Prenda Law: John Steele Files A Brief

Law

All of my coverage of the Prenda Law saga is collected here.

After the April 2, 2013 hearing at which Prenda Law principals invoked their Fifth Amendment right to remain silent in response to Judge Wright's Order to Show Cause, Prenda's principals have been filing briefs setting forth their position. I previously described a quite good brief from attorneys for Prenda Law, Paul Duffy, and Angela Van Den Hemel, and a brief by attorneys for Paul Hansmeier.

This morning John Steele's brief appeared on PACER. (It may have been filed yesterday.) The brief is here. It is, by a considerable margin, the most truculent and blunt of the three filings. Steele repeats the same themes as his colleagues, and cites many of the same authorities, but does so more forcefully.

Jurisdiction and Limits On Judge Wright's Power Most of Steele's brief is concerned with limits on Judge Wright's sanction and contempt power and on his jurisdiction over Steele, some of which I discussed in my post on the tools available to Judge Wright. Steele's argument is that he wasn't counsel of record here, didn't engage in any conduct in this district, didn't sign or file anything in this district, that the evidence is insufficient to prove he directed any conduct in this district, and that Judge Wright lacks authority to sanction him for conduct in other districts. Steele also argues forcefully that Judge Wright has not accorded him sufficient due process to use sanctions or contempt power against him. The brief's review of the authorities explaining the limits of Judge Wright's various sanctions and contempt powers is thorough and strongly presented.

Like Hansmeier, in arguing that Judge Wright lacks power over him, Steele points the finger at Brett Gibbs, and argues that Gibb's testimony is inconsistent and inadequate to establish that Steele supervised or directed him:

Similarly, Prenda attorney Brett L. Gibbs’ testimony fails to support a finding of jurisdiction over Steele, as his testimony lacks specificity regarding Steele’s involvement in the subject cases or any California cases, and is otherwise inconsistent or contradicted by others. For example, although Gibbs claimed he was supervised by Steele and Hansmeier at Prenda Law, when pressed for specifics about the degree of supervision he received, Gibbs only offered that Steele and Hansmeier gave him authority to file certain cases here. See Dkt 108-5, at 77:8-24. Gibbs’ further testimony has revealed he had significant autonomy in handling the cases. See Dkt 108-5, at 77:25-78:4 (claiming Steele and Hansmeier “gave me certain parameters [pursuant to] which I could settle the case myself.”); see also Dkt 108-5, at 79:1-5 (regarding the decision to dismiss cases in this Court Gibbs noted: “As counsel of record here, I just kind of broke down like a cost benefit analysis of those cases. And they said, basically, go ahead and dismiss them.”); see also Dkt 58, at ¶5 (claiming Steele and Hansmeier provided him with “guidelines”).

Like his colleagues, Steele also argues that Judge Wright cannot draw adverse inferences from his invocation of the Fifth Amendment because Judge Wright initiated proceedings that were akin to contempt.

The Substance: Steele spends much less time on the substance of Judge Wright's inquiry. What time he spends is defiant and somewhat cavalier. Consider how he frames his response to the accusation that Prenda Law misappropriated the identity of Alan Cooper:

As both Gibbs and Prenda/Duffy/ Van Den Hemel noted in their Responses To The OSC, the Court is mistaken about the law in this regard; the signature of the assignee is irrelevant to the validity of the assignment, so long as the assignor signs. See Dkt 49, at 25:9-26:19; Dkt 108, at 11:24-12:9.; see also 17 U.S.C. 204(a). Lastly, the Court stated: “the Court will not idle while Plaintiff defrauds this institution.” Dkt 48, at 9:10-11. However, even if the Court were to discount the evidence submitted impugning Cooper’s credibility and blame Steele for this “fraud,” it hardly rises to the level of fraud upon the court recognized by the Ninth Circuit, i.e., “a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” In re Intermagnetics Am., Inc., 926 F.2d 912, 916 (9th Cir. 1991)

The argument that a forged signature by Cooper would be immaterial is familiar; the additional argument that it is not any big deal is new, and tactically questionable.

Arguing in court often means finding an effective way to tell a judge he or she is wrong. Usually this involves a certain level of finesse. Sometimes it doesn't:

Regarding any other alleged fraud the Court may consider, as Section III above makes clear, except in rare circumstances not present here, this Court is not empowered to sanction Steele or anyone else based on conduct occurring entirely outside of the subject cases and the Central District. Based on its prior statements, the Court may have erroneously felt otherwise before. Dkt 108-5, at 29:14-22 (over Gibbs’ counsel’s objection that the Court’s inquiry about non-Central District cases was “beyond the scope of the OSC,” and “not what this OSC is about,” the Court responded: “Well, it has become
about it. It has become about fraudulent filings in federal court” generally). [emphasis added]

Or consider this:

Although the Court has not specified the sanctionable misrepresentations it is referring to, the Court has apparently concluded such misrepresentations have occurred. See Dkt 86, at 1:28- 2:2 (“it appears that these persons, and their related entities, may have defrauded the Court through their acts and representations in these cases.”); Dkt 108-5, at 58:21-25 (wherein the Court implies officers of the court have knowingly made misrepresentations to the court). Disturbingly, the Court’s apparent conclusions about the relationships between the persons and entities named in the March 14, 2013 OSC wholly ignores evidence to the contrary Compare, e.g., Dkt. 69-1, pp. 21:18-2, 38:22-39:15, 40:8-12 (regarding who owns AF Holdings) with Dkt 108-5, at 114:5-8 (I do have the picture, and I know who the client is. We have talked about the client, and the client has been running everything. Yeah, I know who the client is”); see also Dkt 108-5at 19:15-18 (suggesting Prenda law is “controlled by Mr. Steele.”)[emphasis added]

Steele's other substantive arguments are now familiar: he asserts that the evidence is inadequate to show that he was involved in any part of the conduct of the litigation before Judge Wright and therefore cannot be subject to sanctions, and that the notice of the March 11, 2013 hearing was inadequate and that therefore he cannot be sanctioned for failure to appear. Steele, as his circumstances require, is mum about the actual ownership of the Prenda Law clients, or whether he has any financial interest in them.

The Battle and the War: John Steele's brief is not calculated to persuade Judge Wright. It's not even calculated to avoid antagonizing him. Rather, it's calculated to make a record for appeal. In fact, I suspect the brief is calculated at least in part to goad Judge Wright into issuing an overbroad order that is vulnerable when appealed to the Ninth Circuit.

Steele is playing a dangerous game, and one that is focused on his own short-term survival rather than any possible future viability of Prenda Law or its potential spinoffs. In an effort to attack the adequacy of the evidence in this case, he's attacked Brett Gibbs and left him holding the bag. That might be good battle-tactics, but it's problematical strategically — in the long term, I wonder what emails or other documents Gibbs might have that he can provide to courts or other authorities. Gibbs is well-represented, shouldn't take the fall for Prenda Law, and won't. Moreover, Steele's blunt and defiant response won't play well in front of any other court or tribunal across the country when Prenda Law defendants begin to seek sanctions or fees or investigations in those cases.

The wheels grind slowly. But they grind, my friends. They grind.

Last 5 posts by Ken White

186 Comments

186 Comments

  1. Donald Duck  •  Apr 10, 2013 @9:25 am

    Since we're already talking about appealing the sanctions, wouldn't the appeal wish to ask some questions and require testimony? He disputes the evidence, yet pleads the fifth.

    Even the jurisdiction issue, would they question him about his role in these various companies? If he just continues to plead the fifth, how can he dispute any sanctions?

  2. RavingRambler  •  Apr 10, 2013 @9:26 am

    Prenda Law, the gift that keeps on giving. This just provided my lunchtime entertainment on an otherwise slow day. Thanks for the coverage!

  3. Britabroad  •  Apr 10, 2013 @9:28 am

    Did we really expect anything other than this type of response?
    Ken, I have properly enjoyed your insightful, well written and downright entertaining coverage over here in Scotland…. I have no idea how the American legal system works but my lord I enjoy it when it goes awry like this….
    My bet is that Judge Dredd doesn't sanction…. just passes this on to someone who can dish out the proper punishment for this appaling behaviour….
    Plenty popcorn over here….

  4. perlhaqr  •  Apr 10, 2013 @9:28 am

    So what do you think? Is he right that Wright has the wrong of him?

  5. Charles  •  Apr 10, 2013 @9:40 am

    Now that Steele has attempted to throw Gibbs under the bus, what are the chances of some attempt at jiu jitsu from Gibbs here? And how does A/C privilege compromise Gibbs' ability to defend himself with specificity now that the client (such as he is) has attempted to pin the blame on the attorney?

  6. Jim Tyre  •  Apr 10, 2013 @9:43 am

    Now that all of Steele, Duffy and Hansmeier have thrown Gibbs under the bus, one wonders whether Gibbs will soon by filing a reply of some sort. One which, perhaps, includes a factual declaration. Because he didn't invoke his Fifth Amendment rights at the March 11 hearing, he's not precluded from doing so. (Of course, Judge Wright didn't authorize him to file anything further. But then, neither did Judge Wright authorize the filings by Steele and Hansmeier, as opposed to Duffy.)

  7. John Ammon  •  Apr 10, 2013 @10:06 am

    Hmm… This is the exact kind of response I would expect from Steele… he's like a cliche villain, impecable suit, neat hair, square jaw, furrowed brow… seems calm but lashes out with false authority, and most importantly, think's he's invincible.

    He's not invincible, thankfully.

  8. Amagon  •  Apr 10, 2013 @10:08 am

    Far too slowly for my liking.

  9. John Ammon  •  Apr 10, 2013 @10:10 am
  10. Wondering  •  Apr 10, 2013 @10:14 am

    Looks like Hansmeier and Steele let Rosing do the heavy lifting and then just piggy backed off her work for their own briefs.

  11. Noah Callaway  •  Apr 10, 2013 @10:29 am

    @Charles

    "how does A/C privilege compromise Gibbs' ability to defend himself with specificity now that the client (such as he is) has attempted to pin the blame on the attorney?"

    Awesome question. I had never thought of that angle of A/C privilege before.

  12. Nicholas Weaver  •  Apr 10, 2013 @10:32 am

    Question: can ONE party of the attorney/client or internal-work-product privilege unilateral wave that privilege on documents?

    If so, Steele's response (And Hansmeier's before him) really are saying "Hey Brett, Squeal like a pig now, because we are going to leave you under the bus otherwise."

  13. Kat  •  Apr 10, 2013 @10:34 am

    @John Ammon He's even got the villain name.

  14. Mike  •  Apr 10, 2013 @10:36 am

    " Donald Duck • Apr 10, 2013 @9:25 am

    Since we're already talking about appealing the sanctions, wouldn't the appeal wish to ask some questions and require testimony?"

    The appeal will be based on the trial court record. Appeals rarely involve new evidence or testimony. The Prenda arguments here will be the focus of the arguments on appeal. Specifically, that Wright didn't have the jurisdiction, power, or evidence to issue whatever sanctions he did.

  15. Ken  •  Apr 10, 2013 @10:39 am

    @Nicholas:

    Question: can ONE party of the attorney/client or internal-work-product privilege unilateral wave that privilege on documents?

    The privilege belongs to the client. Only the client can waive it — except in circumstances where it is waived by operation of law (like when a client sues an attorney for malpractice, or asserts ineffective assistance of counsel in a criminal case).

  16. naught_for_naught  •  Apr 10, 2013 @10:42 am

    What ever time Steele has leftover from doing whatever it is that he does do for a living is spent polishing his brass balls.

  17. John Ammon  •  Apr 10, 2013 @10:42 am

    @Kat – I know, right!?

  18. Nicholas Weaver  •  Apr 10, 2013 @11:02 am

    The privilege belongs to the client.

