All Across The Country, Prenda Law's Rubble Is Getting Bounced

Law, Politics & Current Events

All of Popehat's Prenda coverage is collected here.

It's been two months since I wrote about Prenda Law. Since then its fortunes — and the fortunes of its principals — have been on the wane. Prenda, John Steele, Paul Hansmeier, Paul Duffy, and Mark Lutz have been suffering devastating blows across the country. Any one of these developments would be grave for any normal lawyer or legal enterprise. Combined, they represent a swiftly accelerating rout. Each development makes it more and more plausible that Judge Wright's referral of Prenda's principals to federal prosecutors will yield a grand jury investigation and, eventually, federal criminal charges. To one side, career and financial ruin loom as multiple courts issue brutal and reputation-destroying sanctions; to the other side, the door to federal prison yawns open.

So what's been going on? Let's look at updates state by state, and then turn to last Thursday's big development in Los Angeles. Brace yourself; this is a long post.

Massachusetts

In the United States District Court for the District of Massachusetts, defendant Sandipan Chowdhury and his able lawyers from Booth Sweet LLP have been running rampant over a mostly absent Prenda. Prenda, through its entity AF Holdings, sued Chowdhury over alleged downloads of a movie called "Sexual Obsession." Chowdhury did not go quietly. Chowdhury filed a counterclaim setting forth Prenda's shady dealings and demanding cancellation of the copyright, and asked the court to order Prenda (through AF Holdings) to post a bond to continue. Prenda failed to do so. Prenda's local counsel sought and obtained leave to withdraw in an astonishing motion that suggests that the he had concluded that Prenda is engaged in fraud and wanted none of it. Chowdhury and his attorneys, not ones to pass up the opportunity to club a baby seal, asked the court to enter a default against Prenda, citing Prenda's failure to post the ordered bond and its failure to answer the counterclaim, as well as the emerging evidence of Prenda's misconduct and deceit. Crucially, Chowdhury asked the court to enter default against AF Holdings and its "known aliases." Prenda failed to respond once again. The court granted the motion, resulting in a default order that identifies Prenda Law, John Steele, Paul Hansmeier, and Paul Duffy as "aliases" of AF Holdings.1 Last week Chowdhury followed up with a request that the Court enter a final judgment based on the default order. Chowdhury's proposed final judgment would impose a sizable judgment against the whole Prenda team:

It is hereby ORDRED, ADJUDGED AND DECREED that Defendant Chowdhury recover jointly and severally from Plaintiff AF Holdings, Inc., Prenda Law, Inc., John L. Steele, Paul A. Duffy, Paul R. Hansmeier and Mark Lutz the principal amount of $21,393.60, with costs and attorney’s fees trebled pursuant to M.G.L. c. 93(A) §9 for a total judgment of $64,180.80 with interest as provided by law.

It remains to be seen whether someone from Team Prenda will finally show up to oppose this. If history serves Prenda's principals may revert to their "I wasn't served and didn't know about this" dodge. Even if they finally do show up, they're deep in the hole in this district.

tl;dr Prenda is abandoned by its local counsel in Massachusetts, ignores developments in a case, and suffers a default judgment that may result in a $64,180.80 judgment that adjudicates Paul Duffy, John Steele, Paul Hansmeier, Mark Lutz, Prenda Law, and AF Holdings to be "aliases" of each other.

Massachusetts Update October 23, 2013: Chowdhury's follow-up motion has been granted and judgment entered for $64,180.80 against Prenda, AF Holdings, Steele, Hansmeier, Lutz, Duffy as aliases.

Georgia

When last we spoke of Georgia, Defendant Rajesh Patel was in a brutal struggle with Prenda Law in the person of its rather excitable local counsel Jacques Nazaire. Prenda — through its shell AF Holdings — had sought to abandon its case against Patel, but Patel had sunk his teeth into Prenda and wanted sanctions. The United States District Court for the Northern District of Georgia permitted Patel limited discovery not on the merits of the dismissed case, but to gather information in support of a motion for sanctions, which is very rare and was not at all a good sign for Prenda.  As you will see, the court now probably regrets that.  Nazaire distinguished himself by arguing that the Georgia court should ignore Judge Wright's sanctions order against Prenda in California BECAUSE GAY MARRIAGE, ranting about Brett Gibbs and that notorious terrorist organization the Electronic Frontier Foundation, suggesting that Patel's court-permitted discovery into Prenda should be cut short because blogs are mean to Prenda and Nazaire, and resorting to mediocre "yo mamma" insults.

Patel and Prenda have been trading multiple accusations and demands for sanctions. Prenda has been asking the court to halt Patel's various discovery methods, and Patel has been asking the court to compel Prenda to answer that discovery.   United States District Judge William C. O'Kelley has finally had enough and issued an order telling the parties to stop filing motions, that he would hold a hearing on sanctions based on the motions to date in due course, and generally saying STOP THAT RACKET OR I'LL PULL THIS CAR RIGHT OVER SEE IF I DON'T. Patel — who may be lost to buck fever — has filed a motion asking for leave to file more motions despite the court's rather unambiguous signal. Maybe Patel thinks the federal judge doesn't really mean it. Federal judges always really mean it.

Patel may have overplayed his hand and eroded the court's goodwill and inclination to sanction Prenda. But it has not been in vain. Patel's subpoenas — permitted by the court as part of the discovery-to-support-sanctions process — uncovered crucial data that badly wounds Prenda. Among other things, Patel's papers discuss documents and recordings disclosed by GoDaddy demonstrating that: (1) John Steele's GoDaddy account was used to access a site registered to "Alan Cooper," (2) the same email address is used in connection with sites registered to "Alan Cooper," Mark Lutz, and John Steele, (3) recordings show the same male voice making tech support calls to GoDaddy and using the names John Steele, Alan Cooper, and Mark Lutz, (4) a purported "Alan Cooper" domain was registered using another John Steele email address. That information corroborates Alan Cooper's assertions that John Steele stole his identity and is powerful evidence that John Steele was far more involved in running the business than he has claimed in court.

More explosively, Patel's discovery to Comcast yielded IP address information showing that the same IP address (1) accessed John Steele's GoDaddy account, (2) accessed Prenda site wefightpiracy.com, (3) was assigned to Steele Hansmeier PLLC, John Steele and Paul Hansmeier's former firm, and (4) is the same IP address that, as others have shown, uploaded the copyrighted works to the internet before Prenda claims that various defendants illegally downloaded them. What does that last part mean? It's compelling evidence in support of a previous allegation that John Steele was using Prenda to run a "honeypot": that is, rather than protecting copyrighted works, he was deliberately posting them in places where they were likely to be downloaded, and then suing the downloaders as a revenue-generating scheme. If true, that necessarily involved fraudulent misrepresentations and omissions to courts and to defendants, and undermined Prenda's right to sue on the copyright. To learn more about the significance of that, and how people traced the IP to John Steele, you can read Joe Mullin or TorrentFreak. Prior to the release of the Comcast documents, John Steele hotly denied that he ran a "honeypot." Technically, I suppose that is not evidence that he did.

Finally, Patel's discovery campaign yielded an increasingly familiar result: Mark Lutz failed to show up for something. You may recall that Mark Lutz is — according to him and the other Prendarasts — formerly a paralegal for Steele and Hansmeier, a thoroughly useless "corporate representative," an alleged unpaid "manager" or "CEO" of Prenda Law entity AF Holdings. AF Holdings is owned by a trust called Salt Marsh, the beneficiaries of which are Lutz's own hypothetical and unborn children. Nothing suspicious about that! Anyway, Patel noticed Lutz' deposition, and — in what will be a pattern in this post — Lutz didn't show. Patel moved to compel him. Nazaire, who can keep a straight face through anything, said there is no legitimate reason to depose Lutz and that the only reason that Patel wants to depose Lutz is so that mean blogs can humiliate him:

Additionally, Mr. Lutz has every reason not to appear for a deposition. The deposition is sought out, not for seeking discoverable evidence, but rather to ridicule him.

That's a great argument, Mr. Nazaire, because if Patel is investigating whether AF Holdings is involved in a large-scale fraud scheme there's absolutely no reason to depose the CEO/manager of AF Holdings, the guy whose unborn children are the only beneficiaries of the mysterious trust that owns AF Holdings.

tl;dr: In Georgia, the court may have lost its patience with sanctions motions against Prenda, but discovery has yielded information substantially strengthening the fraud case against Prenda and its principals. Also, Mark Lutz is AWOL.

Illinois

I first started writing about Prenda Law when it blundered into my wheelhouse — frivolous defamation suits. John Steele, Paul Duffy, and Prenda law filed defamation suits simultaneously against Alan Cooper and his lawyer Paul Godfread in Illinois and Florida in retaliation for them revealing that Prenda had stolen Alan Cooper's identity. John Steele used those lawsuits in an attempt to threaten Alan Cooper and deter him from testifying. When last I wrote about those suits, Cooper and Godfread removed the Illinois cases to the United States District Courts in the Northern and Southern Districts of Illinois and filed counterclaims arising from the theft of Cooper's identity.

Since then the Illinois cases have not gone Prenda's way.  First, The federal judge in the Southern District of Illinois transferred the Prenda law defamation suit to the Northern District where the Paul Duffy defamation suit is pending; now the same judge will hear both. Coordination and consolidation of cases won't help Prenda, because it will be easier to observe Prenda's misconduct across consolidated cases.

Second, Prenda ran a brief and unsuccessful scam in an effort to get one of the cases cases returned to state court, which would have been slower to recognize and punish its misconduct. You have to know a bit of federal civil procedure to understand the scam and how it failed. To file something in federal court, you need subject matter jurisdiction — that means either a federal claim or diversity of citizenship. "Diversity of citizenship" means that the plaintiffs and defendants are from different states. That basis for jurisdiction is a throwback to when we assumed a citizen of one state wouldn't get fair treatment in the courts of another state. Diversity must be complete; if any plaintiff is from the same state as any defendant, there is no diversity jurisdiction. In removing the Prenda and Duffy defamation cases to federal court — a far more defense-friendly forum — Cooper and Godfread had to rely on diversity as the basis for federal jurisdiction because the cases did not involve state claims.

Prenda's scam worked like this – they demanded that the federal court send the Prenda Law defamation complaint back to state court because just before Cooper and Godfread removed it to federal court, Prenda added the Alpha Law Group as an additional plaintiff. Since Alpha Law Group is a Minnesota entity, and since Cooper and Godfread are from Minnesota, there would be no diversity jurisdiction. What does Alpha Law Group have to do with the case? Absolutely nothing. Prenda changed nothing substantive about the case and only added Alpha as a plaintiff to destroy diversity. That's the scam.

But Prenda got caught in deceit. See, under Illinois law, once Prenda and Duffy served Cooper and Godfread with the lawsuit, they couldn't amend it without leave of the Illinois court. They had served Cooper and Godfread — indeed, as is noted above, Steele called Cooper to gloat and threaten him immediately after that service. Steele also called Godfread to gloat about serving him. So how did they file the amended complaints adding Alpha Law Firm? They did it by telling the Illinois court clerk that the suits had not been served. Godfread and Cooper submitted a declaration from an Illinois court clerk who says that she asked the Prenda Law local counsel how he could amend the complaint without a court order, and he claimed the complaint hadn't been served. The amended complaint was therefore filed only because of a false statement, and filed in violation of Illinois law: it was a nullity and couldn't defeat diversity jurisdiction.

Faced with this evidence, Paul Duffy withdrew the motion to remand. But it was too late: the scam was revealed. Prenda claims that the lackey attorney who went to the clerk's office didn't know that the complaint had been served on Cooper and Godfread. That may excuse the lackey, but it makes no sense as to Duffy and Team Prenda — they knew the complaint had been served and they knew they had no court permission to file an amended complaint and they filed amended complaint anyway, fraudulently adding the irrelevant plaintiff Alpha in an effort to stay out of federal court. Cooper and Godfread have filed a strong motion for sanctions on that basis, putting Prenda's conduct in the context of the multiple sanctions levied against it across the nation. We'll see how Prenda responds.

Moreover, Cooper and Godfread have filed very strong amended counterclaims against Duffy and Prenda for identity theft and abuse of process.

Even if Team Prenda somehow defeats the motion for sanctions, the Illinois cases represent nothing but an opportunity for their strongest critics to conduct invasive discovery into their entire operation. They have literally no upside. The defamation complaints — filed in a feckless attempt to intimidate Alan Cooper — have backfired disastrously.

tl;dr: In Illinois, Prenda faces sanctions after a clumsy attempt to fake a reason to send its bogus defamation case back to state court.

Minnesota (State Court)

In Minnesota state court, Prenda — in the form of one of its shell entities, Guava LLC — has been sanctioned yet again for litigation misconduct.

The saga is detailed in Judge Tanya M. Bransford's sanctions order: Guava LLC sued Spencer Merkel in Minnesota state court for alleged illegal downloads despite neither Guava nor Merkel having an significant connection to the state. Guava was represented by Michael Dugas of the Alpha Law Firm — yes, the same Alpha Law Firm that Prenda tried fraudulently to add to the Illinois case, as described above. Paul Hansmeier and John Steele also appeared at various times for Guava. Dugas and Hansmeier swiftly used the case as a vehicle to seek orders directing ISPs to disclose subscriber information on various IP addresses. When subscribers objected, things fell apart, the center could not hold. Under scrutiny John Steele could not explain coherently why Guava sued in Minnesota, and could only describe Guava vaguely as a Nevis entity with offices in Las Vegas. Does that sound familiar? It should — it's the same thing Team Prenda said about another one of its entities, Ingenuity 13. Moreover, Spencer Merkel — the defendant — described what sounds like a scheme to set up a fake case in Minnesota, with a willing defendant and a Prenda-provided defense lawyer, as a ruse to obtain subscriber information from ISPs:

In the affidavit Merkel stated that he was a Beaverton, Oregon resident and that he received a September 26, 2012 letter from Prenda’s Paul Duffy (“Duffy”), claiming that Merkel had illegally downloaded a movie named Amateur Allure – MaeLynn 2 and that Merkel could pay Prenda $3,400 by October 11, 2012 to avoid being named in the lawsuit, Hard Drive Productions, Inc. v. Does 1-1,495, which had been filed in the United States District Court for the District of Columbia. Merkel Aff. at ¶ 1; Exhibit A. Before the deadline, Merkel states that he called Prenda Law and spoke with someone named Mike or Michael. Id. at ¶ 2. Merkel attests that he informed“Michael” that he was unable to pay thesettlement amount butinquired if they couldsettle the case.Id. According to the affidavit,“Michael” told Merkel that to settle he would have to agree to the following: Merkel would be sued, Merkel had to provide a bit-torrent log from his computer, and Prenda would dismiss the claim against Merkel after receiving the bit-torrent information. Id. at ¶ 3. During the discussion with“Michael,” Merkel states that he was told that a pro-bono attorney may be willing to takethe case in Minnesota and that “Michael” did not know any pro-bono attorneys in Oregon. Id. at ¶ 4. Merkel states he agreed to be sued in Minnesota because he could not afford an attorney and obtained his attorney, Trina Morrison, based upon the information he received from Prenda. Id. Merkel also attests that he had never heard of Guava LLC or Alpha Law Firm LLC until this lawsuit; he believed that the opposing parties would be Prenda and Hard Drive Productions, Inc. Id. at ¶ 5-6. On January 15, 2013, Merkel received a voicemail from someone at Prenda stating that he “needed to make payment arrangements or [he] would be sued.” Id. at ¶ 8. According to Merkel, Guava had not requested either his bit-torrent log information or the names of any alleged co-conspirators. Id. at ¶ 9.3 Merkel’s counsel testified that she graduated from law school with Guava’s counsel Dugas and that she was approached to represent Merkel on a pro-bono basis after informing Mr. Dugas and Mr. Hansmeier that she may be interested in taking on a case pro-bono to gain experience. (See Hr’g Tr. At 17-20). (emphasis added)

Now, Dugas says that's not true. Judge Bransford made short work of that: "[t]his Court finds that Dugas lacks any credibility with this Court based upon the actions he has taken in this matter." Ultimately Judge Bransford concluded "Plaintiff Guava LLC and its counsel Michael K. Dugas of Alpha Law Firm LLC acted in bad faith and without a basis in law and fact to initiate this action in Minnesota State District Court," and sanctioned them $63,367.52 to pay the attorney fees and costs of the objectors.

tl;dr: A Minnesota court sanctioned a Prenda entity and a Prenda local counsel for creating a fake case to discover ISP subscriber information.

Minnesota (Federal Court)

You think that Prenda only has problems with open cases? They should be so lucky.

In the United States District Court for the District of Minnesota, upon reviewing Judge Wright's apocalyptic sanctions order against Team Prenda, a magistrate judge issued an order re-opening five cases and ordering Prenda shell AF Holdings to show cause whether Judge Wright's finding of fraud is binding on the Minnesota cases. Michael Dugas — the lawyer sanctioned by the Minnesota state court — was AF Holdings' lawyer in those cases. Paul Hansmeier filed a brief strugling mightily to convince the court that Judge Wright was wrong and that his order was misguided and not binding. Just to make things worse for Prenda, Alan Cooper (represented by Paul Godfread) sought and obtained leave to submit evidence that Cooper's signature had been forged in the Minnesota cases.

This led to a contentious hearing pitting Cooper and Godfread on one side and Hansmeier and Steele on the other. You can read a description of the hearing here at TechDirt or here at Ars Technica. As before, Prenda tried to portray Cooper as a disturbed man who had, in fact, agreed that his name could be used in Prenda's porn copyright enterprise. Steele, in particular, claimed that Cooper gave Mark Lutz permission to sign documents on Cooper's behalf, thus explaining Cooper's signature on various documents.

That argument suffered from (among other things) a glaring flaw: the absence of Mark Lutz. The Minnesota court had directed AF Holdings to produce a witness representing it and capable of authenticating the Cooper signatures. Yet Lutz was nowhere to be seen. Hansmeier, always the good soldier, did what he could:

Hansmeier said that Lutz was planning to come, and is the sole officer of AF Holdings, and did make it to an earlier conference in this case in person, but that he wasn't present today, and that Mr. Hansmeier hadn't been able to reach him by phone or email. He voluntarily elaborated that Steele and Lutz had been booked on the same flight from Miami, that Steele had gone to Lutz's apartment to meet him (because Steele had Lutz's boarding pass), but found him not home. Steele had then, according to Hansmeier, driven around Miami looking for Lutz, and even encountered some of Lutz's friends who said Lutz had told them the night before that he had to make an early night of it because he was traveling to this court in the morning.

If "looking for Lutz on the streets of Miami" isn't already on Urban Dictionary, representing some uncomfortable sexual practice, I shall be quite put out.

Hansmeier sought, and received, permission to file a supplemental declaration explaining what happened to Lutz. When he did so, it was rather less than observers expected:

Mr. Lutz was traveling with another witness to the Hearing. The witness indicated that Mr. Lutz was not on the flight from Fort Lauderdale, Florida. I have attempted to contact Mr. Lutz but have been unable to reach him as of the time of this declaration. Based on my prior experience with Mr. Lutz, including Mr. Lutz’s prior in-person attendance before this Court on August 5, 2013, I believe that Mr. Lutz will be able to provide a good-faith reason for failing to make his flight to Minnesota.

So. The court ordered AF Holdings to produce an officer and someone who could authenticate documents. Mark Lutz, who is the unpaid CEO/manager of AF Holdings (in addition to a former paralegal of Steele and Hansmeier) and whose ungotten and unborn children are the beneficiaries of the mysterious trust that owns AF Holdings, and who allegedly received permission to sign for Alan Cooper in the manner that is the key issue in this entire hearing, didn't show up, and hasn't explained why, but Paul Hansmeier is confident he had a good reason. Well okay then. I'm sure that wont have any impact on Team Prenda's credibility.

The judge has taken the motion under submission and will rule in "due course." There's no telling how long that will be, though I note that the hearing was weeks ago and orders saying "there is insufficient evidence to conclude fraud occurred and this matter is closed" don't take much time. Moreover, nothing in the descriptions of the judge's demeanor offered much hope.

An amusing coda: at the hearing, John Steele and Paul Hansmeier discovered through Alan Cooper's testimony how he learned that his signature was being used: John Steele's mother-in-law allegedly tipped him off by text. Joe Mullin offers this deathless line:

At this point, Steele exhaled loudly.

Team Prenda has subsequently offered new evidence claiming that John Steele's mother-in-law wasn't accusing anyone of fraud, and to the contrary Cooper had admitted to her husband that he knew his signature was being used. We'll see how that plays out. I note that the affidavit relies on hearsay statements by the father-in-law but oddly fails to include an affidavit from him.

tl;dr: In Minnesota federal court Mark Lutz fails to appear at a hearing at which he is a crucial and required witness, and family drama increases popcorn consumption.

San Francisco, California

Up in San Francisco, Prenda has been in full retreat, attempting to extricate itself from cases without sanctions. Cathy Gellis previously guest-blogged for us and described how Team Prenda struggledunsuccessfully — to dismiss AF Holdings v. Navasca "without prejudice," meaning with leave to re-file if they so desired. United States District Judge Edward M. Chen rejected that approach, dismissed the case with prejudice (meaning, permanently), and gave defense attorneys Nick Ranallo and Morgan Pietz leave to make a motion for attorney fees as the prevailing party.

Pietz and Ranallo did so. Judge Chen granted the motion, awarding $22,531.93. Judge Chen's order explicity concludes that the Alan Cooper signatures are forgeries, and that AF Holdings has litigated in a way that is "frivolous or objectively unreasonable," and that Prenda's motivation was not to protect copyright but "to sue people for downloading pornography in order to coerce settlements." Judge Chen also considered evidence that Prenda was itself uploading the copyrighted materials to pirate sites to troll for defendants. He not only concluded that evidence was credible — he pointed out that Team Prenda quibbled with the evidence but failed to rebut it meaningfully:

But notably, what AF has not done is offer any counterevidence such as a declaration from Mr. Steele in which he denies that he is “sharkmp4” or other evidence that AF did not take steps to induce users to download the subject works. This evidence could easily have been offered by AF as a part of its opposition brief. AF’s failure to submit any factual denial under oath is telling.

Bear in mind that was Judge Chen's conclusion even before the Comcast data was revealed in Georgia, as is discussed above. The case for Prenda itself uploading the materials to troll for defendants is now even stronger.

But the Northern District wasn't done with Team Prenda yet.

Pietz and Ranallo filed a new motion for sanctions, this time arguing that Judge Chen should make the sanctions payable by John Steele and Paul Hansmeier, not just the shell AF Holdings. In support of that proposition they offered a new declaration from Brett Gibbs, who talked about how Steele and Hansmeier had supervised his work for AF Holdings. Team Prenda — through Paul Duffy — predictably ranted, raved, and attacked Gibbs' credibility. Judge Chen assigned the motion to United States Magistrate Judge Nandor Vadas for hearing. In advance of the hearing, Magistrate Judge Vadas issued an extraordinary order detailing what he wanted to see at the hearing. That order called back to Paul Hansmeier's utterly bizarre performance when he appeared at a deposition to testify on behalf of AF Holdings, the plaintiff in the case. Why, Judge Vadas wanted to know, did Hamsmeier show up to testify for AF Holdings if Mark Lutz was the CEO and Hansmeier was so pig-ignorant about the details? Why couldn't he explain where the money from this enterprise goes? Who actually owns AF Holdings? Why did AF Holdings represent in court filings that it had no related parties if it was owned by the trust "Salt Marsh?" Vadas demanded that AF Holdings be prepared to answer those questions, and answering them clearly required the presence of CEO/manager Mark Lutz, and you already know what's going to happen, don't you?

The day of the hearing, Mark Lutz was a no-show. Steele and Hansmeier didn't show up, either. Paul Duffy carried the water for Prenda Law, and carried it badly. Pietz and Ranallo called Brett Gibbs, who testified that Steele and Hansmeier directed Team Prenda's litigation activities. Gibbs also testified that the voice on the GoDaddy customer service call tapes — revealed in the Georgia litigation, discussed above — was that of John Steele, notwithstanding that he identified himself as Alan Cooper and Mark Lutz in the calls. Finally, Gibbs testified that John Steele had said that "Salt Marsh" was an actual person who had signed documents in the case, an issue that Judge Chen had asked about. On cross-examination, Duffy flailed away, drawing questions from Judge Vadas about what he was trying to accomplish with his line of questions.

But Mark Lutz didn't appear.

Days later, Team Prenda filed an affidavit from Lutz in which he claimed that he didn't come to the hearing because he was mysteriously detained at the airport in Miami. Duffy asked for permission to file that under seal to protect Lutz from people saying hurty things about him. DENIED. Duffy asked to supplement the record with a declaration from Lutz about the substance of the hearing. DENIED. Judge Vadas pointed out that Team Prenda was attempting to insulate Lutz from cross-examination and called Duffy's requests "gamesmanship."

Soon thereafter Judge Vadas issued his order recommending findings of fact and conclusions of law to Judge Chen. It's exceptionally difficult to imagine how it could have gone worse for Team Prenda. Judge Vadas concluded:

  • That though Judge Chen could not immediately sanction Steele and Hansmeier — because they were not parties to the action — Judge Chen could and should issue an order to show cause forcing them to explain why they shouldn't be added to the attorney fee judgment as alter egos of AF Holdings;
  • That Team Prenda failed to address the points Judge Vadas told them to address, failed to introduce witnesses with relevant knowledge, failed to rebut — or sometimes even to address — the allegations against them, and that their attempt to start to do so only after the hearing showed that Duffy "is apparently not familiar with the rules of federal procedure, or with basic principles of motion practice";
  • That Judge Chen should adopt Judge Wright's conclusions about the relationship among AF Holdings, Steele, and Hansmeier, since they had an opportunity to litigate it but failed to do so;
  • That Duffy on behalf of Team Prenda failed to rebut the evidence that Prenda uploaded the videos at issue to the internet themselves, or the evidence that Prenda was "in cahoots" with the forensic "experts" who identified the downloaders, or that Prenda forged Alan Cooper's signature.

