him prove that there is a conflict.

  43. Average Citizen says:

    Keep in mind that the 5th Amendment has its limits. Is there any reason why the Judge could not take judicial notice of the fact that there was no legitimate "Alan Cooper" in the courtroom?

  44. mcinsand says:

    @Stunned Silence

    I don't think there was any chance of Prenda's Perps saving themselves; this was just a matter of Judge Wright being appropriately diligent. The judge has learned a lot in these proceedings, and giving them a chance to correct him will only help his rulings stand during any appeals. Furthermore, it will only hurt the Perps' chances of any future in the legal profession.

  45. James says:

    I am not an international tax guy any more, but I used to be. There are two issues that I would be worried about if my last name was Steele or Hansmeier. First, if you have signature authority over a foreign bank account that AT ANY TIME during the year, even for a few hours, had $10,000 on deposit then that is a disclosable item even if you are not the beneficiary. So if these mystery trusts were receiving money, who was authorized to disperse the money to pay Prenda their fees?

    Secondly, and potentially more serious, is that money earned through a foreign entity for services rendered is fully taxable in the year it is earned at the full US tax rate (see Subpart F on Foreign Based Company Services). Unlike a manufacturing business, there is no opportunity to defer taxes on foreign source passive income and that includes professional services, pr0n film royalties, and damages in lieu of royalties. Structuring your affairs through a series of foreign entities is perfectly legal, but failure to report that income on your partnership or personal return is called tax evasion.

    In tax court the Commissioner of Internal Revenue is PRESUMED to be correct and you, the taxpayer, have to disprove his assertions (so long as it is a civil and not a criminal matter). So the IRS can simply assert that all money received in all the Prenda lawsuits belongs to Steele and Hansmeier personally and present them a bill for tax, interest, and penalties and lien everything in sight if they don't cough up. Of course Prenda can rebut the presumption that the commissioner is correct, but then they would have to produce an actual client and bank records as proof and they seem to have some memory lapses in those areas. Anybody seen Alan Cooper lately? Anybody?

    As Mr. Mackey would say "tax evasion is really bad, M'kay?"

  46. Aelfric says:

    mcinsand–Again, lawyer here, but well outside my expertise. Still, I would say that it's not a matter that lawyer's can't invoke the fifth amendment, it's more that doing so in their capacity as lawyers is presumptive proof that they have violated the high ethical standards of the profession.

    And Tali McPike/others: I actually highly doubt that this case will ever be represented in standard law school text books, for a simple reason, namely, it's flagrant. Textbooks, like cases themselves, head towards the closer calls. In my ethics class, this never would have come up, simply because who can argue Prenda has a defensible decision? "Do not commit multiple frauds on the court" should not have to be a focus in law school. But, I am wrong a whole lot.

  47. Aelfric says:

    Urgh, position, not decision above!

  48. Frankzzz says:

    I found mention of a tweet saying an IRS agent would be at the hearing, in the first trackback article, but I see no other mention of it.

  49. Jim Tyre says:

    N.M. Easton:

    I was there, and am a lawyer. Ken or others may disagree with me, but I think Judge Wright lost sight of the fact that statements made by the lawyers for the other folks did not apply to Peter or Mark. He should have inquired of them, encouraged them to get counsel, something other than silence.

  50. MattS says:

    Rusty,

    Proving the conflict probably wouldn't be that hard unless the judge also makes him prove the client really exists.

  51. Aelfric says:

    Jim Tyre–Obviously I was not there, and so would defer to you, but it seems to me Judge Wright's focus right now is on sanctioning the attorneys qua attorneys–and not on parties. Thus the unrepresented folks might have been useful for developing facts, but once it became clear the attorneys were pleading the fifth, they were more or less unnecessary. But, again, happy to hear from those who know more!

  52. Random Stranged says:

    "My clients have a right to a reasonable opportunity to be heard," Ms. Rosing protested.
    These are the same clients who immediately prior to this had declined the opportunity to be heard?

  53. Kevin says:

    FYI, the Ars Technica writeup, though it doesn't contain much new information not covered here, is worth the clickthough if for no other reason than the accompanying graphic. It's quite full of win.

  54. Anonymous says:

    @Aelfric

    There is evidence to suggest that the University of Minnesota needs to add such a basic ethics lecture to their curriculum.

    Maybe Steele and Hansmeier can have second careers as guest lecturers, teaching young lawyers what not to do.

  55. Erbo says:

    I think Judge Wright has just reached DEFCON 1.

    TARGET SELECTION…COMPLETE
    TIME ON TARGET SEQUENCE…COMPLETE
    YIELD SELECTION…COMPLETE

    *** AWAITING LAUNCH CODES ***

  56. czak says:

    @Kirk "As a tax guy, I'm quite curious as to the IRS guys presence. You might be surprised how much power a revenue agent has…"

    Canadian tax guy here – can you americans plead the fifth in the face of an IRS audit? Our version of the fifth (sections 7 and 8 of the Charter) do not protect against the revenue agency's powers to compel testimony and information during the course of a tax audit – provided it is done in a regulatory and not a criminal context.

  57. Jim Tyre says:

    Maybe Steele and Hansmeier can have second careers as guest lecturers, teaching young lawyers what not to do.

    There's a fairly well known and well respected California ethics lawyer named John Steele. I'm told that he's not the least bit happy about the bad publicity surrounding the other John Steele. (Though it would have been amusing, shades of Alan Cooper, had John Steele retained John Steele.)

  58. Jon says:

    I was also there, and while Ken's writeup is excellent, there was one classic Judge Wright moment he didn't mention: Mazzuco (Steele's lead lawyer) at one point said he would "rebut these statements in the proper venue" — at which point, Wright raised his arms expansively, indicating his courtroom. Again, as Ken notes, the lawyer wasn't biting on Wright's generous offer.

    Before the hearing, I spent a few minutes reading some of the March 11 transcript (I wasn't at that hearing), and I can confirm that Wright is even more of a badass than I thought.

    I also found it odd that Rosing (and her colleagues) were representing Duffy, Van den Hemel — and Prenda Law. In other words, that she was representing Prenda, when Steele had 2 or 3 other lawyers there that I would have expected to do so. I guess this was a further attempt to continue the claim that Prenda is not the same as Steele.

    I got the impression that Judge Wright was just so fed up with the evasiveness that he decided not to bother with Lutz and Peter H. Or maybe he thought they were a sideshow to the issue at hand.

  59. Frankzzz says:

    @Jim Tyre
    Someone else tweeted that during the hearing Rosing said Lutz and Peter would take the Fifth:
    https://twitter.com/goodreverend/status/319141117901803520

  60. MattS says:

    Random Stranged,

    Which probably explains the judges rather exasperated reaction.

  61. Lucy says:

    Whatever happens, I hope changing their name or adding more shells doesn't help them get away with any more shenanigans. Anti Piracy Group was the newest Prenda.

    A rose by any other name…

  62. Shane says:

    Is the March 11th transcript available for viewing somewhere?

  63. Jon says:

    Oh yeah – and there was one question Rosing answered: She is not aware of another Alan Cooper besides the one that attended the March 11 hearing.

  64. MrMike says:

    Time for an immunity from prosecution deal for one of the defendants to tell the whole truth and nothing but the truth and watch all of the others scramble for to save their own hides.

  65. In response to a friends request for background, here's the whole thing in 100 words or less:

    Prenda sued or threatened to sue for copyright violation in various courts, offering to settle for thousands. One guy fought back. In federal court his lawyer called their methods extortion and showed evidence they might not even have a client. In depositions Prenda stonewalled and sneered. Judge Wright formally asked about their client and who directs their efforts. As officers of the court they must answer. Prenda stonewalled. Wright ordered them to answer or explain why they shouldn't be sanctioned. Prenda didn't show, stonewalled. Wright got a bigger hammer. Prenda showed and pled the fifth rather than answer.

    I'm so proud. :-)

  66. MattS says:

    Judge Wright is currently requisitioning a cluetron bomb from DoD. :-P

  67. GrimGhost says:

    Everyone else here seems to think that it's only a matter of time before the Prenda folks are stamping out license plates and/or flipping burgers. I don't share the optimism.

    Seems to me that between invoking "attorney-client privilege" for AF Holdings, and invoking the Fifth, the Prendaers can pretty much stymie any investigation. So then how does the US Attorney prove guilt beyond a reasonable doubt?

    They've done a great job so far, of gaming the system. Why should that not continue indefinitely?

  68. Jim Tyre says:

    @Jim Tyre
    Someone else tweeted that during the hearing Rosing said Lutz and Peter would take the Fifth:
    https://twitter.com/goodreverend/status/319141117901803520

    Adam was there, and it's possible I missed her saying that, but I don't think so. (Adam?) In any event, since she was clear about who she did (and didn't) represent, her statement (if made) about what Peter and Mark would do would have no more significance than if I made a statement purportedly on their behalf. I was there, I'm a lawyer, but I don't represent them, and neither does she.

  69. @Rusty I am a criminal defense lawyer practicing in California. It has always been my understanding that if I declare a conflict, the court cannot compel me to "prove" the conflict, since to do so I might be required to reveal attorney-client-privileged information.

  70. Rusty says:

    MattS said: "Proving the conflict probably wouldn't be that hard unless the judge also makes him prove the client really exists."

    Exactly my point – I suspect the second part would prove impossible. Hopefully the judge won't let him off the hook with a mere statement as to the existence of a conflict. Especially in light of the [lack of] veracity of other Prenda statements.

  71. Rusty says:

    Rick H. – thanks for the explanation. That sucks inasmuch as Prenda & Co doesn't seem to be able to be taken at their collective word on very much.

  72. Perfect Stranger says:

    Oh Oh Oh…..unflippin' believable…..many thanks and kudos to you for such a fabulous writeup..

    Can we expect a 2 hour Judge Judy special this summer?