    HA. It ALMOST sounds like Gibbs needs to enjoy being under the bus. Except…

    Could the real Alan Cooper waive any privilege involved, to allow Gibbs to throw his Prenda "Friends" under the bus?

    Since at this point, Steele et al have conceded that "Either Cooper doesn't exist OR Alan Cooper is the Alan Cooper who can make decisions for AF Holdings".

    So could the real Alan Cooper submit something to the effect of "I am not the mythical Alan Cooper, but if I was, I waive all privilege for Ingenuity 13? So squeal Brett, Squeal!"

  19. G Thompson  •  Apr 10, 2013 @11:03 am

    @Ken The privilege belongs to the client. Only the client can waive it —
    Ah but shouldn't the pertinent question now be. "Just exactly whom is the client in this whole sorry mess?" I'm not even convinced that the ones currently with their proverbials in the grinder at the moment know whom is doing what and where to whom anymore either.

  20. MattS  •  Apr 10, 2013 @11:11 am

    Ken,

    You and the operators of the copyright troll sites have been had. Prenda is really a money laundering operation and even the defendants are fake. The FBI is on to them and they are trying to shut all the cases down and vanish.

  21. Anonymous  •  Apr 10, 2013 @11:18 am

    Lets not forget that Gibbs' also testified that Prenda Law continued to use a stamp of his signature on dunning letters in states outside California after he claims he severed ties with the firm, and that he tried to talk to Mark Lutz about it and was referred to Paul Hansmeier and John Steele.

    Rosing only mentions this issue, and then only represents that it was part of a "diatribe" by Pietz, but she seems to have overlooked that Gibbs actually testified to this fact! It seems awfully hard to blow off Prenda and Duffy (as Prenda's owner) responsibility for sending out hundreds of forged dunning letters as well! Although, if they didn't specifically dispute Gibbs' testimony, does that make it undisputed evidence (IANAL)?

    So that, the Alan Cooper thing, and the mystery of the Salt Marsh. I really don't see how these guys are going to argue that there is nothing to see here. But I think the more they to play this game of "None of the apparently fraudulent stuff we did would matter even if we did it, but even if we did you can't touch us anyway" is just going to get this whole mess referred to some people who will really make these guys' lives miserable.

  22. Paul G  •  Apr 10, 2013 @11:20 am

    Bloody typical. You wait ages for a bus to arrive, then three bear down on you all at once.

    I'm reminded of Judge Wright's closing "good luck to you" back on March 11th.

    At this point, what options might be open for Gibbs to respond, or is that unnecessary since it's now his testimony under oath on 3/11 vs filings from three people who refused to show that day, then showed up on 4/2 but pleaded the 5th?

  23. David M. Nieporent  •  Apr 10, 2013 @11:29 am

    Has anybody considered the possibility that AF Holdings is actually owned and controlled by machines that have become self-aware?

    It would explain why every single one of the Prenda-affiliated people here claims to have no knowledge of anything. None of them do; they're all patsies for Skynet. The machine has been using a shell game to convince each person that one of the others is the brains behind the operation.

  24. CrazyTrain1  •  Apr 10, 2013 @11:41 am

    Steele is playing a dangerous game, and one that is focused on his own short-term survival rather than any possible future viability of Prenda Law or its potential spinoffs.

    Come on now. I am sure that Steele, et al, have given on up on any future in the Prenda Law/porn-copyright-troll business. They are trying to save their own asses, their licenses, and money at this point. There are a lot of other scams in the sea for them to move on to if they can survive this.

  25. ChugiakTinkerer  •  Apr 10, 2013 @11:53 am
  26. dfbaskwill  •  Apr 10, 2013 @12:01 pm

    Sometimes, like nails on a chalkboard, they grind. Let's hope they grind the right people this time.

  27. Jim Tyre  •  Apr 10, 2013 @12:02 pm

    Nice to see Steele welcome us (EFF) to the big leagues:

    http://www.xbiz.com/news/161511

    [....]

    Steele on Wednesday admitted that the court proceedings are "unusual" and that he's hoping Wright, or a higher court, will see it his way.

    " I am very confident that once the facts are reviewed by Judge Wright, or the 9th U.S. Circuit Court of Appeals if necessary, this latest effort funded by the Electronic Frontier Foundation to stop anti-piracy litigation will fail," he told XBIZ.

  28. Ken  •  Apr 10, 2013 @12:10 pm

    @Jim:

    Taking the Fifth in court, but giving statements to the press. AWESOME judgment.

    Also . . .

    Wright hasn't said what he'll do about Steele or Prenda Law, but his options could include asking federal prosecutors to probe the firm, referring lawyers to various state bars for discipline, even disbarment, and imposing monetary sanctions.

    That sounds . . . familiar.

  29. Steve H  •  Apr 10, 2013 @12:21 pm

    Look at footnote 5. Gratuitously calling a federal court judge a moron is probably not a good idea.

    5 The Court’s suggestion that “old-fashioned stakeout may be in order” overlooks the crucially important fact that the subject infringement would have necessarily happened many months prior to the stakeout (i.e. prior to the filing of a Complaint, the initiation of discovery, and obtaining the IP address holder’s home address from the ISP). It is therefore puzzling how the Court could conclude that
    persons within the subscriber’s home many months later may be correlated with tracking data from many months before to assist with a “determination of who would have been in the subscriber’s home
    when the download was initiated.”

  30. MCB  •  Apr 10, 2013 @12:22 pm

    "Obviously I disagree with some of the bizarre claims of criminal conduct thrown around by people without any proof," Steele said. "I can say that I never even heard of the case in front of Judge [Otis] Wright until two months ago, and have never appeared in a California case in my life."

    That appears to be the main quote from Steele himself. One would think if the claims were that "bizarre," the proof that wanting, and Steele so wonderfully clean of hands, he might not have needed to take the fifth rather than discuss the litigation strategy of his law firm.

    Also, I hear Steele is renting out a cabin for anyone looking for a good deal. There are some unusual perks and papers to sign….

  31. Another anonymous NAL  •  Apr 10, 2013 @12:35 pm

    @Wondering: I think you're absolutely right. If it weren't for Rosing, these guys wouldn't even be able to find a bus so they could throw Brent Gibbs under it…

    Also, Steele's whole take on Cooper made my head hurt: "Yeah, the crazy guy in my cabin who may or may not have signed for the copyrights that make our whole business model work may actually have had his signature forged by somebody else, but even if somebody proves that one way or the other, it's not really important…"

  32. mcinsand  •  Apr 10, 2013 @1:08 pm

    @MCB: I simply have to applaud the elegant way you summed up the relationship between Steele's creative writing exercise and the way he took the fifth last week!

  33. naught_for_naught  •  Apr 10, 2013 @1:10 pm

    From the xbiz.com article:

    Steele told XBIZ on Wednesday that while he can't discuss details of his 5th Amendment invocation to the court two weeks ago, he and his law firm, Prenda Law, have done no wrong.

    He, that,…what?

    Didn't Steele previously say that he is not associated with Prenda Law? How do you know when Stockholm syndrome begins to set in, anybody?

  34. Jim Tyre  •  Apr 10, 2013 @1:21 pm

    Morgan Pietz just filed a request for leave to file a reply brief, ten pages max, due April 16. I won't predict whether Judge Wright will grant the request, but I'm wondering whether the attorneys for Gibbs are working on a reply.

  35. mcinsand  •  Apr 10, 2013 @1:25 pm

    How useful are the recent filings, as far as giving Wright a bit more ammunition? These people are in effect swearing that they are telling the truth, right? So, when they work to throw each other under the bus, can Wright use those allegations?

  36. MCB  •  Apr 10, 2013 @1:30 pm

    Also, I notice that the second attorney is someone who would seem to have a lot of experience in criminal law, with substantial time as an ADA and an AUSA. Were I Mr. Steele, that is what I would be looking for at this point: lots of experience in federal criminal litigation. My main worries would be going to prison, and defending forfeiture actions.

    Then again I wouldn't be Mr. Steele.

    Does anyone think these folks have much chance of keeping their law licenses?

  37. MCB  •  Apr 10, 2013 @1:45 pm

    I should say that I mean the second attorney listed in the brief.

  38. James  •  Apr 10, 2013 @1:49 pm

    I have only one experience with a State of Illinois attorney that got his license pulled. He was selling unregistered securities to the secretaries at a well-known Wall Street law firm and that was enough to get him a three-year vacation from the practice of law. Mind you this was Chicago where a bit of misbehavior is ingrained into the culture.

    While this attorney was not a very nice fellow, and richly deserved everything that came his way, I think the Prenda boys have behaved far worse and are at least as arrogant.

  39. Fredric L. Rice  •  Apr 10, 2013 @1:54 pm

    Pleading the 5th generally is an admission that there is information that one does not wish to be divulged which evidences criminal behavior for which the individual so pleading could be indicted if the information is made known. It's an admission by these filthy crooked lawyers that they have been engaged in crimes the likes of which DirectTV and the Scientology corporation have been indicted for, in my opinion.

  40. Anonymous  •  Apr 10, 2013 @1:56 pm

    Wow, even now Steele's inability to keep his mouth shut never fails to entertain.

    "I am very confident that once the facts are reviewed…"

    Would make for amazing famous last words, but I'm sure they won't be Steele's last words on the matter, even if he won't talk to the courts.

    And really, telegraphing his intention to appeal? Not that anyone will be surprised or Wright needed to guess, but seriously? He had a terrible habit of this when he used to post on the anti-troll forums. He'd drop by and make a bunch of threats and basically give away his Next Big Plan, we stole his thunder a bunch of times by guessing exactly what he was going to do.

  41. jfb  •  Apr 10, 2013 @1:58 pm

    I am, at this very instant, quite literally munching on popcorn (Act II, Butter Artificial Yellow Somewhat Butter-Flavored Grease Lover's), courtesy of the vending machine and microwave in the break room). I had popped it before coming here, not knowing this update was live.

    I think the Universe may be trying to tell me something.

  42. Wondering  •  Apr 10, 2013 @2:16 pm

    @Frederic, or it could just mean that they're 1/4 Romulan and lied about it on their Starfleet Academy application — since Romulans aren't allowed in Starfleet — the fact of which has nothing to do with whether they leaked top secret Starfleet information from the Enterprise.

  43. Andrew  •  Apr 10, 2013 @2:21 pm

    @Wondering: But that's the Seventh Guarantee, not the Fifth Amendment…

    Kidding aside, my non-lawyer understanding is that nothing at all criminal may be inferred (in court, anyway) from someone's use of the Fifth Amendment.

  44. John Ammon  •  Apr 10, 2013 @2:24 pm

    @Anonymous – I have a really hard time visualizing John Steele furiously typing a message on a forum… it kind of breaks the "slick executive guy" facade he has created :P

  45. htom  •  Apr 10, 2013 @2:25 pm

    I saw a bumper sticker this lunchtime that might be appreciated here:

    Not so lean, still bleed green;

    Just as mean, still Marine.

    Goading Marines is a dangerous game. They're goaded from the time they step onto the bus into Boot Camp. They learn to be goaded and remember. They know that the most important weapon is the mind, and patiently, when you don't expect it, if you've been a big enough problem … they demonstrate that surprise is the most important tactic. I don't know if he'll fall on them like lightning from the bench, or they'll find that the ground has quietly disappeared from under their feet, or realize that the money's strangely gone, or …; I know they won't see it coming.

  46. Ygolonac  •  Apr 10, 2013 @2:34 pm

    "I am very confident that once the facts are reviewed…"

    Ooooh, there are going to be facts reviewed? That *does* mean actual documentation regarding the operations and staff of Prenda/cetera, such as properly identifying various rightsholders and assignees, financial statements which show what money has been going where and who is legally responsible, and perhaps even the mechanics behind the magical IP-address-discovering infringement detector?

    Oh, wait, forgot it's Steele.