Judge Vadas, in short, found sufficient facts to prove that Team Prenda did everything that Pietz and Ranallo accused them of doing, and that Team Prenda utterly failed to rebut that evidence, or in some cases even to respond to it.

In short order, after some ineffectual objections from Team Prenda, Judge Chen acccepted Judge Vadas' recommended findings of fact and law and ordered Steele and Hansmeier to appear and show cause why they should not be added to the attorney fee judgment in the case, making them liable for that $22,531.93. The findings of fact are far more harmful to Steele and Hansmeier than that potential award. Judge Chen also rejected AF Holdings' objections, considering them even though Duffy filed them late. In doing so Chen made some telling points:

  • Rather than Steele and Hansmeier objecting to the proposed findings of fact and law, AF Holdings objected for them — including to the finding that Steele and Hansmeier control AF Holdings.  Yeah, chew on that one for a minute.
  • AF Holdings' argument amounted to "well, Gibbs should have done an independent investigation and not relied on Steele and Hansmeier."  But that does nothing to contradict the proof that Steele and Hansmeier controlled AF Holdings and directed Gibbs.
  • Judge Chen demolished, point by point, Team Prenda's suggestions that the evidence was insufficient to support Judge Vadas' conclusions.  He emphasized repeatedly that AF Holdings, Steele, and Hansmeier had a full opportunity to subpoena witnesses (Cooper, for instance) , appear themselves and testify, or otherwise present evidence, but suspiciously failed to do so.

So Judge Chen set a hearing, and made it clear that if Steele and Hansmeier want to have their assertions taken seriously, they had better show up and present live testimony:

While the parties and Mr. Steele and Mr. Hansmeier may submit declarations in support of their respective papers, the Court hereby forewarns all persons or entities involved that such declarations (or affidavits) will be given little to no weight because the Court shall be conducting an evidentiary hearing on the order to show cause on Thursday November 21, 2013. Thus, any testimony in a declaration (or affidavit) that a party or nonparty deems important, significant, or critical must be presented at the evidentiary hearing by a live witness, subject to cross-examination.  [boldface and indicia of imminent annihilation in original]

Judge Chen subsequently moved that date to December 19, 2013 and issued elaborate requirements for serving Steele and Hansmeier so they cannot pull their typical "I never got notice" routine.

The attorney fee number is modest, but this series of orders is perhaps the worst development for Team Prenda in this post — so far. It represents one more court making detailed findings of fact about Team Prenda's fraudulent activities. Moreover, there is no way that Team Prenda can make a credible argument that they lacked a fair opportunity to contest the issues.

tl;dr: A federal court in San Francisco held a hearing about Team Prenda's behavior, Team Prenda bizarrely failed to contest the issue competently, Mark Lutz failed to show up again, and the court make factual findings accepting nearly every material accusation of bad conduct levied at Team Prenda.

Los Angeles, California

That brings us to last week, in Los Angeles.

Last Thursday, in the case before Judge Wright that yielded so much drama, Brett Gibbs filed a curious document styled a "Motion for an Indicative Ruling" seeking to amend Judge Wright's order and eliminate the sanctions against him.  Gibbs, representing himself, spilled more details about Team Prenda and revealed tantalizing documents, all in service of the argument that Judge Wright should reconsider his findings about Gibbs and sanctions against him.

I don't think Gibbs will be successful in vacating the sanctions against him.  This is really a motion for reconsideration, and it's both untimely and procedurally improper — Gibbs offers some facts and evidence he could have offered before, which is not a valid basis for reconsideration.  Moreover, the sanctions order is on appeal before the Ninth Circuit; Gibbs may have a difficult time convincing Judge Wright that he has jurisdiction to alter the order while it's on appeal.

But I'm not sure that Brett Gibbs cares.  As he says in his conclusion:

While Gibbs is asking the Court to vacate the sanctions imposed upon him in its May 6 order, he is not asking the Court to withdraw the referrals the Court made to the U.S. Attorney, the Central District Disciplinary Committee, the State Bar and the Internal Revenue Service. Gibbs wants these investigations to proceed and will continue to cooperate fully with them. If the monetary sanctions against Gibbs are vacated, Gibbs will withdraw his appeal—which the Ninth Circuit has consolidated with the appeals of Prenda, the Principals and Plaintiffs. This will not prevent him from testifying about the actions and statements of the Principals in this or other cases.

I think Brett Gibbs may be trying to redeem himself and trying to put things right, and to gain a measure of justice against the low people who betrayed and abandoned him.  Good for him.

Gibbs' brief and exhibits are very damaging to Team Prenda's narratives:

  •  Team Prenda says that John Steele was not involved in directing the Prenda litigation or operating Prenda Law.  Yet when Gibbs wrote to Steele seeking Prenda Law's malpractice policy, Steele immediately provided information about the policy.  Why would Steele be involved or have that information if he wasn't running Prenda Law?
  • Team Prenda says that Prenda Law's clients have nothing to hide.  So why was Paul Duffy threatening Gibbs to try to keep him silent about the Prenda Law shell entities?
  • Team Prenda says that Gibbs was responsible for any misconduct, that he's not reliable, and that he's lied about Team Prenda.  So why, after Judge Wright issued his devastating May 6, 2013 sanctions order, did Steele and Hansmeier try to convince Gibbs to sign ridiculously one-sided agreements under which Steele and Hansmeier would pay for the appellate bond staying the sanctions order, and Gibbs would represent them on the appeal, agree to say that Steele had no involvement in a Florida case (something that Gibbs says is not true), and accept a "fiduciary relationship" with Steele and Hansmeier probably calculated to prevent him from testifying about them? Steele and Hansmeier also demanded, as the price of this epically ridiculous deal, that Gibbs promise to pay all sanctions arising from Judge Wright's order and that Gibbs waive all claims against them. Seriously? Also, if Steele and Hansmeier think that Gibbs is so awful, why are they demanding that he represent them in their desperate appeal of a life-destroying sanctions order?
  • And, perhaps most astoundingly, Team Prenda says that Steele and Hansmeier have no ownership interest in Prenda Law, AF Holdings, Ingenuity 13, or the various other Prenda shells.  Yet Gibbs submits Prenda Law financial records — records which Prenda Law shrewdly shared with Gibbs via DropBox. Those records seem to show that in 2012, when Prenda Law took in almost $2 million from its litigation exploits, it distributed nearly 70% of that to Steele and Hansmeier directly and through an entity called "Under The Bridge" — perhaps a coy reference to their chosen life of trolling. That percentage doesn't include payments to Steele's wife, payments to Paul Duffy, and payments of extravagant travel, meals, and entertainment. Every IRS Criminal Investigation Division agent looking at those spreadsheets — and I promise you there are some — just had a Stimulating Personal Moment.  Check out the coverage of the financials from Joe Mullin or Mike Masnick. This was big money, and Team Prenda's coyness or evasions to the contrary, these records suggest Steele and Hansmeier got most of it. I guess Mark Lutz' unborn kids are shit out of luck.

Brett Gibbs' brief is better written and more convincing than anything Paul Duffy, John Steele, and Paul Hansmeier have produced since Judge Wright's order.  It may not succeed in lifting the sanctions against Gibbs, but it's good lawyering.

The financial records, in particular, are very bad news for Team Prenda.  They are exactly the sort of thing that federal law enforcement likes to use as a jumping-off point for an investigation.  If this disclosure isn't worse for Team Prenda than Judge Chen's order, discussed above, it is at least a tie.

tl;dr:  In Los Angeles Brett Gibbs has filed a new motion releasing documents showing where the money went — and, despite Team Prenda's claims, it went to Steele and Hansmeier.

So What Does All Of This Mean?

So what does all of this mean?  Well, first it means that Team Prenda faces more imminent hearings at which its members will have to make difficult choices between incriminating themselves or defending themselves.  Those hearings include the show cause hearing in December before Judge Chen and any hearing Judge Wright chooses to hold on Brett Gibbs' motion.   Moreover, Team Prenda faces imminent rulings on under-submission rulings in Georgia and Minnesota.  They have little cause to hope those rulings will go their way.

Prenda's Civil Prospects

Civilly, the problems mount not just for the Prenda entities, but for Prenda figures Steele, Hansmeier, Lutz, and Duffy. Judges will evaluate each case individually — as a formal matter. But practically speaking, each sanctions order, each order rejecting Team Prenda's arguments, each order finding members of Team Prenda to be less than credible, and each finding of misconduct creates momentum against Prenda, makes judges more receptive to sanctions motions they might normally not consider, makes it more likely that judges and their staff will come into cases familiar with Prenda's history, and substantially increases the chances that Team Prenda will lose any particular dispute. At some point judges will start to treat Team Prenda's misconduct as so well established that they will resolve disputes in rather summary fashion against them.

Team Prenda's prospects for turning that trend around are grim for four reasons:

  • They are being outlawyered across the nation. Despite their pretenses to being the "big leagues," their written work and courtroom performance is mediocre. They continue to rely on Paul Duffy for hearings, and — as the San Francisco hearing shows — Paul Duffy is not much of a courtroom lawyer.  Of course, in his defense, he's got the clients from hell.
  • Team Prenda still hasn't picked a coherent and consistent narrative and stuck with it. Consider the Minnesota state case described above. Called upon at a hearing to explain the origin of Guava LLC and its connection to the forum, John Steele offered ambiguities and half-answers when the situation (an angry judge investigating accusations of misconduct) called for concise, specific, evidence-backed answers.  Misfortune ensued.
  • Team Prenda keeps touting Mark Lutz as the responsible answer man, but Mark Lutz keeps failing to appear at hearings where is presence is crucial to Prenda's case.
  • Finally, the facts are against them — the emerging evidence described above and in the various sanctions motions rather convincingly demonstrates an ongoing fraud scheme.

Prenda's Criminal Prospects

If you want federal prosecutors to launch a grand jury investigation, or federal agencies to investigate a fraud scheme, you need three things. You need a valid theory of a crime supported by some credible evidence, you need alleged misconduct serious enough (often as measured in dollars) to merit federal attention, and you need a spark — an X-factor. You need those things because federal prosecutors and federal agents have limited resources, and prefer to spend those resources by doing slow and (compared to local police) thorough investigations of fewer crimes rather than many short and slapdash investigations of more crimes. The FBI and U.S. Attorney's Office are awash with reports of fraud schemes; it takes something special to get their attention.

Judge Wright's order was something special. A direct criminal referral by a federal judge is unusual and powerful. But based on my experience with federal criminal law — both as a prosecutor and defense attorney — the developments above have significantly increased the chance that federal prosecutors and federal agencies will investigate Team Prenda. First, the increasing number of judicial findings makes the case against Team Prenda more credible from the outset. Second, the financial evidence Gibbs has now released is the sort of thing that makes the feds drool. The spreadsheets show large amounts of money moving around in a way that seems to contradict Team Prenda's claims about their operation; that will interest the IRS. Third, the evidence that Team Prenda uploaded the videos in question and then pretended to be outraged that they were pirated — thus defrauding courts and defendants — is exactly the sort of sexy x-factor that makes federal investigators and prosecutors pick a case out of a pile. Is federal criminal prosecution certain? No. But it's considerably more likely than it was when Judge Wright ruled.

When will it happen? Not soon. The feds have a competitive advantage — the ability to conduct methodical investigations over years, gather documents from multiple sources using grand jury subpoenas, and flip lower-level bad guys against higher-level bad guys. It wouldn't surprise me if we saw no reliable indication of a federal criminal investigation this year. But I suspect we'll see indications next year.

Credible evidence is piling up, and federal judges are accepting it.  That evidence suggests that Team Prenda has (1) uploaded its films to pirate sites and then sued people for downloading them without disclosing their role in the uploading, (2) made misrepresentations under oath about the structure, financing, and operation of Team Prenda, (3) orchestrated fake cases to provide an opportunity to conduct ISP discovery, and (4) conducted questionable transactions with the proceeds of these activities.  The feds, looking at all that, may investigate wire fraud, mail fraud, money laundering, obstruction of justice, perjury, and false statements to the government.  If Team Prenda has done the things that Judge Chen and Judge Wright have found, you may rest assured that the feds will find an approach to charging them for it.  Federal criminal law is broad and malleable to an unprincipled degree.  That's not a good thing in general for society, and in particular it's a bad thing for Prenda.

What can Team Prenda do about it? They can get competent federal criminal defense attorneys to advise them. I suspect Steele, Hansmeier, and Duffy are too swollen with hubris to do that.

Are the other current or former members of Team Prenda smart enough?  Maybe.  Brett Gibbs seems eager to cooperate.  Even if he has personally engaged in criminal conduct — and it's not clear to me that he has — as an early and important cooperator he could very plausibly avoid charges completely.  Mark Lutz, if he flipped early, might avoid charges or at least minimize his exposure and avoid jail time.  Local counsel, if they believed they had been used to advance a fraud scheme, could work with prosecutors to seek judicial determinations that the crime-fraud exception permits them to disclose their communications with Team Prenda.

I suspect nobody with Team Prenda is fond of me. But if any one of them would like a recommendation of a capable federal criminal defense attorney, I will give one. I would expect such an attorney to make no assumptions, and to evaluate carefully what course is in the best interests of the client, whether it is shutting up or cooperating. In Mr. Gibbs' case, out of respect for his attempts to make amends, I would pledge to use my best efforts to use my contacts to find an exceptional federal criminal defense attorney to represent him pro bono.

tl;dr: We thought Team Prenda's troubles couldn't get worse. We were wrong.

  1. Using "aliases" here might be some Massachusetts terminology; the import seems to be a finding that they are alter egos of each other, responsible for the conduct of each other.  

Last 5 posts by Ken White

421 Comments

421 Comments

  1. Sami  •  Oct 20, 2013 @8:52 pm

    Yay, Prenda update!

    Just the thing to cleanse my spiritual palate after a difficult day.

    Washington State is remarkably beautiful, apart from the people nearly running me off the road and killing me then not stopping.

  2. Andrew Norton (@ktetch)  •  Oct 20, 2013 @9:12 pm

    I suspect that in Ga, there's more than just the judge losing his good will. In July he said it was already messy, and he was quite scathing of Mr Nazaire about professionalism. It was certainly an 'interesting' hearing.

    Secondly, at the hearing, discovery was set at 60days, with that expiring Labor Day weekend, with an expectation of a hearing soon after

    We'll set a date for a hearing after I see what's going on and we get further down the line, but that may be shortly after that 60 days. Sixty days was July, August — that would be into September. So we may try to hear it in September, October, one, depending upon what my jury trial schedule will be at that time.

    (transcript pg 87)

    But as yet, there's been no ruling on any of the motions, including those that were filed prior to the July 2 hearing (16, 21 and 30). In fact the only ordered made by the judge at all have been the discovery minute order, and the 'hush now' order, plus a decision of what he'd take judicial notice of.

    Kinda frustrating for me too, not knowing if/when I'm going to even be needed to testify, although short of anything new coming out on 6881, my area (bittorrent expert) likely won't change much, it's more a question of if I'll even be needed now (which is annoying, having put a lot of hours in)

    It's the limbo that gets me more than anything, and I think it's contributed to the flurry of motions. It would appear that Judge O'Kelley is not one of those judges who is quick to issue rulings (although it's really stupid to try and infer from one case)

  3. Jim Tyre  •  Oct 20, 2013 @9:24 pm

    In the main article, Ken wrote:

    I suspect nobody with Team Prenda is fond of me. But if any one of them would like a recommendation of a capable federal criminal defense attorney, I will give one.

    Really? Ken, you know I respect you greatly, and every criminal defendant (which the Prendanistas aren't, yet) has a right to counsel. But given all you've said about them, why would you feel obliged to make a recommendation for them? Sure, I get representing (or at least making recommendations) for folks whose views don't coincide with yours. You just made that point in the Kimberlin post, and my own practice provides many examples. But here? Really?

  4. Raul  •  Oct 20, 2013 @9:37 pm

    A Herculean undertaking executed perfectly. Thank you.

  5. SJD  •  Oct 20, 2013 @9:39 pm

    It remains to be seen whether someone from Team Prenda will finally show up [in MA] to oppose this.

    Funny fact that Duffy (at least during this year) claimed in writings and an infamous, now defunct, wefightpiracy.com that he is licensed in MA. Yet he will never appear there? I wish he would. Because MA Bar's overseers are quite aware that his claims are not exactly correct.

  6. Andrew Norton (@ktetch)  •  Oct 20, 2013 @9:43 pm

    I dunno Jim, I can see a few possible motivations, but as I don't know Ken well (or, lets be honest, at all) I couldn't even guess as to the applicability of any of them.
    Could be the 'web of influence' (sometimes known as the puppetmaster) theory, where Ken likes to be the one calling the shots. Unlikely, because by now he'd have gone into politics (and as a strong 1st Amendment person, I know the Pirate Party would love him as a candidate – Ken, drop me an email if that does interest you though)
    Could be the Voltaire theory, as you suggest (the "I disapprove of what you say, but I will defend to the death your right to say it" description of Voltaire written by Evelyn Beatrice Hall)
    Or it could be the "preemptive strike" theory. You know, "how can you say I'm evil when I've even offered help finding you good local counsel", which you 'evil terrorist scum' (aka Empire's Forever Fiends, or EFF for short) failed to do, Jim, forever blackening your name in the face of All Things Good And American, like Apple Pie, and Nina Mercedez taking it 3 ways at once… :-)

    Or it could be something completely different. (and if I knew more about 'people' so I could make a determination, I wouldn't be a basement dwelling nerd any more….)

  7. Craig  •  Oct 20, 2013 @9:44 pm

    Mark Lutz's habit of not appearing when ordered by federal judges to appear is reminding me of Dashiell Hammett's "The Thin Man", in which a man spends most of the book being very hard to find because he was, in fact, murdered before the book even started. Did Mr. Lutz ever exist in the first place, or is he another of Steele and Hansmeier's fictions?

  8. SaltMarshGhost  •  Oct 20, 2013 @9:45 pm

    It wouldn't surprise me if we saw no reliable indication of a federal criminal investigation this year. But I suspect we'll see indications next year.

    I would think that Gibbs's sudden dumping of financial data and that, with regards to investigations by bar associations, the CACD Standing Committee on Disciple, and the IRS and the USAO, Gibbs says that he "wants these investigations to proceed and will continue to cooperate fully with them" in a motion that, as Ken points out, has odd timing, to be a fairly good indication that the feds have become involved.

    We also of course have Mark Lutz's story of why he didn't show up in California. While it does strain credulity, assume that it is basically true, and that two feds met him at the airport and detained him for 16 hours. That would mean the feds not only knew about him, but were keeping such a close eye on matters that they knew he had a flight out of a particular airport on a particular morning.

    Unless Mark Lutz is involved in another significant criminal enterprise (which, tbh, we can't really rule out), that would be another strong indication of a federal investigation into Prenda.

     

    (Also, due to Paul Hansmeier's ego not letting him give up his admission request to the Ninth Circuit bar, we know for certain from his required status reports that there are several active bar investigations into the Prenda principals.)

  9. Justin Kittredge  •  Oct 20, 2013 @9:45 pm

    After,
    "Team Prenda's prospects for turning that trend around are grim for four reasons:"
    you have a typo inside point 3

    failing to appear at hearings where is presence is crucial to Prenda's case

    I would be grateful if you deleted this comment by me. I do not think it is worth looking at afterwards

  10. SaltMarshGhost  •  Oct 20, 2013 @9:51 pm

    @Craig,

    No, we know Mark Lutz exists. He's appeared in court several times (all of them to great humorous effect) and there are pictures of him. And in fact, if memory serves, Mark Lutz was also the one in charge of Prenda's dunning calls.

    Now, on the other hand, we have no idea if Lutz really is as involved as Steele/Hansmeier/Duffy put him out to be—future father to the beneficiaries of a mysterious trust, CEO of this, corporate representative of that, etc.

  11. SJD  •  Oct 20, 2013 @9:57 pm

    First reaction to the spillout of Prenda's financial documents from Hansmeier. HT Zeno.

    Fifth, if these documents are authentic, then they were stolen. No business would
    release sensitive financial documents to its adversaries. I understand that this matter is
    being investigated and will be reported to law enforcement, as appropriate.

    This one made me laugh: as if law enforcement does not already know about Prenda's. shenanigans

    (It's me, I'm in a process of changing my email, and for some reason my gravatar does not propagate quickly).

  12. Matthew Cline  •  Oct 20, 2013 @10:09 pm

    But Prenda got caught in deceit. See, under Illinois law, once Prenda and Duffy served Cooper and Godfread with the lawsuit, they couldn't amend it without leave of the Illinois court. They had served Cooper and Godfread — indeed, as is noted above, Steele called Cooper to gloat and threaten him immediately after that service. Steele also called Godfread to gloat about serving him. So how did they file the amended complaints adding Alpha Law Firm? They did it by telling the Illinois court clerk that the suits had not been served. …

    Faced with this evidence, Paul Duffy withdrew the motion to remand.

    I recall reading some comments saying that they kept on going on about the motion to remand even after getting caught. Like maybe telling other judges that this case should be ignored because it hadn't been remanded? Anyone know what I'm talking about?

  13. Roki B  •  Oct 20, 2013 @10:37 pm

    Oh my god I think I just had a ten minute orgasm reading this.

    Gonna go out for a smoke. Thanks Ken.

  14. TheGeek  •  Oct 20, 2013 @10:38 pm

    Team Prenda has not learned the First Law of Holes: When you find yourself in one, stop digging.

  15. Katherine/Kat Anon  •  Oct 20, 2013 @10:42 pm

    Really? Ken, you know I respect you greatly, and every criminal defendant (which the Prendanistas aren't, yet) has a right to counsel. But given all you've said about them, why would you feel obliged to make a recommendation for them? Sure, I get representing (or at least making recommendations) for folks whose views don't coincide with yours. You just made that point in the Kimberlin post, and my own practice provides many examples. But here? Really?

    Yes. Really. Because this is what good people do. Ken is a good person. He's also a class act.

  16. Katherine/Kat Anon  •  Oct 20, 2013 @10:43 pm

    I suspect that in Ga, there's more than just the judge losing his good will.

    I can't help but wonder if he's forgotten how he felt about the case when he granted full on discovery.

    It's the limbo that gets me more than anything, and I think it's contributed to the flurry of motions.

    Yeah I kinda got the same impression from the motions of both sides. If the Judge had step up and presided over this case…

    Both attorneys are reminding me of neglected children desperate for their parents' attention.

  17. Daniel Neely  •  Oct 20, 2013 @10:47 pm

    @Jim Getting Gibbs a good defense lawyer will make it less likely he ends up splatted by the Feds Party Bus when they take down the rest of the Prendanistas. Making cooperating seem less dangerous to Gibbs is pure win.

  18. Rob  •  Oct 20, 2013 @11:02 pm

    So why, after Judge Wright issued his devastating May 6, 2013 sanctions order, did Steele and Hansmeier try to convince Gibbs to sign ridiculously one-sided agreements under which Steele and Hansmeier would pay for the appellate bond staying the sanctions order, and Gibbs would represent them on the appeal, agree to say that Steele had no involvement in a Florida case (something that Gibbs says is not true), and accept a "fiduciary relationship" with Steele and Hansmeier probably calculated to prevent him from testifying about them? Steele and Hansmeier also demanded, as the price of this epically ridiculous deal, that Gibbs promise to pay all sanctions arising from Judge Wright's order and that Gibbs waive all claims against them.

    Jesus, no wonder Gibbs flipped. They essentially asked him to take it up the ass for them, with absolutely nothing in it for him whatsoever. They didn't even offer any lube. They are either complete idiots or have a very low opinion of Gibb's mental faculties if they thought he would actually accept that.

    If I were Steele or Hansmeier, I'd liquidate whatever assets I had and book the next flight out of the country, preferably to someplace that lacks an extradition treaty with the US.

  19. Atropine1138  •  Oct 20, 2013 @11:04 pm

    If/When federal prosecutors file against the various Prenda entities, I assume they will join all the actions into one big happy pile. What will determine where they will file, given the disparate nature of Prenda's activities? It seems like the strongest candidates would be either the Northern District of Illinois or the Central District of California.

    Also loved the tacit reference to FRCP Sec. 1359. Textbook example of collusive party admission, but isn't there a debate about the merits of collusive joinder to remove federal jurisdiction, as opposed to artificially creating diversity? Just an idiot 1L question, my apologies if I'm being ignorant (as usual).

  20. AlphaCentauri  •  Oct 20, 2013 @11:09 pm

    Really? Ken, you know I respect you greatly, and every criminal defendant (which the Prendanistas aren't, yet) has a right to counsel. But given all you've said about them, why would you feel obliged to make a recommendation for them? Sure, I get representing (or at least making recommendations) for folks whose views don't coincide with yours. You just made that point in the Kimberlin post, and my own practice provides many examples. But here? Really?

    Ken can put aside his personal feelings here because he believes in the importance of the right to counsel, just like a trauma surgeon can put aside his feelings to save the life of a murderer who's been shot during the commission of his crime. It's professionalism.

    But in this case, I would have a lot of trouble referring S&H to anyone I would want to face in the future. In addition to their habit of not paying their attorneys, they can't seem to get it into their heads to STOP CONTINUING TO COMMIT FRAUD. And once a lawyer is retained by someone like that, it's like Hercules trying to get Atlas to take the earth back off his shoulders to get removed from the case.

  21. Noxx  •  Oct 20, 2013 @11:13 pm

    Very nice with the Yeats there

  22. James Pollock  •  Oct 20, 2013 @11:29 pm

    Really? Ken, you know I respect you greatly, and every criminal defendant (which the Prendanistas aren't, yet) has a right to counsel. But given all you've said about them, why would you feel obliged to make a recommendation for them? Sure, I get representing (or at least making recommendations) for folks whose views don't coincide with yours. You just made that point in the Kimberlin post, and my own practice provides many examples. But here? Really?