  73. Delvan Neville says:

    @Frankzzz Perhaps @Kirk is referring to Paul & Peter's brother Mark Hansmeier, who is a revenue agent with the IRS.

  74. Dan Weber says:

    Is the March 11th transcript available for viewing somewhere?

    I think it's document 93 in PACER. I see a bunch of notes that there are dates where people can get things redacted, so we might have to wait for those deadlines to pass so people have a chance to hide private and sensitive information.

  75. Kirk says:

    @Frankzzz: Some post or another mentioned a tax guy was or was planning to be there.

    @czak: The 5th does no good at an audit, you are attempting to prove the legitimacy of your tax deductions and staying silent is inneffective. You can plead the 5th in the face of criminal charges, or when criminal charges may seem possible, but it won't help you validate your tax return.

  76. Charles Buckley says:

    "Seems to me that between invoking "attorney-client privilege" for AF Holdings, and invoking the Fifth, the Prendaers can pretty much stymie any investigation. So then how does the US Attorney prove guilt beyond a reasonable doubt?"

    There is no attorney/client privilege in a conspiracy situation where the attorneys are in a position of providing legal council to avoid the law. They are co-conspirators. And, conspiracy can be proven solely on the basis of the money trail and provable points. ie, if you have a set of dots and the only way to connect them is via a criminal conspiracy, they are toast. ie, identity theft, money transfers only to members of Prenda Law and close associates, attempted intimidation of witnesses. What would be the reasonable inference?

  77. JohnnyCage says:

    Here's something I've been wondering: could defendants, who have previously settled out of court with Prenda & associates, sue these lawyers for recovery of their settlement payments? If the settlements were obtained through fraud and it seems there's at least a tacit admission by the Prendae(TM) that they were, wouldn't they have a fairly good case? If so, it seems like it'll be a race to the courthouse.

  78. Jon says:

    @Shane – you can read it on a terminal at the courthouse – but no printing, mailing, taking pics, or anything like that until June.

  79. ek says:

    Frankzzz/Jim Tyre:

    I was there and I'm 99% sure no statement like that was made.

  80. Shane says:

    @Jon – sadness. I'm two states to far north, so that won't be happening for a while.

  81. dfbaskwill says:

    "I found mention of a tweet saying an IRS agent would be at the hearing, in the first trackback article, but I see no other mention of it."

    The IRS is everywhere.

  82. Merissa says:

    This is the April Fool's Day joke, right? :(

  83. Stazzi says:

    I don't know why this particular point is bothering me so much, but is there any federal precedent to plaintiff's attorneys pleading the Fifth when asked to identify their own client? That seems absurd on paper, but under these particular circumstances, I can see why they did it.

  84. naught_for_naught says:

    I have little doubt that the last 45 days have been spent squirreling away assets in a myriad of off-shore accounts and holding entities. On the day that sanctions are awarded, Pietz and others will find little more than rodent droppings in the cupboard — the rats having fled with the stores. I also have little doubt that the Prenda Law team will reform to continue in their endeavors, if the courts continue to grant subpoenas to the ISP consumer records based on nothing more than IP addresses. There are just too many starving lawyers willing to take the work and front for whatever shell they form.

    From the filings, the depositions, and the various blog posts, I get a strong whiff of sociopathy — the Jeffery Skilling variety. These guys really think they're the smartest guys in the room, mistaking smarts for a lack of conscience or scruples.

  85. Anonymous says:

    All the lawyers these guys have hired can't be cheap. If down the road any of them are found liable for civil or criminal penalties, meaning the lawyers were paid with ill-gotten gains, could their lawyers at some point be at risk of having to repatriate the money they've been paid by Prenda attorneys?

    It seems massively unfair, if these guys have been engaged in fraud upon the court, that they end up being allowed to fund their defense using the proceeds from those activities, without the bill having to come due sometime.

    Plus, they must have at least a decent chunk of change somewhere traceable if the checks written to their lawyers aren't bouncing.

  86. @Stazzi: I'm no lawyer, but I bet that if you have no client except one that would leave you open to fraud charges, taking the Fifth is perfectly reasonable. Clients that in my highly unqualified opinion might leave you open to fraud could be a shell company which you created using stolen ids of real people, a client that doesn't own the copyrights you're suing about, no actual client at all, etc, etc.

  87. ek says:

    naught_for_naught:

    "From the filings, the depositions, and the various blog posts, I get a strong whiff of sociopathy — the Jeffery Skilling variety. These guys really think they're the smartest guys in the room, mistaking smarts for a lack of conscience or scruples."

    Based on a read of their demeanor, this seems true of Hansmeier and Steele, but Duffy looked like he was going to shit himself. Perhaps he was ill.

  88. Stazzi says:

    @ Steve Simmons:

    I was a bit rambly in my post so I apologize. Under these circumstances, I understand why this group did it, but I'm curious if it has ever been done before. If so, what the outcome was. I'm betting these are pretty uncharted waters, legally speaking.

  89. Rusty says:

    Steve Simmons said: "I'm betting these are pretty uncharted waters, legally speaking."

    I'm betting Cap'n Otis Wright is plotting a course through those waters.

  90. Matthew Cline says:

    Some of us glanced at the chart that attorney Morgan Pietz created to see if we could match faces.

    For a brief moment I had a mental image of a literal salt marsh oozing its way across the hallway floor.

    like a corporate executive in a bad Robocop sequel.

    You have such a way with words.

    "I'm not saying that the answers would incriminate him," protested Steele's lawyer, thus muddying the question of whether his client was entitled to take the Fifth, "but you leave my client with no choice."

    Is Steele's lawyer implying that the judge will misinterpret anything Steele says as being criminal, even though it's not criminal?

  91. Adam was there, and it's possible I missed her saying that, but I don't think so. (Adam?) In any event, since she was clear about who she did (and didn't) represent, her statement (if made) about what Peter and Mark would do would have no more significance than if I made a statement purportedly on their behalf. I was there, I'm a lawyer, but I don't represent them, and neither does she.

    I somewhat distinctively remember her — or someone saying that they would take the fifth if asked. I thought that assertion was the coup de grâce to Wright's patience. But I'm hedging here: I could very well have misheard or misunderstood what she was saying, as I was also puzzled as to why they were unrepresented, yet here's an attorney making representations on their behalf.

  92. John Henry says:

    I think there is something here for sure. The problem is that they settled to remain anonymous and they might not be able to remain anonymous to sue.

  93. Anon says:

    There seems to be common misunderstanding or less than accurate reporting going around in most of the headlines/articles about the hearing. The Prenda main characters did not invoke 5th amendment: they (those represented through their attorneys) stated that they would do so if forced to testify.

    One tweet or article that I cannot find out indicated that the judge Wright stated something like "I'm not going to waste time going through that charade".

  94. naught_for_naught says:

    >ek

    Duffy has that constipated-but-could-blow-anytime look in his headshot too (http://www.wefightpiracy.com/paul-duffy.php). Your impression doesn't surprise me given that he's the founding partner of Prenda Law — that would make him Shemp Howard in the trio without the rugged good looks.

  95. Anon says:

    http://arstechnica.com/tech-policy/2013/04/prenda-porn-trolls-clam-up-as-their-plans-crumble-in-an-la-courtroom/

    "This is an opportunity for him to protect and defend himself," said Wright. "I'm not going to go through the charade of asking him questions he's not going to answer."

  96. Ken says:

    Anon, it is not uncommon to invoke through one's attorney. A judge can press the issue and make you invoke question by question, but need not.

  97. Anon says:

    The point is they did not do that. They indicated that they would do if forced to testify.

  98. Ken says:

    Okay. How is that material? Their lawyers said, if called, they would invoke. The judge accepted that representation. That's not uncommon. It's commonly referred to as invoking or taking the fifth, even if the attorney does it on your behalf.

  99. Kirk says:

    Forbes has picked up the story…

  100. Nick says:

    I've found my Halloween costume: Mr. Steele's Career. It's the deadest thing I can think of.

  101. Anon says:

    This way they have more wiggle room as there is no testimony of exactly which questions each one of the participants would consider self-incriminating. They might have all just taken the fifth on all questions but then again someone might have seen a reason to answer a question when the others didn't. (They'd be fool at his point to answer anything but angry judge shouting at you·.. The non-represented parties would have been good targets to get testimony.)

    Lost opportunity to get more info on the record, usable in other cases…

    On the other hand, the judge is now free to draw any reasonable conclusions.

  102. That Anonymous Coward says:

    @Kirk – I wonder what trendy avatar clad birdy told her about the story a little while ago….

    OHAI Kash!

  103. Nick says:

    @Anon:Apr 2, 2013 @6:15 pm: Wouldn't any reasonable person in that situation takes the fifth on the entire series of questions to avoid exactly those inferences?

  104. Anon says:

    Yes, but people don't always do the rational things, particularly when under pressure. The two non-presented. non-lawyers might have been good to start. The attorneys present have no standing to reply that they take the fifth as the attorneys do not represent them. The represented parties would have their attorneys to keep them on track to not to answer. Even then something can slip.

    Go through a list of questions that is a mix of trivially answerable, pick up a tempo and sneak in a good one once in awhile. It's amazing how easily human mind loses track and might slip an answer when it should not have.

  105. Undertheradar76 says:

    @naught: "Shemp Howard…without the rugged good looks."
    Well played, sir. You win 5 internets.

  106. MattS says:

    Nick,

    "I've found my Halloween costume: Mr. Steele's Career."

    Are you sure? That would be a pretty skimpy costume, it might be deemed indecent.

  107. anne mouse says:

    I have to say, I'm surprised that Wright was surprised at his witnesses taking the fifth. Makes me think he hasn't done this sort of thing before.

  108. Anonymous says:

    @Anon

    Wright's final words of the hearing, "we're done" were a clue.