    Translation: "I'm shovelling as hard as I can to obsure everyone's view. Conduct yourself to the big leagues."

  47. anonymous  •  Apr 10, 2013 @2:52 pm

    Yo, Otis. Yeah, Judge Otis Wright. You see what just happened here? John "Honey Badger" Steele just called you out. He don't give a shit. The Honey Badger does what it wants…

  48. DP  •  Apr 10, 2013 @2:57 pm

    Two points:

    1. If in fact it is not criminal, but civil, contempt, Judge Wright can make presumptions from the invocation of the 5th. He can hold anyone in contempt until they purge themselves of the contempt. Criminal contempt is simply punishment for something already committed, with no coercive measure to try to obtain compliance with a court order, etc. So, couldn't Judge Wright just couch this in civil contempt and throw them in jail until they "purge themselves of the contempt"?

    2. I recall from the transcript that right after Judge Wright said "Well, if he says it will incriminate him, I won't make him testify. . ." one of the lawyers said "I didn't say it would incriminate him." That seems to me to be a little disingenuous and not a proper invocation of the 5th (Ken can correct me here, as I am a civil litigator, not a criminal defense attorney).

  49. Anonymous  •  Apr 10, 2013 @3:39 pm

    I know "appeared" has a particular legal meaning in Steele's quote, and I'm sure Pietz has tread and retread this ground, but there are a lot of people in California (like, oh, THOUSANDS) who have received copies of subpoenas and dunning letters signed by John Steele for cases filed in federal districts of California.

    OK, yeah, sure, that may not count as an "appearance," but it's a bit late in the game to try "Me?! California!? Never even heard of the place!"

    Steele long ago put his fingerprints all over cases in California, he is well beyond plausible deniability and attempting to work on the cases covertly, although I'm sure now he wishes he planned ahead a little more carefully and had Gibbs sign all that stuff instead.

    This is yet another ridiculous claim that will only draw more attention to the inconsistencies in Steele's story. I'm not sure who he thinks his audience is at this point, since he gave up on having clients some time ago and the people he really needs to fool have long seen through his bullshit.

  50. Dan  •  Apr 10, 2013 @4:10 pm

    @DP
    The problem with using civil contempt is that there has to be a particular order that is not being complied with. In that case, the contemnor can be punished appropriately (daily fines, incarceration, whatever) until he cures the contempt. The phrasing I learned in law school was "the contemnor holds the keys to his own cell." I'm not sure we have any such orders in this case at this point.

    @Charles
    The relevant issue isn't actually the attorney/client privilege, it's (closely-related) attorney/client confidentiality. The privilege allows an attorney to refuse to testify; confidentiality requires the attorney to keep information secret.

    The confidentiality rule is found at Rule 1.6 of the ABA Model Rules of Professional Conduct. Although these rules, as such, aren't law, most states have adopted them or something very similar. You'll note that Rule 1.6(b)(5) allows an attorney to disclose confidential client information if necessary to establish a claim or defense in a dispute with the client. I'd think there's at least a good argument that this rule applies here.

  51. Anon_Lurker  •  Apr 10, 2013 @4:15 pm

    Not a lawyer, will all the filings by the Prenda dimbulbs allow all the other parties an opportunity to reply with their own briefs? Also, I suspect the dimbulbs are underestimating Judge Wright. Possibly his nastiest action may be to goad others into action such as the various bar associations, prosecutors, and possibly the IRS. The resulting investigations could be more devastating than any direct sanctions.

    A question about possible evidence, could Steele's public comments be used as evidence if presented to a court? If you claim the Fifth I would think it was to make no comments to anyone lest the comments become evidence.

  52. Matthew Cline  •  Apr 10, 2013 @4:32 pm

    Steele said "I am very confident that once the facts are reviewed…"

    What facts? There's a dearth of facts because your side won't say anything!

    —-

    @Ken:

    About how the Prenda folks taking the Fifth conflicts with them explaining themselves: would explaining themselves via a declaration act as them waving their Fifth amendment rights, so they don't dare to explain anything, even if it's not self incriminating? Or can they offer up whatever they feel like, and thus the fact that they aren't offering up anything means that anything they could offer up is self-incriminating?

    —-

    @MCB:

    That appears to be the main quote from Steele himself. One would think if the claims were that "bizarre," the proof that wanting, and Steele so wonderfully clean of hands, he might not have needed to take the fifth rather than discuss the litigation strategy of his law firm.

    Well, according to Steele's lawyer at the April 2nd hearing, in reference to the Fifth amendment plea: "I'm not saying that the answers would incriminate him, but you leave my client with no choice". The only way I can interpret this is that Steele means: "I'm as pure as the driven snow, but Judge Wright will twist and misinterpret anything I say, so to protect myself from that I'd better not say anything".

    Which brings an interesting question: if you've done nothing criminal, but you're afraid that someone in the government will twist around anything you say to make it look like you did something criminal, can you invoke the Fifth?

  53. Noah Callaway  •  Apr 10, 2013 @5:00 pm

    @Matthew Cline

    "Which brings an interesting question: if you've done nothing criminal, but you're afraid that someone in the government will twist around anything you say to make it look like you did something criminal, can you invoke the Fifth?"

    (IANAL; this is my understanding; I am often wrong) Yes. Invoking the fifth is not something you only do when standing in a witness box. The fifth amendment is also the reason you have the right to remain silent when an police officer interrogates you.

    My understanding is that if some testimony could incriminate you (even if that testimony is not itself incriminating), you can remain silent under the fifth amendment.

    See also: http://www.youtube.com/watch?v=6wXkI4t7nuc

  54. MCB  •  Apr 10, 2013 @5:01 pm

    @Matthew

    Which brings an interesting question: if you've done nothing criminal, but you're afraid that someone in the government will twist around anything you say to make it look like you did something criminal, can you invoke the Fifth?

    I'm not completely sure about how to answer this question. I'm a law student whose most useful criminal legal experience is defending clients on misdemeanors in federal court. Criminal law is what interests me, but take whatever I say with a grain of salt, particularly on a blog written by someone with a lot of real experience in criminal law.

    I don't think the argument, as you put it would work for taking the fifth. It's too broad. It's not going to be enough to say "I'm worried ANYTHING" I say could be misinterpreted.

    But, I don't think that means that by taking the fifth you are saying I have met every element of a crime. For example, if you had shot someone in self-defense I think you would be within your rights to invoke the fifth to not discuss it because it could incriminate you.

    My earlier statement was obviously just a joke, but I do think it's hard to square "I am taking the fifth" with the notion that there is no evidence and the accusations are just "bizarre." It also just looks bad to refuse to answer the questions a judge is asking you, but to then go out and tell the media about it.

    I think the bigger issue is that a lawyer should never ever have to take the fifth to avoid discussing their conduct in litigation. That just ain't kosher. And the people who have posted here with more experience seem to find that just as crazy as I do.

    What the implications of taking the fifth are going to mean will depend quite a bit on what kind of issues these guys are dealing with down the road. I would think that it will not be helpful in fending off sanctions for attorney's fees or defending their bar numbers. It will be helpful if the United States Attorney for the Central District of California decides to make an example of them. And were I them, that prospect would scare the bejesus out of me.

  55. MCB  •  Apr 10, 2013 @5:03 pm

    Note that my answer regarding misinterpretation is a little bit different from refusing to talk to police officers or something similar. I'm thinking more along the lines of using the fifth to avoid complying with an order to explain yourself.

  56. That Anonymous Coward  •  Apr 10, 2013 @5:26 pm

    @CrazyTrain1 – you would be incorrect.
    The new name is already spun off and payments were directed to the new name from the old name.
    The new name already has connection to at least 1 porn scene that I am sure was going to magically end up on the interwebs.

    Sadly the pron starlet didn't know admitting John Steele was in the room as she was filming a scene was going to amount to anything when she admitted that Steele was BitTorrentBull and she was working for him.

    They have made quite a bit of money and not a damn thing has happened to them yet, they are not about to stop despite everything they have done that should have resulted in fines, sanctions, hearings, etc. Robocalling threats, calling people guilty on their website, the lovely tweets Steele has posted then deleted, fraud, manipulation of fact, misrepresentations of the law, cutting deals with defendants they don't intend to collect against to allow discovery against thousands of others. Those are just off the top of my head.

    Someone allegedly downloaded a movie and has the full force of the legal system come down on them.
    A lawfirm lies, cheats, steals and they are given the benefit of the doubt through 3 (or is it 5 now) firm name changes all doing the same work in the same way.

  57. Dan  •  Apr 10, 2013 @5:37 pm

    @Anon_Lurker
    Ordinarily, statements of a party-opponent are admissible as non-hearsay. In this case, there really isn't an adverse party as such. However, I'd expect Judge Wright could take judicial notice that Steele made those comments (if they were relevant anyway).

  58. orvis barfley  •  Apr 10, 2013 @6:12 pm

    continued splendid chronicle.  much appreciated.

    i've misplaced my playbill, though.  is there still just one john steele?

  59. anonymous  •  Apr 10, 2013 @6:27 pm

    As Hasnmeier testified at deposition the owner of AF Holdings is an undefined beneficiary trust, no owners exist. If no owners, no client exists. If no client, no attorney-client privilege exists.

    The argument that the assignment to AF Holdings, despite being fraudulent, is a red herring. Like Righthaven, the fraud upon the court is AF Holdings lack of standing to initially sue for copyright infringement. The only assignment in the record unequivocally shows the copyrights were assigned to AF Films; a different entity.

  60. anonymous  •  Apr 10, 2013 @6:47 pm

    Given Gibbs' testimony that he was a file clerk, assistant, secretary, piss-boy, etc., and he took all instructions from Hansmeier and Steele, specific jurisdiction exists over them. Also, because the local rules, no different than a court's order, were violated–failure to disclose related cases, and to disclose persons who had financial interest–Hans and Steele are in civil contempt of court. Civil contempt sanctions–which are designed to compel future compliance with a court order–are coercive and avoidable through obedience, and "thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required." (International Union, UMWA v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 2557 (1994) as cited by the U.S. Attorney's Office at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00754.htm.)

  61. Delvan  •  Apr 10, 2013 @7:22 pm

    Hmm, notice twice, an opportunity to be heard twice (or more if you count the filings), no explanation.

    @Steve H: That footnote is from Mr. Chin's statement, the claimed forensic expert. Paraphrased that: Oh, no, you can't do a stakeout, a specific individual might finish the download before you get there. You can't do a physical stakeout, its a CFAA violation (he claims) to monitor someone's wifi without the owner's consent. Except Prenda's model already is to discard chasing the bulk of the alleged infringers, and focus on pinning it all on someone they can make a shitty case against (after first, of course, making as many settlements as they can). Try to make them responsible for the actions of all the co-conspirators they haven't or couldn't identify, to net a big award from those they can successfully sue.

    Basically, I think we can agree that presently, it's not not really economical to attempt to litigate against everyone who infringes a copyright once. (Prenda is pure hogwash profit-from-cases and even they don't really litigate against every alleged infringer, just the ones they can track down). Their argument is that you can't catch 100% of the infringers with a non-"snapshot" approach because of these special exceptions. That argument is flawed considering they aren't really pursuing a significant percent of their alleged list of how many co-conspirators there were anyways.

    Its also extremely embarrassing for them to claim (and in fact brag) that their system cost, what was it, $150k? $250k? And it records no more than a snapshot of a "child reaching for a candy bar"? I've never met a software engineer who makes $250k an hour. :)

  62. David M. Nieporent  •  Apr 10, 2013 @7:34 pm

    Which brings an interesting question: if you've done nothing criminal, but you're afraid that someone in the government will twist around anything you say to make it look like you did something criminal, can you invoke the Fifth?

    Yes. The only time you can't invoke the Fifth is if there's no chance of prosecution — e.g., you've been given immunity.