    Giving even the most heinous of defendants the best possible defense counsel makes it less likely that they will be able to get their well-earned punishment(s) overturned on appeal.

    In short, we want the good guys to win because they're right, not because the bad guys couldn't get good representation.

  23. Sami  •  Oct 20, 2013 @11:30 pm

    I have to say I respect Ken's dedication to principle. I would have a hard time contemplating referring these festering fools to anyone I didn't actively loathe.

    Unless that's the idea…

  24. Gazza  •  Oct 20, 2013 @11:34 pm

    Hi Ken / All

    May I say thank you so much for this. Been a lurker on the side lines for a while now watching these crazy shanagins from over the Pond.

    It is one of the few things that have helped me through some difficult times personally.

    This is for the more knowlegable out there to ponder.

    The one thing that did pop up but which has not been fully explored is if the IRS deadline was 15 October [all indications are Mr Gibb's Nuke was dropped after that date... I wonder why...] and these Financials cover 2012 and are bonifide, what is the bet that knowing this crowd they would have attempted to minimise their exposure by saying Prenda losing money left right and centre – also maybe as it is here in the UK also claiming back money from IRS for being in a loss making position [is that possible in the US? - Tax Rebate anyone?].

    Would they be that foolish I wonder?

    Keep up the good work people. May the Pop Corn be with you.

  25. SPQR  •  Oct 20, 2013 @11:34 pm

    Ken, many thanks for this post. A huge amount of work for you but greatly appreciated.

    Steele and Hansmeier's "deal" with respect to continuing to represent them in the appeal are really bizarre. I can't figure out if it represents the usual conmen ego trip that has them convinced that their BS will always be believed or if it is some sort of rear guard action to cover their imminent fleeing to sunnier climes.

  26. Another anonymous NAL  •  Oct 21, 2013 @12:28 am

    Wowzers. Is anyone else wondering what kinds of drugs the Prendarasts must be on? It's gotta be some good stuff to think the following was a good plan:

    • Throw Gibbs under the bus, several times.
    • While doing that, share sooper-sekrit financial details with him via Dropbox.
    • Pull Gibbs out from under the bus to offer him a deal consisting of a bag of dicks, plus change.
    • Act surprised when Gibbs refuses deal, exposes sooper-sekrit finances, and starts cooperating with Feds.
    • Afterwards claim Mark Lutz can explain everything, and he'll be along on the next bus.
    • didgen  •  Oct 21, 2013 @12:55 am

      Looking for Lutz in all the wrong places…..

    • Stephen H  •  Oct 21, 2013 @1:22 am

      Has Mark Lutz actually been seen recently? It may be time to start worrying about his health, given the number of no-shows.

      I am also curious about whether the Prendarasts are continuing to send demand letters, and how that may affect their legal fortunes given the various court decisions. Are they expected/required to notify their blackmail targets of the various court decisions against them (in particular the court's decision that Prenda uploaded the file)?

      Finally, what about those poor suckers who were caught on the Prenda upswing – how are all of these court decisions helping them get their money back?

    • Walter  •  Oct 21, 2013 @2:35 am

      Ken,

      thank you very much for this epic update. I had been following the developments on my own, but it's great to have such a guide by my side.

    • Robin Bobcat  •  Oct 21, 2013 @3:13 am

      I NEED MORE POPCORN.

    • That Anonymous Coward  •  Oct 21, 2013 @3:57 am

      *looks at Ken with wide childlike eyes*
      AND I HALPED! (shake-n-bake kid)

    • Jona  •  Oct 21, 2013 @4:04 am

      There's one little gem in Judge Chen's order that I don't think you emphasised enough in your summary: the magistrate judge found that the case for sanctions was made, but that the court couldn't order them due to lack of personal jurisdiction. Judge Chen found that service of a court order on Steele and Hansmeier would establish personal jurisdiction – and that the Order to Show Cause therefore opens the door to the Court sanctioning them both under its inherent authority.

    • Regular Guy  •  Oct 21, 2013 @4:57 am

      This post reminds me of just how exhausting this must be for the Prenda folks. I know that some people are complaining about the pace of things, but that's like complaining that the rocks have not yet crushed the abdomen of the accused witch. I imagine that the weight of the rocks is no picnic in and of itself.

    • Clark  •  Oct 21, 2013 @5:48 am

      > Steele called Cooper to gloat

      Sounds like someone failed to read and abide by the When I am an Evil Overlord list…specifically item #6.

    • Andrew  •  Oct 21, 2013 @5:58 am

      I am eagerly awaiting news that Steele and Hansmeier murdered Lutz. It would explain the non-appearances and we know Steele wouldn't be above forging Lutz signature on the affidavits.

    • John Thacker  •  Oct 21, 2013 @6:02 am

      Technically, the IP address being the same is not completely airtight proof that Prenda uploaded the files themselves (since IP addresses do change due to DHCP), but admitting that would shoot a hole in the argument that they've used to say that defendents were downloading the porn.

    • Matt  •  Oct 21, 2013 @6:10 am

      I first started writing about Prenda Law when it blundered into my wheelhouse — frivolous defamation suits.

      Ohh, right. It's been so long, I'd literally forgotten how you got started on covering this :)

      Thinking metaphorically, to me it looks like after Prenda tried to throw Gibbs under the bus, his recent motion is attempting to Hulk out and throw the bus itself back at them.

    • David Lang  •  Oct 21, 2013 @6:15 am

      @John Thacker

      while DHCP does change addresses, you missed the letter from Comcast stating that during the time in question that IP was allocated to Steel's equipment.

    • Clark  •  Oct 21, 2013 @6:21 am

      @John Thacker

      Technically, the IP address being the same is not completely airtight proof that Prenda uploaded the files themselves (since IP addresses do change due to DHCP), but admitting that would shoot a hole in the argument that they've used to say that defendents were downloading the porn.

      Ooh, that's nice.

      A "fork" they call it in chess: you can pull one chestnut out of the fire, but not both.

    • Steve Simmons  •  Oct 21, 2013 @6:30 am

      Reading liberally between the lines of Gibbs' filings, I wonder if he's been contacted by the IRS or one of the other potential investigating agencies.

    • That Anonymous Coward  •  Oct 21, 2013 @6:30 am

      @Clark – it also would go quite a ways in destroying the copyright trolling model if a court made a finding of fact about it. Of course we are dealing with civil cases (I think) right now where the bar is more likely than not. Given the massive supporting information, it looks way more likely than not that they could have uploaded the material to create the opportunities to profit from.

      They wouldn't be the first trolling operation to have done this. The 'Germans' made allowances in their contracts for creating honey pots, and Evan 'Staggering Chutzpah' Stone admitted to assisting in the spread of the works he was suing over. The problem is no court has ever had a chance to learn those facts of unclean hands.

      @Steve Simmons – I would be shocked if he has not been contacted. He is way more valuable than any other local counsel they have ever used. I think that the idea they are trying to clean up his image (well as best as one can in this situation) to make him more palatable to another Judge.
      Look at the Judge in MN who got confused and thought that Mr. Cooper was involved in the scheme, and even after this was clarified issued a wishywashy ruling sending everyone to their rooms without dessert.
      Given the antics Pretenda like to use, they need to shore up every possible avenue of attack.

    • Dan Weber  •  Oct 21, 2013 @6:49 am

      So what's wrong with uploading something in a putative sting to catch the people who download it? Would someone else be allowed to do it in the general case, but Team Prenda has specifically cut so many corners and dissembled before the courts so many times about the facts that they have lost that ability?

    • Nicholas Weaver  •  Oct 21, 2013 @7:00 am

      Oh, one minor note: Gibbs released the financial spreadsheet a couple days after the 15th of October. Namely, a couple of days after Hansmeier and Steele's deadline for filing personal income tax.

      So who wants to bet that our friendly neighborhood IRS CID agents are pulling S&H's tax returns as we speak, to make sure they actually filed the income from Under the Bridge properly?

      Because if they didn't, that is a nice million dollars worth of unreported income.

    • Clark  •  Oct 21, 2013 @7:02 am

      @Nicholas Weaver

      So who wants to bet that our friendly neighborhood IRS CID agents are pulling S&H's tax returns as we speak, to make sure they actually filed the income from Under the Bridge properly?

      Seems to me that if the crap is hitting the fan the smart thing to do is pay estimates and file for extensions, thus avoiding commiting yourself to anything, no?

    • Nicholas Weaver  •  Oct 21, 2013 @7:04 am

      Dan: Since its civil copyright violation, uploading the .torrent gives defense a very strong claim that the plaintiff gave permission by publicly releasing the file, without constraints.

      Which would make the basis for suing outright fraud, since the plaintiff knows the defendant has permission!

    • Nicholas Weaver  •  Oct 21, 2013 @7:06 am

      Clark: October 15 is the "you had your 6 month extension" drop dead date, so there is no extension to file, its due or late for tax year 2012.

    • Nicholas Weaver  •  Oct 21, 2013 @7:10 am

      Also, IP addresses change due to DHCP, but this is

      1: IP address at time X is Y

      2: ISP logs from DHCP for time X for Y say Z

      3: Even if someone spoofed the IP Y, they would have to be in the same neighborhood. So you are saying, two years ago, someone sought to frame Steele by spoofing his IP, locally?

      4: Even if at the IP Y there was unsecured wireless and an unknown guess, they specifically acted to upload the files that would form the basis of Steele's suits?

    • Regular Guy  •  Oct 21, 2013 @7:18 am

      Permit a question. Is there is disconnect between the credit card processing fees and the money shown as being distributed in the Quickbooks document? I've seen others estimate the credit card processing fee to infer that something in the nature of $5 or $6 million was taken in. For the record, I suspect that they are underestimating the credit card fee, but this still leaves a sizable gap. Or does the Quickbooks document account for this money being spent? (e.g. overhead, court fees, etc.)

    • James  •  Oct 21, 2013 @7:31 am

      @Regular Guy The financial information Gibbs submitted was a cash receipts and disbursement journal for SOME of the accounts. Note that on the balance sheet the two accounts start with humble balances and end with humble (and still positive) balances. However, the cash disbursements are $450K larger than the cash receipts from professional fees. If you look closely at the transaction detail a lot of debits are transferred in from another account XX6943 that is not detailed in the Gibbs exhibits. Either Gibbs does not have that detail or he has chosen not to share it for some reason, but there is another pot of gold out there.

      Also there are some well-known persons involved with this saga (Duffy, Lutz, van Hammel(sp?)) who only receive minor disbursements from the detailed accounts. This is at least one, and quite possibly many more, accounts out there.

    • RavingRambler  •  Oct 21, 2013 @7:34 am

      @Andrew I was thinking more along the lines that Lutz a)was a false identity and it's been abandoned and the actual human has fled the country or b)Lutz has assumed a false identity and fled the country. Murder seems out of place to me for this bunch. They've (allegedly) lied, committed various frauds, and generally not known when to cut and run, but nothing violent that we know of so far. Murder's a huge leap into violence if there are no prior indicators.

    • Dan Weber  •  Oct 21, 2013 @7:34 am

      If I show up to buy cocaine but it's actually a cop selling baking soda, I can't say "it's not illegal to sell baking soda" to get out of it, right?

      I fully realize I am mixing criminal and civil law there. But it seems that the people downloading sure expected it to be without permission.

    • Nicholas Weaver  •  Oct 21, 2013 @7:56 am

      Analogies are like fishes: sometimes they have nothing to do with the problem at hand…

      In this case, however, its more the cop saying "hey, you wanna buy some Jolly Ranchers". Person says "sure, ok" (buys em). Cop then says "Psyche, that was meth, your busted"

    • That Anonymous Coward  •  Oct 21, 2013 @8:08 am

      @Dan Weber – Except that is a big distinction there.

      The police can setup a fake drug dealer and arrest customers. It has to follow guidelines and the law.

      A homeowner does not have the right to leave his garage open with a sign on the lawnmower that says take me, and then have people who try to take the lawnmower arrested.

      Random lawyer doesn't have the right to run his own sting operation.
      An unsettled issue with filesharing is that it is copies of copies, it never removes the original. (this is why we debate if calling it stealing/theft is accurate.)
      See also lawyers who would squirt water on store floors, a shill would then "fall", lawyer would extract a settlement. They were just running a sting to make sure stores would give victims fair settlements.

      There is this demonization of BT being nothing but 'stolen' content.

      Except many games use it to push patches.

      Dan Bull famously made some of his tracks available for free via BT on TPB while offering them for sale at various vendors. He sold enough that the songs broke into the charts. He has no major label backing him.

      Many of the works of Cory Doctrow are available via BT, legally because of his CC license.

      The Internet Archive uploaded huge amounts of Public Domain content.

      Treasure Island Media (don't google it) created content and ran a special deal targeting those who would share their work via BT and uploaded it onto a few different sites.

      Many musical groups make their catalog available via BT to gain fans.

      TPB was running 'The Promo Bay', allowing artists to get huge promotion of themselves – a condition was to make some of their work available on TPB.

      So it isn't as clear cut if the upload is authorized or not.
      Porn studios often put older content, scenes from newer things online as teasers.
      Heck there is even 1 studio suing for copyright infringement and some of the infringed titles are freely available online put there by the client. So there could be an argument if the original download was authorized, and if any laws were actually broken by someone sharing that free content with others. Of course with $150K to terrorize people with, these questions remain unanswered.

    • Frankz  •  Oct 21, 2013 @8:10 am

      Team Prenda has not learned the First Law of Holes: When you find yourself in one, stop digging.

      Some people are just on cruise control and keep constantly digging, no matter what. Then there's some like Prenda, that upon discovering themselves in a hole, just stomp on the gas and go into overdrive and dig that much harder and faster.

      .

      Afterwards claim Mark Lutz can explain everything, and he'll be along on the next bus.

      Once it sinks in to Steele/Hansmeier that things are at or near their worst, Lutz may be along under the next bus.

    • That Anonymous Coward  •  Oct 21, 2013 @8:11 am

      @Nicholas Weaver – So you saw that story about the guys arrested for having "meth" that turned out to be Jolly Ranchers too?

    • StephenH  •  Oct 21, 2013 @8:12 am

      IANAL, but wouldn't the charge against a sting victim be conspiracy to purchase, or solicitation of, controlled substances, rather than actual purchase or possession of controlled substances?

    • Dan Weber  •  Oct 21, 2013 @8:19 am

      Nicolas, that seems to run into mens rea issues. The person wanting Jolly Ranchers has no intention of dealing in drugs.

      The person grabbing the pron movies knows, or ought to know, that the provider really didn't intend it.

    • WDS  •  Oct 21, 2013 @8:27 am

      @John Thacker

      Many (most?) business have either static addresses or a reserved address on DHCP. In either case the addresses do no change. (For small businesses with only a single address the reserved DHCP address wastes fewer addresses for gateway and broadcast addressing).

    • David  •  Oct 21, 2013 @8:38 am

      If there were a Pulitzer for blogging in the public interest, Ken, you'd deserve it.

    • I was Anonymous  •  Oct 21, 2013 @8:38 am

      @Gazza, believe it or not, the IRS was shut down with everyone else.

      I had business with the IRS, and got a "Sorry we're closed" when I called them a couple of days after the shutdown started.

    • Anon  •  Oct 21, 2013 @8:44 am

      @Dan Weber

      You are definitely confusing the lines between criminal and civil. In civil law, there does not have to be intent (as well as some statutory crimes, but we're not going into that here). The intent of the downloader does not matter (although, arguably, IMO, there should be a distinction between a downloader who only downloads for personal use v. a downloader who profits from the download).

      The issue here is, assuming that Steele and Co. created a honeypot (uploading their own copyrighted works in order to sue downloaders), did their own uploads give implied consent to the alleged downloaders? Another way to look at it, is there an implied in fact contract.

      Here, we have the owner of a copyrighted work making that work freely available via the torrent site. A downloader takes advantage and downloads the work. There exists a contract that implied in fact.

    • Larry  •  Oct 21, 2013 @8:46 am

      I think I see what the motivation is to find these guys a Good lawyer.
      They have dug themselves a deep, deep hole. If they get an incompetent lawyer they can later try to blame the outcome on the lawyer. If they have a good lawyer they have no grounds for appeal, but the outcome will still be the same. Getting them a good lawyer simply assures that justice will be done.

    • MDT  •  Oct 21, 2013 @8:57 am

      I'm fairly certain that an attorney as experienced as Ken is has the following things noted for future reference.

      1) Attorneys who are excellent at what they do.
      2) Attorneys he has the utmost respect for.
      3) Attorneys who are awful at what they do.
      4) Attorneys he has little respect for.
      5) Attorneys he really really likes.
      6) Attorneys he really really dislikes.
      7) Attorneys he really really really really really dislikes.

      Now I'm sure there is a lot of overlaps in groups. IE: People whom he likes and respects and who are good at what they do. Or people whom he really really really really dislikes, doesn't respect, and who are awful at their job.

      For those wondering why he would wish to aid Prenda by siccing them on some poor attorney, I would suspect there is a few Attorneys who fit the following profile :

      Very good at their job.
      He respects them very much.
      He really really really really dislikes them.

      The nice thing about this group is, he can honestly recommend them to Team Prenda, they are very good at their job, and he really really doesn't like them very much. This allows him to be both a good person and an ethical lawyer (good defense despite client's lack of morals), and also sleep with a clear conscience that the lawyer deserves a client like Prenda. :)

    • Nicholas Weaver  •  Oct 21, 2013 @9:01 am

      I think there is a big problem with these guys getting a good criminal attorney: Rosing and company never got paid!

      That was a major foundation of the "help, get us out of here" motion that was eventually accepted:

      The bases for Klinedinst’s renewed application is that Prenda has failed to pay Klinedinst for its Services and failed to execute a retention agreement memorializing the tenns and conditions of Klinedinsfs representation of Prenda in this matter, including the appeal.

      A reputation for not paying your lawyers is not going to make it easy around the criminal bar…

    • Jonathan Kamens  •  Oct 21, 2013 @9:05 am

      Ken, thanks for putting the time and energy into writing this posting. I really appreciate it.

    • Jonathan Kamens  •  Oct 21, 2013 @9:20 am

      I think there is a big problem with these guys getting a good criminal attorney: Rosing and company never got paid!

      On a similar note, if Prenda pays an attorney representing them using money derived from a criminal enterprise, could those payments to the attorney be clawed back by the government, leaving the attorney in the lurch?

    • Frankz  •  Oct 21, 2013 @9:34 am

      On a similar note, if Prenda pays an attorney representing them using money derived from a criminal enterprise, could those payments to the attorney be clawed back by the government, leaving the attorney in the lurch?

      Wouldn't the DOJ, or the IRS, whoever gets there first, freeze and/or seize any money they label as such? Before any trial, much less an appeal?

    • Niall  •  Oct 21, 2013 @9:37 am

      I came here for the Prenda Law updates. I stayed for the different view point on many topics, because understanding more points of views can only lead to be a better person.

    • Todd Knarr  •  Oct 21, 2013 @9:38 am

      @Dan: why would whether the provider didn't intend it matter here? I'd think their intent would be irrelevant, the question would be whether the downloader knew or could reasonably assume from the information available that the provider was the copyright holder or not. If the downloader didn't know that, then the intent of the copyright holder wouldn't matter since regardless of intent the downloader knew he didn't have permission (everyone knows that permission ultimately has to come from the copyright holder, nobody else can give it). And if the downloader did know it was the copyright holder putting the stuff up, then whether the copyright holder intended to do that or not they still put it up and any harm caused by that is their responsibility, not the downloader's.

      It'd be the equivalent of my opening up my garage, laying things out on tables and racks and putting up a sign saying "Moving, don't want to pack all this. Everything must go. Take what you want, I want it gone by tonight." and leaving it unattended. But in the process I left the stuff I did want to keep on shelves along the wall in the garage and didn't mention anything about it. And of course people took everything, including the stuff off the shelves. I may not have intended "everything everything" but I still said "everything", I gave people every reason to know everything in the garage was free for the taking and I gave them no reason to believe I intended otherwise. I might be entitled to ask for my stuff back, but I don't have any basis to sue to get it back nor to file theft complaints against people.

    • Dan Weber  •  Oct 21, 2013 @9:42 am

      Anon, are you saying that in civil matters, intent doesn't matter, only actions? That seems reasonable, but would that mean if I think I'm downloading Joe Shmoe's porn movie with Joe's permission, but it turns out that I'm actually getting it from Evil Leon who doesn't have permission, that I am now civilly liable?

      On the paying lawyers side, ISTR cases from the 80s where the Justice Department went after their targets' lawyers with RICO claims. I don't know if there have been any checks-and-balances put in since then.

    • mark mitchell  •  Oct 21, 2013 @9:44 am

      I suspect the entirely selfish reason Ken would like to introduce competent attorneys into this glacial train wreck is that the spectacle would be prolonged. It might introduce a measure of Prenda hope, but Ken knows that hope would be excised with a federal chainsaw. A shameless love of popcorn, shameless.

    • lakonislate  •  Oct 21, 2013 @9:45 am

      Is the PDF with the withdrawal request from Prenda's counsel in Massachusetts dated September 25, 2012? Is that a typo? Or am I missing something?

    • Billy V.  •  Oct 21, 2013 @9:49 am

      @Todd you seem to be under the impression that everything on bit torrent is illegal. It in fact is not, as was stated many content creators place old stuff out there as teasers for free, basically allowing anyone to come and get it for free. If you as the content owner are burning dvd's on your computer, then handing them out to people as they walk by can you have someone else at the end of the block arresting them for having stolen content since the dvd was clearly burned and not made professionally?

    • Anonymous Coward  •  Oct 21, 2013 @9:53 am

      Wow, long post! Good read.

      It seems to me that the Prenda gang are currently laundering their money and are preparing to either skip town or file for bankruptcy. I seriously doubt that those ill-gotten gains will be surrendered to the people who have won judgements against them.

      What a bunch of jerks.

    • adam  •  Oct 21, 2013 @9:58 am

      wooooooooooooooooooooooooooo! can't wait to start reading. thanks ken! (is it wrong that i'm enjoying this or just that i didn't use any caps?)

    • zilong555  •  Oct 21, 2013 @10:05 am

      Sorry, no rubble left to bounce. All that is happening right now is a collective effort to ensure that the crater is of a scale worthy of a monument to Prenda's hubris.

    • Robert Q  •  Oct 21, 2013 @10:23 am

      @Todd @Dan @Billy V

      FWIW, I'm on the side of saying that it would not be copyright infringement if made publicly available and then claiming infringement when accessed.

      I think the best analogy would be a writer [let's call him Ken] posting pseudonymously on Reddit "Click here for a copy of Ken's new book Stallion Wars – Episode 1:The Pony Menace and then suing people who had the audacity to click through, saying "but I didn't say you could actually read it!"

      The only way to find a difference in the torrent arena would be if there was a presumption that the file was uploaded without permission. However, if that was a valid legal presumption, I think torrent hosting sites and torrent program companies would be in a lot more hot water than they are, not to mention the issues flowing from the correlated presumption that someone using a torrent program would be presumed to be acting unlawfully.

      If anything, since uploading content without permission is illegal, there could be the opposite presumption that whatever is uploaded was put there with the owner's permission, and therefore not an infringement to take a copy.

    • Basil Forthrightly  •  Oct 21, 2013 @10:24 am

      @Dan Weber

      There's nothing magic about posting a file to BitTorrent, versus posting a file to an FTP server or web server. If we allow Prenda to sue BitTorrent downloaders for taking files they posted themselves, then Ken could sue everyone who downloaded his post above (which we all did to read it).

      The entire Internet (not just the web) runs on a theory of implied license; that folks who post content they own expect it to be downloaded and used, subject to the fair use limitations of the Copyright act.

      The media type doesn't matter to the law; movies, music, or text, its either lawfully posted and therefore lawfully downloadable, or not.

      Now if AF were a distinct entity from Prenda/Steele AND they hadnt authorized the posting, then they would have a case against their lawyers.

    • Ashera  •  Oct 21, 2013 @10:27 am

      IANAL, so perhaps some lawyerish-type can explain to me. Gibbs was Prenda's lawyer, so I am wondering why he is able to testify and provide information about them. Why doesn't it fall under the attorney/client privilege? Is it that the information and documents he is providing now were given to him after he stopped being their attorney, and so it doesn't fall under the privilege? (These Prenda relationships have become so convoluted– intentionally so, I am sure– that it has become difficult for me as a layman to keep track of who is doing what to/ for whom!)

      Re Lutz: My theory as to his not showing up when ordered to do so is that he is not available to show up. I bet he's fled the country.

    • James  •  Oct 21, 2013 @10:39 am

      @Ashera Gibbs was not Prenda's attorney, he was AF Holdings' attorney. He may have had confidentiality obligations to Prenda according to the terms of an engagement letter, but confidentiality agreements are only as broad as their scope and often don't cover information that is accidentally disclosed like being upload to a DropBox account. There is a reason Prenda tried (unsuccessfully) to get Gibbs to enter into a formal legal agreement after the Wright hearing; they were trying to create an attorney client privilege after the fact.

      There is also a crime-fraud exception to the attorney client privilege that might apply here.

    • Andrew Norton (@Ktetch)  •  Oct 21, 2013 @10:41 am

      Todd, my understanding of copyright law is that the assumption is of legality, until the rightsholder complains, then there has to be the proof of infringement, through distribution via unauthorised parties; or at least that's as simple as I can put it without ten pages on it (when I get started, I just don't seem to stop writing, my editor just wishes he could get me started most of the time…). however, that's the underpinning and intent given by things like the DMCA.
      There's plenty of stuff on bittorrent that's there, not only with the knowledge of the rightsholder, but with their preferences. I could point out a hundred or more, but I'll give you two. one is… ME!. Click on this link and it'll take you to the PirateBay (assuming it's allowed by your ISP/court system), and more specifically, to my uploads. Every one of them is authorised for distribution by the rightsholder (which is me in many of the cases). The second example is Michael moore, and Slacker Uprising. he convinced the lawyers to give the film away in a torrent. Trent Reznor was the same (and I know because I've spoke to both Michael and Trent on this topic)

      Also, don't believe the seed/peer totals on my torrents, they're not really like that (and are trivially easy to manupulate, 10 years ago the Youceff tracker used to give random numbers), but it's something that catches many people out, such as the 'experts' hired by AFACT to provide evidence for their lawsuit against the ISP IInet in Australia. The university of Ballarat got caught out by spoofed (fake) torrents, and built a study on that, and even then, doing everything wrong, STILL found 3% "non infringing content" – as much as the SCOTUS needed in 82 to find for Sony in Betamax. The worst thing is, it's the SECOND time they'd done this, and we'd offered to help them the first time (and it caught others out too, like Ars (http://ktetch.co.uk/2010/07/ars-forgets-how-torrents-work-cites-faulty-study/) which is why I guess Joe covers it now, rather than the Apple person.