    There was also the bit about "this is an opportunity for them to protect themselves," which wouldn't have been a meaningful thing to say unless there is something they need to protect themselves from. Unless you think Wright was making empty threats, which I doubt.

    One might speculate that the next time a Prenda attorney is asked to answer questions, it will be prosecutors doing the asking. No doubt, given today's festivities, they will once again invoke The Fifth. But, prosecutors will have a whole host of additional tools at their disposal to gather lots of evidence from which they can draw much more exciting inferences than Wright would be able to do, even if he went through the charade of having each of them take The Fifth or not question by question.

    What you don't seem to be able to grasp is that Wright didn't think it was worth his time because he decided he's wasted enough time already and is about to make them someone else's problem. The only value in going through the motions would have been to satisfy his suspicions that there is enough here to warrant that escalation, but he's done. He said so.

  109. Delvan Neville says:

    I think the surprise was that *all* of them took the Fifth. His comments during the last hearing suggested he perceived Steele as the one running the show, but there was certainly room for others called that day to have been unaware of Steele's use of their name (the Gibbs defense).

  110. Noah Callaway says:

    @Anon

    "Go through a list of questions that is a mix of trivially answerable, pick up a tempo and sneak in a good one once in awhile. It's amazing how easily human mind loses track and might slip an answer when it should not have."

    This is something that a prosecuting attorney in a criminal action may attempt to do as part of a depo. I see no reason why Judge Wright would spend time attempting to perform that job role. His sole purpose here was to allow an opportunity for Plaintiffs (hehe, it's still funny to me that they're the Plaintiffs) to explain why his current understanding of events is inaccurate.

    Since they made it clear they had no intention of answering any questions (supported, rightly, by the fifth amendment), he doesn't need to spend any time asking those questions.

    It comes down to this: Judge Wright isn't trying to build a case for a US Attorney. He may suggest that they build a case, but I'm sure a federal judge has better things to do than "cross-examine" a witness that doesn't want to answer his questions.

  111. DonaldB says:

    I'll remind people that they have already testified in this case. They have all (except Steele?) submitted sworn documents, and Paul H. was deposed.

    They have already incriminated themselves.

    This was an opportunity to revise and correct their statements. By taking the fifth, they missed their chance to mitigate or explain their previous claims.

  112. mojo says:

    Maybe they can re-incorporate as "Zombie Law"?

  113. Frankzzz says:

    How long before we can expect an order from Judge Wright?
    2-3 weeks? 1-2 months? 1 week?
    Will that order detail everything he's doing, such as referrals to the various bars and US Attorney's office?

  114. Paul E. "Marbux" Merrell, J.D. says:

    Retired lawyer here whose practice was mostly federal. I'll take a crack at a question repeatedly asked in the comments: what are the repercussions in other Prenda-related cases around the nation?

    I agree with Ken's conclusion that pleading the Fifth Amendment "for the nationwide Prenda Law enterprise, under whatever name or guise or glamour … spelled doom."

    Even without Judge Wright's forthcoming written findings, with the Fifth Amendment privilege asserted in response to the show-cause orders, defense lawyers in other Prenda cases have acquired a sufficient basis to initiate discovery on the issues itemized in Judge Wright's show-cause orders, e.g., the appearance that there is no real client, that there was no valid transfer of copyrights, that a fraud was committed upon the court to extort payments from those embarrassed by the prospect of having their names publicly associated with pornography, etc.

    I suspect that in most cases defense lawyers will wait to read Judge Wright's findings before making their moves, but you can bet your bottom dollar that an early goal will be to notice the depositions of the Prenda principles and lawyers at the earliest possible date, to force them to individually plead the Fifth Amendment repeatedly in response to a barrage of questions. (A relevant procedural factor is that a lawyer cannot file a motion to compel an answer to a question s/he has not asked, so the Prenda lawyers' jaws will tire of repeating their invocation of the Fifth Amendment in response to a wide ranging set of questions.)

    An unwillingness to prove that there is a client or a valid copyright transfer sets the stage for a number of grounds for dismissal or for assertion of counter-claims, for example the "abuse of process" tort. See e.g., California Jury Instruction 1520.

    Although I dislike making predictions of what a judge will do, given the posture of this case I would expect Judge Wright to make findings that encourage further investigation rather than hanging these people from the nearest tree himself.

    Judges faced with attorney misconduct tend to avoid overstating the evidence they have before them, which invites appeals and reversal by an appellate court. And because of the Fifth Amendment plea, the judge is few facts shy of being able to make his potentially most damaging finding, that a fraud has been committed upon the court.

    But a carefully worded referral for further investigation of that appearance by the Attorney General's office and/or Bar Disciplinary Counsel need go no further than saying that there is an appearance that fraud upon the court may have been committed and spelling out the grounds for suspicion.

    In my mind, the most important question about Judge Wright's forthcoming findings is whether he will either: [i] find that there was a fraud committed upon the court; or [ii] refer the issue of fraud on the court for further investigation by others.

    The fraud issue is of such huge importance because there is an exception to the attorney-client privilege from discovery and testimony in cases in which the attorney is alleged to be a participant in the fraud. Even the attorney work product exception from discovery falls by the wayside in such cases.

    So if Judge Wright opens that fraud upon the court door, the defense lawyers in other cases get the green light to begin plundering the records of everyone involved, unhindered by claims of attorney client privilege or attorney work product exception.

    A few years before I retired, I supervised the preparation of a major polychlorinated biphenyl ("PCB") toxic tort case against three multinational corporations. One of them, Westinghouse Electric Corp. made the mistake of producing in discovery in an asbestos case: [i] a 47-page memo written by in-house counsel detailing and itemizing the "smoking gun records" that would be destroyed to prevent their use by opposing parties in later litigation against the company; [ii] a later memo by the same attorney stating that the work had been completed as planned.

    Those memos provided the basis for a Texas state court judge's findings that Westinghouse had committed a fraud upon the courts of the nation by destroying the records, upheld in short order by the Texas Supreme Court. From that point on, virtually everyone with a toxic tort case against Westinghouse took further discovery including depositions of the same attorney, then applied for judgment by default because of the litigation misconduct.

    The Fifth Amendment plea and Judge Wright's findings have the potential to set off a similar lawyer feeding frenzy.

    The fraud issue also weighs heavily in a court's decision to pierce the corporate veil of a limited liability corporation ("LLC") to hold its owners personally liable for fraudulent acts committed by the LLC's principles. See Nolo Press article on piercing the corporate veil of an LLC.

    So I'll be looking very closely at Judge Wright's treatment of the fraud upon the court issue in his findings.

  115. MouseTheLuckyDog says:

    I think the big question is what prevents Prenda from sending out more extortion letters?

    They could simply push hard, ignore any cases where the people do not agree to settle out of court, and simply vanish when the time comes to face the piper.

    That would be my plan.

    Also, from my understanding, Prenda does not actually represent any of the copyright holders. Or at least it is very murky whether or not they do. Should this whole thing not cause the judicial system to review the way they allow copyright infringement cases to proceed?

  116. MEP says:

    Crazy conspiracy theory (because the trial wasn't entertaining enough and I'm sleep-deprived):

    AF Holdings DOES exist as a separate entity. There is an "Alan Cooper" or someone behind AF. This whole ridiculous affair is part of a convoluted legal gambit intended to assert the rights of "John Doe" plaintiffs in cases with "John Doe" defendants.

    Sure, it's nonsense, but is it any more so than what probably actually happened? Discuss.

  117. flip says:

    Completely off topic:

    I am interested in reading about a particular law suit and the documents related to it. Is Pacer the only place to find copies of the documents involved? I've tried the US state's website where the suit was filed but I couldn't find anything. I'm not particularly happy to provide my credit card info to Pacer.

  118. Matthew Cline says:

    @Merrell:

    So if Judge Wright opens that fraud upon the court door, the defense lawyers in other cases get the green light to begin plundering the records of everyone involved, unhindered by claims of attorney client privilege or attorney work product exception.

    Do the documents first get filtered by someone (the judge or the judge's clerks) so the defense lawyers only get documents which are actually relevant to the fraud, or do the defense lawyers get to get everything?

  119. HowRare says:

    How rare is it for people to get what they deserve? This does not happen often.

  120. Jim Tyre says:

    I am interested in reading about a particular law suit and the documents related to it. Is Pacer the only place to find copies of the documents involved? I've tried the US state's website where the suit was filed but I couldn't find anything. I'm not particularly happy to provide my credit card info to Pacer.

    PACER bills me, I pay be check. But I've had my PACER account for something like 15 years, that may not be an option any more.

    Are you looking for a case in federal court or state court? PACER is only for federal courts. State courts are hit and miss whether they have anything online. If federal court, it's possible that someone has used RECAP to upload what you're looking for.

  121. flip says:

    @Jim Tyre

    I was about to add a comment saying "never mind". I see that their credit card function is only good if you're American, which I'm not, and I don't want to wait 3 weeks to have a cheque shipped over.

    The case I need is from the a state district court. However I found a link to the suit on Justia which linked up to Pacer, and the district website seems also to link to Pacer. I'm probably confusing myself somewhere, this is the first time I'm hunting for documents instead of just reading about it on someone's blog ;)

    I do see the documents available to purchase from Rfcexpress, but wasn't sure of the legitimacy of the site. I doubt it will be on Recap because it's an obscure case; in fact I just searched for it and was right.

  122. Alan Bleiweiss says:

    Two considerations come to mind that NOBODY has brought up yet. (Thank GOD I have something unique to contribute. My sanity of ego would have otherwise been crushed!)

    1. Headline May 2013: Law Firm Salt Marsh LLC, operating out of St. Kitts & Nevis, has filed suit against 20,000 "John Does". Documents filed list "Alan Money" as the "Attorney of Record".