  63. MouseTheLuckyDog  •  Apr 10, 2013 @8:49 pm

    Like I said before. This sounds like a rear guard action.
    Specifically something that delays the inevitable so you can pull off an orderly retreat.

    I would not be surprised if Steele et al were not quietly pursuing actions in a way to quietly raise as much money as possible, moving money offshore, and preparing to run to a country without extradiction.

    At least it is my belief that any intelligent hedonistic person would be doing.

  64. Allen  •  Apr 10, 2013 @9:14 pm

    Nah, they've got an out. The only reason you would consider going head to head with a Federal Judge is, National Security.

    We just haven't seen that bit yet.

  65. En Passant  •  Apr 10, 2013 @9:42 pm

    Anonymous wrote Apr 10, 2013 @3:39 pm:

    I know "appeared" has a particular legal meaning in Steele's quote, and I'm sure Pietz has tread and retread this ground, but there are a lot of people in California (like, oh, THOUSANDS) who have received copies of subpoenas and dunning letters signed by John Steele for cases filed in federal districts of California.

    Unfortunately those letters alone do not constitute the purposeful availment of courts in California necessary to establish jurisdiction.

    Steele's brief responding to the OSC makes this clear, citing apparently good precedent[1] on p.4, lines 8-11:

    … see also Douglas Furn. Co. of Calif., Inc. v. Wood Dimensions, Inc., 963 F.Supp. 899, 902 (CD Cal. 997)(finding the mere act of sending letters threatening legal action, without more, did not constitute “purposeful availment”).

    FN 1: I never practiced civil, and wouldn't know Douglas Furniture if it walked up and bit me. But I expect that counsel of Halloran's stature (he's an SBC certified legal malpractice specialist) got it right.

  66. Jon  •  Apr 10, 2013 @11:21 pm

    I find it interesting that the brief explicitly says Steele Hansmeier is a "predecessor" (and not "purported predecessor") to Prenda, seems to confirm that Steele is (no surprise) a partner in Steele Hansmeier and then proceeds to deny Steele has anything to do with Prenda (near the end of section II). Are they now claiming Duffy is the only person in charge at Prenda?

  67. Delvan  •  Apr 10, 2013 @11:48 pm

    Random observation. Classic Steele Hansmeier demand letter notes that piracy is a problem for content producers, such as their client, who depend on revenues to sustain their businesses and pay their employees. The client for that letter? AF Holdings. The date of the letter? October 10th, 2011.

    But Paul Hansmeier's deposition tells us that said client has one employee (singular), Mark Lutz (pages 26-32ish). His terms of employment started in May 2011, so he was the supposed CEO of AF Holdings at the time that demand letter was sent. Further, they do not pay their sole employee. I realize there's wiggle room in the language here, perhaps that it is the producers like their clients that do pay their employees, but I wonder if the plethora of demand letters sent out might elsewhere state directly that their client pays their employee(s).

    @Jon along the same lines, Mark Lutz is the CEO of AF Holdings and Ingenuity13, not purported CEO, but Alan Cooper is a purported corporate representative of AF Holdings. Gee, just because a guy signs some papers on behalf of the company, the court dares to infer that he is representing said company? Madness. Next thing you know, they'll infer John Steele was involved with Steele | Hansmeier LLC. I am outrage!

  68. Dave B  •  Apr 11, 2013 @12:18 am

    What baffles me is the whole copyright assignment argument: They are argueing that it is in essence a one-sided contract, the copyright holder assigns his right to someone else willy-nilly. That 'person' doesn't have to agree with it or even exist. He just has it 'assigned' to him, whether he wants to or not. You could almost say like a strawman.
    It's like blaming the boogeyman, except he can be a real person but can't do anything about it.

  69. Avid Watcher  •  Apr 11, 2013 @3:13 am

    Unfortunately those letters alone do not constitute the purposeful availment of courts in California necessary to establish jurisdiction.

    In the March 11 hearing Mr. Pietz mentions subpoenas signed by Steele somewhere in California, in spite of not being licensed in CA. Would those give the judge jurisdiction?

  70. markm  •  Apr 11, 2013 @3:17 am

    It just occurred to me that there is one more way Prenda may run afoul of federal prosecutors: porn publishers have to meet fairly onerous record-keeping requirements (section 2257). Basically, they have to be able to identify the model(s) in each shot and prove they were all over 18, and the records have to be kept accessible to investigators. So I could see a federal investigator becoming very interested in finding Prenda's alleged clients. And if, as is beginning to seem likely, Prenda was its own client, I doubt they were any better at keeping 2257 records than they were at litigation. Going to prison for fraud is one thing, but a conviction for child porn is something else…

  71. Paul E. "Marbux" Merrell, J.D.  •  Apr 11, 2013 @5:53 am

    There's a resounding silence in all of these Prenda-side briefs regarding what I regard as the elephant in the room, the judge's power to refer the matter to the U.S. Dept. of Justice for criminal investigation. So far as I am aware, the judge can do this at any time without it being regarded as a sanction. (However, I have not researched that issue; I just know that even I have the right to report suspicious activities to the police and the briefs' silence on this issue tends to suggest that the Prenda-folk's lawyers could find no legal barrier to the judge doing so.)

    The lawyers have carefully addressed very specific limits on the judge's powers but his power to refer the matter for criminal investigation is conspicuously absent from the discussion, even though it was specifically mentioned in the order to show casue.

    What is the truly remarkable part to me is that the more tanglefoot for the judge on other issues that the Prenda-folk's lawyers succeed in creating with their briefs, the more they nudge the judge toward referring the matter for criminal investigation. And that, I suspect, would be the clients' least-desired route for the judge to take, particularly given the Fifth Amendment pleas, which fairly shriek for a criminal investigation.

    Those factors suggest that either the defense strategy is extremely short-sighted or that the clients actually are guilty of serious criminal misconduct that likely would have come further into the light had they testified and not invoked the Fifth Amendment. Are there other conceivable explanations? Yes, but all that have occurred to me necessarily imply that the lawyers representing the Prenda folk are incompetent. And that doesn't seem to be the situation.

    The very strong whiff I sense is that the lawyers' hands were tied by what they learned their clients had actually done, forcing them in effect to walk their clients into a criminal proceeding. The judge won't miss that message.

    Restated, what is not being argued may be more significant to the judge's decision than the arguments that were made.

  72. anne mouse  •  Apr 11, 2013 @6:59 am

    I think we will shortly hear the sounds of even more shoes dropping. According to TechDirt, Prenda has filed a new motion in the Illinois defamation case, seeking to de-remove the case back to state court, on the grounds that Prenda's amended complaint added a plaintiff, Alpha Law, who "resides" in the same state as a defendant, thus destroying the federal court's diversity jurisdiction.
    I wish I could write the reply brief and inquire about the factual background for Alpha Law's "residence" as well as Alpha's motivation for "joining" the complaint. Never in my legal career (though it was very brief) did I have the chance to use the phrases "alter ego", "sham", "fraud on the court", and "fifth amendment" in a single brief, and in this case I could probably get them all into a single sentence.

  73. Nicholas Weaver  •  Apr 11, 2013 @7:11 am
  74. Nicholas Weaver  •  Apr 11, 2013 @7:17 am

    Also, hey, the argument seems to be "Because we added a Minnesota plaintiff, now diversity doesn't apply for an Illinois court?!?" Is that really kosher?

  75. Ken  •  Apr 11, 2013 @7:27 am

    My tendency to blog every Prenda filing is approaching self-parody. I'll wait for the reply to blog this. I know all our readers are on their edge of their seat waiting for a lecture on removal jurisdiction and remand motions.

  76. MCB  •  Apr 11, 2013 @7:31 am

    Nicholas,

    Do you have the other filings available? I'm curious.

    If you want to understand what they are saying, check out wikipedia on Diversity Jurisdiction (http://en.wikipedia.org/wiki/Diversity_jurisdiction).

  77. Nicholas Weaver  •  Apr 11, 2013 @7:35 am
  78. MCB  •  Apr 11, 2013 @7:50 am

    Nicholas,

    Thanks for that. I'm looking at Prenda's initial complaint now and I am just aghast. I am looking at the list of statements they consider libel, and I literally cannot believe it despite having been interested in these cases. I cannot imagine filing this. Just can't imagine it.

  79. anne mouse  •  Apr 11, 2013 @7:50 am

    The real question in the Illinois case, to me, is: is there any colorable basis for adding Alpha as a plaintiff? In short, would it be wise to invoke Rule 11 in Illinois right now based on the record so far?

  80. Scott Schulz  •  Apr 11, 2013 @7:58 am

    I know all our readers are on their edge of their seat waiting for a lecture on removal jurisdiction and remand motions.
    As it relates to the perpetual motion machine of dodging, dipping, diving, ducking and dissembling that lays at the heart of this salt marsh, I say, "Please?"

  81. David M. Nieporent  •  Apr 11, 2013 @8:04 am

    Also, hey, the argument seems to be “Because we added a Minnesota plaintiff, now diversity doesn’t apply for an Illinois court?!?” Is that really kosher?

    Yes.

    Their motion is kind of precious, though. First, Prenda screwed up and mispleaded their complaint. Quoting from their remand motion:

    "An obvious scrivener’s error in the Amended Complaint states that Alpha was organized in Illinois…"

    In other words, Prenda mistakenly said that Alpha was an Illinois corporation, and then they're whining that Cooper/Godfread took them at their word.

    Second, Paul Duffy is an incompetent buffoon who doesn't know the law. He thinks Alpha is a corporation, but it isn't. Alpha is an LLC, which is not a corporation, and not treated as such for diversity purposes.

  82. David M. Nieporent  •  Apr 11, 2013 @8:23 am

    The real question in the Illinois case, to me, is: is there any colorable basis for adding Alpha as a plaintiff? In short, would it be wise to invoke Rule 11 in Illinois right now based on the record so far?

    Based on what I read of the amended complaint, I don't think there's a basis; my quick skim didn't cause me to see any allegedly defamatory statements that were "of and concerning" Alpha Law.

  83. naught_for_naught  •  Apr 11, 2013 @9:03 am

    > Pual

    Those factors suggest that either the defense strategy is extremely short-sighted or that the clients actually are guilty of serious criminal misconduct that likely would have come further into the light had they testified and not invoked the Fifth Amendment.

    I think they are just fighting the battle that's in front of them — the whole live to fight another day thing. There is some "merit" to that I think.

    In the event that the judge does refer the matter for criminal investigation, my guess is that they will refuse to cooperate and hire a great legal team to beat that back too.

    Between Prenda's concerted effort to color just inside the lines, multitude layers of obfuscation, and the low priority this will likely be given, referring to Ken's assessment of the possible outcomes, they are probably betting that they can get past it. If the record shows anything, it's that these guys are not risk adverse. They want to play in the "big leagues."

  84. Scott  •  Apr 11, 2013 @9:12 am

    @Ken, thanks for the continuing coverage, this blog has become a must-read site for me over the last month. The Prenda principals behavior is so contemptible, and I find them so unlikeable that I desperately want to see them bitch-slapped, over and over, until they promise to leave the legal profession, forever.

  85. Matthew Cline  •  Apr 11, 2013 @9:17 am

    @markm:

    It just occurred to me that there is one more way Prenda may run afoul of federal prosecutors: porn publishers have to meet fairly onerous record-keeping requirements (section 2257).

    I think that applies to porn producers. While porn producers are usually also the publishers of what they produce, in this case the porn producers are selling the copyright to a different entity.

    ————–

    @anne mouse :

    I think we will shortly hear the sounds of even more shoes dropping. According to TechDirt, Prenda has filed a new motion in the Illinois defamation case,

    Speaking of the defamation cases: since they're all taking the Fifth, how could they possibly proceed with those cases? If there was a written contract that would contradict Cooper they would have presented it by now, which means they'd have to rely on testimony of those involved, but none of them have made any declarations saying "yeah, Cooper-the-caretaker worked for AF". So, are the planning on using that Berry guy's declaration as their sole piece of evidence?