      There is a massive amount of FUD put out, especially by the content industry, over bittorrent and other things. Mainly it focuses on how it will 'kill creativity'. The problem they have is 50,000+ years of human creativity, 600+ years of recorded creativity still in existance, 100 years of "creativity industry" (aka commercial middlemen) all undone by 20 years of the Internet (P2P was alive and well in the early 90s – I remember it well, and in fact bittorrent is an automated refinement of the method created back then for 'the scene' which is still used now)

      And the irony carries on. Hollywood is the home of US filmmaking, because the movie studies (including a man named William Fox) kept heading west to avoid paying Edison his royalties. Hollywood was established because of Piracy. When the phonograph was starting, artists hated it too. John Philip Sousa was one of the big names of the time opposed to it (read his "The Menace of Mechanical Music," from 1906 and you will see the record industry now saying the same things about p2p)

      And people wonder why I got out of the music industry (used to be a copyright enforcer for a UK label), and why I don't work on TV shows (Done shows on the BBC, channel4, Comedy Central, and ZDTV[later called G4]) any more. It's the hypocrisy.

      Regardless, the REALLY fun thing about bittorrent is the lovely detail about distribution. Except in a few circumstances, the only people that can seed a torrent, are the ones that's made the torrent file. We know the uploader for at least one torrent was at S-H's office. Because of the lovely way bittorrent piece-hashing works, you need every file to be identical to the one used to create the torrent, to full distribute it. Have a file name spelt wrong, or even a missing text file, and you're going to have missing pieces, which means you'll never 'finish'. Given the non-descriptive names of the files in some of the torrents, the ONLY way they could have 100% availability (meaning every piece) was if the creator seeded them. When the person authorised to distribute, does so in a manner that requires further distribution (such as a tit-for-tat protocol like Bittorrent, rather than, say, a straight download) there is an implied license to redistribute.

      I could go on much more, and for another 20 pages, but I'm not going to. Not because I don't want to, but because I don't want to bore y'all.

      Also, for the person that was wondering about the difference between 'theft' and 'infringement' earlier, one of the pieces I worked on for TorrentFreak on that very topic has actually just been picked up by a New York textbook publisher for a book on copyright infringement. But you can read it here http://torrentfreak.com/copyright-infringement-and-theft-%E2%80%93-the-difference-110827/

    • Ygolonac  •  Oct 21, 2013 @10:51 am

      It's… Prendalicious!

      Also, while a number of people are speculating that Mark Lutz may be holding up a Salt Marsh somewhere, I don't think Steele/Hansmeir/Duffy/etc. (aka The Doomed) are *quite* desperate enough yet to resort to that level of idiocy.

      Of course, there may be more goings-on behind the curtain than we realise…

    • Sharon  •  Oct 21, 2013 @10:53 am

      Prenda did represent some clients that were bona fide companies independent of Prenda. I wonder if they seeded the torrents for those clients' films, too.

    • Dan Weber  •  Oct 21, 2013 @10:57 am

      Robert Q, that's a good argument.

      There are contextual clues that let me figure out if a link someone posted on reddit is legal. If it's at youtube or dropbox or something operated in easy reach of American law and in public[1], I assume it's lawful, or else will be rapidly destroyed. If they are linking to a foreign site, I assume that it is not legal, assuming American authorship.

      I.e., if it would be trivial for the legitimate owner to search and find this site and DMCA it down it unauthorized, and it still works, it's probably authorized.

      ([1] I have seen people posting private YouTube links of recent TV shows asking others not to publicize them — this is pretty clearly done as a copyright violation as they are trying to remain hidden as long as possible.)

    • That Anonymous Coward  •  Oct 21, 2013 @11:13 am

      @Sharon – about that….
      http://copyrightclerk.com/2013/05/31/hard-drive-productions-paul-pilcher-talks-to-businessweek-about-prenda/

      And IIRC they had a client that was also the expert that provided the 'expert' statement supporting hacking charges in a novel take on copyright shakedowns. CFAA state cases.
      Website operator unable to notice he was "hacked" for months, but expert enough to claim the list of IP's they had totally pointed at the guilty parties. o_O

      The problem is the $150K bludgeon and the easy money that can be made seems to be spawning a cottage industry of trolling to box office success. A horrible D movie, straight to video, $4.99 price tag for the dvd at retail… and because we saw an IP address you should pay us thousands, because fighting will cost you at least double. At least they are classy enough to state in the complaints they aren't pursuing porn films so no one should worry about the public embarrassment making people settle. o_O

    • Steve Simmons  •  Oct 21, 2013 @11:19 am

      If the Prendanistas are looking for an appropriate lawyer, I hear that cyber-law specialist Charles Carreon is available.

    • WDS  •  Oct 21, 2013 @11:24 am

      @Ashera,

      Gibbs was not Prenda's attorney. He was an attorney working for Prenda.

      Gibbs was AF Holding's attorney.

    • adam  •  Oct 21, 2013 @11:27 am

      "Mark Lutz, if he flipped early, might avoid charges or at least minimize his exposure and avoid jail time."

      Assuming he can be located.

    • Christenson  •  Oct 21, 2013 @11:32 am

      I think Ken's motivation can be summed up from Mathew 25:40, discussing who is with and not with the lord:
      “The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me"
      and 25:45:
      “He will reply, ‘Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.’

      If the law can be abused, if the most evil can go undefended in court, then any one of us, who is not evil, is next. The overwhelming power of the state must be controlled and limited, even when it is doing what we think it should. This is the problem with NSA, with Guantanamo, with CIA torture, with targeted killings — even if you agree with the dubious proposition that the programs were effective.

      As for Gibbs: I don't think he's told the whole truth, and I expect Judge Wright to state as much in denying his petition. Popcorn futures are making me rich!

      Thank you, Ken, for the new Prenda post.

    • En Passant  •  Oct 21, 2013 @11:50 am

      Nicholas Weaver wrote Oct 21, 2013 @9:01 am:

      I think there is a big problem with these guys getting a good criminal attorney: Rosing and company never got paid!

      Wowsa! Rosing is elite of the elite in California. There are only so many ways to spell stupid.

      Reading Ken's overviews and analyses here is like watching several simultaneous fission chain reactions in slow motion, and wondering just when the temperature and pressure will overcome the Coulomb barrier and make fusion inevitable.

      Prenda's original strategy of massive stupiditron emission worked for a while to insulate each case from the others. But refusing to pay counsel for the best defense available is certain to increase heat and pressure in one jurisdiction, and likely to interfere with obtaining counsel in others.

      The only question is whether this will end in meltdown or explosion.

    • Ultraviolet admin  •  Oct 21, 2013 @11:52 am

      Oh and they paid Gibbs crap too. 40k for SF. I was offered a job working with him that smelled like rotten fish and the pay was less then I could make temping.

    • jimmythefly  •  Oct 21, 2013 @11:56 am

      Correct me if I am wrong, but originally wasn't one of the issues was that the attorneys (Steele specifically) appeared to have an ownership/financial stake in the company they were representing?

      Also, though I don't know how much of an argument this makes in court, but it has always been very curious how hard they went after downloaders, while at the same time never once pursuing whoever was doing the illegal uploading to begin with.

    • ZarroTsu  •  Oct 21, 2013 @12:28 pm

      At this point, Steele exhaled loudly.

      Now THAT would make a good popehat t-shirt.

    • David Schwartz  •  Oct 21, 2013 @12:32 pm

      @DanWeber The law exists to right wrongs and to help those who are wronged by others. You can't make a business model out of intentionally creating wrongs that you can then sue people over when no harm would have come to you had you not done so.

      Sure, the police can set up a sting to catch someone who would have committed a crime anyway in a way that permits them to be caught. But a private individual can't manufacture wrongs for the courts to set right as a business model.

    • Scote  •  Oct 21, 2013 @12:34 pm

      "adam • Oct 21, 2013 @11:27 am

      "Mark Lutz, if he flipped early, might avoid charges or at least minimize his exposure and avoid jail time."

      Assuming he can be located."

      I'd say "Assuming he can be located alive." :-p

    • Yendor  •  Oct 21, 2013 @12:36 pm

      @Dan
      The crucial difference between a drug sting and a supposed copyright sting is that it is illegal to buy drugs period. It is only illegal [civil law] to download copyright materials if the owner has not given permission.

      There may be reason to wonder whether or not a foreign site is more likely than a US site to host unauthorized content, but the law doesn't care where it is posted — only whether the copyright owner has given permission. And uploading something to a Torrent site is pretty clearly giving others permission to download it. As others have pointed out, there is "legal" content distributed via Bit Torrent — and it now seems as if the Prenda movies are in that set.

    • Hulinut  •  Oct 21, 2013 @12:41 pm

      Brace yourself; this is a long post.

      No thanks, I prefer to dive right in

    • Todd Knarr  •  Oct 21, 2013 @12:55 pm

      @RobertQ: The distinction would be between the author posting the work, claiming in the posting to be the rightsholder and authorizing the transaction, and things like user ID confirming this (it's the ID the author notes on his own Web site), vs. the author posting under a random name not his own, using a user ID not known to be connected to him, and not claiming anywhere to have any rights to the work. In the first case a downloader could reasonably assume the author's distributing the work and you have permission to download it, in the second case a downloader would have no reason to think the work's being posted by the rightsholder. In the second case the author could legitimately press a claim for infringement because the downloader had no reason to believe he had permission (J. Random Person can't authorize distribution of the author's works, and as far as the downloader knows it's just J. Random Person posting it), but in the first case he couldn't (the downloader has every reason to believe the posting is authorized).

    • Jon  •  Oct 21, 2013 @1:08 pm

      As is often the case, Ken's file names are worth several chuckles by themselves (my favorite here: DammitEndora).

      I'm hoping for another epic Judge Wright hearing on Gibbs' latest document drop — though it wouldn't surprise me if Wright declines to have one; as others have pointed out, it's not clear Gibbs has a legal basis for delaying the filing for so long.

    • AlphaCentauri  •  Oct 21, 2013 @1:20 pm

      Gibbs may have shared the file with the feds long ago and delayed this filing at their suggestion. Prendanistas have known that they were under the microscope for months; they didn't need this to tell them they should mind their p's and q's with the IRS. But they're too accustomed to snorting their hubris with $100 bills.

    • Matt  •  Oct 21, 2013 @1:23 pm

      Brace yourself; this is a long post.

      I couldn't resist.

    • Andrew Norton (@ktetch)  •  Oct 21, 2013 @1:37 pm

      It's a nice thought, Todd, but doesn't work.

      Distribution rights are private civil contracts. There's no way to tell who has permision to distribute, unless you're the rightsholder yourself, and you know.
      That's actually the BIGGEST issue with copyright these days. it's got so long, and automatic, that we have a huge area of works called 'orphan works' – thats where the rightsholder is not known, or unable to be contacted.

      Additionally, Contracts for rights assignments are not made public, certainly not in a central place. For instance, one of the TV shows I worked on, I actually have some rights. I was assigned the (non-exclusive) right to publicly perform the show, and to make limited duplications of it, but both only within the EU. You can't tell, unless you contact me, or the rightsholder and ask directly. To assume I don't, and then to take punitive action, is actually very chilling to speech (and tends to create monopolies), but happens quite often, especially with those buffoons at ICE (see Rojadirect, or DaJazzi1 for instance)
      Now, how would anyone getting or viewing my copies know if they were licensed or not? You don't. That's the adversarial nature of copyright enforcement. It's also the basis behind the DMCA's Notice&takedown process (not to be confused with Youtube's Notice, takedown, and GFY process)
      You then add in fair use to it. And finally, there's the (older) opinion amongst artists that any infringing usage that would actually materially affect the rightsholder, would be detectable by that rightsholder.

      Anyway, what all this means is that as a user, you've a presumption that anything you see is legit. However, as the provider, you have a requirement to not infringe,but that isn't put onto the user. So if later on, the rightsholder comes along and sees it and feels it's infringing, he can claim, there can be a counterclaim,etc.
      The automatic 'everything must be infringing' idea doesn't work, because mostly it's a lie to extend control. It's used to stifle speech, often deliberately (from UMG taking down Kim Dotcom's Mega Song, to the case against the game review last week). There's a HUGE festering undercurrent of lies that has driven copyright law since the late 80s/early 90s, which could be summed up in a single reccomendation made to the UK government in the Hargreaves report "Copyright law should be made on the basis of evidence, not lobbying".

      You'd think that was like a 'well duh, of course' statement, but no, that was groundbreakingly revolutionary. But then again, we're also talking about an industry that counts supermarket shelf-stackers as part of the 'creative industry dependent on copyright', who will use a number someone picked at random 20 years ago, and claim it is true each and every year (the number of jobs lost to piracy, for instance), Flat out lie (such as writing a speech for an MEP underscoring why piracy is bad, by saying the sales of pirate DVDs funded the first attack on the World Trade Center in 1994 – gotta love time-travel!) or my personal favourite, claiming two contradictory numbers for the same thing (in 06, the MPAA claimed the UK lost £99.1Million ($176M) in total tax due to piracy [2006 Lek report] while at the same time, their UK arm, the BVA, claimed £108.5M ($192.5M) lost to the government JUST IN VAT (sales tax) as part of the 'piracy is a crime' campaign (which you'd know best as the origin for the 'you wouldn't steal a car' video)

      TL;DR
      Trying to claim that 'they should know' doesn't work at all when it comes to the reality of copyright law.

    • Tork  •  Oct 21, 2013 @1:44 pm

      Matthew Cline • Oct 20, 2013 @10:09 pm

      I recall reading some comments saying that they kept on going on about the motion to remand even after getting caught. Like maybe telling other judges that this case should be ignored because it hadn't been remanded? Anyone know what I'm talking about?

      Before the cases in Illinois were consolidated Prenda filed a motion on April 10, 2013, to remand the case in the southern district. On May 10, Cooper/Godfread opposed it and showed them the affidavit from the clerk saying that they told her no one had been served.

      After the cases were consolidated, Prenda filed a renewed motion to remand on August 12 that was almost identical to the first one and ignored the affidavit. At a hearing on August 14 they continued to argue that the case should be remanded. Later that day Prenda requested permission to withdraw the motion because of the "confusion." The judge then invited Cooper/Godfread to request sanctions.

    • htom  •  Oct 21, 2013 @1:48 pm

      Matt: :Brrrrrr: Very Good.

      I wonder if Gibbs even knows the whole truth to tell? I suspect he knows much more of it now than when he started, and telling those two parts (his beginning, and what he now knows — or now believes) might be enough for the system to be lenient.

    • Tim  •  Oct 21, 2013 @2:19 pm

      I've enjoyed reading this series, but there's something I don't quite understand about this Prenda saga.

      Here's what I think I know:
      1. Prenda bought up copyrights.
      2. Prenda uploaded the videos.
      3. Prenda pursued downloaders, pushing for settlements.
      4. Prenda created a bunch of shell companies, lied to the courts, and generally acted like douchebags.

      It seems like #1 and #3 were a viable business model, and completely legal. Mixing in #2 is stupid and greedy, but if they want to catch more downloaders, it at least makes a twisted kind of sense.

      But what's up with #4? I don't get it. Why did they create these shell companies? Why forge a signature to pretend someone else owns it? Why all this weird sequence of lying to the court? Wouldn't their scheme of buy-copyrights-sue-downloaders have worked on its own? I don't get what they were hoping to accomplish. Tax dodging, perhaps?

    • Steven H.  •  Oct 21, 2013 @2:42 pm

      @Tim:

      #1 and #3 were fine, as you say.
      #2 might be okay if they weren't the ONLY source of the copyrighted works. But they're not.
      #4 was all about the TAXES, man. The forged signature is all about the "only source of the copyrighted works" thing (if Alan Cooper owned the copyrights, Prenda couldn't own them).

      Lying to the court and such is covered by "taxes" and "going to jail"….

      Note that this is purely a layman's view, of course….

    • Scote  •  Oct 21, 2013 @2:43 pm

      "But what's up with #4? "

      I assume that there are a number of reasons why a sociopath might create a tangle of lies and shell companies. The first is that the Prendarests may have decided that it was too much work, too uncertain and too unprofitable to find legitimate clients and track down actual copyright infringers to extort money from them. So, why not cut out the middle man and set up a honeypot? So much faster and easier to track down people downloading your own seed. And you get to keep *all* of the settlement money, especially if you set up a series of fake shell companies and purported trusts two hide behind. Counter suits? No problem, you get to hide behind the corporate veil. And, if you are a sociopath, you are better than everyone else, so why *wouldn't* you do it? It isn't like judges are going to stop you – not until judge Wright, and only then after the intervention of other lawyers.

      What is perhaps more troubling to me than the apparently sociopathic tactics of Prenda et al. is that the courts let them get away with it, letting them slide over and over again. It shouldn't take an opposition motion for a judge to disallow a misjoinder or to throw out a case for improper jurisdiction, nor for a judge to refuse expedited discovery where it isn't warranted.

    • ricker  •  Oct 21, 2013 @2:56 pm

      What about the Arizona case? Are there not still sanctions pending?

    • Palimpsest  •  Oct 21, 2013 @2:58 pm

      Thanks for the epic article . I do wonder if this overview gives the Prendarettes a better view then they have bothered to keep for themselves to date, e.g. their neglect of Massachusetts.

      Does any of the Steele " I was just the prior owner and this was stolen" argument work if looked at by a Judge?

    • That Anonymous Coward  •  Oct 21, 2013 @3:03 pm

      @En Passant – Sadly Ms. Rosing should have Googled them before accepting them as a client. Even with the terms, which we assume were limited to the 1 hearing from how things were laid out in filings, Pretenda just wanted to force them to keep repping them. Everyone deserves proper representation (even giant asshats) but the writing was on the wall by that time that they do not and will not pay up.

      I wonder how the bond company feels right about now?

      @Tim – Hans laid it out in the deposition. They bought up "worthless" copyrights and created value in them by suing. It was an investment.
      The shell companies, etc. they were to deal with the online community. S|H had a HORRIBLE brand problem, they lied to courts and got caught. They rebranded and moved on. They created a series of shells after their "real" clients were unhappy with the results they were getting. IIRC the cash split form the settlements was heavily towards Prenda. By having these shells, formed in a country where there is no paperwork requirements – requires $25K and hiring a local lawyer to even THINK about digging into ownership they thought they had isolated anyone finding out the truth. With the shells and some cheaply bought up copyrights they were set to keep 100% of the income.

      If they had to disclose to the courts that they owned the material they were suing over, it would call the entire operation into question. Would any judge trust an expert who had a direct financial gain tied to success in the case moving forward?

      One part of their scheme that might have bit them in the ass is the simple fact the material was no longer available at any price in the market. The law only requires you to have content, not to have tried to earn money to start wielding the $150K or else sword at people. That sorta makes it way more valuable to have a "leak" than to compete in the marketplace for bad content.

    • Todd Knarr  •  Oct 21, 2013 @3:08 pm

      @AndrewNorton: Where in law do you find the basis for your assumption that any distribution of a copyrighted work is authorized unless there's evidence to the contrary? I was of the understanding that copyright law said exactly the opposite: that unless you could show evidence of authorization the distribution was not authorized.

      With books in a bookstore, for instance, there's a wide-spread acceptance of the legitimacy of the publishing chain: that publishers generally don't publish books unless they have a contract with the author, and distributors and bookstores carry books from those publishers rather than getting their copies from random sources. When I see a book in a bookstore and assume it's authorized I'm not merely making a random assumption, I'm basing that assumption on that accepted publishing chain.

      Contrast that with a rip of Iron Man 3 posted by someone not affiliated with the studio or production company. Exactly what grounds would you have for believing it was an authorized copy? None. So where would you find justification for assuming it was authorized?

      Note that BitTorrent has nothing to do with the logic here, we could be talking about physical DVDs in a bin somewhere. If I see a DVD in a jewel case with a black-and-white text-only cover sheet, and the DVD's a DVD-R with no silk-screening on it rather than a pressed and printed disc, and it's in a box at a swap meet with tons of other similar discs, I have the same lack of reason to believe it's authorized compared to say seeing a pressed disc in professionally-done packaging on the rack at Target.

    • Alex  •  Oct 21, 2013 @3:15 pm

      @Tim: because people who find nothing wrong with the combination of #1 & #3, are prone to #4. As simple as that.

    • Matthew Cline  •  Oct 21, 2013 @3:22 pm

      @David Schwartz:

      The law exists to right wrongs and to help those who are wronged by others. You can't make a business model out of intentionally creating wrongs that you can then sue people over when no harm would have come to you had you not done so.

      There's the concept of mitigation of damages:

      Mitigation in law is the principle that a party who has suffered loss (from a tort or breach of contract) has to take reasonable action to minimize the amount of the loss suffered. As stated by the Canadian Federal Court of Appeal in Redpath Industries Ltd. v. Cisco (The), "It is well established that a party who suffers damages as a result of a breach of contract has a duty to mitigate those damages, that is to say that the wrongdoer cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the injured party."

      In this case, Prenda has taken the opposite of "mitigation of damages" and distilled it down to its purest form.

    • Ann  •  Oct 21, 2013 @3:24 pm

      I've got "Where in the world is Mark Lutz" running through my head, but it doesn't have the same ring–too few syllables. It worked a little better for Snowden.

      This may be thinking way too far ahead, but what of the many, many fraudulent cases they've processed?

    • JR  •  Oct 21, 2013 @3:29 pm

      @Tim. Number 3 would have been fine if they really had evidence or could tell who the person was behind an IP address. Also they never intended to have anything play out in court, just use early discovery to get the names that are paying for an IP address, then try to shake them down with things like, "If you didn't download it and is was a house next you using your WiFi, then I guess we will have to ask everyone you know about your porn habit."

      They also try to say that everyone downloading a film are in a conspiracy, thus only filing fees for one case to sue hundreds of people in one shot.

      They try to say that you have some duty to keep your WiFi secure and monitor it for freeloaders. If I'm having a party and a guest picks up my phone and calls someone with a death threat, No way in hell just because I pay the phone bill that I'm in on some murder plot.

      Just in case some defense lawyers read this. Recently a factory back door was found in a very common home WiFi router. No tech skills required, tell Firefox to report your browser as a certain string, and you can do anything to the router, no password needed. That should bust any claims that you were negligent for not securing a router.

      Then of course saying they will drop you from the case if you pay just under what it would take to mount a defense.

      The other problem Prenda has is that in at least one case the film was uploaded to BT by Steele before the copyright was registered for the film. The film also has never made it to DVD or any pay sites.

      Now if a company bought the rights to film, then hired Prenda to be on the lookout for violations of their copyright, and once one was spotted, issue the right DCMA request to the cable company, and if it continued, then sue that person. Then it would have all been fair play. Prenda and it's lawyers should not be the owners of the shell company that owns the rights for things to be fair.

      The other problems come in when Prenda says they work for AF. "Well judge, that is what my client has told me, and I have to believe them." But Prenda is AF and they had a duty to disclose that fact. If they are the client then they can't pull that game with the courts.

      On top of that we have the whole Alan Cooper mess. It sure looks like Prenda found orphaned content and then faked a copyright transfer.

      I hope that explains number 4, them playing games with the courts. They have to do that to hide all the aspects of the scam.

    • I was Anonymous  •  Oct 21, 2013 @3:34 pm

      @Clark: Quoth Nicholas Weaver

      Clark: October 15 is the "you had your 6 month extension" drop dead date, so there is no extension to file, its due or late for tax year 2012.

      And the IRS's voice mail during the shutdown essentially said, "Yeah, we're shut down, but you still need to get all your taxes in by October 15.

    • Troutwaxer  •  Oct 21, 2013 @3:36 pm

      The tower fell and the ground opened up and swallowed all the orcs.

    • Lucius  •  Oct 21, 2013 @3:39 pm

      I wonder how the bond company feels right about now?

      At the time the bonds first appears, there was an analysis by a poster here arguing that the extremely low bond fee implies that it was 100% secured, with no risk to the bonding company (who are pretty good at not getting burned). The purpose of the bond was probably more to hide assets from view, rather than insufficient available assets. If true, S|H will pay every penny of the bond out of their own large pockets.

      @Todd – A nice package is not necessary for a perfectly legitimate good offered for sale. Legitimate CDs do not have to come in expensive professionally-pressed mass-produced units. We all buy rather casually, with focus on quality and price. If you are good at analyzing fine points to go further and cleverly deduce the history of what you buy, great. Most people can't and don't.

    • Sharon  •  Oct 21, 2013 @3:40 pm

      Owning the companies themselves not only gave Steele & Co. control of the money, it gave them full control of the litigation, too.

      They didn't have to worry any more about a lucrative client saying "I don't like what I'm reading and hearing about our lawsuits being over-the-top, I don't feel comfortable with what you're doing IN MY NAME, I don't like waking up to another week of our website being down because people are unhappy with the suits or having my family harassed." and withdrawing, or demanding lots of details, or demanding the tactics be changed. They lost Hard Drive Productions not because the money stopped flowing in, but because the guy wasn't comfortable working with them any more (at least, that's my take on the interview) and that kind of business model.

      The last thing they want is a client who is going to be able to interfere with the gravy train by firing them or demanding changes in the tactics.