    Alternate Future:
    2. Lutz caves in and testifies, under oath, that Alan Money and Salt Marsh are the masterminds behind the whole thing, and in fact, John Steele is really Alan Money.

    According to Lutz, Money felt his REAL name (Money) was a bit too comical for someone about to embark on the biggest fraud on the courts in human history and wanted a "plausible" alias. He then did a search on the Internet and found a "John Steele" practicing law in the San Francisco bay area. Apparently, according to Lutz, Money figured "ha – that's a great name. Sounds perfect…"

  123. orvis barfley says:

    spectacular day.  many thanks to ken and the others who do such fine jobs recounting the action and explaining the legal innards and outtards in this fascinating tale.

    an aside, please, for trace rabern if she hangs around here: i wanna see the trains jumping horses.  how big trains are we talking about?

  124. Jon says:

    I should point out that another attendee identified herself as a reporter for Business Week, so there may be additional mainstream media coverage soon.

  125. Black Betty says:

    Oh Ken…this rabbit hole goes so much deeper. You want to know the REAL reason I suspect they're pleading the 5th?

    A guy named Graham Syfert did some investigating and figured out that Prenda may have been the one who was seeding their porn films to the internet. Apparently, one person was supplying Bitorrent with Prenda's films. One guy: SharkMP4.

    Meanwhile, a blog called "Fight the Copyright Trolls" identified an IP address that it has reason to believe belongs to Steele. And it just happens to match up with the same german IP server used by the primary distributer of Prenda's porn for Bitorrent, SharkMP4. While circumstantial, clearly this does not look good.

    If true, it would mean that Prenda's lawyers were sending porn to out onto the internet hoping people would download it and then suing them for downloading it. They weren't just committing fraud upon the court, they may have committed a whole host of crimes. That would would be a powerful reason to plead the 5th, would it not?

    I love the smell of scandal in the morning.

  126. Kevin says:

    @Black Betty

    I was wondering when someone was going to bring that up here at popehat…. you forgot the best part though, where in one of the screenshots provided by SharkMP4 it's clearly visible that he was working from a higher-resolution master of the film, i.e. not just a random pirate who ripped a dvd. Curious, isn't it?

  127. Jose Fish Taco says:

    Mr. Merrell:

    That's good stuff. Thanks for taking the time to write.

  128. Black Betty says:

    CORRECTION: The server is in Sweden, not Germany.

  129. Black Betty says:

    Kevin, there is a LOT that is curious about this case. I would love a legal analysis of which laws they would be in violation of, if this turns out to be true. And I wonder how many other law firms/film companies are doing this?

  130. Matthew Cline says:

    Something that just occurred to me:

    Why didn't the judge order Steele to serve Cooper of AF, like he ordered Gibbs to serve everyone else? Since supposedly Steele is the only one who knows how to contact AF-Cooper. Did Steele pleading the Fifth somehow prevent the judge from doing that?

  131. Anony Mouse says:

    And Ygolonac wins the comments. Congratulations, unspeakable mouth-handed horror.

  132. Anonymous says:

    @Black Betty

    If you think that's interesting, check out Paul Ticen's declaration filed recently in an Arizona AF Holdings case. Ticen represents a defendant in a Lightspeed Media case in AZ; Lightspeed was one of Steele's first clients back when he actually bothered with clients, and may have actually been the first Plaintiff Steele filed BitTorrent cases for. There are some damning old threads on gfy.com, an adult webmaster discussion forum, in which Steele and Lightspeed brag about their awesome BitTorrent litigation scheme, joke about how it's basically blackmail, etc.

    Ticen's Lightspeed case is not a BitTorrent case, but a CFAA claim (Prenda's other angle), basically they claim the defendants used leaked or hacked passwords to access paywalled porn sites, and that this unauthorized entry makes the defendants liable for monetary damages for "hacking" Lightspeed's computer systems. The filings often conflate the CFAA and copyright law, but I guess Steele thought it sounded impressive enough to induce settlements:

    http://ia601200.us.archive.org/19/items/gov.uscourts.azd.732217/gov.uscourts.azd.732217.44.5.pdf

    Here Ticen is intervening in an AF Holdings case, apparently as a good Samaritan to save a pro se defendant from disaster. There are some interesting back and forth emails between Ticen and Prenda Lawyers, including Brett Gibbs who, in spite of his claims of being a file clerk taking orders in California, at one point takes over negotiations from Prenda's AZ attorney and lectures Ticen on AZ rules. Mega style points to Ticen for asking Gibbs to seek admission pro hac vice if he intends to remain involved with the case.

    Getting to my actual point, there are a few juicy bits about Lightspeed refusing to comply with discovery rules, along with some information Ticen subpoenaed from payment processors that suggests the account that was "hacked" had actually been deactivated years ago, leading one to possibly conclude that Lightspeed has been purposefully leaking usernames and passwords, allowing known compromised accounts to remain compromised, or reactivating old accounts that he knew were compromised, so people would use them to access the site and then he could try to get money out of them with lawsuit threats.

    The fact that Lightspeed is dodging discovery of evidence that, if anything, should be fundamental to his case and support it, suggests he has something to hide. It certainly fits in with other suspicions that they are running honeypots, and thus regard any discovery regarding their "forensics" as catastrophic. It's amazing they thought they could carry on like this without ever having to put up or shut up.

  133. confused says:

    I've been waiting in anticipation, thinking about the "big leagues" and how awesome it would be to watch these legal geniuses play in the extreme arena.

    Then, while I was reading this article, I was somewhat perplexed. Pleading the 5th is what it means to play in the big leagues? Isn't that like a boxer coming out to the ring and just forfeiting? What's the point in doing that?

    Then I had an aha moment. Maybe these guys were making a compliment when they said "Welcome to the big leagues." Maybe they realized that it was a lost cause, and that this case would instantly put Godfread's name in the Hall of Fame. Maybe they were literally saying, "Hey! This is wonderful! You're going to be famous, just like us. Welcome to the big leagues!"

    But going back and reading the letter, I just get more confused. What was he really, really trying to say when he wrote that?

  134. IANAL says:

    > "Do not commit multiple frauds on the court" should not have to be a focus in law school. But, I am wrong a whole lot.

    I can think of at least a few lawyers who might have benefited from such a class. Then again, it appears that they may not have done very well in their other classes, so who knows?

    Also, the article on how the judge can sanction them was very interesting, but it was mostly about the grounds for sanctioning, rather than the remedies. Could the judge do things like take away their copyrights? That would seem to be one of the more direct ways of shutting down their enterprise. Of course, that seems to invite questions about whether they actually own those copyrights and such, so perhaps that just opens a can of worms. I'm not really sure, which is why I'm wondering.

  135. William Sutton says:

    If I could vote Mr. Merrell's post up several times, I would. It was very, very informative reading.

  136. a_random_guy says:

    Off topic, but nonetheless striking: Jame writes "In tax court the Commissioner of Internal Revenue is PRESUMED to be correct and you, the taxpayer, have to disprove his assertions."

    That is simply frightening. Due process, anyone?

  137. david taylor says:

    While they can invoke the 5th amendment to shield themselves from criminal incrimination, that won't fly with their respective bar associations. my understanding is that if they clam up in front of their bar associations they'll likely face even more serious sanctions; hopefully disbarrment and significant fines. Good riddance.

  138. Lucy says:

    Is there any indication yet whether the IRS presence was Peter and Paul's brother Mark keeping an eye on the family business, or was he an actual real IRS interested presence?

    It would interesting to know how Mark plays a role in their game. It would be naive to think he has no idea what his brothers and father have been up to.

  139. Hulinut says:

    Thank you for yet another excellent read!
    I'm right now wishing I could shake Judge Wright's hand and buy the man a stiff drink (it sounds like he could use one after putting up with these clowns).
    While the first is unlikely to happen due to me being English, jobless and broke, anyone in the right area willing to take donations towards buying Wright a bottle of something as a thank you for entertaining us? Or would that not be deemed appropriate?

  140. James says:

    @ a_random_guy

    The presumption of reasonableness is not absolute; it is a rebuttable presumption meaning that you need to have some credible evidence to support your contrary position. The presumption usually rears its ugly head when fuzzy valulations are involved, like how much estate tax is owed on that Rembrandt painting your rich uncle left you when he died. Is $1 million a fair appraisal or should it have been $2.5 million. Did you get an independent art appraisal at the time of death or were you just guessing at the right number? In such cases the Commissioner's guess wins.

    Remember that tax audits are CIVIL cases where the taxpayer and IRS usually agree that some tax is owed but disagree on how much. Criminal cases (usually blatant tax evasion) require the government to prove guilt beyond a reasonable doubt just like any other criminal action. That is why the IRS usually chooses to torture the soul of taxpayers in civil actions and elects to prosecute only a handful of very bad actors under the criminal statutes.

  141. Kirk Taylor says:

    To expand on James point in a more layman manner: In an audit, you are generally defending something that you asserted in a tax filing. It is impossible to defend your assertion and plead the 5th at the same time.

  142. Duralex says:

    Apologies if this has been confirmed previously, but are the Hansmeier brothers all this lawyer's progeny?

    http://www.rajhan.com/gordon_h_hansmeier.php

    Also, regarding the unrepped parties, I don't recall Wright addressing them directly after confirming their presence, and I didn't hear Ms. Rosing refer to them in her assertion of the Fifth. But Wright was stepping on her responses a bit.

  143. Vernon Vincent says:

    MattS
    "It would be funnier if his son's name was Remington."

    I was thinking that people would you the nickname "Dam" for Damascus – Dam Steele – which is one of the things people would be saying about his dad. That – and other variants on four-letter words.

  144. IANAL says:

    Regarding the ability of people who settled getting their money back:

    As others have posted, to sue to the plaintiffs would have to identify themselves, which is what some of the people who settled were trying to avoid.