  86. Anonymous  •  Apr 11, 2013 @9:46 am

    They are stuck in the defamation cases now because the defendants filed counterclaims.

    Remember, those were filed as some sort of last-ditch attempt to Shock and Awe Alan Cooper and the bloggers a few weeks before the March 11 hearing in Judge Wright's courtroom turned into an epic disaster that put them firmly on the path to ruin. I believe the whole point was to try to put the Alan Cooper genie back in the bottle, but he obviously escaped.

    At this point they are probably just desperately trying to stall and put off an inevitable default if they are do not intend to provide any evidence or testimony in their own lawsuits.

    I just skimmed the amended complaint and couldn't even find a single quotation that mentions Alpha Law Firm, perhaps there are some in the exhibits? But if this is their Hail Mary pass to try to salvage this thing, you would think they could come up with one allegedly defamatory statement that at least has the word "Alpha" in it for the benefit of the complaint. I can also say from following these cases for a while and watching the blogs and comments that Alpha Law Firm as an entity was rarely discussed, and Hansmeier wasn't even much of a topic of discussion, at least until that depot dropped and he made himself news. I suppose if he had added himself personally as a plaintiff this might go somewhere, but apparently he doesn't have the balls to go that far and expose himself.

  87. perlhaqr  •  Apr 11, 2013 @10:26 am

    John Ammon: Not Bond Villain, I don't think.

    I look at that guy and I think, "OCP Executive".

  88. John Ammon  •  Apr 11, 2013 @10:29 am

    @perlhaqr – Fair point.

  89. Nicholas Weaver  •  Apr 11, 2013 @10:44 am

    The Prenda filing in meme form: http://www.quickmeme.com/meme/3tumn6/

  90. DonaldB  •  Apr 11, 2013 @10:45 am

    Are they desperate to keep this issue out of federal court, or desperate to delay discovery?

    I had previously assumed that the Nevis trust served two purposes: to obscure the true ownership, and to launder money. Perhaps it's solely to obscure ownership. Prenda doesn't need to launder money. While doing so saves on taxes, Prenda can do perfectly well using all of the settlement money to pay themselves for future cases.

    One of the weaknesses in the scheme is how they transferred the copyright to Nevis trust. They needed a cut-out man for that. Both to obscure ownership, and take the heat for not paying taxes.

    That's where A Cooper, uhmm, a Cooper, errr, some Cooper comes in. They needed a blame *and* tax patsy.

    Avoiding taxes is actually critical to the plan. Paying tax leaves a money trail that ties everything back to them.

    Their scheme appears to have been to transfer control of a valueless ($0) corporation to the Nevis trust, and thereby assert that no taxes were due. Ah, so that is why Paul H. said in his deposition that the copyright cost $0. That weakened their case for asking $3K per person, but was consistent with not paying taxes.

    Alan Cooper claiming that it's not him puts a little crimp in the plan. Who set up the transfer of this valuable property to a Nevis trust? Where is the tax record?

    This scheme would actually work, "if it weren't for those meddling kids" [scooby-scooby-do]. Even if the IRS inquires later, they could pay the taxes out of AF's coffers filled by settlement payments, not with a forged check from A Cooper. And it's credible to claim that the copyright for a forgettable adult film had little value, especially if the distributor had retained enough already pressed copies to fulfill the expected legitimate sales.

  91. Jim Tyre  •  Apr 11, 2013 @11:04 am

    "Defendants are serial, recidivist infringers who continue to use Plaintiff’s copyrighted work without his permission, and have enlisted the courts to provide them refuge from the free market in the form of fair use… As previously adjudicated infringers of the copyrighted work in question, Defendants have invoked the equitable doctrine of fair use, but with unclean hands. Once again, masquerading as historians and museum curators despite previously being adjudicated as recidivist infringers, Defendants in these cases would have the Court grant them a perpetual license and sanitize their prior infringements. The fair use doctrine, however, is not a license for corporate theft."

    Sorry folks, just had to share, even though it isn't a Prenda Law or other copyright porn troll thing. The (supposed) serial, recidivist infringers are the NFL and the Baltimore Ravens football team.

    http://www.scribd.com/doc/134956781/Bouch-at-Appeal

  92. Delvan Neville  •  Apr 11, 2013 @11:49 am

    @markm @Matthew Cline:
    While they might be able to claim they are not the producer for movies to which they bought the rights for, for the original case in front of Judge Wright, Ingenuity13 LLC is the producer. Here's the copyright record for the work, which is referenced in Doc 3 (I'd link you to doc 3 on recap but that'll get this message caught in the spam filter).

    The theory a few of us have is that Steele or perhaps Lutz were in the room for this, recorded it themselves (perhaps with a cell phone), and submitted it for copyright. The torrents that Prenda has claimed to be distributing this work instead title the video "Alexis Texas s#%!s and f#%!s at a porn show" or "A lucky guy [something something] Alexis Texas". A list of her own videos on the adult equivalent of IMDB doesn't list this work there, though.

    @Scott Schulz

    I read all of that in Rip Torn's voice. Dodge, Dip, Dive, Duck and… Dodge.

    @David M. Nieporent

    Funny when those obvious scrivener's errors are absolutely vital to your already weak argument. They'll have to re-use that one for every incriminating and conflicting statement in Hansmeier's deposition, it's like a magic spell!

  93. Charles Buckley  •  Apr 11, 2013 @11:55 am

    "The privilege belongs to the client. Only the client can waive it — except in circumstances where it is waived by operation of law (like when a client sues an attorney for malpractice, or asserts ineffective assistance of counsel in a criminal case)."

    Actually, there is a way for privilege to be waved unilaterally.

    If the legal representation is acting as a party in a criminal conspiracy.

    No client/attorney relationship exists among co-conspirators. If Gibbs is aware of any of the others having uploaded the files in question, then sued people for downloading them, then this clearly falls under racketeering. It would also constitute a conspiracy to commit fraud.

  94. Delvan Neville  •  Apr 11, 2013 @12:08 pm

    <a href="https://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.111.1.pdf"Judge Wright has approved Mr. Pietz's request for leave to reply to the Prenda et al. briefs, response due by April 16th.

  95. Nicholas Weaver  •  Apr 11, 2013 @12:12 pm

    Devan: There is nothing in PACER which shows that Judge Wright has approved that (the link is just to the SUBMITTED 'would you kindly' motion, its not yet approved).

    And the Prenda crew has already filed an 11 page! objection:
    http://www.archive.org/download/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.113.0.pdf

  96. Nicholas Weaver  •  Apr 11, 2013 @12:13 pm

    Oh, and the MemeForm summary:
    http://www.quickmeme.com/meme/3tuti0/

  97. Jim Tyre  •  Apr 11, 2013 @12:13 pm

    Wright has approved Mr. Pietz's request for leave to reply to the Prenda et al. briefs, response due by April 16th.

    No, that's the proposed Order that Morgan submitted yesterday with his request. Judge Wright has not acted on it. Moments ago, Heather Rosing, on behalf of Duffy et al filed a vigorous opposition to Morgan's request. Then Paul Hansmeier's attorneys joined in the opposition.

  98. Delvan Neville  •  Apr 11, 2013 @12:14 pm

    Oh, whoops! My mistake, good catch.

  99. Matthew Cline  •  Apr 11, 2013 @12:26 pm

    Moments ago, Heather Rosing, on behalf of Duffy et al filed a vigorous opposition to Morgan's request [for leave to reply]. Then Paul Hansmeier's attorneys joined in the opposition.

    Is it normal to oppose a request for leave to reply? That is, to tell the judge "don't listen to them!"? I'm pretty sure that SCO did such things in its litigation against IBM and Novell, but SCO's legal antics were far from "normal".

  100. Nicholas Weaver  •  Apr 11, 2013 @12:36 pm

    And Ken's reaction to Yet Another Prenda Filing:
    http://www.quickmeme.com/meme/3tutza/

  101. David M. Nieporent  •  Apr 11, 2013 @12:38 pm

    @MCB:

    I like the fact that Prenda argues that because a libelous statement was printed on the Internet "long before" it appeared in Godfread's lawsuit, they conclude that Godfread must have posted it on the Internet — rather than the more obvious notion that Godfread obtained it from the Internet.

    But yes, many of those purportedly libelous statements are clearly, well, not. They seemingly do not understand the difference between assertions of opinion and fact. E.g., calling someone "sneaky" is not libelous. (Though it is untrue, since it gives Prenda too much credit.) Nor is calling someone "assclown" or "idiot." (Especially because these things are true.) Others are closer calls — saying that something is a "scam" or "extortion" COULD be libelous, but in this context is unlikely to be deemed such. (Setting aside any questions of truth or falsity.)

  102. Andrew  •  Apr 11, 2013 @12:44 pm

    Not a lawyer, just guessing, etc. However, I would guess that the judge will deny the request because he simply doesn't need any more material to do whatever he's going to do. Criminal stuff is probably getting referred to a prosecutor who would be more interested in Pietz's information. Bar discipline will be handled by whomever handles bar discipline in the relevant jurisdiction. Neither of those items is going to be handled by the judge directly.

    One reason he might grant leave, though, would be to ensure that the material gets in the appellate record if an appealable order is likely to result from the proceedings. The benefit of doing so would have to outweigh the (perhaps minimal) risk of petitioner's prevailing on some sort of "Pietz is an improper prosecutor" claim that Rosing et al. have made.

    An actual lawyer almost certainly has a more informed opinion. Perhaps one will share.

  103. David M. Nieporent  •  Apr 11, 2013 @12:45 pm

    Is it normal to oppose a request for leave to reply? That is, to tell the judge "don't listen to them!"?

    It's not unheard of, but not typical. The first rule to remember as a lawyer is that judges don't like to work. So giving them more work to do is not a good tactic. Haggling over secondary issues, like whether someone can file something (as opposed to the substance of the filing) is no fun for anyone.

    That having been said, when you're in this deep, sometimes you just want to do everything you can to turn the focus off the main topic, for as long as possible. If you get lucky, a judge will throw up his hands and say, in essence, "I don't want to hear any more."

  104. Anonymous  •  Apr 11, 2013 @1:11 pm

    All those hours billed to do everything but state some facts.

    I hope Rosing takes a moment to thank all the little people her clients have harassed over the last two years for paying her bills.

  105. Anonymous  •  Apr 11, 2013 @1:28 pm

    Oh and there are additional reports that Mark Lutz continues to make settlement calls. When does Rosing become part of the conspiracy?

  106. Delvan Neville  •  Apr 11, 2013 @1:34 pm

    @Anonymous: Its a terrible shame that she is likely indirectly funded from that (though they may have had other assets before going down scumbag road). But (IMO) everyone deserves competent representation, scumbags or not.

  107. Jim Tyre  •  Apr 11, 2013 @1:35 pm

    Judge Wright just granted the request of Morgan Pietz to file a reply – ten pages max, due April 16. No mention of the various oppositions filed today.

  108. Kevin  •  Apr 11, 2013 @1:38 pm

    Ken has gone out of his way to state that Rosing is not one of the bad guys here, she's just doing her job… and that's admirable. But especially in this latest filing, where she resorts to personal attacks on Pietz…. at what point does she cross the line in becoming "one of the bad guys"?

  109. Ken  •  Apr 11, 2013 @1:42 pm

    Oh and there are additional reports that Mark Lutz continues to make settlement calls.

    That would be transcendentally stupid.

  110. John Ammon  •  Apr 11, 2013 @1:44 pm
    Oh and there are additional reports that Mark Lutz continues to make settlement calls.

    That would be transcendentally stupid.