      So, an "offshore" shell that no one can find owners to harass, and that you can control all of the information flow about because no one can find any other way to contact that shell except through you … is a great solution if you're not concerned with ethics or legality.

      AF Holdings and the other non-companies sound like the Prenda version of "my girlfriend lives in Canada".

      Part of me wonders if they even bothered to create the shell in Nevis in the first place. Has anyone confirmed that it exists as a registered entity? It's one thing to not reveal details of ownership but another entirely to not reveal existence.

    • I was Anonymous  •  Oct 21, 2013 @3:46 pm

      @Tim,

      But what's up with #4? I don't get it. Why did they create these shell companies? Why forge a signature to pretend someone else owns it?

      IANAL, nor do I play one on TV… but wasn't there something about not being able to be a lawyer for a corp that you're an officer of, or something like that?

      The Cooper forgery was an attempt to get around that.

    • Tim  •  Oct 21, 2013 @4:07 pm

      @IwasAnonymous,

      Ah, that makes sense; I'd wondered about that. Although it still seems like they could have formed an informal partnership, with one being the copyright-holder, and one being the legal team. There are multiple people involved in this, and it seems like that would've been simpler than using shell companies.

      It still seem like there were easier ways for them to go about this, and seems like a lot of their fraud/scam/illegal stuff was unnecessary, so it still doesn't make a lot of sense to me, but then IANADLHBOATLSTSP (I am not a douchebag lawyer hell-bent on abusing the legal system to screw people).

    • [REDACTED]  •  Oct 21, 2013 @4:08 pm

      It's official: I have lost my taste for popcorn. Far too many shell fragments stuck in my teeth to be worth it anymore.

    • Frankz  •  Oct 21, 2013 @4:09 pm

      What about the Arizona case? Are there not still sanctions pending?

      Wait, Ken missed a state? Time for an update!

    • Frankz  •  Oct 21, 2013 @4:11 pm

      IANAL, nor do I play one on TV…

      …but I did stay at a Holiday Inn Express last night.

    • cdru  •  Oct 21, 2013 @4:16 pm

      @Todd Knarr:

      Where in law do you find the basis for your assumption that any distribution of a copyrighted work is authorized unless there's evidence to the contrary? I was of the understanding that copyright law said exactly the opposite: that unless you could show evidence of authorization the distribution was not authorized.

      If indeed sharkmp4 is prenda, and they posted it to The Pirate Bay, and they served the file up to the user, then they authorized the distribution. You can't argue that the file was being distributed illegally when the copyright owner itself was the one knowingly and willingly serving up the file.

      If the file is downloaded from other non-Prenda peers in the swarm THAT may be unauthorized distribution. But without the logs from the sending peer or the receiving peer, Prenda wouldn't be able to prove that anything was transferred outside of their own connections. And it may be possible to argue that Prenda's implicitly authorized distribution via the bittorrent protocol also allows others to do so as well as part of the same swarm.

      The people that did download the files posted by sharkmp4 likely got a get out of lawsuit free card if indeed Prenda posted the torrent and seeded the file (and it appears as if they did). Had they merely joined a swarm for an existing torrent of their works and repeated the process, only this time not posting the torrent or seeding the file, only passively looking, then they wouldn't be in as much of a predicament they are now. But then again, if they didn't share the file, they may not have actually had anyone to go after.

    • norahc  •  Oct 21, 2013 @4:17 pm

      It gets even better. Techdirt is reporting that Steele filed a Motion to Dismiss the lawsuit Cooper filed against him by claiming that although the name Alan Cooper was signed on the documents, it wasn't that Alan Cooper because it's a fairly common name.

      http://www.techdirt.com/articles/20131019/01033124933/john-steele-tries-to-get-out-alan-coopers-lawsuit-arguing-that-use-alan-cooper-was-coincidental.shtml

    • Ronald Pottol  •  Oct 21, 2013 @4:20 pm

      I do wonder why they have not fled, the big people in this seem to have received millions, I'd think a place where you cannot be extradited from and a quite lifestyle beats the hell out of the federal pen, and then trying to make a living as a disbarred convicted felon.

    • Mark Wing  •  Oct 21, 2013 @4:28 pm

      This is just like a George R. R. Martin book, except with lawyers.

    • James Pollock  •  Oct 21, 2013 @4:28 pm

      "The intent of the downloader does not matter (although, arguably, IMO, there should be a distinction between a downloader who only downloads for personal use v. a downloader who profits from the download)."

      Not so. The statutory damages are different depending on whether or not the infringement was "willful".
      As for the personal use/for profit dilemma, that distinction is relevant to whether or not criminal charges, in addition to civil damages, are appropriate.

    • James Pollock  •  Oct 21, 2013 @4:34 pm

      "If indeed sharkmp4 is prenda, and they posted it to The Pirate Bay, and they served the file up to the user, then they authorized the distribution."

      If they do that, and then stop seeding, how much leeway is there before the copying becomes unauthorized? This is of interest not because of Prenda, but because other, less odious content owners may want to distribute some content free, then switch back to paid distribution. (Is it OK to pirate movies bcause the studio once held free trial screenings? How about pay cable shows because these channels were offered during a free weekend as a promotion? and so on.)

    • [REDACTED]  •  Oct 21, 2013 @4:35 pm

      @Mark Wing

      Gibbs: "Judge Wright sends his regards."

    • David Lang  •  Oct 21, 2013 @4:37 pm

      @todd

      the problem is that it's not possible for someone downloading to know if the person uploading was authorized or not.

      take a look at the $bigstudios who sued Google over items posted to YouTube that later turned out to be uploaded by the publicity department of those very same studios. If they couldn't recognize that things were uploaded with permission when it was a part of them (or a company hired by them) that did it, how is your average person supposed to keep track of this?

      As for a law giving a presumption of legality for anything posted, I would argue that the DMCA results in exactly that. If the thing posted is not legal, the rightowner has a mechanism to take it down. Unless the hosting company is told via a DMCA notice to take it down, what else can be assumed other than that it is authorized?

      I know the studios would like to reverse this and make the hosting companies responsible for checking everything, but systems like that can't tell what's really going on and are the type of thing that shut down the streaming of the Democratic National Convention during M Oboma's speach because they heard some music in the background that matched their copyrighted database.

      Are you supposed to assume that at a National Political Convention, any music that they play is pirated and unauthorized? or does it make more sense to assume that they have properly received permission to play the music in a public setting (completely ignoring the discussion of if they _should_ need to get special permission to play the music)

    • David Lang  •  Oct 21, 2013 @4:46 pm

      @James
      bittorrent doesn't include any way in the protocol to say 'this is only authorized for a short time', so seeding anything there is a pretty permanent grant of permission.

      you could say in the description, or at the beginning of a video that free permission is only granted for a fixed time, but lacking that I don't see any way of telling people that they are no longer authorized to share the content.

      Remember that BT is a peer-to-peer sharing protocol, once the material is seeded, the person who initially seeds it has no need to remain connected as long as there are other people who have a copy of it to share.

      This is built in to the system, it's intentional not accidental, it benefits the initial uploader because they don't need to pay for the bandwidth of all the downloads, it benefits everyone else because they will automatically get the material from the closest source that has it, and it benefits the ISPs because the material will tend to be transferred over their internal network (where they tend to have a lot more bandwidth available) rather than through their more limited links to other ISPs

      but the tradeoff that you get in exchange for people being willing to let you use their bandwidth to distribute your files is that you have no control over the files after you send them out.

    • Andrew Norton (@ktetch)  •  Oct 21, 2013 @5:01 pm

      Exactly David.
      James, when it's seeded, it's an implicit license to distribute.
      There are ways to do it with bittorrent but it's not common (and wouldn't show up on TPB anyway), so that you can kill a specific torrent for a timegated release.

    • George William Herbert  •  Oct 21, 2013 @5:06 pm

      One could make a perfectly coherent argument that BitTorrent is a form of broadcasting – if one uploads something, one has to assume it will be reshared and rereshared, it's intrinsic to the medium.

      Usenet was (in the day) similarly regarded – once you put something out on it, you had no recourse to its continued distribution. There was a standard (not legally tested that I recall) for an X-no-archive header which would keep archivers like Google Groups from archiving messages, but normal read distribution was usually unlimited.

    • That Anonymous Coward  •  Oct 21, 2013 @5:11 pm

      @Todd Knarr – And that book reference was already tried and failed.
      Amazon and 1984.
      Oops we sold a bunch of things we apparently didn't have the rights to. So it isn't always crystal clear.

      *and I snip my points about copyright being broken in its current format*

      Copyright law currently allows a NPE to extract payments from people on mere accusation of wrongdoing, and gives them a $150K as a weapon to scare people into paying a settlement. They can collect magnitudes beyond $150K, and never put it on the market. How does this benefit the public again?

    • George William Herbert  •  Oct 21, 2013 @5:17 pm

      The obvious implication is, that if it's a form of broadcasting, then that they uploaded a particular work to it implies consent to download.

      Which would mean that it's not just the copyright ownership and company ownership they've potentially committed fraud over – even the claim that downloads were unauthorized and therefore that a copyright violation occurred in the first place would be fraudulent, and a fraud upon the courts. If the entire premise of every suit they ever filed was fraudulent, they're cooked.

    • Matthew  •  Oct 21, 2013 @5:20 pm

      Pedantic technical correction to the people talking about DHCP. DHCP is used to dynamically assign IP addresses on a local network, ISPs assign addresses via PPP (Point-to-Point Protocol) as part of authentication process when a connection is made (unless the client has a permanent leased line in which case it's configured manually and doesn't change). A particular account will normally be given an address dynamically from a pool, but can also be associated with a static address. And if the address is dynamic, it will only be renewed if the connection drops and is brought back (there is no lease time, like with DHCP) – and even then it will depend on the ISP's infrastructure as to whether the address actually changes (cable connections can be pretty static while DSL ones tend to change, at least in the UK).

      The IP address assigned is always logged as part of the connection process, so it's always possible to work out what account was using that IP address at the time, if the logs still exist.

      Which is basically what everyone has already said, but there's no harm in getting the details right.

    • Christenson  •  Oct 21, 2013 @5:20 pm

      You really can't tell, as a downloader, if there's a copyright problem or not, before you even BEGIN to consider "fair use". I recall an incident on another forum, where somebody posted a technical book, said it was cool. I downloaded it, glanced through it in much the same way I would have if I had been in a university bookstore with dead trees, and then asked the poster how he had rights to upload the book, since he didn't seem to be author or publisher.
      His lack of an answer lead to the link being removed…but to figure it out, I had to download the book and then ask questions.

      When I say I don't believe Gibbs isn't telling the whole truth, I mean that he knows more than he says, and I don't believe him for a new york minute about the size of that postage stamp house in California. His document reveal is obviously strategic, and he has not come clean. Falsus in unum, falsus in omnes, caveat emptor, caveat lector!

    • Anon  •  Oct 21, 2013 @5:39 pm

      A little checking into Aisha Sargeant and the company she supposedly worked for and set up AF, I13 and Guava as well as the trust might just show something other then what S/H claimed.
      XSC Digital the company on Livewire' website as a partner, and who Robt Balazaire in Miami was paid 3k on the Prenda Financial sheet, is 1) NOT AN ACTIVE COMPANY ( 2009) 2) was owned by RAYMOND ROGERS when it was active – not Robt ( who was the first attorney Steele put down as Miami owner of Prenda when Steele got caught in Fla) – but yet, Robt is getting a payment in 2012 from Duffy/S/H for a non existent company who was owned by the very supposed assigner of the AF Holdings copyrights. Something smells fishy again!! http://www.corporationwiki.com/California/Santa-Clarita/xsc-digital-corp/45193165.aspx

    • En Passant  •  Oct 21, 2013 @5:40 pm

      George William Herbert wrote Oct 21, 2013 @5:06 pm:

      Usenet was (in the day) similarly regarded – once you put something out on it, you had no recourse to its continued distribution. There was a standard (not legally tested that I recall) for an X-no-archive header which would keep archivers like Google Groups from archiving messages, but normal read distribution was usually unlimited.

      There was also a cancel message that most but not all NNTP servers honored.

    • George William Herbert  •  Oct 21, 2013 @5:50 pm

      En passant:

      There was also a cancel message that most but not all NNTP servers honored.

      No, not really…

    • unidan  •  Oct 21, 2013 @6:05 pm

      I don't think Mark Lutz is a real person. Is there any evidence I missed to the contrary?

    • SparkBunny  •  Oct 21, 2013 @6:10 pm

      Well, now i just wasted an hour of my life on a website made 17 years ago. Thanks, Clark.

    • anne mouse  •  Oct 21, 2013 @6:23 pm

      Steele's latest motion is actually pretty good: brief, well-structured, gets right to the point, clearly identifies what's contested. I tend to believe that he's intentionally overlooking a lot of relevant case law, since I tend to assume that Cooper's lawyers are not idiots, but this motion is at least plausible. As legal argument goes, it's way better than Gibbs' recent pro se motion to relieve himself of sanctions.
      Given that Steele (when he can control his temper) knows what a legal brief ought to look like, it's all the more interesting that he bothered hiring Gibbs, who usually can't put three paragraphs together. Yeah, I know that Steele was desperate for warm bodies licensed in various states (he hired lawyers off Craig's List, for chrissakes!), but I'm thinking he also had in mind that he'd get more plausible deniability this way.

    • Ryan  •  Oct 21, 2013 @6:24 pm

      First, credit where it's due: Ken, that was a truly fantastic post.

      Second, I have some questions about the US legal system because I'm fairly confident that if these guys tried this in my country that would either have been thrown in jail or directly sanctioned by the judge(s), or would at least be charged by now. Here goes:

      -Can judges over civil matters in the US not directly order sanctions and/or jail time for people who file fraudulent documents with the court (or outright lie about the details when they're filed)?

      -Does the Us have federal "proceeds of crime" legislation that could enable seizure of all Prenda-related financial assets if they are charged and convicted?

      Third, I cannot believe the IRS does not mask their IP addresses. Unless their popehat readers are not actually investigators but just interested parties.

      Anyway, glad to see Prenda looks like they're going to receive what's justly coming their way.

    • David Schwartz  •  Oct 21, 2013 @6:24 pm

      No, #1 and #3 are not fine. You cannot deliberately set out to make yourself a victim of a crime and then sue the people who "victimized" you as a profit model. Courts cost money and are provided to right actual wrongs, not to enrich people who intentionally set traps for others. When someone does exactly what you hoped they would do, what you induced them to do, in no sense have they wronged you.

    • David  •  Oct 21, 2013 @6:42 pm

      @Matthew

      Pedantic technical correction to the people talking about DHCP. DHCP is used to dynamically assign IP addresses on a local network, ISPs assign addresses via PPP (Point-to-Point Protocol) as part of authentication process when a connection is made (unless the client has a permanent leased line in which case it's configured manually and doesn't change).

      A correction only counts as pedantic if it's actually correct.

      Things may go the way you describe in your neighborhood. In mine, ISPs use PPP for DSL connections, but they use DHCP for cable connections. And in my neighborhood, which spans most of the United States, cable trumps DSL.

    • Clark  •  Oct 21, 2013 @6:47 pm

      @SparkBunny

      Well, now i just wasted an hour of my life on a website made 17 years ago. Thanks, Clark.

      I live to serve.

    • Tim  •  Oct 21, 2013 @6:48 pm

      @JR thanks for the detailed response!

      That meshes with my current understanding of the situation (#3 could've been done in a perfectly legal way). I didn't realize that #1 & #3 posed a problem (Is it illegal for them to own the copyright _and_ sue infringers, or just wrong to hide their ownership?). #2 seems obviously problematic (their uploading could be interpreted as implicit permission to download).

      I see what's wrong with #4, but I'm still fuzzy as to why they felt it was necessary. The more everything comes unraveled, the more I wonder why they did #4. I feel like most of the things they're getting in trouble for could have been easily avoided and they could have stuck to legal avenues (for the most part).

      Maybe I just shouldn't expect rational behavior from them.

    • ChrisTS  •  Oct 21, 2013 @6:54 pm

      Life is Good.

    • Tim  •  Oct 21, 2013 @6:57 pm

      @David Schwartz

      You cannot deliberately set out to make yourself a victim of a crime and then sue the people who "victimized" you as a profit model

      I feel like I'm missing something here. I feel like that applies to combining #2 & #3 (i.e. uploading it yourself and then pursuing downloaders). But I'm unclear on how #1 and #3 are in conflict (i.e. buying the copyright and pursuing infringers).

      I fully agree that it's a morally bankrupt business model, I just feel like I'm not understanding why parts of this are problematic. Apologies if this is a stupid question, but I'm trying to wrap my brain around their scheme.

    • Rich Fiscus  •  Oct 21, 2013 @7:14 pm

      @Matthew

      David is correct that, at least in the US, DHCP is the standard for assigning IP addresses, even static ones, for cable Internet.

      On the DSL side it varies significantly depending on the specifics of the system. They may use PPP for everything, PPP and bridged connections for business service but DHCP for both static and dynamic consumer addresses, PPP for all static addresses and DHCP for all dynamic ones, or DHCP for everything.

      Probably not by coincidence until recently the level of serious networking expertise at cable companies was significantly lower than the traditional PTSN providers. The situation is significantly more even today as cable company staffers have gained significant experience and the old guard telco employees have retired or been pushed out to save money.

    • Stephen H  •  Oct 21, 2013 @7:15 pm

      Does anyone have a spreadsheet version of the Gibbs evidence? I know it's available in PDF, but converting such stuff can take quite a while. If someone does have a spreadsheet version, I (and many websites that are following all of this) would be keen to access it.

    • naught_for_naught  •  Oct 21, 2013 @7:16 pm

      Great read. It was like binge watching an entire season of a Survivor where in the end no one survives.

    • Zem  •  Oct 21, 2013 @7:20 pm

      I see what you did there! The more competant Mr. Gibbs' defence team is, the worse it will actually be for the Prenda 3.

    • En Passant  •  Oct 21, 2013 @7:24 pm

      George William Herbert wrote Oct 21, 2013 @5:50 pm:

      No, not really…

      I was never a sysadmin on a usenet server, but I distinctly recall cancels being issued by news server admins to combat spam, and these propagated to other servers. I also recall some flaps about rogue cancels.

      Cancels weren't entirely successful for the anti-spam purpose, but I recall they were used. Cancel was also specified in RFC 1036 as a control header.

      Although maybe we're talking about different things.

    • Jim Tyre  •  Oct 21, 2013 @7:29 pm

      I was never a sysadmin on a usenet server, but I distinctly recall cancels being issued by news server admins to combat spam, and these propagated to other servers. I also recall some flaps about rogue cancels.

      Can any discussion of Prenda and Usenet be complete without a mention of the Usenet Death Penalty?

    • George William Herbert  •  Oct 21, 2013 @7:32 pm

      Tim wrote in part:

      I'm unclear on how #1 and #3 are in conflict (i.e. buying the copyright and pursuing infringers).

      This goes way back in the Prenda story, but Ken and others have written that for a law firm, it is illegal / improper / unethical / fattening for them to create an underlying legal cause and then sue under it for their own benefit.

      A movie company could create or buy a movie (#1), then start chasing after illegal downloaders as a profit stream (#3), legally. #2 would give them unclean hands and #4 would be unnecessary for them

      #4 (the hive of shell companies etc) was presumably either 4.a. to hide that Prenda Law itself owned the assets and was suing to enrich itself, as opposed to on behalf of a client, or 4.b. to hide the ownership for tax reasons or some such, or both.

      4.a. is the fraud upon the court thing; which at the very least has gotten a whole bunch of judges quite unhappy with them, and could result in serious charges.

      There seems to be significant documented evidence for 4.a.

      4.b. has not been clearly shown in the evidence made public so far, but would add a goodly long federal jail term on top of 4.a. were it true.

      The bank account / transfers info put into evidence by Gibbs makes a great case for 4.a. but does not show 4.b. . Someone (presumably the IRS) would need to see the various Prenda principals' tax records to see if they declared the income they were getting via the 4.a. scheme. If they did then there's no 4.b. to argue. If they did not…

    • Tim  •  Oct 21, 2013 @7:40 pm

      @George William Herbert

      for a law firm, it is illegal / improper / unethical / fattening for them to create an underlying legal cause and then sue under it for their own benefit.

      Ah, thank you. That was the puzzle piece I was missing.

      So… could Prenda have bought the rights (#1), and then hired a separate law firm to do #3? Or are they not even allowed to do #1?

      This makes a lot more sense now. They were doing things that they knew were in violation of laws/ethics rules/etc, and tried to hide it with a myriad of shell companies, fake owners, etc. All for greed.

    • George William Herbert  •  Oct 21, 2013 @7:40 pm

      Jim Tyre wrote:

      Can any discussion of Prenda and Usenet be complete without a mention of the Usenet Death Penalty?

      I had a brief flashback wondering where Dick Depew of ARRM fame ended up (I happened to be watching when that debacle happened, live; it's the only time in about 20 years of active Usenet activity that I literally fell out of my chair laughing).

      to En Passant – I was somewhat more involved than the average bear in Usenet technology and governance (as it was) for a while. You are correct that cancel messages were in the protocol definition, and were used. The earlier statement that most servers accepted and acted upon them was not true after cancel wars broke out; most admins disabled any cancel action.

    • Dormammu  •  Oct 21, 2013 @7:43 pm

      Rogue cancels on Usenet–ah, those were the days. If Usenet had not been replaced by the various common Web fora and social networking sites, the Prenda principals would be there now, creating sockpuppets and being pilloried in AUK.

    • Docrailgun  •  Oct 21, 2013 @7:43 pm

      Clark is a Bene Gesserit? Who knew?

    • Jim Tyre  •  Oct 21, 2013 @7:47 pm

      I had a brief flashback wondering where Dick Depew of ARRM fame ended up (I happened to be watching when that debacle happened, live; it's the only time in about 20 years of active Usenet activity that I literally fell out of my chair laughing).

      Not unrelated to the Usenet Death Penalty, but not the same. If memory serves, the first UDP was imposed on UUNet in about 1997. Whether well thought out or otherwise, it was deliberate, not a comedy of errors.

    • George William Herbert  •  Oct 21, 2013 @7:48 pm

      Tim:

      Ah, thank you. That was the puzzle piece I was missing.

      So… could Prenda have bought the rights (#1), and then hired a separate law firm to do #3? Or are they not even allowed to do #1?

      This makes a lot more sense now. They were doing things that they knew were in violation of laws/ethics rules/etc, and tried to hide it with a myriad of shell companies, fake owners, etc. All for greed.

      I don't know what law firms are restricted from doing in other business and investment activity.

      The principals could certainly have gone off and created an unrelated firm, and hired another law firm to do the dirty work.

      I have not yet seen an "accounting analysis" of the accounts activity Gibbs posted, in the sense of attempting to figure out what the cashflow behavior, overhead costs, earnings, profits etc. work out to based on that information. It's possible that this is a lucrative way for a law firm to bulk up its business activity but not hugely profitable for someone else to hire a law firm to do. Alternately, it might be sufficiently profitable that a third party could hire unrelated lawyers to do it for them, and still come out with a good profitability / cash flow.

      If it's the latter, then Prenda shot themselves in the foot; they should have done it (without the seeding the video part) with more films and an outside law firm, rather than a tangled web and themselves, and they'd not be in trouble now.

      In point of fact, some genius is probably starting to do that, with the same basic premise (legal threat to sue bordering on but not quite extortion) but with clearly legal copyright ownership and corporate structure etc. The inherent #1 #3 activity absent #2 and #4 is not clearly illegal – just unethical and fattening – and therefore would seem to remain a credible (if offensive) business model…

    • Andrew Norton (@ktetch)  •  Oct 21, 2013 @7:57 pm

      @George – it's been done a bunch, see Hurt Locker etc.

    • Craig  •  Oct 21, 2013 @8:02 pm

      I see a one way plane ticket to Ecuador in the futures' of Mark Lutz, Paul Duffy, Paul Hansmeier and John Steele.

    • George William Herbert  •  Oct 21, 2013 @8:04 pm

      Jim Tyre responding to my mention of ARRM:

      Not unrelated to the Usenet Death Penalty, but not the same. If memory serves, the first UDP was imposed on UUNet in about 1997. Whether well thought out or otherwise, it was deliberate, not a comedy of errors.

      It was a comedy of errors, but also deliberate.

      I understand the 1997 UUNet UDP and 1993 Depew incident weren't related, it was just a trip down memory lane.

    • George William Herbert  •  Oct 21, 2013 @8:08 pm

      Andrew Norton:

      it's been done a bunch, see Hurt Locker etc.

      There's a difference between a producer going after pirates, and an attempt to monetize specifically by going after pirates (as opposed to, by making and showing or selling copies of the movie).

      With legit movie producers, I believe they're doing something counterproductive by suing downloaders (as opposed to seeing it as free advertising), but it's not unethical to try and protect their creation.

      Someone buying "used porn film copyrights" (past the point that they're otherwise economically viable) and setting out to zap downloaders for profit, is entirely different.

    • Craig  •  Oct 21, 2013 @8:14 pm

      We can see the trouble a rinky-dink operation like Prenda Law can cause. Imagine what skilled lawyers who work for the patent trolls like IV are doing to the court system, individuals, and businesses? Take away the blackmail aspect of extorting money from people for downloading porn that you posted and if you don't pay we'll go public telling everyone your sexual tastes and put in multiple ambiguous patents that are held over companies to extort licensing fees or we'll litigate you into bankruptcy.

    • Shay  •  Oct 21, 2013 @8:16 pm

      I agree with Scote: Mark Lutz is somewhere deep in the Everglades with 50 lbs of concrete chained to his ankles.

    • Frankz  •  Oct 21, 2013 @8:30 pm

      Third, I cannot believe the IRS does not mask their IP addresses. Unless their popehat readers are not actually investigators but just interested parties.

      What is that referring to? I missed seeing anything about IRS reading this site. But, if that's what it is, it could also be one of Hansmeier's brothers, who supposedly works for the IRS.