    For those who settled because it was simply easier and cheaper vs a legal proceeding, even if they were pretty sure that they could win. Though a different reason than those who wished to remain anonymous, starting a lawsuit is contrary to why they settled. On the up side, if they did sue as individuals, if they were first to the trough, they might be able to recover all their funds plus their lawyer's fees before the lot of them go bankrupt, but that still might not be worth it to them in time and legal proceedings as it is a lot of work and headache for a few thousand dollars.

    Though the settlement agreement included an agreement by both parties not to sue in the future over the agreement, INCLUDING malpractice/fraud IIRC. Since IANAL I can't say for sure, but I think that some smart cookie can get around that. If that smart cookie hooks up with someone who simply settled to avoid the annoyance of a legal proceeding, establishes a class action, the people who settled to remain "John Doe" might be able to partake in any settlement or winnings without directly joining the suit and still remain pretty anonymous.

    However, even in a class action win, you can't squeeze blood from stone. I'm willing to bet that a lot of the settlement proceeds have been paid out as it came in and there simply is not much money left to recover. The likelihood is that in a class action, any recovery would be pennies on the dollar, reduced by lawyer fees of both sides.

    In short, I would not expect people who settled to be able to recover much if any of their money.

    As for splitting a "weakest link" off, this proceeding is not the best place for the weakest link to spill. The best place would be after negotiations in return for immunity or reduced penalties in any criminal complaint that may be brought. If no criminal complaint is brought, then the best place would be for immunity or reduced penalties in any civil proceedings. If neither a criminal or a civil proceeding is brought, then they the best place to spill and admit to wrongdoing is nowhere – just remain silent forever. Just because they all plead the 5th individually at the same proceeding does not mean that they are all doing so in solidarity.

  145. Jeff says:

    Regarding people ask why they would "all" take the Fifth, including the paralegal.

    I would be shocked if they didn't all take the Fifth. Say you're the Paralegal. Some people are saying, "Well, why doesn't the paralegal spill the beans?" Simple reason: the Judge can't offer her immunity. Remember: thus far, there are no criminal proceedings here. Presumably, Judge Wright is going to refer this case to the USAO. The USAO will open up a Grand Jury, and they'll send target letters to everyone involved. If the AUSA wants to roll up the paralegal, they're going to have to offer them immunity. If the paralegal opens up their mouth now, then that can be used against them despite being offered use immunity later. That is, if I remember my Grand Jury rules correctly and how the AUSA might use them: the AUSA can offer the paralegal use immunity for her Grand Jury testimony, but could conceivably prosecute them for the statements they made outside the GJ.

    Why would the paralegal talk if they're not going to get something out of it?

  146. Michelle says:

    Off topic, but thought you might be interested in this: 6-y.o. Who Walked Alone to Post Office May be Removed from Her Home

    The story starts with the father walking home from the library with his daughter, and someone calling the cops about "a strange guy talking to a little girl." And goes from there.

  147. Dictatortot says:

    I'd prefer "Cheatham N."

  148. Dictatortot says:

    Stupid tag errors. I was, of course, referring to the perplexed question of naming any offspring of Jno. Steele, Esq.

  149. Dictatortot says:

    Jeff makes a good point that a paralegal might have excellent reasons for pleading the 5th and not investigating immunity. However, up till this point I had suspected that Ms. van den Hemel was also the girlfriend of one of the principals–which could also explain the situation.

  150. Ygolonac says:

    As a fascinating yet entirely hypothetical theory:

    Is it possible that the un-served (un-servable?) "Alan Cooper" is not available due to quietly returning to the ecosystem at the bottom of a salt marsh somewhere?

    Seriously, this would be Lawn Odor-level stupid ballsy to pull, but it *would* explain some things.

    (whistling innocently)

  151. Hasdrubal says:

    As far as Judge Wright now questioning Peter Hansmeier and Lutz, is that because they weren't acting as officers of the court in the case/cases that he has jurisdiction over? Judge Wright is only investigating (only has the authority to investigate?) improper behavior by the lawyers involved in cases that he has authority over. So he subpoena'd a whole lot of people as witnesses. But, when the Prenda attorneys took the Fifth, the extra witnesses became unnecessary because those attorneys effectively admitted to inappropriate conduct by the court’s standards? I.e. if an attorney is taking part in something that would qualify as potentially incriminating, he is, by definition, violating the conduct standards of an officer of the courts?

    Can someone clear up the specifics of pleading the Fifth for me, also? The way I understand it, you can only do so if answering the question could potentially incriminate you. Say a blue pickup truck was out doing donuts in Farmer MacDonald's cornfields last night. A witness could not plead the fifth when asked "What did you see in Farmer MacDonald's fields last night?" correct? But you certainly could plead the Fifth when asked "Where were you last night?" What about things that wouldn't directly incriminate you, but could be used to implicate you, such as "Do you drive a blue pickup?"

    What makes the Fifth so devastating in this case is that it can only be used when the answer might incriminate you? So, by taking it, the Prenda attorneys admitted that their conduct could potentially be criminal. But, as officers of the court, they were required to support the law and rules of the courts. Therefore, whether or not they actually did anything criminal, simply the fact that they did not do anything to stop a situation that was potentially criminal warrants sanction?

  152. Hasdrubal says:

    "As far as Judge Wright NOT questioning Peter Hansmeier…"

    Spell checker plus grammar checker: Still not a replacement for carefully proof reading the whole thing.

  153. IANAL says:

    Referring to *Weak Links* & Judge Wright's astute omission to ask the two *nobodys* for their %th, if they took the 5th, they could not turn States Evidence as easily as if they were simply *forgotten* in the Shuffle.

    Look to these two guys to get the Deals & Turn.

    Stay Tuned for More Exciting Adventures of Alan Cooper, Mystery Man!!!

  154. rsteinmetz70112 says:

    Was no one there representing the other entities listed? AF, Livewire etc.?

    Is filing a lawsuit in CA considered transacting business there and should these entities be registered with the Secretary of State?

  155. Anonymous says:

    And still, going by posts on Fight Copyright Trolls, the shell companies are sending out threatening letters to John Does, attempting to settle cases.

    Since they have just admitted that discussing their litigation activities may incriminate them, when do their attorneys become complicit in ongoing fraud?

    Seems like there is grave danger here for everyone on their defense team if they don't stop this crap a month ago, don't you think their lawyers should, like, refuse to continue to represent them if the dunning letters keep going out?

  156. Anonymous says:

    http://business.avn.com/articles/Media-Copyright-Group-s-John-Steele-Pirate-Slayer-414224.html

    Some more fuel for the fire, maybe the oldest interview with Steele?

    He says "our software" twice in response to interview question. You know, software that Steele | Hansmeier never used because they are a law firm?

  157. John Ammon says:

    @Anonymous – You probably should have preceded that link with a NSFW disclaimer, just FYI ;)

  158. Delvan says:

    @Jeff: That the paralegal and Peter took the fifth was not surprising to me in relation to whether they were being granted immunity. I was surprised that both of them had testimony that would be protected by the fifth: until now the only conduct on paper for Van Den Hemel that would be considered criminal was violating Judge Wright's order.

    Peter is in theory only running a bittorrent client and saving logs..er, I mean, operating their expensive monitoring software. If even his testimony could potentially incriminate him, I think it lends more credence to the honeypot theory.

  159. IANAL says:

    Flip – you can find some PACER cases on recapthelaw.org as well.

    As for taking the 5th, it is broader now then just for criminals to not testify about their criminal behavior. The Supreme court itself has said that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." If it was only usable by criminals to not testify about their criminal behavior, then the instruction to jurors that not testifying or pleading the 5th is not an admission of guilt would not be very convincing.

    While a person can also plead the 5th for civil cases in addition to criminal cases, generally the state is allowed to draw a negative inference from the silence. Some civil cases involving forfeiture of property to the state is considered "criminal" for the purposes of pleading the 5th and no negative inference can be drawn from the silence.

    As for the state BAR associations, they are self-regulatory organizations, not courts of law or state agents. While a person can certainly choose not to speak to defend themselves when called to task by an SRO, the SROs can then interpret the evidence before them, including the choice not to defend oneself, however they want, positively or negatively (but probably negatively) and impose sanctions, such as bar the person from their regulated industry.

  160. Anonymous says:

    @John Ammon

    My apologies, the page itself is worksafe (or my adblockers are working overtime), so I forgot that the domain itself may be a problem for some.

  161. Paul E. "Marbux" Merrell, J.D. says:

    @ Matthew Cline: "Do the documents first get filtered by someone (the judge or the judge's clerks) so the defense lawyers only get documents which are actually relevant to the fraud, or do the defense lawyers get to get everything?"

    There are nooks and crannies not addressed here, but the general scope of discovery is set by Federal Rules of Civil Procedure 26(b) (nearly all (all?) states have adopted the Federal Rules as their own with little variation):

    Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

    So the subject matter boundaries of discovery are not limited to relevant information that would be admissible at trial. With the privilege escape hatch forced open by the fraud exception, discovery is very wide-ranging.

    The discovery rules are generally designed to discourage involvement of the court. Judges do not want to have to deal with discovery squabbles. The burdens of both proof and persuasion lie on the opponent of discovery. Sanctions for unwarranted opposition to discovery are fairly routinely awarded, usually an award of attorney fees for the site seeking discovery as a first step, but progressing as far as entry of default judgment against the opposing party when the violation of discovery rules and orders reaches the point of bad faith.