    @Ken – Does that not describe 90% of their actions so far? :P

  111. Anonymous  •  Apr 11, 2013 @1:47 pm

    http://fightcopyrighttrolls.com/discussions/steele-hansmeier/guava-llc-v-skyler-case-il-cook-county-12-l-7363/comment-page-7/#comment-118679


    Anonymous says:
    April 10, 2013 at 6:14 pm

    Got a call and a left voicemail today from the LW Systems case. This is the 2nd call, but the last one there was no voicemail left.

    Lutz was pretty funny as he said he was calling “from LW Systems” and then stumbled through the voicemail.

    I was tempted to pickup and plead the 5th, but I refrained.

    Should these posters be encouraged to contact Pietz, the court, someone?

  112. Delvan  •  Apr 11, 2013 @1:57 pm

    Having them contact Mr. Pietz would probably give them the best chance of remaining anonymous, possibly wrapping them up as a putative Doe if the voicemail lets them tie it to any of the cases that were consolidated into the one before Judge Wright. But I am no lawyer, take my advice with a grain of salt.

  113. anonymous  •  Apr 11, 2013 @1:57 pm

    According to the comment thread linked above, calls and letters still going out. Gotta feed the machine…

  114. Anonymous  •  Apr 11, 2013 @2:07 pm

    Of course, anybody could be posting anything, but the continuing reports of dunning calls and letters are basically the same as they've always been. And yeah, Prenda does seem to be that stupid, although I can't believe these guys haven't received a stern talking-to from their attorneys…

    Oh wait, Lutz doesn't have one…

    Wait…

    Oh God…

    Is it possible that they chose to do this as a strategy, keep Lutz unrepresented and running the dunning operation, specifically so as not to have him in a position where his attorney would tell him stop (like TWO MONTHS AGO!!!), or end up in a position of being a co-conspirator and jeopardizing all their attorney-client privileges?

    The plan does sound just smarter enough than everyone else to be Prenda's style.

  115. Matthew Cline  •  Apr 11, 2013 @2:12 pm

    Oh and there are additional reports that Mark Lutz continues to make settlement calls.

    It's as if they're trying to provide us with entertainment.

  116. En Passant  •  Apr 11, 2013 @2:14 pm

    Paul E. "Marbux" Merrell, J.D. wrote Apr 11, 2013 @5:53 am:

    The very strong whiff I sense is that the lawyers' hands were tied by what they learned their clients had actually done, forcing them in effect to walk their clients into a criminal proceeding. The judge won't miss that message.

    Restated, what is not being argued may be more significant to the judge's decision than the arguments that were made.

    I think you're right about this "curious incident of the dog in the night-time" as Sherlock Holmes put it.

    The lawyers representing the Prenda folk are obviously well qualified to handle attorney misconduct, which is at most adjudicated in quasi-criminal process. So keeping the cases in that arena is the best shot their clients have.

    I'd liken it roughly to someone getting a speeding ticket for driving 100 mph through a school zone. Better to argue for a reduction in the fine than to contest the incident on its facts and wind up defending a case for felony reckless driving.

    The only question is when and if the deafening silence will move Judge Wright to make a referral to DOJ.

  117. MCB  •  Apr 11, 2013 @2:19 pm

    If they are continuing to make calls, I would think that should come to the attention of the court. But I don't know how they should do that? Is there anyone willing to represent people who are continuing to get such calls pro-bono?

  118. Nobody  •  Apr 11, 2013 @3:02 pm

    Ars says that Pietz has replied to this nonsense and that there are no motions, but they're not on Recap yet so those of us without PACER accounts cannot read them.

    Apparently he calls them out for not supporting their allegations with a declaration and asks for leave to add evidence to the record.

  119. Malc  •  Apr 11, 2013 @3:06 pm

    @Delvan Neville: thanks for the link to the copyright record. From a cursory inspection, it would appear (to me) to be a misfiled application, and so potentially invalid.

    Unless you really can be domiciled in the United States and still live in Nevis-St Kitts?

  120. Hasdrubal  •  Apr 11, 2013 @3:23 pm

    I'm curious about a couple things in Rosing's objection to Pietz's request to file a brief:

    1.) What is all this previous evidence that Pietz filed but Rosing's clients didn't get a chance to rebut? There was the deposition of AF Holdings, but then there were two order to show cause hearings after that. Weren't those hearings the opportunities to counter evidence against them, since, especially in the March one, that was when the evidence was entered? (As a corallary, isn't this objection trying to do exactly what she is accusing Pietz of, enter evidence without any chance for the other side to question it? Especially with regard to "the Berry declaration?")

    2.) Is it normal for an attorney to object to evidence submitted about someone who isn't her client and is represented by someone else? The section heading "The purported evidence against John Steele is inadmissable," surprised me. Why is she defending Steele, why not let Steele's attorney handle that?

  121. Nobody  •  Apr 11, 2013 @3:45 pm

    > That would be transcendentally stupid.

    Maybe they'll go for transfinitely next?

  122. Nicholas Weaver  •  Apr 11, 2013 @4:29 pm

    Nothing on Pacer about a new motion from Pietz, but Pacer does have the judge approving the motion to file a reply.

  123. David M. Nieporent  •  Apr 11, 2013 @5:47 pm

    @Malc:

    Unless you really can be domiciled in the United States and still live in Nevis-St Kitts?

    Yes, you can be; domicile is not the same thing as residence. (I take no position on who may live where in the Prenda case; I'm just speaking generally.)

  124. That Anonymous Coward  •  Apr 11, 2013 @8:44 pm

    The algorithm is self aware.
    The algorithm owns the copyrights.
    The algorithm makes the phone calls.
    The algorithm sends demands letters.
    The algorithm pays itself for investigating its own cases.
    The algorithm hires local counsel and leaves them holding the bag.
    The algorithm cuts deals with 'defendants' to get more names.
    The algorithm is responsible, not anyone in any way shape or form involved in Prenda (I've been so good I've not typed Pretenda in a while but PRETENDA PRETENDA PRETENDA) Steele Hammlischermabobadoodle, Steele Law, Steele Blue Model Pose, etc.

  125. Frank Rizzo  •  Apr 11, 2013 @11:02 pm

    "Copyright infringement lawsuits seeking identities of IP address owners flood local courts Tuesday, January 29, 2013 at 9:05pm
    By James Nix"

    "Nashville attorney Sam Trenchi filed suits locally on behalf of the controversial law firm Prenda Law and its clients “AF Holdings” and “Quad Int’l Inc.” over their purported adult movies Knock My Socks Off, Sexual Obsession and Tokyo Pickup."

    Did the reporter actually interview John Steele? The following quote seems to be attributed to Steele.

    “The fact that people fight tooth and nail to let us know their names, and then once we do they immediately settle, I think that tells you a lot of the strength of our evidence and the fact that you’re not quite as indignant when you know deep down that you did it."

    "In the local cases, against individual IP address owners, a magistrate granted Trenchi’s clients AF Holdings and Quad Int’l expedited discovery of ISP subscriber information. A few weeks later, Trenchi filed notices to voluntarily dismiss the suits."

    http://nashvillecitypaper.com/content/city-news/copyright-infringement-lawsuits-seeking-identities-ip-address-owners-flood-local-c

  126. Delvan  •  Apr 11, 2013 @11:16 pm

    Yeah, I can't think of why someone would fight tooth and nail to keep a bunch of thugs from finding out how to find them. Especially, say, innocent people who don't have the funds for representation.

    Chatting with the press is going to cause them some headaches I hope. Statements like that where Steele uses "we" and "us" and "our" while trying to pretend he's not affiliated with Prenda Law in court is just nonsense. Think the wheels are just grinding too slowly for him to appreciate the danger.

    Regarding that final quote: A standard $4,000 settlement vs. statutory limit of $150,000. Since they file these as all the IPs representing co-conspirators in a single 'swarm' infringement (so that they can tag what people they do sue for higher damages by holding them responsible for their co-conspirators), think that throws a wrench in their max profits per case. $150,000/$4,000 -> if they have 37.5 names and addresses (or more) that will settle, much more profitable to get the names and dismiss, gather up settlements, then file again against the obstinant former-Does later once they're done milking easy pickings. Especially if they identify a former-Doe who won't show up in court and thus gets hit with a default judgement for the co-conspirator class.

  127. Frank Rizzo  •  Apr 12, 2013 @12:30 am

    Note the date of publication. Do the click though to get some more info.
    Prenda's apparent filer Sam Trenchi apparently licensed since 2010!

    This filing for Quad Int'l., Inc. v. Doe, 3:12-cv-01117 (M.D.Tenn.) has Trenchi filing on October 26, 2012 as Attorney for Quad Intl., Inc. as follows:

    Sam Trenchio ( Bar No. 028752)
    Trenchi & Ashworth, PLLC
    307 North 16th St. Nashville, TN 37206
    (615) 375-6681

    Maybe there is some confusion? Trenchi must have forgotten to list this brief engagement on his Linkedin profile? You'd think he'd be proud to have even a small involvement in such a noteworthy debacle.

    Sam Trenchi's recently updated Linkedin shows no such Trenchi and Ashworth PLLC.

    Trenchi's possible partner in Trenchi and Ashworth PLLC might be Sean Michael Ashworth. His Linkedin profile shows the following entry:
    Partner
    Trenchi & Ashworth, PLLC
    September 2012 – November 2012 (3 months) Greater Nashville Area

    Practiced in the areas of criminal, employment, family, immigration, personal injury and general civil law. Maybe this guy (licensed since 2012!) dodged the copyright bullet.

    Not much doubt about this. The Tennessee Secretary of State Business Entity Detail for Trenchi & Ashworth PLLC shows the same 307 N. 16th Street address as the filing Trenchi made as "Attorney for Plaintiff" for Quad Intl., Inc.; and some guy named Sam Trenchi at some 307 N. 16th Street address is named as the Registered Agent for Trenchi & Ashworth PLLC.

  128. Frank Rizzo  •  Apr 12, 2013 @12:44 am

    Is there a limit to posting links in a comment?

    Case filed by Sam Trenchi (licensed since 2010!) as Attorney for Plaintiff Quad Intl., Inc.

    Quad Int'l., Inc. v. Doe, 3:12-cv-01117 (M.D.Tenn.)

  129. Delvan Neville  •  Apr 12, 2013 @12:45 am

    Yes Frank, two links in one comment get caught in the spam filter and have to be manually approved by Ken et al. to show up. I've failed on that one myself a few times.

  130. That Anonymous Coward  •  Apr 12, 2013 @12:51 am

    @Frank Rizzo – or it speaks to how they operate and the amount of pressure they apply to Does to obtain 'settlements'.

    Oh and thanks for that article…
    "John Steele, of counsel to Prenda Law, said he’s filed more than 300 such suits himself, none of which had to go past jury selection, usually settling first."

    But I don't work with/for/at Pretenda.

    ummm keep talking to the press you *string of really naughty comments that would just make Steele send a lacking subpoena to Ken trying to get my IP address*.

    And I'll just leave this here….
    https://www.techdirt.com/articles/20130411/16365522684/judge-to-allow-more-evidence-filed-against-team-prenda-despite-vehement-objections-prenda.shtml

  131. Damian  •  Apr 12, 2013 @2:50 am

    To my mind, Rosing's opposition does cross the line into douche-dom in that she ill-advisedly chooses to attack Pietz in a rather hysterical manner. "OMG! He hopes to make makes money defending his client! He solicits clients on his website!" Well, no shit, Heather. Welcome to the big leagues.

  132. IANAL  •  Apr 12, 2013 @3:02 am

    For us non-lawyers, can someone explain the significance of the phrase "of counsel"? I've heard it quite a bit and it's apparently significant, but I am not sure exactly what sort of distinctions are being made.