    • AlphaCentauri  •  Oct 21, 2013 @8:38 pm

      Interesting … If one wanted to move around large amounts of money without attracting attention, creating a business where people desperate to remain anonymous send you several thousand dollars each, and then moving that money around from account to account (with a stop in Nevis), would be a pretty useful way to go about it.

      I agree that other trolls will try to find ways to make this work legally. But I suspect that organizations that need to launder money might find it attractive as well.

    • En Passant  •  Oct 21, 2013 @9:08 pm

      George William Herbert wrote Oct 21, 2013 @7:40 pm:

      The earlier statement that most servers accepted and acted upon them was not true after cancel wars broke out; most admins disabled any cancel action.

      Got it. I was just a user who watched events, and listened to contemporaneous tales from a friend who ran a news server. Cancel wars did ruin a good thing. Infectious asshattery does that.

    • MCB  •  Oct 21, 2013 @9:12 pm

      AlphaCentauri:

      As money laundering this scheme is just plain stupid. You don't want the account statement for your money laundering conspiracy to list hundreds of thousands of dollars of payments directly to the people running said conspiracy. Because those people do time based on the amount laundered by the conspiracy, not their individual shares.

      Steele and and Hansmeier's only defense that I can see at this point is:

      This is a law suit. Our failure to inform them of the forged signatures, personal financial stake int he litigation, and the fact that we originally seeded the torrent shouldn't matter because you should never trust representations by the opposing party in litigation. That argument strikes me as a loser.

    • Billy V.  •  Oct 21, 2013 @9:27 pm

      iirc Comcast uses Cisco as a backbone for their cable internet service. Cisco offers BPI+ (basically security certificate assigned to the HFC MAC of the modem it is issues to) which prevents MAC address cloning and IP hijacking. This was a huge deal because it was when comcast started stopping users from using their own modems and pissed a bunch off which then turned into a compatible modem list which all had BPI+ security availability.

      If this is the case, the argument that the IP was hijacked is thrown out the window.

    • SJD  •  Oct 21, 2013 @9:35 pm

      As for me, #3 is bad enough…

    • xbradtc  •  Oct 21, 2013 @9:41 pm

      Someone mentioned the rule of mitigation. Did the Prendateers ever send DCMA notices to the various torrent hosts? Or just seek to fleece downloaders? Seems a relevant question that defense counsel might have asked.

    • Rich Fiscus  •  Oct 21, 2013 @10:10 pm

      It's worth pointing out that the entire issue of what downloaders should have assumed or rationally concluded with respect to the Prenda honeypot isn't really relevant in the context of copyright infringement damages. Not that it couldn't be in another case, but the entirety of the specifics here basically nullify it completely. IANAL but I've studied a lot of caselaw in this area.

      In the Betamax decision the Supreme Court ruled that personal, not for profit copying is presumptively fair use unless the copyright holder can make a cogent argument that it's at least reasonable to believe it would affect their revenue from the work in question. While this technically involves the additional element of distribution it's essentially no different.

      There is no revenue to affect so there can be no damages. An injunction against further distribution perhaps – the circumstances of BitTorrent notwithstanding. Damages, though, not so much.

      While it's true statutory damages do not require a showing of actual damage that's not the same thing as saying they apply even when there is no possibility there was any. Rather they are proscribed when actual damages cannot be accurately calculated. In these cases the damage can be easily calculated to be exactly nothing, ergo that's what the correct damage award is under the law.

    • Jim Tyre  •  Oct 21, 2013 @11:10 pm

      Someone mentioned the rule of mitigation. Did the Prendateers ever send DCMA notices to the various torrent hosts? Or just seek to fleece downloaders? Seems a relevant question that defense counsel might have asked.

      Without getting into a debate about whether a torrent host is a service provider as defined in the DMCA, DMCA notices are meaningless unless the service provider has designated a DMCA agent for service of process, registered the agent with the Copyright Office, and taken other steps.

    • David Schwartz  •  Oct 21, 2013 @11:24 pm

      @Tim: It really is this simple — when someone does exactly what you most wanted them to do, you can't then claim in a court of law with a straight face that they wrongfully harmed you.

    • Anonypants  •  Oct 22, 2013 @1:01 am

      @xbradtc : IIRC, the answer re: DMCA takedowns depends on whether a Prenda shell owned the video in question.

    • Cat G  •  Oct 22, 2013 @2:38 am

      Something I can't stop wondering about – the Prendateers claim Lutz was detained for 16 hours by federal officials at an airport. I can think of only two federal entities normally present in an airport, and one of them (TSA) does not actually have the legal authority to perform such a detention (for the majority of the workforce, at least). (Anytime you see "TSA detained x", it's usually actually the local PD that did the detaining.) Unless traveling internationally, I can't see CBP or ICE detaining either. Regardless, telling a judge someone was detained but not providing any other detail is kind of fishy – this is something I'd expect could be easily verified or disproven with a phone call from the judge or an aide to various law enforcement entities in that area. To say nothing of the doublespeak involved in saying "I had his ticket and we were leaving from Miami" becoming "He was booked leaving Ft. Lauderdale but was detained." Utter lack of credibility engaged.

      Also, no, most normal government IT systems don't mask themselves. Well, the NSA and possibly the DOD might, as well as some sections of various intelligence agencies. But the IRS? Probably not.

    • Cat G  •  Oct 22, 2013 @2:42 am

      Oh, I just thought of another possible reason for Mr. Lutz's sudden disappearing act. It's juicy, too.

      Maybe he's already flipped for a possible investigation, and they've placed him into witness protection because the Prendateers are crazy and he's concerned for his safety.

    • James Pollock  •  Oct 22, 2013 @3:04 am

      "bittorrent doesn't include any way in the protocol to say 'this is only authorized for a short time',"
      Sure it does. You can query the swarm to see who's in it; if the copyright owner is in the swarm, then it's authorized, if not, it's presumed not. (Yeah, you'll have to learn who the copyright owner is out-of-band.
      The actual problem is that you can't tell if you're downloading matches the description says it is until the download is done. So, for example, you might think you're getting file A, but what actually shows up is file B instead, and you don't know it until after you've made an unauthorized and infringing copy of file B, PLUS participated in the unauthorized distribution of file B, both of which are infringements of copyright on file B.

    • Austin Collins  •  Oct 22, 2013 @6:42 am

      Forgive me if I missed it in the links or comments, but is there a link to Godfread's letter to Judge Noel seeking to submit the recent Gibbs-provided financials?

      I find several links to Hansmeir's response, and see it on the docket, but don't see the letter he's seeking to object to. Tried googling, simply found references to the document and Hansmeir's opposition.

    • Austin Collins  •  Oct 22, 2013 @6:44 am

      Forgive me if I missed it in the links or comments, but is there a link to Godfread's letter to Judge Noel seeking to submit the recent Gibbs-provided financials?

      I find several links to Hansmeir's response, and see it on the docket, but don't see the letter he's seeking to object to. Tried googling, simply found references to the docket and Hansmeir's opposition.

    • Craig  •  Oct 22, 2013 @6:53 am
    • Austin Collins  •  Oct 22, 2013 @7:00 am

      Craig:

      Thank you for the quick response and link.

      However, what I'm trying to find is the letter Godfread wrote to Judge Noel, mentioning Gibbs' filings, that Hansmeir is now responding to.

      And I don't see that on the techdirt or ars technica coverage articles. And while Hansmeir's letter objecting to Godfried's letter is on the docket at http://ia601203.us.archive.org/34/items/gov.uscourts.mnd.126519/gov.uscourts.mnd.126519.docket.html Godfriend's letter is not.

      Apologies in advance if I'm missing something. Double-checked the techdirt link you provided just to be sure I didn't miss it the first time.

    • David Lang  •  Oct 22, 2013 @7:33 am

      @james
      checking to see if the copyright holder is in the swarm or not doesn't work

      first off, you don't have a way to know who the copyright holder is

      second, you don't have a way to know if the copyright holder hired someone else to post it for them (at which point it's still authorized)

      third, what about the case where they posted it, then the system that they posted it from looses connectivity, dropping them out of the swarm. that doesn't make it now illegal

    • rsteinmetz70112  •  Oct 22, 2013 @7:38 am

      One of the most interesting things Gibbs files was a list of the Gibbs/Prenda clients. I know some of therm were"legitimate" but were all of these known?

      Livewire Holdings LLC
      AF Holdings LLC
      Ingeuity13 LLC
      Millennium TGA LLC
      Hard Drive Productions, Inc.
      Lightspeed Media Corporation
      First Time Videos, LLC
      Guava, LLC
      Arte de Oaxaca
      LY Systems, LLC
      CP Productions, INC.
      OpenMind Solutions, Inc
      Pink Lotus Entertainment, LLC
      Boy Racer Inc.
      Pacific Century, LTD
      XSC Digital Corp
      Exoticgold LTD
      Sunlust Pictures LLC

      Some of these names are familiar, others new to me at least.

    • Basil Forthrightly  •  Oct 22, 2013 @8:13 am

      @James Pollock

      If we extend your test for authorization to other protocols such as http, it produces absurd results. Music video on YouTube? Youtube's clearly not the copyright holder, but saying that all music videos on YouTube are unauthorized is absurd. Movies served by netflix? Ditto.

      Similarly, almost none of the material served by Wikipedia is owned by Wikipedia, and the vast bulk of it is copyrighted by its respective authors; your test fails to account for licensed distribution.

      Again, there's nothing magic about BitTorrent or other p2p protocols compared with other file transfer protocols such as http.

    • Klaus  •  Oct 22, 2013 @8:23 am

      @Austin Collins,

      according to "H"s request as linked above Godfread seems to have filed it in a way not acessible to the public …

      .. snip .. He is also obligated to file his requests on the record. His request is ex parte with respect to the public, which has a
      right of access to the federal courts; .. snip ..

      Klaus

    • Frankz  •  Oct 22, 2013 @8:44 am

      It wouldn't surprise me if we saw no reliable indication of a federal criminal investigation this year. But I suspect we'll see indications next year.

      I can't wait for the DOJ, IRS, and the various numerous Bar assoc. to make an appearance, or at least somehow make their presence in this issue known.
      All these other court cases are great, but they're just the appetizers before we get to the several main courses.

    • gigglehurtz  •  Oct 22, 2013 @9:36 am

      Checked the Urban Dictionary just to see, and here you go. Looking for Lutz on the streets of Miami

      Loved reading this, by the way.

    • Dos  •  Oct 22, 2013 @9:44 am

      I've been following this since it started and I'm so happy there is an update! Yey ken!

    • James  •  Oct 22, 2013 @10:18 am

      @gigglehurtz Next up is Paul Hansmeier and his all-Steele band with their hit recording "Looking for Lutz in all the places".

    • rsteinmetz70112  •  Oct 22, 2013 @11:11 am

      @Austin Collins

      Yet it appears that opposing counsel has a copy and responded to it.

      It is not entirely unheard of for lawyers to write letters to Judges about cases. The documents in question are almost certainly the documents filed by Gibbs so those are public.

    • PonyMaster2k  •  Oct 22, 2013 @12:33 pm

      In the last week or two, either on a comment thread or on the #prenda twitter stream, someone mentioned a well written, new post that went over the whole copyright litigation model in good detail. I can't seem to find the reference to this post. Does anyone know what I'm talking about?
      To be clear, it seemed this was a recently written post (1-2 weeks old), not a link to an old post.

    • [REDACTED]  •  Oct 22, 2013 @12:51 pm

      Also, no, most normal government IT systems don't mask themselves. Well, the NSA and possibly the DOD might, as well as some sections of various intelligence agencies.

      DOD tends to use a lot of static routes and such, but if I understand correctly, for the most part they just tend not to respond to anything unsavory that wants IPs from them.

    • JohnMc  •  Oct 22, 2013 @2:48 pm

      Not being a lawyer I don't understand why all these individual cases have not been bundled and treated as a overarching RICO case? It certainly seems like that is where it is headed.

    • Nicholas Weaver  •  Oct 22, 2013 @2:49 pm

      Duffy's latest: http://t.co/sU6s9zRc3v

      He wants to file his motion to dismiss in Duffy v Godfried et al late…

      Claiming:

      On or about October 14, 2013, undersigned counsel encountered a legal emergency situation in connection with another matter pending before another judge in the U.S. District Court for the Northern District of Illinois.

      Without even stating the case… (And I can't find it with my meager PACER skills)

      And he doesn't even file the "can I file late" motion until a week after the deadline!

      To quote Charlie Sheen: WINNING!

    • Fasolt  •  Oct 22, 2013 @3:06 pm

      Wonder if the Pretendas are thinking about taking Steve Miller's advice?

    • Lucius  •  Oct 22, 2013 @3:16 pm

      Maybe Duffy should learn to start writing before deadlines. It is becoming clear he was born under a bad-luck star causing an unending succession of emergencies to delay him whenever he attempts to do anything.

      It also affects his memory, since he can never seem to recall details later, although eventually he vaguely remembers the emergency itself.

    • OraliaO  •  Oct 22, 2013 @3:16 pm
    • PonyMaster2k  •  Oct 22, 2013 @3:36 pm

      @OraliaO That's it! Thank you so much.

    • WDS  •  Oct 22, 2013 @3:55 pm

      @Nicholas Weaver

      So a day before a motion is due, Duffy has an emergency that causes him to be unable to even file a motion for extension until a week later. Did some Judge require him to go to Miami to search the streets for Lutz?

    • That Anonymous Coward  •  Oct 22, 2013 @4:06 pm

      @Cat G – International travel aside, Lutz had nothing to do with Disney owned material, so their private police force, ICE, wouldn't have gotten involved.

    • Sharon  •  Oct 22, 2013 @4:13 pm

      @JohnMc

      Not being a lawyer I don't understand why all these individual cases have not been bundled and treated as a overarching RICO case? It certainly seems like that is where it is headed.

      These aren't criminal cases. They are civil cases. That limits what can be claimed, and what options are available to the judges.

      Also, and this is the delicious part – many if not all of these cases are ones that Prenda (via local counsel) filed against people accused of downloading the files. Prenda's shell companies are still the Plaintiffs in these cases.

      They're just looking and getting treated like defendants now because they tried to cut and run (via dismissing cases) when things got bad for them, but they weren't able to get out quickly or cleanly enough. They're now caught up in claims by the defendants wanting to get attorney costs paid (paraphrased "You can't just start a lawsuit against me, make me hire an attorney to defend myself and then run away when it looks like you're going to lose – Judge please make him pay for the attorney I had to hire to defend myself! And by the way , they've been misbehaving all over the country and here are the FINDINGs of other judges about them making fraudulent filings suits identical to this one they filed against me").

      Granted, things that are coming out in the discovery (all this discovery against the Plaintiffs is giggle-inducing) may likely result in criminal charges down the road.

    • OraliaO  •  Oct 22, 2013 @4:15 pm

      @Nicholas Weaver
      This is all I could find on pacer for cases that Duffy is appearing in and there was a min entry on 10/15 here is the docket http://ia601700.us.archive.org/9/items/gov.uscourts.ilnd.274845/gov.uscourts.ilnd.274845.docket.html

      or maybe this is it? http://ia601604.us.archive.org/25/items/gov.uscourts.ilnd.277120/gov.uscourts.ilnd.277120.44.0.pdf via Kurt Opshal

    • Lucius  •  Oct 22, 2013 @4:39 pm

      @OraliaO –
      It appears from the docket that an extension was requested on Oct 10, and granted by the judge on Oct 15. The scheduled hearing that was extended was originally for Oct 17.

      If this is what Duffy is using for an excuse, he is really reaching. He was never lead attorney, but should have known about the Oct 10 request, and that the earliest need for his presence would be Oct 17. If any emergency occurred on Oct 14, it's not apparent from the docket.

    • Jim Tyre  •  Oct 22, 2013 @4:51 pm

      Sharon,

      These aren't criminal cases. They are civil cases. That limits what can be claimed, and what options are available to the judges.

      True. But one or more of the litigants could have gone to JPML, the Judicial Panel on Multi-District Litigation, and applied for an Order having all cases transferred to a single district for all pretrial purposes.

      MDLs aren't common, but there are many of them. We can't know what JPML would have done, as no one asked.

    • Sharon  •  Oct 22, 2013 @4:53 pm

      Maybe it was a state case that we don't know about yet?

      Many people had Oct 14th emergencies a la "AAAIEEE my tax return is due TOMORROW!!!". But I doubt a court would see that as a true emergency.

      The man needs a template handy for "Help I need more time!", and an assistant who can read a calendar and nudge him when he needs to fill it out and file.

    • Sharon  •  Oct 22, 2013 @5:01 pm

      Ignore my comment about state court, I missed that he'd said it was NDIL, and I'm not getting an option to edit the post.

    • SJD  •  Oct 22, 2013 @5:08 pm
    • SJD  •  Oct 22, 2013 @5:10 pm

      It was his reply to my email to Duffy, Steele, Hansmeier, Lutz, Goodhue and Nazaire.

    • Dormammu  •  Oct 22, 2013 @5:17 pm

      Paul Duffy sure has a lot of emergencies. Wasn't he the one claiming he needed eye surgery last year, and thus he couldn't make it to a scheduled hearing, or was that another Prenda-hole?

    • Nicholas Weaver  •  Oct 22, 2013 @5:26 pm

      I've a hunch Duffy is going to be laughed out of court:

      The "emergency" on the 14th was not an emergency (it was known for a couple weeks), and it was handled by the 15th with a 4-page motion, and yet Duffy waited a week to even submit a motion to submit late.

    • Matthew Cline  •  Oct 22, 2013 @5:43 pm

      The "emergency" on the 14th was not an emergency (it was known for a couple weeks), and it was handled by the 15th with a 4-page motion, and yet Duffy waited a week to even submit a motion to submit late.

      Casting a level 13 "File Motion" spell not only used up all his available mana, but forced to him to cast from hit points all the way into negative HP, putting him into a coma it took a week to recover from.

    • That Anonymous Coward  •  Oct 22, 2013 @5:46 pm

      @Sharon – He had a paralegal to help him keep keep track of these things… *falls over laughing*

      @Matthew Cline – at least the light from screwed finally reached him out in the far beyond and healed him so he could start again on his journey beyond the known reaches… to see how far past screwed he coudl get.

    • Nicholas Weaver  •  Oct 22, 2013 @6:06 pm

      And now Duffy's motion to dismiss, that he filed a week late: http://t.co/6VuPpKN78i

      Oh, thats good, duffy.. Because the forged signatures are in court documents, they are protected by the litigation privilege. Amusing.

    • That Anonymous Coward  •  Oct 22, 2013 @6:23 pm

      I enjoy him calling me pro-infringement for daring to question copyright and copyright trolling. I guess I am "pro-infringement" as I once said something along the lines of everyone guilty should get off, rather than a single innocent doe pay up.

      One of us has a series of Federal Judges pissed at them.
      One of us sued to try and scare the other.
      One of us is going to have an IRS CID enema.

      Poor Duffy, he gets to have all the fun.

    • SJD  •  Oct 22, 2013 @6:27 pm

      @TAC. Oh, yes. Brigham Field owns a 1/2 million Ferrari. He is obviously pro-speeding.

    • Gazza  •  Oct 22, 2013 @6:46 pm

      James • Oct 22, 2013 @10:18 am

      @gigglehurtz Next up is Paul Hansmeier and his all-Steele band with their hit recording "Looking for Lutz in all the places".

      May I suggest a slight word change to your ditti? just make it : "Looking for Lutz Bus in all the wrong places".

    • kyzer  •  Oct 22, 2013 @7:13 pm

      Paul Duffy laughs at all you commentators and your shenanigans. Deadlines are made to be broken, why else would there be emergency motions? Duh!

      http://goo.gl/LlbmS7

    • whyamihere..!  •  Oct 22, 2013 @8:19 pm

      Thanks Ken for the update.

      So if i get this straight:
      - John Steel uploads all the copyright material to internet and sues everyone who downloads them
      - Alan cooper stays free at JS property, gets his identity stolen and gets sued by JS and he sues JS in return.
      - JS Mother-in-law tips Alan cooper about fraud and gets payed for whatever she does for Prenda.
      - JS has nothing to do with Prenda et al, but appears in cases , he got nothing to do to help Lutz.
      - Mark Lutz, who works for JS, goes as corporate representative and screws Prenda, JS.
      - Paul H goes to deposition and screws everyone else.
      - Peter H does nothing and gets screwed anyway.
      - Paul D buys Prenda but pays JS & PH everything.
      - Every one works for Prenda, that too for free as if its a org for world peace.
      - Gibbs, buddy of PH, does all the hardwork, paid peanuts, also is thrown under bus by everyone else.
      - Mark Lutz suddenly sets up a trust for his 'unborn' children and everyone else starts working for him, for free. Goes underground.
      - No one knows where the money comes from and where it goes. Except that 'old owners' are paid everything.
      - Every lawyer in the family thinks he is brilliant and rest are idiots. But the world knows the truth.

      Seems more like a family business, gone horribly wrong. Everyone is busy digging grave for others, not knowing they are getting one too..!

      Cant wait to see what happens next.

    • jimmythefly  •  Oct 22, 2013 @8:51 pm

      Wow, the introduction of that Duffy motion.

      I haven't seen projection like that since the last time I went to the drive-in movies.

      Things Duffy accuses others of doing:

      …they are going to litigate this case from the gutter.

      ….The number of examples of name-calling, ad hominem
      attacks, baseless sanctions motions and utter falsehoods in their papers is breathtaking.

      …repeat pejoratives ad nauseum as if repetition is a substitute for
      significance.

      …their allegations are to a great extent implausible and baseless conspiracy
      theories; their name-calling unprofessional and unworthy of a Federal litigant; and, as set forth in
      this Motion to Dismiss, they fail to articulate a single basis upon which the Court may grant them
      relief.

      …Indeed, their Counterclaim is by any reasonable assessment incompetent (the paragraphs are not numbered for much of the document, and one of the Counterplaintiffs joining it – Godfread, a licensed attorney — fails to allege facts suggesting that he has standing to claim
      anything).

      …the document resembles nothing other than an empty
      screed.

      …fails to allege relevant
      facts relating to himself, and he cannot prevail under any theory for liability…

    • SJD  •  Oct 22, 2013 @8:55 pm

      Embedded a calendar of future events (mostly Prenda at this time). Created and maintained by Katherine/Kat Anon. Say thanks to her. More people will be helping soon.

    • jimmythefly  •  Oct 22, 2013 @8:58 pm

      Honestly, I don't think Cooper was 100% in the dark. I'm pretty sure he didn't intentionally do anything illegal and didn't know exactly how his name was being used, but I'm willing to bet John Steele was like:

      "Hey Alan, I need another name to put down on this document, the law is really dumb, but it can't be just be me on here. Mind if I throw your name on it, too? LOL technically you'll be in the porn business, man! But ferreal it'll really be my company running things, just can't have my good law firm name attached to "pron", the Mother-in-law would hate it. Trying to keep harmony in my house, y'know? We'll call it even for staying at my place, cool?"

    • gramps  •  Oct 22, 2013 @9:15 pm

      @Tim, @Iwas… : The shell company was put up as the actual "owner" of the copyright. Otherwise the Prendanistas (singularly or en masse) would have been put forth as the owners, and the cases would have been pro se (or pro bono) or whatever. IANAL. Prenda then came forward as legal representatives of the owner of the copyright and looked to get some cover should things go south…

      They did not anticipate that some of their "low hanging fruit" would take exception to being blackmailed. Underestimating the strength and/or tenacity of the enemy is often the undoing of such a plan.

    • Matthew Cline  •  Oct 22, 2013 @10:29 pm

      @jimmythefly:

      Honestly, I don't think Cooper was 100% in the dark. I'm pretty sure he didn't intentionally do anything illegal and didn't know exactly how his name was being used, but I'm willing to bet John Steele was like:

      If something like that happened, why wouldn't Steele submit an affidavit to that effect? The only reason I can think for Steele to not submit such an affidavit is that nothing like that happened, so any such affidavit would be perjury.

    • Sharon  •  Oct 22, 2013 @11:06 pm

      Because "Cooper and I had this understanding that it's really my company and I'd be calling the shots, and that his name was just for show on the papers" is NOT something Steele wants to declare under oath.

      Much as we'd love to see it.

    • Matthew Cline  •  Oct 22, 2013 @11:21 pm

      @Sharon:

      Because "Cooper and I had this understanding that it's really my company and I'd be calling the shots, and that his name was just for show on the papers" is NOT something Steele wants to declare under oath.

      But wasn't it claimed that Cooper was just a "corporate representative" for AF Holdings, and in that capacity he supposedly signed (or gave authorization for signing) his name to a copyright transfer? Was he ever held out as being an officer of one of the other shell companies? I can't remember.

    • Jake  •  Oct 22, 2013 @11:46 pm

      @Nicholas Weaver

      That case is such typical Duffy. The first significant action from the judge was a sua sponte order striking Duffy's Answer to the Complaint on the grounds of said Answer being transparent bullshit, along with a reminder of the existence of Rule 11(b). Then there's the typical stonewalling, missed deadlines due to key people being "out of the country", and threatened contempt proceedings.

      It explains why the Prenda gang continue to act so shamelessly despite things collapsing around them – this is just the way their cases tend to go.

      http://ia801604.us.archive.org/25/items/gov.uscourts.ilnd.277120/gov.uscourts.ilnd.277120.17.0.pdf

    • Sharon  •  Oct 23, 2013 @12:10 am

      Cooper can be "just a corporate representative", sure, assuming the corporation authorizes him to represent them. That's how we get to the conjecture of Lutz, the person who runs AF Holdings, authorizing Cooper to sign for AF, but Cooper then says "I'm busy, can you sign this" and Lutz signing Cooper's name to something Cooper was signing on Lutz's company's behalf as their hired representative. It's not surprising this is producing exclamations of "WTF?" and snorts of disbelief from those in the peanut gallery not currently choking on inhaled popcorn.