    There are also procedural hurdles in opposing discovery. For example, the opponent is required to file a detailed log of documents or portions thereof withheld under claim of privilege or exemption, providing some fairly detailed information for each segregable portion including the name of the author and all recipients, and the privilege log must be supported by a sworn affidavits. Failure to do so by the time set for hearing constitutes a waiver of the objections in all federal jurisdictions (and in my experience, most lawyers do not know this). The opponent has the burden to prove for each segregable portion withheld that that the privilege or exemption is validly claimed and that the privilege or exemption has not been waived by prior disclosure to a person not encompassed by the privilege or exemption. The purpose behind this rule was concisely stated by the District Court in Eureka Financial Corporation v. Hartford Accident & Indemnity Co., 136 F.R.D. 179, 184-85 n. 11 (N.D. Cal. 1991) (citing numerous cases):

    During the hearing, when it finally appeared that the court was seriously considering the possibility that Hartford had waived its attorney-client privilege [by failing to file a privilege log with supporting affidavits], counsel for Hartford requested that she be allowed to produce a log of privileged documents. The court has rejected this request in that it would set a precedent for delaying discovery. That is, a party could make an improper objection, persist in that objection until the last moment at a discovery hearing, and then, after all this delay, finally do what the law requires. The law requiring a specification of objections is settled enough that a multi-stage discovery adjudication process should be unnecessary.

    The non-waiver burden of proof becomes particularly burdensome for documents that have multiple recipients identified in the documents, identified either as addressees or as persons who received copies. For each such person, the opponent must prove that each person who originated or received the document is within the proper scope of each privilege or exemption claimed for the purpose of the particular communication. The mere fact that an attorney was either the author or one of the recipients does not prove that the communication was subject to the attorney-client privilege.

    The opponent must also prove that the privilege or exemption has not been waived by prior subject matter disclosure. This becomes particularly difficult to prove in cases where an attorney is alleged to be a participant in a fraud. By denying that a fraud was committed, the defendant waives privilege or exemption by subject matter on each of the five elements of fraud: five separate elements: [i] a false statement of a material fact, [ii] knowledge on the part of the defendant that the statement is untrue, [iii] intent on the part of the defendant to deceive the alleged victim, [iv] justifiable reliance by the alleged victim on the statement, and [v] injury to the alleged victim as a result.

    A party may not deny the commission of a fraud and still assert privileges or exceptions from discovery of its actual state of knowledge as to the falsity of the relevant statements of fact, its intent in regard to deception, its intent that the other party rely on the misrepresentation, or its knowledge that the injury would flow to the opposing party. This conclusion flows from the principle that a party may not use a privilege as both a sword and a shield, for example claiming pure heart whilst denying discovery of its actual motives. E.g., U.S. v. Bilcerian, 926 F.2d 1285, 1292 (2nd Cir. 1991); In re Sealed Case, 676 F.2d 793, 818 (D.C. App. 1982).

    After filing of the privilege log and its supporting affidavits and receiving the discoverying party's response, a court may may either inspect documents to resolve any remaining factual questions or may more simply find that the party opposing discovery has failed to carry its burdens of proof and persuasion as to any documents whose privileged or exempt status cannot be determined based on the record already made.

    Increasingly, courts are taking the latter path, although I should note that courts tend to be far more cautious when the rights of non-parties are involved; for example, the party opposing discovery may possess information to which non-parties have privacy or other rights.

    Similar situations arise when an abuse of process counter-claim is asserted.

    So there is no hard, fast, and short, one-size-fits-all answer to your question. It will be context-sensitive. But the deck would be heavily stacked against Prenda Law, et ilk if Judge Wright opens that fraud upon the court door. Perhaps an initial attempt to assert privilege and exemption, but in those Westinghouse cases I discussed, no attempt was made to assert privilege or exemption after the initial finding of fraud upon the courts once upheld by the Texas Supreme Court.

    This is all the more so because if Judge Wright does so, the Prenda gang will likely dissemble, pointing the finger at each other and each having to hire a lawyer who will treat them much more like criminal defendants. Their genuine rights would get protected but the lawyers would keep a lot of distance between themselves and their clients. They would have their own reputations and careers to protect and would not descend to the level of acts their clients are charged with. E.g., lying to the court is an unlikely tactic when you're representing someone accused of lying to the court. The lawyers who defend the Prenda gang would studiously remain within the limits imposed by disciplinary and court rules.

    Bear in mind that the lawyers representing the Prenda bunch would be required to investigate the factual situation themselves in order to assert affirmative defenses, then behave ethically in light of that knowledge. If they are told facts by their clients that leave no doubt that a fraud upon the courts was actually committed, court and disciplinary rules limit what affirmative defenses can be asserted in good faith. That is largely because the party asserting affirmative defenses generally has the burden of proof in regard to those defenses.

  162. Malc says:

    On interesting case relevant to this saga is that of "CP Productions vs Glover" (docket at http://ia700807.us.archive.org/24/items/gov.uscourts.insd.40564/gov.uscourts.insd.40564.docket.html). Because Glover basically ignored the Court, the Court spanked him with a $150,000 summary judgment. While the connection with Prenda Law may be obscure, good ol' Hansmeier made a declaration in it, so the boys have their fingers in the pie.

    So, if "CP Productions" tries to collect on their summary judgment, if Glover is smart enough to hire a lawyer (possibly he isn't), might someone have a case to make that the entire case against Glover was fraudulent, and therefore Glover's failure to do anything should be excused?

  163. Kat says:

    @Hasdrubal: Actually, you can plead the Fifth pretty much any time, if I'm understanding correctly. You don't even have to answer questions like, "What is your name?" etc. (But not answering those questions would be extremely strange if you agree to go to the stand in the first place.) It's also not considered an admission of guilt; juries are instructed not to treat it as such. If you want to look at a case that might help clarify Fifth Amendment rights a little further, you can start at http://www.popehat.com/2013/03/14/the-presumption-of-truth/ and work your way through the background of the case. It's fascinating reading and enlightening to boot. :)

  164. Kat says:

    (Several minutes later)

    Although in civil cases it would appear that this is not the case! Here's a specific writeup of the Fifth Amendment issues brought up in this case: http://www.litigationandtrial.com/2013/04/articles/attorney/pleading-the-fifth-adverse-inferences/

    So yeah, that.

  165. Matthew Cline says:

    @Merrell:

    A party may not deny the commission of a fraud and still assert privileges or exceptions from discovery of its actual state of knowledge as to the falsity of the relevant statements of fact, its intent in regard to deception, its intent that the other party rely on the misrepresentation, or its knowledge that the injury would flow to the opposing party.

    I assume that the judge involved would have to agree that one side had likely committed fraud on the court, since otherwise people would be accusing each other of fraud on the court all the time in order to get at attorney-client communications.

    And a weird question that likely has no precedent: if it looked like both sides in a case had committed fraud on the court, would each side be able to subpoena stuff normally covered by privileges, or would "unclean hands" prevent that? (As IANAL, I'm sort of fuzzy on the whole "unclean hands" thing)

  166. Paul E. "Marbux" Merrell, J.D. says:

    @ IANAL: "As for the state BAR associations, they are self-regulatory organizations, not courts of law or state agents."

    Not in some states. Some have what is referred to as an "integrated bar," where the Bar Association's disciplinary office is an instrument of the state's Supreme Court. I recall vaguely that there are 16 or 17 such states. I do know that Oregon is one.

  167. MCB says:

    Regarding filing charges, I would think the extreme abuse of the legal process here might be bothersome enough for a AUSA to think this is worth prosecuting. Paul Hansmeier filed law suits all over the country in federal court repeatedly concealing his direct interest in the outcome of the litigation. To enable that end he stole the identity of his former caretaker, to put a name on a fake client he was supposedly representing. And when the victim of this identity theft complained, he filed three (is that number right?) abusive defamation law suits against him and directly contact him, using the legal system to intimidate him from telling the truth. One of the missions of US Attorneys is to safeguard federal institutions, and these "lawyers" have made an absolute mockery of district courts across the country.

    That conduct is so unbelievable it does not seem possible, and it's only the tip of the iceberg. That's just a small piece of what the evidence appears to show. How much money have they collected from these letters and were they entitled to any of it? Did they even own these copyrights, or is the whole thing a farce? How were these IP addresses gathered? How many letters did they send out after cases had been dismissed?

    Scum. Of. The. Earth.

    As someone preparing for to take the bar exam, it's more than a little depressing.

  168. Wick says:

    In my jurisdiction (Indiana) the Disciplinary authority is an arm of the Supreme Court, and the bar association has no involvement in the process.

    It is also rather confusing because when lawyers refer to "the bar", it refers to all practicing attorneys. This is often a different group than "the bar association" which is a membership group of attorneys. In my jurisdiction, membership in the state bar association is not mandatory.

  169. En Passant says:

    Paul E. "Marbux" Merrell, J.D. wrote Apr 3, 2013 @7:02 pm:

    Not in some states. Some have what is referred to as an "integrated bar," where the Bar Association's disciplinary office is an instrument of the state's Supreme Court. I recall vaguely that there are 16 or 17 such states. I do know that Oregon is one.

    State Bar of California is an integrated bar. It also operates its own State Bar Court, which handles only cases of professional misconduct. The cases are investigated and prosecuted by the State Bar's Office of the Chief Trial Counsel, who can also decide to proceed directly in the Supreme Court. Thus, the SBC can be both judge and prosecutor. Wikipedia has good description of the SBC here.

    Related and belated — many thanks and kudos to Ken for posting excellent analyses of all these events, above and beyond the call of duty for any blogger.

  170. flip says:

    @IANAL

    Thanks, but as I stated above, I did check Recap and it was not listed there.

    It is listed at rfcexpress.com. Is this a valid website or a scam? I can't tell…

  171. Anonymous says:

    Nooo, formatting fail!

  172. Jack B. says:

    Just a heads up for anyone interested: Crime Library, a site owned and operated by TruTV (formerly known as Court TV) has a write up about the Prenda case at their site. It namechecks Ken and Adam Steinbaugh.

    It's not a particularly scholarly piece, although it stands in contrast to their regular stuff which is usually replete with the words "meth", "shirtless" and "Florida".