  133. That Anonymous Coward  •  Apr 12, 2013 @3:10 am

    @IANAL – I'm not a lawyer and I don't play one on tv but my best guesstimation is that it is a term used to describe lawyers who are not working as an official part of the firm.
    They need to open a case in lets say MA, they have no one on staff who is cleared to work in MA. They retain a local counsel cleared for MA with an agreement that makes them of counsel to the firm. They represent the firms interests in a court where they are not cleared to practice. They sign documents, file documents all on behalf of the firm for the client of the firm. (and then you start looking at who is the client and who is the firm and oops someone divided by zero and a hole opens in the universe).

    I am sure a real lawyer will be along shortly to clear up anything I botched.

  134. Anonymous  •  Apr 12, 2013 @4:07 am

    Since we have a bit of a lull between posts and lawyers are now following these cases, I'd be curious what you guys think of another of Prenda's brilliant tactics, their "Letter of Request for Informal Discovery" compaign:

    http://fightcopyrighttrolls.com/2012/07/18/new-low-of-prenda-law-trolls-indiscriminately-and-inappropriately-send-out-letter-of-request-for-informal-discovery/

    This is not directly related to the case in LA, but this is something that Duffy signed his name to, on Prenda letterhead. They were letters sent to current and former John Doe defendants basically asking them to incriminate themselves. Aside from being a typical (for them) attempt to do as little work as possible and make money by sending letters, in many cases they appeared to be misrepresenting to the John Does that dismissed cases were still open. I don't know how widespread that was, but I know they sent these out at least 6 months after dismissal of some cases, and if you read it you would never guess that there is actually no lawsuit pending (they even put the case number of the dismissed case on the letter).

    Just wondering, if this turns into a criminal or bar investigation, if this could be a whole other world of trouble with mail fraud, misrepresentations, etc. I don't know how finely they can tread the line before something is considered misrepresentation or fraud, but as a layperson, putting a case number for a dismissed case on a letter, and then asking someone to take action based on that, invoking the power of "local rule(s) in your jurisdiction" sure sounds dishonest.

  135. That Anonymous Coward  •  Apr 12, 2013 @4:34 am

    @Anonymous – One can only hope.
    One of my more lucid responses got put into the update… sometimes I might be on my game.

  136. LW  •  Apr 12, 2013 @5:32 am
  137. MCB  •  Apr 12, 2013 @5:56 am

    @LW,

    This just in: John Steele may not always be entirely truthful.

    @Anonymous,

    They are sending out "informal discovery requests" that have case numbers attached to them of cases that have been dismissed with prejudice? How is it that I can manage to still be shocked?

  138. That Anonymous Coward  •  Apr 12, 2013 @5:57 am

    @LW – you look at someone intently, wave your hand and say these are not the droids you are looking for.

    At some point he stepped out of the 'spotlight' in these cases, might have had to do with the coverage on Ars, TechDirt, FCT, DTD, Buzzfeed, etc. Earlier incarnations of this model used his name as part of the firms name… and well the Google hits weren't looking good.

    IIRC, and I admit I sometimes get confused, I think he took a powder shortly after he signed the letter promising the FL Bar he would no longer try and pretend he was a lawyer able to practice in FL. The situation went very poorly for them around that time.

    He now just happens to randomly show up in courtrooms where Prenda has cases and whispers to the corporate representatives so they know how to answer a Judges questions… and disavows any knowledge of whats happening…. o_O

  139. That Anonymous Coward  •  Apr 12, 2013 @5:59 am

    @MCB – I'm guessing because you missed the Merkel Declaration.

  140. Anonymous  •  Apr 12, 2013 @6:07 am

    @MCB

    I am not specifically away of them doing this for cases dismissed with prejudice (not that I would be surprised), but for sure they have sent these for cases that had been voluntarily dismissed without prejudice months before the requests were sent. There have been a handful of reports of them continuing to try to settle cases that were dismissed with prejudice though.

    Even so, without a lawsuit currently pending, isn't the letter misleading? If the threat is that they will file another lawsuit and continue to the recipient that way, aren't they obligated to explain that position clearly?

    They used to also send out letters to John Does from dismissed cases that used nebulous and indefinite language like "we cannot inform you of the status of the underlying case" to avoid having to state that the case was dismissed, and again it is simply dishonest.

    Why would an attorney be unable to tell someone the status of one of his firm's cases? For Duffy to state that Prenda cannot tell whether their own case is open or closed? Isn't that an outright lie?

  141. Anonymous  •  Apr 12, 2013 @6:18 am

    Ah, apparently such letters have been sent on behalf of AF Holdings, at least in Florida cases:

    http://lslawpl.com/lalchandani-simon-counseling-recipients-informal-discovery-letter-copyright-troll-represented-prenda-law-111-cv-23036-af-holdings-llc-v-1-162/

    I didn't notice before that they also included a threat to file a motion to compel and a copy of a proposed order… Which presumably would be filed in the case that was already dismissed…

    Keep in mind that this was not a one or two or ten times thing, Prenda likely sent hundreds of these at minimum, maybe thousands, to people in maybe a couple dozen states at least? So even if this is only a little bit bad, their scale of the operation makes up for it.

  142. That Anonymous Coward  •  Apr 12, 2013 @6:24 am

    @Anonymous – IIRC they managed to forget to include the proposed order in many/most/all of the letters. They were missing from most letters where there were posts from recipients.

  143. MCB  •  Apr 12, 2013 @6:28 am

    It's misleading. I think listing a case number and asking for documents where the case number has ben dismissed with prejudice is likely fraudulent. It's a closer call if the case was dismissed without prejudice, but I would still think it very very problematic. Then again, you make a good point that they are also threatening to file a specific document that they can't file until they file a new complaint if the case has been dismissed even without prejudice.

    If they are so shockingly stupid as to be calling or contacting anyone in the case on Judge Wright's court that is quite important and the court should be informed of it somehow. That might actually be grounds to lock up whoever is making the calls as civil contempt on the grounds that it's the only way to get him/her to stop making calls. That's a bit of a stretch though.

  144. Basil Forthrightly  •  Apr 12, 2013 @6:38 am

    Since Prenda appears to be representing themselves in large numbers of cases and not prevailing (voluntary dismissal), I was wondering if the Federal rules on "vexatious litigants" stretches to cover them…..?

    I've not been able to find Federal rules; the state rules I've looked at seem to be only a loose fit to the situation, IMHO.

  145. That Anonymous Coward  •  Apr 12, 2013 @6:46 am

    @MCB – from what I've seen over on FCT and DTD they are on a fund raising drive working the phones again with the other names they still have outside of the case before Judge Wright, but they often manage to screw up the plan.

    They are still trying to claim that the one defendant who was fighting back doesn't really exist, and even if he does as he's not been named he has no right to fight back. That highlights the biggest problem in these cases, Prenda is in control of if you get to fight back or not. Until your named many courts refuse to hear anything, and well the rate of naming Does approaches zero.

  146. MCB  •  Apr 12, 2013 @6:55 am

    @Basil,

    The Federal Rules of Civil Procedure are here, http://www.law.cornell.edu/rules/frcp . I believe you would probably be most interested in Rule 11.

  147. Bystander  •  Apr 12, 2013 @11:21 am

    Syfert has provided a declaration from Gibbs in the Florida "who's on first base" Sunlust case that Gibbs followed instructions from Steele and Paul Hansmeier and they made all the decisions:

    http://www.archive.org/download/gov.uscourts.flmd.274150/gov.uscourts.flmd.274150.49.1.pdf

  148. Nicholas Weaver  •  Apr 12, 2013 @11:58 am

    Bystander: As the Prenda mutual bus-throwing party continues…

  149. Bystander  •  Apr 12, 2013 @1:16 pm

    Yup. It will be interesting to see what Gibbs files in the Ingenuity case. Seems like it will flatly contradict Steele's brief.

  150. Anonymous  •  Apr 12, 2013 @1:38 pm

    Wow. Well played, Mr. Seyfert.

    Like Pietz and Ranallo in CA, Seyfert has been trying to pin these guys down in FL for a long time.

    The judge in this case was really pissed off about Prenda's behavior in the last hearing, which predates the first Wright hearing by a couple months. With everything that has happened since then, Florida may turn into another full blown war for our Big Leaguers.

    And if this was signed yesterday, I can't wait to see what Brett has in store for the case before Wright; I guess he didn't decide to stop talking.

  151. Matthew Cline  •  Apr 12, 2013 @1:48 pm

    Complete tangent: I wonder why "thrown under the bus" has become the popular term, when it seems to me that "thrown to the wolves" already existed and actually makes some sense even without knowing any etymology of the phrase.

  152. Nobody  •  Apr 12, 2013 @3:41 pm

    Sheesh. How long did they spend preparing this? "I no recollection of discussions with Mr. Duffy"?? Yeah, I get that spell check won't catch that one, but it's just sloppy. To say nothing of all the amnesia, where nobody seems to know who did or said what, except that whatever happened, it definitely isn't their fault.

  153. Nobody  •  Apr 12, 2013 @3:43 pm

    Oh yeah, I keep checking for new filings here: http://ia701508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.docket.html

    But nothing is showing up? Do we have to wait for someone to Recap it or something? I thought I read about more filings, but maybe I've got the wrong docket or something. There's so much litigating going on that it's very possible that I'm confused.

  154. Austin  •  Apr 12, 2013 @4:06 pm

    For those that are beginning to think that the hammer will never drop on Prenda, a smaller but worthwhile demonstratiom of Ken's "The wheels of justice grind slowly, but they grind," : http://arstechnica.com/tech-policy/2013/04/the-madness-ends-lawyer-charles-carreon-to-pay-46100/

    Not Prenda, but a fair similitude. Minus the criminal element.

  155. Delvan Neville  •  Apr 12, 2013 @4:09 pm

    @Nobody

    For some reason the docket stopped updating on RECAP at document 99, even though its been accessed well after that (including by me, which then claimed a new version was available there)

    This link is the repository of recap documents for that case, just doesn't have the docket to tell you ahead of time which documents are what

  156. Jim Tyre  •  Apr 12, 2013 @4:14 pm

    Oh, Ken, what are we to do with you?

    It was bad enough when you began to let TechDirt pick up your Prendaposts. But at least Masnick has some redeeming social value, he'll always have a place in my heart for coining the phrase "The Streisand Effect."

    But I'm looking at today's Los Angeles Daily Journal and what do I see? A front page above the fold Prenda article quoting you promiscuously! Please don't tell us that you're becoming one of those mainstream expert commentators, that you're losing your roots. '-)

  157. Shay  •  Apr 12, 2013 @4:51 pm

    @Matthew: it's a well known fact that wolves won't eat lawyers.

    Due to my new ISP's inability to fix our link* I have been offline for nearly a week. What a treat to find this waiting for me.

    ("Don't unsaddle the horses, innkeeper, my microwave tower's been struck by lightning!")

  158. That Anonymous Coward  •  Apr 12, 2013 @10:02 pm

    @Matthew Cline – because 'clubbed over the head and stuffed in a wood chipper' doesn't roll off the tongue.

  159. MCB  •  Apr 13, 2013 @7:22 am

    So, I got interested in this whole fraud on the court thing and did a little digging. Semi-substantive legal analysis by someone who is incompetent to follow:

    So, let's revisit the description of the legal standard for fraud on the court, that Steele cites:

    However, even if the Court were to discount the evidence submitted impugning Cooper’s credibility and blame Steele for this “fraud,” it hardly rises to the level of fraud upon the court recognized by the Ninth Circuit, i.e., “a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” In re Intermagnetics Am., Inc., 926 F.2d 912, 916 (9th Cir. 1991)

    Now, maybe this is just a restatement of a standard that everyone accepts, and anyone familiar with this area would know like the back of their hand. But, as I read Intermagenetics the standard is somewhat (and crucially) different. In that case, the 9th Circuit analyzed the issue of fraud on the court for purposes of Civil Procedure Rule 60(b), a motion for relief from a judgment. That quote is actually a quote from a Professor Moore, that the court cites with approval (thus, technically the cite they provide in the brief isn't quite right). But even reading that quote more fully yields a slightly different view:

    “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.