      Steele is trying really hard to avoid statements that imply he's got any kind of control over the client companies. Making an affidavit of the psuedo-conversation mentioned above would blow that whole "they're just our clients" story to pieces.

    • That Anonymous Coward  •  Oct 23, 2013 @12:24 am

      @whyamihere..! – you got confused MIL alerted Cooper then filed an affidavit filled with hearsay about what her husband told her.
      The money way paid to Steeles wife.
      Cooper sued first.
      Peter signed off as the expert saying ip=guilt.
      You left off the 3rd H who is works for IRS. (giggle)
      Also missed that what was said about formation in depo contradicts Steeles sworn testimony in court.

    • Cat G  •  Oct 23, 2013 @1:45 am

      @ThatAnonymousCoward

      @Cat G – International travel aside, Lutz had nothing to do with Disney owned material, so their private police force, ICE, wouldn't have gotten involved.

      Quite. So that brings me back to the question – WHAT federal agency, with duly constituted authority to do so, detained Lutz at the airport, and why? There's all kinds of reasons possible, from none to damn good, but I would think that for verification purposes they would have mentioned it. And 16 hours?? Stop someone with a lot of lawyers for friends for 45 minutes and I bet they'll be a lawsuit about unlawful detention.

      My only hope is that it was either the DoJ or the IRS CID unit taking him into custody, if it wasn't a complete and utter fabrication. (The Prenda Team is the Big Leagues, I'm sure they'd never stoop to baldface lying to a Federal Judge…)

    • That Anonymous Coward  •  Oct 23, 2013 @1:56 am

      I'm sure they'd never stoop to baldface lying to a Federal Judge…

      Could you help me…
      I seem to have laughed my ass off again and lost track of it.

      OFFS… *facepalm*
      I know who had Lutz.
      Workers from KFC. To him its just another acronym to be scared of.
      He ordered and was unable to pay because Steele wasn't there with cash and they made him wash dishes to pay for his meal, and then work more to pay for the other items he ruined.

    • mcinsand  •  Oct 23, 2013 @5:37 am

      If Prenda has proven nothing else, the EFF is truly a force for good, decency, and honesty… all of which are distinctly anti-Prenda. Forgive me if I'm making too much of a tangent, but the EFF is one of the beneficiaries of the latest Humble Bundle game packages (www.humblebundle.com). For me, it was a way to add more video games to my phone while also chipping in to the EFF.

    • Drakkenmensch  •  Oct 23, 2013 @7:58 am

      Do we even know if Mark Lutz is still alive at this point? The affidavit presented by Prenda where he takes all responsability for pretty much everything that happened so far has all the hallmarks of a faked suicide note left at a murder scene.

    • Jack  •  Oct 23, 2013 @8:02 am

      @TAC what makes the holidays Hansmeier household even more awesome is that Mark Hansmeier (the one with the IRS) is a Certified Fraud Examiner and his job is finding fraud. Maybe he will be put on the case of bros Peter and Paul.

      http://www.linkedin.com/pub/mark-hansmeier-cpa-cfe/18/544/307

    • Billy V.  •  Oct 23, 2013 @8:18 am

      @mcinsand just an FYI, EFF is always a beneficiary of humblebundle :)

    • mcinsand  •  Oct 23, 2013 @8:22 am

      @Billy V., Oh, no! I really could have done without that bit of information! Now, I'll have to go buy a bigger SIM card ;)

    • Nicholas Weaver  •  Oct 23, 2013 @9:41 am

      Oh, and more bad news for Prenda: Booth Sweet got their judgement: http://t.co/hj0Q8QAOyE

    • Ken White  •  Oct 23, 2013 @9:51 am

      Updated accordingly.

    • Alex  •  Oct 23, 2013 @10:05 am

      @TAC what makes the holidays Hansmeier household even more awesome is that Mark Hansmeier (the one with the IRS) is a Certified Fraud Examiner and his job is finding fraud. Maybe he will be put on the case of bros Peter and Paul.

      Once, while camping in a big company, we couldn't start a camp fire: it was wet and windy, yet one fellow I have not met before managed to start the fire quickly. When I asked what he was doing for living, he humbly replied: "I'm a firefighter."

    • James  •  Oct 23, 2013 @10:05 am

      Oh, and more bad news for Prenda: Booth Sweet got their judgement:

      I imagine that every time the new message alert rings on Mr. Duffy's Outlook he repeats the words of the immortal Dorothy Parker "What fresh hell can this be?"

      No good news, only bad news, has to grate on the nerves at some point.

    • kyzer  •  Oct 23, 2013 @10:24 am

      Congrats to Booth Sweet and Sandipan Chowdhury. Now to collect…

      I had to refresh my memory on this case there are so many of them. Here's a link to the docket – http://ia601604.us.archive.org/2/items/gov.uscourts.mad.147719/gov.uscourts.mad.147719.docket.html

      One of my favorite motions in this case was when Prenda's local attorney Daniel Ruggiero submitted to withdraw as counsel. Classic. http://ia601604.us.archive.org/2/items/gov.uscourts.mad.147719/gov.uscourts.mad.147719.22.0.pdf

    • Nicholas Weaver  •  Oct 23, 2013 @12:26 pm

      And now Duffy says he's gonna show up at the Judge's courtroom to plead for mercy on his a week-late emergency motion for extension (where the underlying emergency may have come up on the 14th, but was resolved on the 15th… Ruh Roh)

      http://t.co/QVkC1CQp95

    • jimmythefly  •  Oct 23, 2013 @12:47 pm

      Wait -can he do that? There must be some kind of communications we are not privy to, right?

      Or can he really just pick a day, time, and courtroom and set an appointment to see a judge (I assume he looked up when/where the Judge would be that day)?

      If I were the judge, I would be tempted to not show up, then a day later email Duffy asking for an extension to set the meeting date again.

    • Michael K.  •  Oct 23, 2013 @12:49 pm

      If Lutz was detained by federal agents at the airport in Miami, there would be some record of that, right? Does he understand what the "…under penalty of perjury…" part of that document means, or does he just figure that ship has sailed by now?

      I only wish I had the time to burn writing "Lookin' for Lutz / in all the wrong places"

    • Michael K.  •  Oct 23, 2013 @12:53 pm

      From the Booth Sweet judgment:

      "…neither Plaintiff, its aliases nor its principals are infants or incompetent persons…"

      That's only true in its legal sense.

    • mcinsand  •  Oct 23, 2013 @1:01 pm

      @jimmythefly, think this might be a sign that Duffy is ready to flip, and he wants to make arrangements with the judge?

    • anne mouse  •  Oct 23, 2013 @1:11 pm

      That's hilarious: there's a typewritten "signature" on behalf of Paul Duffy by "one of his attorneys". As if there were another attorney left in the country foolish enough to represent him.
      At least it's better than a previous motion of his in the same case, where the signature was by "one of its attorneys"

      Or maybe this is all part of a deep and subtle defense, as in: there's a trust named "Paul Duffy" incorporated in St Kitts, and Duffy is its authorized lawyer but not, of course, an owner or beneficiary or in any way knowledgeable about it.

    • anne mouse  •  Oct 23, 2013 @1:19 pm

      @mcinsand,

      No, if a Prendista wants to flip, he's not going to a judge in a civil case to do it. He's got much bigger worries than what this judge can dish out. It's a two-bit copyright case, about the worst that can happen in this one courtroom is he gets sanctioned some tens of thousands of dollars and loses his law license. Whereas if the IRS or FBI come calling, they're going to be directing his attention to parts of the criminal code involving both asset forfeiture (basically any asset "related" to a crime can be seized without real process) and serious jail time.

    • Nicholas Weaver  •  Oct 23, 2013 @1:22 pm

      Its not Duffy looking to flip, it is Duffy showing that he has cojones the size of a small moon (or a space station).

      He filed a "let me file late" motion a week after the deadline, citing a judicial "emergency" that upon further investigation we see came up the day before the deadline and was resolved in less than two days.

      So not only does he have the testicular fortititude to have filed this a week late (when, at most it should be 2 days late), but he is now spontaneously showing up in the Judge's courtroom to say "hey, accept my week late filing amidst all the other gamesmanship."

      Balls of steel, man. Brain of tapioca, but balls of steel.

    • Lucius  •  Oct 23, 2013 @1:24 pm

      When Duffy shows up on the 29th at 9:30am, his case will be one of 21 all scheduled for 9:30 at the same time according to the court calendar. Judge Darrah then has three more scheduled for 10:00am.

      This seems to be some sort of mass-production session where the judge will give each attorney up to one minute of his time. Duffy better be concise and persuasive.

      Maybe Duffy decided it is easier to ask for forgiveness than to get permission in advance, if he wants to stall as long as possible?

    • mcinsand  •  Oct 23, 2013 @1:38 pm

      N. Weaver, I dunno. Sometimes, there's a blurred line between balls and stupidity.

    • Lucius  •  Oct 23, 2013 @1:43 pm

      Duffy could be hoping that by getting a rushed time slot where judge has to decide in one minute, the judge will not have time to realize the full extent of the total delay Duffy is trying to get.

    • Nicholas Weaver  •  Oct 23, 2013 @2:27 pm

      I expect opposing council is already drafting an objection, including details on the "emergency" and how this conduct is prejudicial.

    • Mike  •  Oct 23, 2013 @2:36 pm

      To clarify some confusion about Duffy's notice….judges typically hear motions from all their cases at set times each week. Practices vary, but in federal court frequently the litigants can choose their hearing date based on the set rules of the judge/district.* The judge in this case, Judge Darrah, hears motions on Tuesdays, Wednesdays, and Thursdays at 9:30am. He requires the motions to be filed four business days before the hearing date. This is a shorter period than I'm used to (28 days in California central district), but that's apparently how things work there.

      There is nothing unusual or special about Duffy's notice in this instance.

      * The other two common methods of getting a hearing date are (1) calling the court clerk and requesting a date and time or (2) filing the motion and having the court select the date/time.

    • Steve Simmons  •  Oct 23, 2013 @3:01 pm

      Could it be that Judge Darrah looked at the situation and knew he could reject the motion in under a minute? Maybe he just wants to see Duffy waste time and money showing up for court.

    • Mike  •  Oct 23, 2013 @3:06 pm

      @ Lucius just because there are 3 motions set for hearing at 10am doesn't mean the 9:30 calendar will be completed in 30 minutes. In fact, most judges don't even start on time, so it is almost a certainty the 10am cases will be waiting.

    • jimmythefly  •  Oct 23, 2013 @3:28 pm

      Mike, thanks! fortunately I haven't had much reason to get that familiar with these types of procedures. Happy to learn a bit more every day.

    • Sharon  •  Oct 23, 2013 @3:46 pm

      From OraliaO:

      or maybe this is it? http://ia601604.us.archive.org/25/items/gov.uscourts.ilnd.277120/gov.uscourts.ilnd.277120.44.0.pdf via Kurt Opshal

      "DEFENDANT’S EMERGENCY MOTION TO CONTINUE HEARING ON CITATION TO DISCOVER ASSETS"

      That motion looks more plausible as a candidate for an emergency on the 14th.

    • JR  •  Oct 23, 2013 @5:00 pm

      Question for the lawyers.

      Now that the Mass. court issued the order for Prenda to pay up and said that Steele and Hans are Prenda, are they prevented for saying that they are not the same as Prenda in other cases?

    • Dormammu  •  Oct 23, 2013 @5:02 pm

      Speculation on Mark Lutz's whereabouts reminds me of this case:

      http://www.miamiherald.com/2013/10/23/3707133/ana-alliegro-mystery-woman-in.html

      If so, my opinion is that Steele has Lutz stashed in a hotel somewhere to keep him from embarassing the Prenda enterprise on the stand and/or to keep him from cooperating with federal authorities.

    • That Anonymous Coward  •  Oct 23, 2013 @5:39 pm

      Perhaps the Judge will humor him if only to see Duffy break out in a flop sweat as as been described previously.
      Given how he likes to appear in other cases, one wonders if the clerks phone will ring at the right time with Duffy on the other end.

      @Jack – I have a feeling the big Pretenda Family Gathering this year will have IRS Bro and MIL seated at the 'Snitching Bitches' table in the garage.

    • Nicholas Weaver  •  Oct 23, 2013 @6:01 pm

      Yeah, the Richmond Chemical is the "judicial emergency in an unrelated case", an emergency which was resolved on the 15th… Yet Duffy waited a whole week after that "emergency", no wonder he didn't specify the case.

    • Kenpachi  •  Oct 23, 2013 @7:05 pm

      Could Ken or perhaps any other lawyer in attendance give an estimate guess on the amount of prison time these white collar delinquents will have to endure?

      I mean, they have been collecting around 2 million dollars each year for around a decade (I remember reading somewhere, maybe on ArsTech, that Steele had always gloated about it more than once) on an extortion scheme completely designed by them:

      From seeding the copyrighted material to putting several layers of obfuscation, with necessary fraud TO several courts of law on every level, all across the country, IRS fraud (tax evasion), falsification of documents (signature forgery), and the list goes on an on…

      Could someone please give as laymen a "worst case scenario" from these delinquent's point of view?

    • Lee  •  Oct 23, 2013 @7:49 pm

      JR: The Mass. Federal Judgment is a Final Judgment against AF and its aliases including Prenda Law and its principals, Steele, Hansmeier, Duffy and Lutz:
      http://t.co/hj0Q8QAOyE

      Federal judgments are final and binding, even if appealed and until and unless vacated by the issuing court or reversed on appeal. Unless AF or its aliases get this judgment vacated, they have a big problem. For example, the Ninth Circuit can be asked to take judicial notice of this judgment and asked to find that even if Judge Wright's findings AF is controlled by Prenda et al is was not supported by the record before Judge Wright's court, nevertheless, this error was harmless, as this finding has been established by the Mass. final judgment.

    • Lucius  •  Oct 23, 2013 @8:04 pm

      @Kenpachi – I saw a post somewhere (on Arstechnica?) speculating about this. The post started from the $1.9M received and the credit card fee to guess at the number of victims on this one statement, and used maximum penalties. The result was a maximum of something like 35 years, plus a fine of $150,000,000. Does this seem reasonable here?

      More financial data should raise this, or a world-class defense (paid in advance!) might avoid maximum penalties (but IANAL).

    • Joe Pullen  •  Oct 23, 2013 @9:13 pm

      Just when I think the whole Prenda thing can't get any better . . . or funnier, it does. God I love a good rubble bouncing.

      Michael K. +10 for the humor.

    • AlphaCentauri  •  Oct 23, 2013 @9:56 pm

      God I love a good rubble bouncing.

      But when do we start with the badger-launching?
      ;)

    • Myk  •  Oct 23, 2013 @10:04 pm

      Is anyone keeping a tab of the various fines, sanctions and other financial penalties the Prendarasts are collecting and whether any of these are being paid?

    • Sharon  •  Oct 23, 2013 @11:18 pm

      Myk:

      Someone's started a page on the wiki for that – http://wiki.ktetch.co.uk/index.php?title=Monetary_awards

      In addition to that pile are the late penalties on the original Wright bond ~20k IIRC?

    • Kenpachi  •  Oct 24, 2013 @1:34 am

      @Sharon Please would you be kind enough to forward that link to Mr. Steele so that he can update his Excel Spreadsheet? mmmmm? :]

      @Lucius Thanks man!

    • James  •  Oct 24, 2013 @7:12 am

      @kenpatchi The amount of time they are looking at depends, in large part, on the Federal Sentencing Guidelines. It is a very complex topic but essentially each element of a crime creates "offense points". For example theft by fraud or deceit has a base level of 6 or 7 with an add-on of points depending on the amount (losses of less than $5,000 are a zero add-on, losses between $2.5 and $7.0 million adds 18 points). There are many other add-ons for use of sophisticated methods, leadership of an organized group, number of victims, perjury, tax fraud, etc. and negative credits for accepting responsibility or helping law enforcement. All is taken into account to calculate a final offense level.

      Finally, there is a gird with offense levels down one side and career categories across the top (repeat offenders get different treatment than first-time offenders). A lot depends on what the prosecutor wants to throw into the mix, and what elements can be proven at trial. The guidelines range is ADVISORY which means the judge can give due consideration to the guidelines and adjust upward (to the statutory maximum), downward to zero, or anywhere in between based on the circumstances.

      If you want to hurt your brain, the guidelines manual is at this link: http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/index.cfm

      and the sentencing table is at Chapter 5. Premedication with a strong opiate before reading is highly recommended.

      The question is what federal felonies did Prenda commit, if any. If acting like douchebags in the pursuit of alleged copyright infringement is legal (which it may be), then there are no base points or add-ons to be had and only civil remedies apply. If it can be proven that this was an organized and illegal conspiracy executed with special skills through the use of the US mail and telecommunications involving numerous victims, large losses, and tax / currency offenses then the offense points are sufficient to keep S&H sharing a 9X12 room with a large man named Bubba for many years. Ken can offer a more informed opinion on what the offense level is likely to be given what we know.

    • Jim Tyre  •  Oct 24, 2013 @8:46 am

      People, People, PEOPLE, I have the most dire of warnings for you. It's a warning which Ken should expand on, because he's the criminal law expert, I'm a civil trial lawyer.

      According to the Internet (where everything one reads is true), calling someone a patent troll is a hate crime!

      http://touch.latimes.com/#section/-1/article/p2p-77764490/

      [...]

      O'Connor did reach Shapiro, who said only that she was the inventor, he says. A few days after that call, he says, the company got an email from Wasserbauer accusing him of a "hate crime" for having called Shapiro a patent troll in a message left on her phone. Lumen View wanted a payoff by the end of the day, he said, or he would seek criminal charges against O'Connor. (He never followed through on the threat.)

      [....]

      If calling someone a patent troll is a hate crime, then surely so must be calling someone a trademark troll, a copyright troll or, heaven forfend, a porn troll! In the immortal words of Hill St. Blues, "Let's be careful out there."

    • Lucius  •  Oct 24, 2013 @9:00 am

      @Jim Tyre – I propose calling them all "Prendas". Surely, calling them by their correct name is not a hate crime, and we all know what they are anyway.

    • mcinsand  •  Oct 24, 2013 @9:49 am

      Lucius, if calling someone a copyright troll *might* be a hate crime, then calling them a Prenda most certainly is!

    • Jim Tyre  •  Oct 24, 2013 @10:56 am

      In Minnesota, Hansmeier tries to disqualify Magistrate Judge Noel.

      http://ia601203.us.archive.org/34/items/gov.uscourts.mnd.126519/gov.uscourts.mnd.126519.60.0.pdf

      Footnote 2 has a familiar ring to it.

    • David Lang  •  Oct 24, 2013 @11:50 am

      @James, don't forget that since they did this to many different people, if the prosecutor wants to, they can treat each instance separately to determine the 'repeat offender' status, what's the table say about thousand-time offenders??

    • PonyMaster2k  •  Oct 24, 2013 @11:57 am

      The disqualification notice talks about pro-infringement blogs and pirate blogs. Is Popehat pro-infringement or pro-pirate? False choice dilemma.

      PS: Paul H, if you're going to do this, you need to identify the blogs in question, and label each one as "pirate", "pro-infringement", "legal", etc. Be careful of hate crimes!

    • James  •  Oct 24, 2013 @12:45 pm

      @David Lang The sentencing guidelines ramp for those with previous convictions under the theory that those who have been guest of the federal prison system should know better, thus the sentences escalate for repeat offenders on the criminal history axis of the grid. I don't think the criminal history factors matter for Prenda because there are no prior convictions.

      Where the guidelines do bite is an escalated offense levels for size of the aggregate proceeds, number of victims, number of domain names registered with false identities, uploading infringing items, distribution of a work being prepared for commercial distribution, and so on. SharkMP4 (whomever he or she may be) better watch their ass.

      If it is determined that this scheme constitutes felonious fraud, there will be plenty of offense points without burdening the court system with multiple cases. If it is not fraud, c'est la vie.

    • Kenpachi  •  Oct 24, 2013 @1:00 pm

      @James

      Thank you very much for a thorough and hilarious response. As I said before, I don't know the first thing about law. I'm just a "low level IT guy" ;}

      My conclusion, as far-fetched and irrelevant as it may be is that, according to those metrics:

      "…use of sophisticated methods, leadership of an organized group, number of victims, perjury, tax fraud, etc. and negative credits for accepting responsibility or helping law enforcement"

      They should be put away for a thousand years, and then some. And Bubba won't be that nice guy from the last mile. And the prison guard won't be a Tom Hanks kinda guy, that's for sure…

      These buffoons in suits operated extorting thousands of anonymous folks, threatening with social humiliation and getting a lot of money every single time. This mob-style M.O. is far worse than being regular crooks, since they are, as Judge Wright put it: "Officers of the Law".

      And they used the judicial system no less to conduct such an operation, for years. As I write this I can't help but acknowledge the balls these guys had to carry this on. And they got damn rich in the process.

      I guess, when the time came to concoct this maze of "legal safety nets", they knew very well, as almost every lawyer does, of the sad state of things as far as Patent and Copyright Laws.

      Yes, as you explained very well, all this has to be proven in court, and they are entitled to due process. And it'll be quite interesting to see how that unfolds.

      For the record, I couldn't care less about these guys. But I'm really interested in seeing strong judicial precedent being set from all this.

      Let's not forget that there are probably thousands of Prenda-Like legal teams operating across the country, switching tactics and destroying damning evidence, as more and more amateur mistakes float to the surface: GoDaddy voice records impersonating others, Salt Marsh WTF is that, dropbox/cloud-based accounts with financial records(!) shared with lawyers not in the game, maybe fine-tuning those request for discovery?…

      And I'm just and uneducated layman, shooting from the hip in a rush…

      Anyway, I hope something really good and meaningful comes out of all this popcorn-filled drama. We all know that Team Prenda will be a classical case study on every decent law school, for decades to come. But far more important is the prospect of things changing for the better as a result of their misdeeds.

    • David Lang  •  Oct 24, 2013 @1:04 pm

      @James, I know that I've read of cases where they have used the "multiple convictions" for multiple crimes that the person was convicted of at the same time, sometimes multiple times in the trial that they are going to sentencing on.

      as far as I'm concerned, this is abuse, but it's happening.

    • Lucius  •  Oct 24, 2013 @2:12 pm

      Oh, we have to get that audio copy of Judge Noel's talk to the students! If Hansmeier wants it hidden under seal, this is a ringing endorsement that it is worth hearing.

      I'm surprised Hansmeier hasn't hear of the Streisand effect yet.

    • anne mouse  •  Oct 24, 2013 @2:24 pm

      (Edited. I thought Hansmeier might have been dreaming, since the list of student organizations at U Minn Law does not include the organization that sponsored the talk.)

      But the talk did happen, it was on the school calendar thus:

      Federal Bar Association at the University of Minnesota Law School Presents:
      Bit Torrent Plaintiffs; Copyright Enforcers or Copyright Trolls"

      Please plan to join the Federal Bar Association (FBA) for its first event of the school year. The FBA is excited to be hosting Magistrate Judge Franklin L. Noel (District of Minnesota) for a lively discussion on BitTorrent litigation.

      Magistrate Judge Noel will discuss the genesis of copyright litigation arising out of the BitTorrent technology. He will next move into specific examples of the cases which he has recently been involved in, where the plaintiff buys up the copyright to pornographic content. Then these principles learn the IP address of computers which accessed the content, sue the individual, and use the Federal Rules of Civil Procedure to subpoena local ISP's to learn the identity of the individuals who have accessed the material. Upon learning the identity of these people, the lawyers send a letter offering to settle the litigation for a sum of money between $3,000 and $5,000. Most of these individuals are more than willing to pay $3,000-$5,000 to avoid public exposure. The individuals believed to be behind this scheme are graduates of the University of Minnesota Law School.

      Please plan to join the FBA and Magistrate Judge Noel for a discussion on this legal phenomenon, enjoy some free pizza, and observe a few cautionary tales along the way.

      Free Lunch Provided: Pizza from Mesa Pizza

      Please contact the FBA with any questions at [redacted]

    • Myk  •  Oct 24, 2013 @5:31 pm

      IANAL etc, but doesn't Hansmeier have a point here? It seems mighty unprofessional for Judge Noel to be discussing active cases in such fora and in what appear to be predetermined classifications of guilt. Certainly the Judges I know would balk at such behaviour.

    • ketchup  •  Oct 24, 2013 @6:07 pm

      I wouldn't be surprised if Judge Noel did this just so he would have a good excuse to remove himself from the Prenda mess. He's probably sick of their antics and just wants to be done with it.

    • Jim Tyre  •  Oct 24, 2013 @6:07 pm

      In the District of Columbia Circuit Court of Appeals, the Reply Brief on appeal by the ISPs in AF Holdings v Does, the appeal from an Order of Judge Beryl Howell. Unless the Court orders otherwise, briefing is now concluded. No way of knowing, or even estimating, when oral argument will be. Appellate courts are like that.

      http://ia801700.us.archive.org/26/items/gov.uscourts.cadc.12-7135/gov.uscourts.cadc.12-7135.01207540557.0.pdf

    • Dormammu  •  Oct 24, 2013 @7:08 pm

      @ Myk,

      My non-lawyer opinion is that there isn't a conflict for the judge in this case because he's commenting on cases that are already closed, and were only re-opened to investigate allegations of fraud. It seems to me that those are 2 different things.

    • Lee  •  Oct 24, 2013 @7:42 pm

      http://www.fjc.gov/public/pdf.nsf/lookup/judicialdq.pdf/$file/judicialdq.pdf‎
      Here is a link to a US Gov. publication on the law of recusal. It is lengthy but fairly comprehensive. US v Barry 961 F2d 260 looks like it may be somewhat similar, depending on what the true facts are: [after sentencing defendants judge gave speech at Harvard law school explaining defendants' guilt; sentences were reversed on appeal; judge not disqualified to decide resentencing of defendants on remand because all his statements at Harvard derived from evidence presented in court]

    • Myk  •  Oct 24, 2013 @8:03 pm

      I guess that makes sense; I was looking at it from the perspective that he) or at least the event organisers, I haven't heard the Xscript) was predetermining "bad behaviour" that is still under examination (as per S.III of Hansmeier's complaint).