  173. Greggory Matthew Wilson says:

    "When Paul Hansmeier's attorney announced Mr. Hansmeier was present, Judge Wright asked where he was. Paul Hansmeier stood. "Front row," ordered Judge Wright, stabbing a finger at the first row of benches behind Hansmeier's attorney. John Steele received the same treatment, and sat next to Hansmeier." … …
    I can not get over this case…I love it when The Long Boney Finger Of The Law…points menacingly at asshats such as the Prenda principles. Unexpected and refreshing! Like a glass of cold cool sweet tea on a hot muggy day. This is the way it is supposed to be. Pope Hat poker joke Ken, thank you so much for providing this coverage. Keep it up, and fight the good fight…..on all fronts my brother 'nother moth'uh….must be cus I could pass for Brett Gibbs in real life (in younger days it was Kenny Loggins in Ventura County and Santa Monica….and not that Karl Rove thing u got going on ;)).

    You are a good man. Thank you for your reporting.

  174. markm says:

    Hasdrubal: Say a blue pickup truck was out doing donuts in Farmer MacDonald's cornfields last night. A witness could not plead the fifth when asked "What did you see in Farmer MacDonald's fields last night?" correct? But you certainly could plead the Fifth when asked "Where were you last night?" What about things that wouldn't directly incriminate you, but could be used to implicate you, such as "Do you drive a blue pickup?"

    IANAL, but this illustrates why criminal lawyers will tell their clients to *never* talk to the cops. If you're one of the thousands of people who drive a blue pickup, have never done donuts in farmer McDonald's field, and are unaware that the cops are investigating such a case, answering that question could make you a target of the investigation. OTOH, not answering it makes you look guilty when your motor vehicle registrations are subpoenad and prove you do own a blue pickup. If McDonald is suing you for the damage, and has other substantial evidence that you were responsible, your silence may be used for the *civil* case.

    I'm not sure about whether it's kosher for the cops to draw an inference from your silence and focus the criminal *investigation* on you (as distinct from using your silence in court), but you won't find a legal remedy for that short of them including it as "evidence" in something like a search warrant application.

  175. David Schwartz says:

    markm: Any answer to that question would admit to being at the scene of the crime at the time it was committed. How is that not incriminating?

  176. GrimGhost says:

    Re Hansmeier and Steele: What kind of arrogance and hubris does it take to be subpoenaed to appear before a judge, then think you can simply sit in the spectator section and watch the show? Even in something minor like sitting up front, these guys think the rules don't apply to them.

  177. Nicholas Weaver says:

    It's not a particularly scholarly piece, although it stands in contrast to their regular stuff which is usually replete with the words "meth", "shirtless" and "Florida".

    The word "Florida" makes the words "meth" and "shirtless" redundant.

  178. Dr. Wu says:

    One thing that has been clear throughout the Prenda saga is the widespread confusion with regard to "principal" and "principle." Allow me to share a time-honored mnemonic: "The princiPAL [a person] is your PAL." For example, John Steele is a princiPAL of Prenda Law. In contrast, "Operating an interstate extortion racket may result in your being disbarred and in prison" is a princiPLE. Thank you for your understanding.

  179. Frankzzz says:

    Where were any of the involved [shell] corporations actually incorporated? Offshore? Would that affect the ability/dificulty of piercing the corporate veil, finding the true principals involved and/or holding them accountable?

  180. Ygolonac says:

    Grimghost – thew kind of arrogance and hubris that it takes to (attempt to) pull these shenanigans:

    http://www.techdirt.com/articles/20121130/17100821190/copyright-troll-case-tossed-fraud-court-after-abbott-costello-worthy-hearing.shtml

  181. Delvan says:

    Frankzzz: AF Holdings was purportedly incorporated in St. Kitts and Nevis, as was the mysterious trust with no beneficiaries and no trustees that owns AF Holdings and/or owned it at the time of Paul's deposition on the topic. For many of the shell companies (Guava LLC, Arte de Oaxaca LLC, LW Holdings LLC) nobody seems able to find any proof they exist at all.

  182. Strokeface says:

    Has anyone tried to challenge Prenda's data in a Frye hearing? One adverse Frye (or daubert/kuhmo tire) hearing could have disastrous rippling effect on their lawsuits…. It would also open 6881 Forensics up to a ridiculous amount of discovery

  183. James says:

    @Frankzzz:

    If the various legal entities did not, in fact, exist then there is no corporate veil to pierce. The corporate form provides protection only if the nicities of law are followed like filing the annual report and paying franchise tax. Absent a valid legal shell they are just individuals that personally exposed should their adversaries decide to go Old Testament on their ass and invoke the wrath of Yahweh.

    How did you want to handle this: plagues of locusts, rivers of blood, or incurable boils?

  184. Nobody says:

    I found an old forum thread about some of this troll technology, in which we see that the "THEIF" program is an unsophisticated search of referrer logs to find deep links to supposedly paywalled content. Except that somehow search engines like Baidu find it, so the paywall probably wasn't even working properly, which is hilarious. Note that the GFY domain is likely NSFW though the thread itself doesn't appear to have anything naughty.

    http://m.gfy.com/showthread.php?t=1066323&page=1

    SteveLightspeed
    >>> So who owns/runs these sites and forums?
    >>> Let the drama begin!

    [snipped out the funniest examples]
    >>> adf.ly
    >>> alle.bg
    >>> baidu.com
    >>> chat.efnet.org
    >>> HEAD http
    >>> pastebin.com
    >>> pastesite.com
    >>> shitforbrains.org
    >>> yandex.ru

    SteveLightspeed
    >>> Any site that deeplinks into a member's-only area and lists a user/pass along side it gets put on this list.

    epitome
    >> Lightspeed, you own a technology forensics company so tell us who owns them.

    SteveLightspeed
    > Yes I do. And thank you for noticing!
    > Welcome to my first advertisement for THIEF v2.0!

    Impressive list there, man. "Who owns them."? Well, that might be hard to figure out in the case of that "HEAD http" site….

  185. JR says:

    pastebin.com
    pastesite.com

    I'm starting to see hints of Ken's nemesis in these proceedings. What nefarious plans could Captain Pastetaster have in store this time?

  186. Ken says:

    Captain Pastetaster? I'm pretty sure he's retreated to his Fortress of Derpitude.

  187. Nobody says:

    Please tell me that "I was an asshole long before I was a lawyer" is somewhere in the quote of the month rotation?

  188. Patrick says:

    No one here is your brotha from anotha motha.

    This is your final warning. Don't say that again.

  189. John Ginnane says:

    Is it possible Prenda Law et al, are on OUR side?

    They've taken this entire copyright trolling business to a new low. the MPAA and RIAA wouldn't want to be on the same planet as these assclowns.

    So, and this is pure conjecture — imagine a troupe that decides to make the copyright darkside as radioactive as possible, and they perform every unethical, sanctionable stunt they can dream up. By laying out everything you should NOT do, they've actually made it more difficult for legitimate legal firms to handle these types of cases. We've become sensitized to the trolling business.

    I'm not going to defend this conjecture, because that's all it is, but I like the notion of a Quisling systematically dismantling the enemy's defenses from inside.

    Incidentally, it should be noted in passing that the non-technical users targeted by Prenda identified and at least partially implicated themselves by leaving calling cards. Peer-to-peer nets all function in the same way. Only Usenet gives one the option of complete, anonymous leeching.

    And, BTW … Prenda was supposedly going after specific people for "downloading", which it wasn't able to prove with any certainty — either to the individual, or even to the question of a successful, completed download. There is very little case law that's been tried on pure downloads, only (in the majority of MPAA/RIAA cases) where people have subsequently "shared" the material they got, which breaks copyright. And as I understand the downloading side, the fair use doctrine covers a lot of temporary possession of copyrighted materials.

  190. MCB says:

    John,

    I don't think Prenda intended to help anyone but Prenda intentionally. But Prenda is in my view a predictable consequence of handing out incredible power (strict liability, no registration requirement, enormous statutory damages) to copyright holders. How surprising is it that there is abusive litigation? Abusive litigation like this might at least make judges more skeptical of such cases.

  191. John Ginnane says:

    I agree with you, on a first-level reading. But there's been SUCH extensive review of their misdeeds, and remember, these self-styled "smartest guys" can read everything we have written here. They know all our conjectures, and the crucial difference is — they know what we haven't discovered yet.

    If they're ever going to pull a rabbit out of their … err … collective hat, it has to be something so completely outside the realm of reasonable probabilities, that it could only be something so egregiously spectacular as this: they're "really on our side".

    As to your general observations —

    The "enormous statutory damages" are staggering indeed. A copy of a Walmart discount bin video can command a statutory fine as large as a Citizen Kane. I have always felt that if I've seen something on TV once with commercials, I've paid my licensed viewing in perpetuity. Sadly, the courts do not yet agree with this notion. :)

  192. Delvan Neville says:

    So, metaphorically, to convince the local fire marshal that his codes are being enforced improperly, Prenda starts burning down hospitals until they produce the change they're looking for? I don't think that's how they're operating John, and if they were, it certainly would not put them on my side.

    It takes a relatively decent amount of work for an individual to download a large torrent without ever sharing that work with others in progress, though its straightforward for them to minimize sharing very much of it. Your average-joe-pirate case (in a legitimate infringement situation) is still going to involve distribution of the file so long as they're using torrents to get the media. As you mentioned, a savvy pirate would know better than to use torrents anyways, which I think limit the case-loss-rate on *valid* torrent cases where the defendant happened to know how to "cheat the system" for the torrent protocol *and* cheat the system by pirating someone's work. Don't get me wrong, Prenda's apparent nonsense? Fraud, extortion and general douchebaggery? Very Bad. Actually stealing something? Also still bad.