    So, in Moore's view there is a distinction between fraud committed by officers, and other possible fraud. And the 9th Circuit summarizes the standard as follows:

    Thus fraud upon the court includes both attempts to subvert the integrity of the court and fraud by an officer of the court.

    So there are two (and possibly more) ways to commit fraud on the court. First you could attempt to subvert the integrity of the court. Second, an officer of the court could perpetrate the fraud. Mr. Steele is an attorney who is arguably directing this litigation. Therefore, it would appear the standards are different when applied to him. In my limited research it would seem that this distinction between officers of the court and others is pretty consistent, from United States v. Stonehill 660 F.3d 415:

    Mere nondisclosure of evidence is typically not enough to constitute fraud on the court, and “perjury by a party or witness, by itself, is not normally fraud on the court.”Levander, 180 F.3d at 1119. Some courts and commentators have suggested that perjury should not usually constitute fraud on the court unless “an attorney or other officer of the court was a party to it.” 11 Wright & Miller § 2870.

    It's also worth noting that these cases are cases about a motion to set aside the judgment. In a case like that a court has already ruled on the matter. A party is then bringing some new evidence and saying that a court should open up that judgment, and courts aren't usually excited about doing that. It isn't clear to me that the standard for opening up a case that has already been decided, and for sanctioning misconduct under Rule 11 should be the same.

  160. Basil Forthrightly  •  Apr 13, 2013 @5:27 pm

    A note to actual practitioners regarding RECAP: because of the way it works to make the initial copy – downloading from PACER to a user's browser, then uploading to RECAP – it provides an opportunity for malicious or mischievous folk to inject information or possibly alter it.

    As an example, in the case before Judge Wright, the raw RECAP directory is:
    https://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/

    And this appeared there on April 13:
    https://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744_reviews.xml

    Obviously a prank, it suggests the possibility of manipulating the true mirrored content. For us popcorn eaters, it's "eh", although the truly paranoid should save a copy of anything they're going to quote to the 'net. For a lawyer in a case, relying on a RECAP copy is penny-wise, pound-foolish, particularly if the opposition is tech-savvy and malicious. (It's the kind of stunt the Church of Scientology would have pulled years ago; see "Operation Snow White". Howver, I seriously doubt anybody in a copyright or defamation case would consider doing this; too little gain for too high a risk for one thing.)

    Obviously, RECAP remains a great finding aid, but for a "true and correct" copy of a filing, go with PACER.

  161. Delvan Neville  •  Apr 13, 2013 @6:06 pm

    That file isn't a prank, those are actual user submitted comments on that case on Internet Archive.

  162. Basil Forthrightly  •  Apr 13, 2013 @8:12 pm

    Thanks Delvan. I'm pretty surprised they allow that; this example illustrates why, though I understand that hope springs eternal.

    Unless RECAP servers have access to cryptographic hashes of PACER documents direct from PACER, or similar confirmatory data, I'm guessing its still vulnerable to a hack from the client, since all the data needed to do so has to be in the browser addon.

  163. Delvan Neville  •  Apr 14, 2013 @1:12 am

    From a look through their code (both the client and server code is public on github), though they do track SHA1 hashes for each file, they don't look to be getting any of that directly from PACER. The upload handler on the server only uses that hash to decide if they already have the file a client is attempting to upload.

    It does seem plausible for a malicious user to alter whats getting stored in RECAP, and it looks like such a user could do so without even having a PACER account for themselves. Probably best if I don't spell out how to do that here.

    So, yeah, RECAP is great for us popcorn types, but if you're a practicing lawyer on (or referencing) the case, probably safer to pull your copy from PACER. (Unless PACER starts giving SHA1 hashes on the single document page)

  164. MCB  •  Apr 14, 2013 @5:42 am

    I believe the US Court system is happy to have RECAP be unreliable. My understanding is that they were not particularly excited when Swarz started uploading documents there. I believe some FBI agents were called.

    Pirates, those RECAP users :).

  165. different Jess  •  Apr 14, 2013 @4:59 pm

    Wait, I thought "John Steele" was a nom de porn for one of the performers in the copyrighted works?

  166. That Anonymous Coward  •  Apr 15, 2013 @4:28 am

    @different Jess – your getting confused with the other failed Copyright Troll Evan Stone. Even having to file a note in all of his cases that he did bad things before a Judge, he still was bringing cases forward.

  167. machintelligence  •  Apr 15, 2013 @8:49 am

    @ Matthew Cline

    Complete tangent: I wonder why "thrown under the bus" has become the popular term, when it seems to me that "thrown to the wolves" already existed and actually makes some sense even without knowing any etymology of the phrase.

    There were a series of experiments about moral intuition involving run-away trolleys. For example:

    There are a number of widely-replicated experiments that demonstrate this. One is the so-called “trolley problem.”60 Imagine that you are on a trolley traveling at high speed toward a switch in the track. On the main track are five people who cannot get off because the banks on each side are very steep. They will die if the trolley hits them. On the side track is one person who also cannot get off the track. The engineer has passed out and has no control of the trolley, but you do. By remote control, you can throw the switch. Should you throw it and shunt the trolley to the side track, thereby saving five at the expense of one?

    Now imagine that you are standing on a bridge above the track. Again, five people will die if the trolley continues. This time the only way to stop the trolley would be to throw a massive object onto the track. But the only massive object available is a very large man standing next to you. Should you throw him onto the track, thereby saving five at the expense of one? (Ignore, for the moment, the small chance that the mass of the man would actually stop the trolley, or that you would have sufficient strength to throw him down.)

    Substitute bus for trolley and you have one possible source.

  168. NickN  •  Apr 15, 2013 @11:32 pm

    Matthew Cline • Apr 12, 2013 @1:48 pm

    Complete tangent: I wonder why "thrown under the bus" has become the popular term, when it seems to me that "thrown to the wolves" already existed and actually makes some sense even without knowing any etymology of the phrase.

    Because you can't find a good troika anymore?

  169. DP  •  Apr 16, 2013 @8:14 am
  170. MCB  •  Apr 16, 2013 @1:33 pm

    Is the Pietz reply in yet? I'm especially interested in the testimony of the tech expert. I am wondering if they are challenging the validity of the text messages. Something seemed odd about the way they did that to me.

  171. Jim Tyre  •  Apr 16, 2013 @1:36 pm

    Is the Pietz reply in yet?

    No.

  172. Delvan  •  Apr 16, 2013 @1:42 pm

    Just checked PACER, its not in yet. Prenda et al. shouldn't be surprised that, after every member took the 5th, the Judge allowed alternative sources of evidence to replace that testimony (and the non-testimony briefs filed).

    I will go so far as to say that this little iphone generator plus some xeroxes of an iphone wouldn't be hard to combine if the iphone had a solid color displayed on screen. But of course, just because they could falsify that evidence doesn't necessarily mean it is false. And as others have noted, submitting evidence to prove Steele was taking advantage of his mentally disabled caretaker isn't exactly helping their case.

  173. Jim Tyre  •  Apr 16, 2013 @5:17 pm

    I think I've discovered why nothing has happened (Pietz still hasn't filed).

    Suspect identified in El Segundo Popcornopolis hostage stand-off

    By Andrew Blankstein and Joseph Serna
    April 16, 2013, 3:50 p.m.
    An armed woman who authorities said held them at bay for several hours after taking the chief financial officer of an El Segundo-based popcorn company hostage Tuesday was identified

    http://www.latimes.com/local/lanow/la-me-ln-popcornopolis-suspect-20130416,0,3033220.story

  174. Nobody  •  Apr 16, 2013 @5:20 pm

    Nothing on Recap. Isn't it on PACER yet? I would think that the court would be closed by now and it's due today….

  175. Jim Tyre  •  Apr 16, 2013 @5:24 pm

    Without having checked to see if Judge Wright has a specific rule, e-filing is generally considered timely if completed by 11:59:59 pm (local time) of the due date.

    I get the NEFs (Notices of Electronic Filing) automatically and concurrent with the attorneys of record. It hasn't been filed yet.

  176. Delvan  •  Apr 16, 2013 @6:44 pm

    Its up on pacer, I'm grabbing it now. I'll add some links to them from my dropbox so you don't need to wait for them to show up on recap.

  177. Delvan  •  Apr 16, 2013 @6:48 pm

    The actual filing is here, there are three attachments to come. The filing is 12 pages long.

  178. Delvan  •  Apr 16, 2013 @6:51 pm

    This is the first attachment, a declaration by Mr. Pietz.

    He also points out in here that had Judge Wright not sent the order to show cause re: sanctions, Mr. Pietz was going to file a motion for sanctions himself anyways.

  179. Delvan  •  Apr 16, 2013 @6:52 pm

    The second attachment is a doozy! Seriously, this is 70 pages long. Today I learned that PACER per-page fees cap out at 30 pages, whee!

  180. Delvan  •  Apr 16, 2013 @6:55 pm

    Finally, the third attachment is a declaration by Seth Schoen. Mr. Schoen is with that extremist, anti-copyright pro-pirating terrorist organization with the cryptic name "EFF".

    This is great, and full of all sorts of goodies. Addresses their Bittorrent logging practices, the usability of a partial download in a torrent, and metadata from Prenda et al. filings

  181. Jim Tyre  •  Apr 16, 2013 @7:21 pm

    Mr. Schoen is with that extremist, anti-copyright pro-pirating terrorist organization with the cryptic name "EFF".

    I am informed and believe, and based thereon allege, that at least one member of the EFF family (um, me) has seen your scurrilous remarks about the Electricity Freedom Foundation (one might be surprised at how commonly folks make that mistake).

    Should you prepare to be welcomed to the big leagues? '-)

  182. SharonA  •  Apr 16, 2013 @8:13 pm

    Thank you for posting those, Delvan.

  183. MCB  •  Apr 16, 2013 @8:33 pm

    Hey the brief is up! :). My take on it is that you can see it's a little hastily put together, but the arguments seem to be right to me. There is one point I would have made that was not made in the brief. Regarding things ling the materiality of the fake signature, and the possible argument for the propriety of suing on copyrights the lawyers have purchased: the issue isn't whether there might be good faith legal arguments they could have used. The point here is that they attempted to abuse the legal process, by avoiding having to make such good faith arguments through a calculated program of obfuscation and outright deception.

    If you win a lawsuit through a campaign of wholesale perjury it is no defense to say that you might have won the lawsuit even without the perjury. They have abused the legal process. In doing so they attempted to deny the defendants the opportunity to make good faith legal arguments about these topics.

    If council shreds documents rather than turn them over to a subpoena they do not get to avoid sanctions by having people testify that the documents really didn't show anything important anyway. Nor do they get to argue that they did show something bad, but that they would have had a winning legal argument for excluding them. Shredding the documents itself violates the very essence of the legal process.

    I would have made that argument upfront, because I think it really cuts through 75-80% of the defense that Prenda has made of their actions.

    It's also interesting that they didn't scrub the heck out of metadata to try to hide who is filing what. For a troll firm operating so heavily in the online world, Prenda appears to not be especially technically savvy.

  184. anonymous  •  Apr 16, 2013 @9:10 pm

    Thanks Delvan!

  185. ChugiakTinkerer  •  Apr 16, 2013 @11:07 pm

    Pietz briefing page 8., line 6: (Tr. of Hr’g.)

    http://memegenerator.net/instance/37064090

    And thank you Delvan for abusing your PACER account for our benefit!

  186. Delvan  •  Apr 16, 2013 @11:12 pm

    Sure thing! Just feeding other folks like me who were chomping at the bit to see the filing :).

    Ken's new post is already up that includes Mr. Pietz's filing and tons more (and links to the PACER documents). If for some odd reason you're reading this comment before you saw his post, go there. NAOUOUGH!