  193. Palimpsest says:

    About those Nevis and St Kitts based trusts that Prenda claims to have.
    There's just been a huge Wikileaks
    database released that provide information about British offshore financial accounts. I wonder if there is information on the Prenda trusts if they exist in that Database.

    http://www.icij.org/offshore/secret-files-expose-offshores-global-impact

  194. John Ginnane says:

    The fire department analogy is flawed because we've all heard of FD volunteers who set fires themselves to "become heroes". There's no stretch to expand this analogy to cover the Prenda mentality, if they choose to try this gambit. It may be all they have left.

    I alluded to Usenet, not torrents. P2P is nice a far as it goes, but anyone desirous of material but with something to lose is not going to deliberately expose themselves. Usenet is older: originally devised as a manner to use mail to send 8-bit ASCII on 7-bit networks, the BBSes of the early 90s employed programs like UUnet to string binaries back together from short emails (sometimes hundreds of them). Later technology used reader programs which would reassemble files manually, using PAR and PAR2 checksum files. There was a splurge of interest a few years ago when NZB files started becoming widely available, something a few of the more technical torrent users were also able to access. Sadly, Usenet itself has come under attack in recent months with increased DMCA ""takedown" notices, and may not last another year … users will migrate to various VPNs, according to public consensus.

  195. Hasdrubal says:

    Thanks for the information on the 5th. Also, I found a link to another post, from Kat's link to th4e LitigationandTrial.com blog post: http://copyright.infringementadvisor.com/2013/04/you-have-right-to-remain-silent.html

  196. Frankzzz says:

    The entire transcript of this hearing (the whole whopping 12 minutes of it) is now on Techdirt:
    https://www.techdirt.com/articles/20130405/11110922599/transcript-12-minute-were-done-prenda-hearing-released.shtml

  197. Jon says:

    And nothing captures Judge Wright's general tone better than the last lines:

    ROSING: … But, your Honor, we would be happy to submit this in a brief if that would be more —

    THE COURT: Good. Do that. Thank you. We are done.

  198. L Nettles says:

    From the transcript

    Page 6 line 25
    Mr. Baker: My I take the podium, your honor?
    The Court: Well, actually we don't have one , but we do have a lectern and you are free to use it.

    A judge that knows the difference between a podium and a lectern should not be trifled with

  199. Delvan Neville says:

    Extending the metaphor to other kinds of arson was not my intention, John, but yes, someone who sets a fire to look like a hero is different from someone who sets a fire because they want to change the fire code.

    However, the whole honeypot scheme *does* fit your metaphor: they hand out the file to be pirated so they can claim to be heroes when they prosecute the cases they created themselves. Both of our metaphors share the same common theme, the point I was addressing with the metaphor: there's a whole bunch of burn victims of those fires (innocent Does prosecuted or paying out settlements) who will strongly disagree with your contention that such activity puts them on "our" side, and I stand by that assessment.

    I know you alluded to Usenet, and I am aware of the difference. I specifically mentioned torrents because that is what I am talking about. Prenda is largly prosecuting people alleged to be pirating via torrents, and such cases are fairly straightforward to establish distribution if you can already establish they downloaded much of the file. I pointed out that so long as people are pirating via torrent, there will be no shortage of legitimate cases to file against pirates. I referenced your Usenet post to specify that, as you point out, someone who is a skilled pirate is unlikely to consider a torrent a safe way to do it, and even if they do they wouldn't be exposing a residential IP while doing so. Thus it is likely that the pool of actual torrent-based pirate cases will be depleted in individuals who do no not know how to exploit or otherwise abuse the torrent protocol such that they don't participate in distribution while downloading.

  200. Delvan Neville says:

    Sorry, too many double negatives in that last sentence. My conclusion was that legitimate torrent-based piracy by an individual publicly exposing a residential IP will likely be an individual who does not know how to exploit a torrent such that they do not distribute at all while downloading.

  201. Nobody says:

    When can we expect more on this case? I assume their lawyers will file some sort of brief as was mentioned in the hearing, then the usual motion practice and a ruling from the court? If so, what are the usual deadlines on that and when might we be likely to hear more?

    Also, would you put up a link to the docket on Recap? I keep losing it and have to dig it out of comments on an older Prenda story, which is annoying, because I like to check for updates.

  202. Delvan Neville says:

    Just for you, Nobody

    I was looking at it earlier today, waiting for the transcript for the 11th to become available.

  203. MCB says:

    "Actually stealing something? Also still bad."

    Infringing someone's copyright is not the same as theft. That doesn't make it right or wrong, it's just different.

    The content industry has gotten a lot of mileage both in court and in lobying through moral outrage, and it's for that reason I really think being clear when talking about copyright is so important. We don't have concepts like "fair use" for stealing funds from someone's bank account, and there is a darn good reason for that. Copyright is a limit we place on–among other things–free expression in order to encourage creative efforts.

  204. Delvan Neville says:

    Infringing on someone's copyright may occur in many different scenarios. I'm talking about a specific scenario. When I say "stealing a copy of their movie/software" I doubt anyone honestly thinks I'm talking about a scenario where the creator no longer owns the copyright. When I talk about pirating a movie, its clear from context I am not talking about intercepting a movie at sea and plundering it for booty. If I say they were infringing on a copyright, it is unclear if I mean they were downloading or uploading the work, or if they were selling their own derivative work that was deemed too similar to the copyrighted work or otherwise wasn't covered under fair use. While fair use is complicated, downloading a torrent of a movie you've not paid for seems pretty simple.

    I won't respond if you feel the need to debate it further, feel free to get in a last word. Honestly, I'm just not interested in being politically correct when talking about piracy.

  205. MCB says:

    "While fair use is complicated, downloading a torrent of a movie you've not paid for seems pretty simple."

    It doesn't seem "simple" to me. In fact, it's not even always illegal. We say, for example, that a certain number of years after the movie is made, it is perfectly acceptable to do this. In fact distributing it for free is a public service!

    Is it inherently obvious that this is "simply" wrong life + 69 years after the movie was made but not life + 71 years?

    I know you said you didn't want to discuss it, and I guess that's fine. I just think the fact that you responded the way you did kind of makes my point. The moralization through words life "theft" and "property" falsely equates copying something with things it is not analogous to, and makes things look "simple" and "obvious" which are neither.

  206. MCB says:

    Ack, wish I could re-edit. "property" in that post should say "piracy."

  207. Delvan Neville says:

    My offer not to debate what words are fair to use for pirates was meant only to keep this thread polite, as I am too exhausted with it to pick apart arguments civilly. Its not a new topic of discussion, and I've already read more than my fill in previous threads.

  208. Andrew says:

    In case anyone would like to see it, the transcript of the April 2 hearing is on RECAP now.

  1. April 2, 2013

    [...] Prenda Law's Attorneys Take The Fifth Rather Than Answer Judge Wright's Questions by Ken [...]

  2. April 2, 2013

    [...] dead enterprise walking today after its lawyers took the Fifth on how they had managed their cases. Popehat had the [...]

  3. April 2, 2013

    [...] about the way in which Steele and his colleagues have conducted their litigation. Ars Technica and Popehat have been providing detailed (and often gleeful) coverage of a series of hearings that may lead to [...]

  4. April 2, 2013

    [...] there was no immediate gratification for those who flew over to attend the hearing, in my opinion, "Popehat" described their fate better than I could ever do [...]

  5. April 2, 2013

    [...] there was no immediate gratification for those who flew over to attend the hearing, in my opinion, "Popehat" described their fate better than I could ever do [...]

  6. April 2, 2013

    [...] there was no immediate gratification for those who flew over to attend the hearing, in my opinion, "Popehat" described their fate better than I could ever do [...]

  7. April 2, 2013

    [...] Prenda Law's Attorneys Take The Fifth Rather Than Answer Judge Wright's Questions [...]

  8. April 2, 2013

    [...] Prenda Law's Attorneys Take The Fifth Rather Than Answer Judge Wright's Questions [...]

  9. April 3, 2013

    [...] Prenda Law's Attorneys Take The Fifth Rather Than Answer Judge Wright's Questions [...]

  10. April 3, 2013

    [...] a lancé Otis Wright II lors de la dernière audience liquidée en 12 minutes, selon un blog spécialisé. «Nous avons terminé», aurait-il asséné d’un ton cassant et le regard noir, en prenant [...]

  11. April 3, 2013

    [...] blog Popehat has another account of today's hearing and a thorough examination of the action Wright could take against the lawyers, including [...]

  12. April 3, 2013

    [...] I probably wouldn't have much to contribute, beacause Ken White at Popehat, as usual, wrote an article about the hearing that makes writers like myself wonder why we even bother! It's a fantastic [...]

  13. April 4, 2013

    [...] Nevertheless, while the spectacle may have proven bloodless on the day, the long-term outcome is likely to be fatal. For a detailed report and all the gory details look no further than Ken White's on Popehat. [...]

  14. April 7, 2013

    [...] "We're done." Litigator and criminal defense attorney Ken White said in a recent blog post that in effect, lawyers conducting litigation before a court have refused to explain how that [...]

  15. April 7, 2013

    [...] Prenda Law's Attorneys Take The Fifth Rather Than Answer Judge Wright's Questions [...]

  16. April 9, 2013

    [...] names of those alleged file sharers. In a court case earlier this month, according to Ken over at Popehat.com, Prenda Law, "encountered an extinction-level [...]

  17. April 11, 2013

    [...] The reality is that plaintiffs often abuse the judicial process to bully defendants, and that brings us to the second subject of this post, Prenda Law, which is currently being exposed, judicially and publicly  as one of the biggest bullies on the block.  But why should we care here?  Because although Prenda has most notoriously exploited the Copyright Act for its legal attacks, it has also showed itself ready, willing, and able to abuse the easily-abusable CFAA in order to enr…. [...]

  18. April 23, 2013

    [...] Prenda pled the Fifth in front of Judge Wright, it has committed a corporate suicide, according to Ken [...]