      The problem is not so much the existence of or potential for conflict, as the perception of judicial partisanship or bias. If the Judge can "reasonably be perceived" to be biased, his judgements may be called into question and/or appealed. Of course, the standard for "reasonable perception" may be higher than what is shown here, and the Judge may have contained appropriate disclaimers in his presentation and/or changed names to protect the guilty innocent

    • SJD  •  Oct 24, 2013 @8:12 pm

      The blogs referenced by the Magistrate Judge are alleged to be operated by attorney Paul Godfread, who uses the blogs to promote his clients’ agenda and advertise for new business.

      If Godfread indeed operated our blogs (he does not), it wouldn't be a big deal anyway. Because "Paul Godfread" is a common name.

    • Andrew Norton (@ktetch)  •  Oct 24, 2013 @8:16 pm

      And if Noel had to recuse himself then, by the same token, surely Howell would have to have done the same.
      And that would mean they'd lose all those nice Doe suits….

    • rsteinmetz70112  •  Oct 24, 2013 @8:19 pm

      @Jim Tyre

      Prenda has definitely hit the Big Time!

      MoFo is in the house. One of the largest, most experienced and respected IP firm in the country. According to their web site more that 1,000 lawyers in 17 offices.

      Oral arguments will be BAD for Prenda. They have been getting their ass kicked by people with a lot less impressive credentials.

    • Matthew Cline  •  Oct 24, 2013 @8:19 pm

      If Godfread indeed operated our blogs (he does not), it wouldn't be a big deal anyway. Because "Paul Godfread" is a common name.

      *snerk*

    • rsteinmetz70112  •  Oct 24, 2013 @8:21 pm

      The comment about Godfread is pure Prenda. He does have a blog, he does use it to promote his practice. No other names were mentioned.

    • Myk  •  Oct 24, 2013 @8:25 pm

      @SJD – Nice. I noted the creative use of "alleged to" by PH; pretty transparent attempt to conflate Godfread with the evil, pro-piracy (evidence in support of your contention please Paul?), child eating, blogoshpere.

    • SJD  •  Oct 24, 2013 @9:05 pm
    • Jim Tyre  •  Oct 24, 2013 @9:27 pm

      rsteinmetz70112,

      Generally, I'm not a big fan of big firms. But I've done a lot of work with various MoFo lawyers, sometimes have opposed them. They are kickass!

      (And just as important, they have sense of humor. They know full well what some make of "MoFo," but they use it proudly.

    • Lucius  •  Oct 24, 2013 @9:50 pm

      So far in Hansmeier's complaint about Judge Noel's student seminar, he seems to be complaining about Judge Noel stating things that are more established fact than opinion.

      The main complaint seems to be a statement that the Prenda principals became notorious because of "bad behavior", and that one sort of "bad behavior" is what is at issue in court. However, they became notorious for a long string of "bad behavior" in other courts before Judge Noel's. That past notoriety is a fact. I gather there is nothing wrong with a judge taking note of findings of fact in other courts in making his decision.

      Prenda complaints to courts when later exposed have been a series of silly exaggerations of common occurrences. If this is another instance of the same behavior, it would account for Hansmeier wanting to try to keep the talk under seal. Sunlight tends to show more than they would like.

      Unless there is more to the talk than in the seminar description, I don't see much to object to.

    • rsteinmetz70112  •  Oct 24, 2013 @10:07 pm

      Jim Tyre

      Prenda v MoFo at oral argument on an appeal will surely be entertaining.

      Have any of them ever argued a Federal Appeal? Duffy has been signing the filings, is he gonna argue?

    • snjwffl  •  Oct 24, 2013 @10:31 pm

      @rsteinmetz70112:

      Have any of them ever argued a Federal Appeal? Duffy has been signing the filings, is he gonna argue?

      I think it's Steele who argues with the judges.

    • Myk  •  Oct 24, 2013 @11:13 pm

      So how have MoFo become involved?

    • Jim Tyre  •  Oct 24, 2013 @11:30 pm

      rsteinmetz70112 – may I call you just rsteinmetz? '-)

      Don't know who will argue the appeal

      Myk,

      This is an appeal by a number of ISPs in one of the early mass Doe cases. The ISPs are fighting being forced to divulge subscriber names. MoFo represents some of them regularly. (All the ISPs did a single opening brief and a single reply brief, rather than each doing their own. Common practice when all have the same interest.)

    • That Anonymous Coward  •  Oct 25, 2013 @6:07 am

      When the people who make the allegations then cite those allegations as factual there might be an issue.

      They certainly are trying to chum the water with a bunch of crap. They are playing the the big leagues of lets just set up the appeal now.

    • James  •  Oct 25, 2013 @11:28 am

      I hope Ken has learned his lesson. Never hire Lutz to be your systems administrator cause when the site goes down you have to look all over Miami to find him.

    • PonyMaster2k  •  Oct 25, 2013 @11:31 am

      They're in the Big Leagues:

    • Jim Tyre  •  Oct 25, 2013 @11:38 am

      http://madisonrecord.com/news/s-3168-st-clair-county/260176-hearing-in-comcasts-pursuit-of-costs-from-lw-systems-continued

      Hearing in Comcast’s pursuit of costs from LW Systems continued
      October 25, 2013 9:51 AM
      By HEATHER ISRINGHAUSEN GVILLO

      St. Clair County Circuit Judge Andrew Gleeson continued a motion hearing involving Comcast Cable Holdings’ motion for judgment in a lawsuit filed by LW Systems.

      Comcast’s motion for judgment was filed on Sept. 27 through attorney Andrew G. Toennies of Lashly & Baer PC in Belleville.

      According to the motion, Gleeson ordered LW Systems to pay Comcast $17,625 on Aug. 7 after the lawsuit was dismissed for expenses the company incurred in responding to the plaintiff’s subpoenas. Comcast wants to convert the order to a judgment against LW Systems and requests relief from the court.

      [...]

      LW Systems is represented by Kevin Hoerner of Belleville and Pau Duffy of Chicago.

      Hubbard is represented by Adam E. Urbancyzk of Chicago.

      The hearing is reset to Nov. 13 at 9 a.m.

      St. Clair County Circuit Court case number 13-L-15

    • Klaus  •  Oct 25, 2013 @12:40 pm

      @SJD, while "sole" is sure funny its a proper word aka single – do like the fish tho ;) – the real fun part is the next word, as according to JS poor Duffy is the "sole office" .. lol .. Klaus

    • Palimpsest  •  Oct 25, 2013 @4:26 pm

      The wiki shows that none of the costs and fines have been paid. There is a bond for the appeal that they can clearly lose, but how long do they have to pay the fines? What are the penalties for not paying? Given that most of the secondary lawyers appear second rate and unlikely to be running lucrative practices, are they all judgement proof?

    • That Anonymous Coward  •  Oct 25, 2013 @9:19 pm

      @Palimpsest – Pretenda 101.
      Until the court to sets a deadline with actual growing penalties, ignore it. In many cases this buys them months. Then appeal and appeal and look at all the time that passed.

    • rsteinmetz70112  •  Oct 26, 2013 @10:37 am

      @Jim Tyre

      You may call me anything you like.

      I'm sure MoFo is on very good terms with several of the ISPs. The Brief seems to be focusing on getting the whole thing remanded for a hearing and an opportunity to bring in all of Prenda's questionable practices. If so that could be very enlightening.

      My primary amusement is that Prenda is finally up against someone with significant resources. Talk about turning the tables. If MoFo is granted discovery, they will be doing to Prenda what Prenda threatened to do to a lot of undeserving people.

      My only regret is that if Prenda drops the case the ISPs will likely not go after them.

    • whheydt  •  Oct 26, 2013 @3:58 pm

      Re: rsteinmetz

      Unless the ISPs decide that enough is enough and choose to make an example of Prenda to scare off any other copyright trolls out there, the way IBM does when they want to make a point about not abusing the courts in their direction.

    • That Anonymous Coward  •  Oct 26, 2013 @7:17 pm

      @whhyeydt – Several of the ISPs want to end copyright trolling, so they can do it themselves.
      Many of them are a part of 6 Strikes, which is corporations making their own laws with the blessing of the executive branch.
      6 Strikes allows them to terminate accounts of people on accusations that are unproven (because a RIAA lobbyist firm (Judge Howells old employer no less) can't be seen as unbiased).
      There is the upsell, if you pay for 'Business Class' service your exempt from the program.
      An ISP who isn't part of 6 Strikes has started their own, if we detect you downloading what we think might be copyrighted material – we disconnect you. Of course this will be fun, to offer that sort of monitoring for a tv show but not CP across their network should bite them in the ass. But then violating people's privacy for the sake of copyright above all else has been the standard practice.

      Corporate law costs the accused $35 to challenge, and the accused are only allowed a small set of acceptable answers to the claim. The challenge is reviewed by an arbitrator selected by the accuser. Corporate law has made it so they can blame someone who is innocent because if your name is on the account, your responsible for what happens.

      But it is totally not like 3 Strikes systems elsewhere that wasted huge amounts of money to convict 1 person for little to no return. Of course that 1 person (in France) was held responsible for the actions of another, and the law has changed so he is sort of in limbo.

      Copyright trolls brought the dark side of copyright "enforcement" to the forefront of peoples minds. The fact that 6 Strikes works in pretty much the same fashion as Pretenda's investigations is something they do not want people to understand.

      Millions of dollars spent on a system that couldn't stand up in a court of law… maybe they should have spent that cash creating a new way to offer content to consumers when they want it at the price the market will pay.

    • Anonymous  •  Oct 26, 2013 @11:44 pm

      @whheydt

      Two ISPs sent representatives to the first Wright hearing in LA that set this unraveling.

      Considering how large of a fraud Prenda has turned out to be, it is certainly in their financial and fiduciary interest not to let racketeers fuck with their customers.

      There was also a Lightspeed Media Corporation case where Prenda amended the complaint to add the ISPs as defendants, accusing them of civil conspiracy for aiding and abetting their customers' pirating. I wonder whatever happened to that case, but I'm guessing the ISPs were not amused and have not forgotten.

    • SJD  •  Oct 27, 2013 @7:07 am

      I wonder whatever happened to that case, but I'm guessing the ISPs were not amused and have not forgotten.

      Defendant in the The Lightspeed case hired Booth Sweet, the case was removed to the federal level (ILSD) and voluntarily dismissed in March when Prenda smelled BBQ. There is still a battle for attorney fees, yet nothing happened in this case since May.

    • SJD  •  Oct 27, 2013 @7:10 am

      If you kid asks "what it 'Chutzpah,' daddy?" — refer them to this Prenda's press release.

    • SJD  •  Oct 27, 2013 @7:23 am

      …also, there are so many links between John "I don't practice law" Steele and Prenda, that this one has been forgotten.

    • MarkH  •  Oct 27, 2013 @9:32 am

      SJD: Makes me wonder if Prenda doesn't think that is normal for courts, or close to normal. maybe they think all they have to do is "find that just-right-judge" somewhere along the appeals process who sees things the way they do.

      It sure makes sense given the way they react to judicial findings like the ones in California. "What do you mean you don't want our money?!?!? Ok, ok, how about cocaine?" just isn't much of a legal argument.

    • That Anonymous Coward  •  Oct 27, 2013 @1:25 pm

      @MarkH – Copyright Trolls would NEVER engage in forum shopping. They would never file the same case multiple times trying to avoid a Judge who had called them out previously, and when one of them landed before that same Judge drop it right after it was assigned….
      oh wait…
      http://fightcopyrighttrolls.com/2011/12/19/paul-duffy-dumps-the-second-lawsuit-assigned-to-an-inconvinient-judge/comment-page-1/

      And yes it is all about finding the right Judge. When you have a Judge who has righteous fury at their actions, but still just kicks the can down the road for the next court to deal with… the system isn't working.

      But then you get Judges who formerly worked for lobbyist firms pushing for stronger Copyright laws, opts to not recuse, and then from the bench bemoans how the ISPs and Does need to do MORE to protect copyrights… ignoring the law establishes no duties like she wants it to, but she runs the case like they should have done more. Shame she put all of her hopes on Pretenda.

      And yet another Judge has investments in a firm with a name likely to be confused with a plaintiff, who recuses herself to avoid that confusion clouding her courtroom.

      @SJD – pretty sure he was practicing law when he filed that cookie cutter defamation case in FL. He filed Pro Se but demanded Attorney Fees… in a state where he promised he would NEVER even attempt to play a lawyer on tv else they actually take action against him for running an unlicensed firm in their state.

      They call me pirate, conspiracy theorist, and some other not nice things… but I never sued THEM for defamation.
      I guess some of us have class…
      The best part… it was their idiotic lawsuits to try and silence the community that got more people to listen and see what they were doing.

      This ones irony right?

    • Matt  •  Oct 27, 2013 @7:12 pm

      @MarkH

      They may have been looking for that "just-right-judge", but what they finally ran into was just Judge Wright…

    • Dormammu  •  Oct 27, 2013 @7:45 pm

      It's also fair to recall that John Steele claimed to Ars Technica back in May that he had no involvement and asked a pointed question about where the documents are that prove his involvement. That's an "Oops" moment:

      http://arstechnica.com/tech-policy/2013/05/look-you-may-hate-me-90-minutes-with-john-steele-prenda-porn-troll/

    • OraliaO  •  Oct 27, 2013 @11:32 pm

      @Dormammu
      I Was just re reading that earlier and thought to myself, shit I need to email John Steele so I can get my money…
      Also in trying to deny that he was giving orders to Gibbs he asks where are the emails? There's no proof. How about phone records, douche.

    • That Anonymous Coward  •  Oct 28, 2013 @5:06 am

      @Dormammu – Because Steele thought he had it all on lockdown.
      For bonus points I think someone should contact Ruggiero (sp) and ask the pointed question of who did you talk to from AFH/Prenda.

      There are a handful of locals who might be willing to offer up some truth to avoid the charges they are going to end up facing.

      See cause they signed these documents (or allowed Pretenda access to their accounts to file them in their name). So no due diligence, allowing fraud to be committed on the court, extortion of parties… and its got their names ALL over it.

      See that fleet of buses over there warming up? They are ready to land on a bunch of local counsels… throw early and throw first.

    • Eric  •  Oct 28, 2013 @6:41 am

      This has been so much fun to watch. I can't wait to see how the judges respond across the country.

      Also, sidebar, not to threadjack but is anyone able to use the "pins" to bookmark a comment? Every time I try, it puts a popup from the site saying "Ex Parte" and as far as I can tell, the bookmark does not work. I would love to be able to keep track of threads I am reading before replying.

    • Elliot  •  Oct 28, 2013 @7:12 am

      @Eric:
      I get the "ex parte" popup, but the bookmarks usually work for me.

    • Matt  •  Oct 28, 2013 @7:20 am

      @Eric, Elliot – I think the "Ex Parte!" popup is supposed to mean that it worked (per a request for some indicator to show that you'd done more than just click on some pixels onscreen). IIRC (there's a post "above" this one that talks about these), it works by putting a cookie on your system, so if you've done disabling of cookies, that could be a cause of your problem.

      ETA: Typo fix, cuz "clicking" on the screen is more likely to be done than "licking". YMMV.

    • James  •  Oct 28, 2013 @8:13 am

      @Eric Note that the bookmark is at the BOTTOM of the article and the TOP of the comments. Look for the little pope hat icon and the bookmark should be to the left on the line immediately below that keeps track of the number of comments. Not so helpful in this thread when the original article is so long!

    • Jim Tyre  •  Oct 28, 2013 @3:07 pm

      In Judge Wright's case, Pietz and Ranallo just filed their opposition to Gibbs' motion.

      http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.241.0.pdf

    • Dormammu  •  Oct 28, 2013 @3:42 pm

      The motion's footnote references this very thread. Nice!

    • That Anonymous Coward  •  Oct 28, 2013 @3:46 pm

      OHAI Judge Wright (or clerk).
      As you can see Prenda (I call them Pretenda) have been up to all sorts of naughty things across the country.
      I'd like to extend my personal thanks for you starting the chain of dominoes falling. Thank You.
      I would suggest that you check out those "blogs" they call pro-piracy, as you have discovered on your own, they tend to be truth impaired.
      TechDirt.com ArsTechnica.com FightCopyrightTrolls.com DieTrollDie.com BoingBoing.net Forbes.com and more have all carried stories about Prenda.
      I'm one of those "critics" they sued to silence and have claimed either is or is in cahoots with lawyers who oppose them. Again, they seem to be truth impaired. I do not hold a JD, and until recently had little contact with any of the lawyers opposing them. And honestly, tweeting congratulations or snarky comments isn't exactly being in cahoots.
      I'm someone who hates bullies and I am their worst nightmare.
      Hope you enjoy your visit, and check out some of those other websites. There is so much more than any single post online can cover…
      See you soon!
      TAC

    • Christenson  •  Oct 28, 2013 @5:26 pm

      I disagree with Pietz's generous assertion that Gibbs has been generally truthful. Look no further than the mixup between the postage-stamp sized house with no more than a driveway between it and its nearest neighbor, compared to its description in court filings. That cannot be inadvertent, and it calls into question all of Gibbs protestations of not knowing anything underhanded was happening, as being simply self-serving attempts to avoid consequences.

    • That Anonymous Coward  •  Oct 28, 2013 @5:56 pm

      @Christenson – I don't think anyone believes Gibbs is helping anyone but himself. The motion makes sense, we need to keep the Sword of Damocles hanging over his head but balanced to make sure that he won't face the full brunt of whats coming.
      He is going to get what he deserves, but we need to avoid a situation where a grunt is thrown on the grenade and the leaders walk away.
      Gibbs knew he did wrong, and is willing to accept the consequences from that… and it seems that maybe he is trying to clean up his image so he can be a 'likeable' witness in other proceedings.

      I'd rather see him get slightly less tar and feathered to ensure that the Pretendateers get everything they deserve in spades.

      This story isn't going to end with this, there are thousands of people who need to be made whole and clients who need their cases investigated to make sure they weren't helped along by sharkmp4. If they only took away Gibbs ability to practice and the $500 in the bank, that might have to be enough… I doubt trying to make him come up with his share of hundreds of thousands (or millions) will ever happen. I know people want to see him burned at the stake, but I want to see him testify and destroy Pretenda.

    • Christenson  •  Oct 28, 2013 @8:44 pm

      @TAC:
      Based on what I have read, while Gibbs may have been grunting, he also knew exactly what was going on, and helped, even if he did not cook up or run the trolling scheme. From an idealistic standpoint (read: in practice, you are quite possibly dead on, and a little encouragement to Gibbs will maximize ultimate justice), Gibbs still has not fessed up to his full role, is still trying to bargain with fate, and has not yet accepted responsibility, and therefore cannot yet be redeemed.
      OTOH, we have practical examples, such as the recent diffusion of responsibility post here on popehat, where a simple loss of law license and a bankruptcy would be more punishment than some get for causing false imprisonment. So I will take a voluntary, permanent surrender of his law license, a fine, and such community service as directed by Mr Tyre or the EFF as justice in practice. In addition, he will have to continue assisting the civil and criminal prosecution of the Prenda Principals.

      Somewhat dumb question: Suppose Gibb's declaration was drafted as part of a deal with an investigating TLA. Would that make itself known to Judge Wright but not to the public? Or are we looking at Gibbs making a bargaining chip on his own?

    • whheydt  •  Oct 28, 2013 @9:41 pm

      Re: Chrstenson…

      From what I've seen in the media over the years, common practice appears to be to hold the penalties over the heads of those guilty, but cooperating until the bigger fish are well and truly taken out.

      From that standpoint, I would expect Wright to deny Gibbs' motion (though perhaps ostensibly on the grounds that the whole thing is under appeal and his hands are tied until that process completes) and then decide how much slack to cut Gibbs once Steele, et al. have been "taken care of".

    • That Anonymous Coward  •  Oct 29, 2013 @12:01 am

      meh, i typed witty stuff and it went poof after I hit post…

    • rsteinmetz70112  •  Oct 29, 2013 @6:31 am

      @Christenson

      I believe they said;

      Doe would agree that since the sanctions hearings in this case, Mr. Gibbs appears to have been generally forthright and credible in his dealings with various courts investigating Prenda.

      That is hardly a ringing endorsement.

    • James  •  Oct 29, 2013 @12:20 pm

      While I think that Gibbs is at least a somewhat repentant sinner, and for that reason perhaps deserving of some mercy since he is less culpable that some of our Prenda friends, the fact remains is that the sanctions are being paid out to compensate a certain Mr. John Doe whose innocence in this matter is not relative, like Gibbs, but absolute.

      If the bonded parties somehow manage to wiggle off the hook leaving Gibbs holding the bag then so be it. John Doe has every right to recover his costs, and while Gibbs may not be the main bad guy in this story, he is a bad guy. As the old saying goes, when you get into bed with dogs don't be surprised if you wake up covered in fleas. It would be a miscarriage of justice if Judge Wright vacated part of the sanctions for Gibbs only to leave John Doe without any recourse.

    • PonyMaster2k  •  Oct 29, 2013 @3:52 pm

      Duffy just posted "an empty screed" motion

      http://ia801601.us.archive.org/27/items/gov.uscourts.ilnd.280638/gov.uscourts.ilnd.280638.43.0.pdf

      I could have sworn I read this exact motion last week. But it says filed 10/29/2013. I'm confused. What's going on? Is this the same motion, just refiled?

    • WDS  •  Oct 29, 2013 @4:16 pm

      @PonyMaster2k,

      The first time you read it, it was the proposed motion he would file if his request for extension of time was allowed. The extension of time was allowed (go figure), so now he is filing the same thing as a motion.

    • Andrew Norton (@ktetch)  •  Oct 29, 2013 @4:21 pm

      unfortunately, he filed late, AGAIN.

      MINUTE entry before Honorable John W. Darrah: Counter – Defendant's motion for an extension of time to respond to the amended counterclaim is granted 40 . Counter – Defendant's motion to dismiss to be filed by 10/28/13, response by 11/19/13, reply by 12/6/13. Status hearing set for 2/5/14 is re-set to 2/26/14 at 9:30 a.m. No appearance is needed on 10/29/13. Mailed notice(maf) (Entered: 10/25/2013)

      (emphasis mine)
      This was filed the 29th… Ooops.
      and since he'd gotten notice on the 25th via the Court CM/EFS system, AND had shown he had it already written on the 22nd, I suspect the judge will be less than amused.

    • whheydt  •  Oct 29, 2013 @4:47 pm

      Re: Andrew Norton

      What are the odds that he'll file his reply (due 12/6/13) late?

    • anne mouse  •  Oct 29, 2013 @5:55 pm

      OK, on to weightier matters. If Wright is reading this thread, this is our best chance to suggest a theme for his next "launch the photon torpedoes" type ruling. Not Star Wars, too obvious (and too popular). How about a "Firefly" theme? Or maybe "Aliens"? ("Though Prenda was previously declared dead, Prenda's lawsuit progeny continue to erupt from the collective chest of courts throughout the land…"

    • James  •  Oct 29, 2013 @6:13 pm

      @anne mouse This being Halloween season and all, I think a zombie theme would be appropriate. Somebody is desperately in need of brains.

    • Fasolt  •  Oct 29, 2013 @7:30 pm

      @Matt

      "ETA: Typo fix, cuz "clicking" on the screen is more likely to be done than "licking". YMMV."

      I'd say that depends on the website you're viewing.

    • Fasolt  •  Oct 29, 2013 @10:18 pm

      Just read the Duffy motion mentioned above. Stand-out quote from Herr Duffy:

      "While it is tempting to call Defendants and their counsel out on their misrepresentations to this Court,…"

      Well if anyone knows about misrepresentations to the court, it'd be our pal Duffy.

      I thought the following could have been from a Godfread motion since it fits the Pretendas so well:

      "The Defendants and their counsel have shown both here, and in a related (but not consolidated) lawsuit against them (13-cv-4341, also pending in this Court), that they are going to litigate this case from the gutter. The number of examples of name-calling, ad hominem attacks, baseless sanctions motions and utter falsehoods in their papers is breathtaking. In their Counterclaim, Defendants repeat pejoratives ad nauseum as if repetition is a substitute for significance."

    • Dormammu  •  Oct 29, 2013 @10:43 pm

      Mr. Duffy has more to lose than Mr. Steele or Mr. Hansmeier if he continues to claim the latter pair have nothing to do with Prenda. Once Prenda's fate is decided, he'll be the puppet left holding the bag alone. He might really want to think seriously about that before claiming he's the sole owner, as might Mark Lutz claiming to be the sole CEO of AF.

    • David Lang  •  Oct 29, 2013 @11:54 pm

      With so much going on, is there a calendar somewhere that shows the next deadline or scheduled court date for this whole mess?

    • That Anonymous Coward  •  Oct 30, 2013 @12:07 am

      @David Lang – There is a calendar on the wiki.
      http://wiki.ktetch.co.uk/index.php?title=Main_Page
      I believe that SJD has a feed on the side of fightcopyrighttrolls fed from the same source.
      And Duffy never files anything until AFTER it is due.

    • JTG  •  Oct 30, 2013 @9:00 am

      TAC said:

      And Duffy never files anything until AFTER it is due.

      I wonder if that's his method for keeping the judges attention focused on him.

    • Eric  •  Oct 30, 2013 @9:34 am

      @JTG

      I don't think I'd want to have a Federal judge's attention on me….especially for filing late in their courtroom.

    • Lucius  •  Oct 30, 2013 @10:11 am

      One reason that Duffy is always late may be that his work must be heavily edited to produce something that is not absurdly incompetent. His filings in the last month or so can't be recognized as from the same person as prior filings.

      The interesting part will be the contrast if he appears in court to personally make the same arguments.

    • Jim Tyre  •  Oct 30, 2013 @11:03 am

      Judge Wright speaks. (Should be on RECAP soon.)

      ORDER GRANTING MOTION FOR
      INDICATIVE RULING VACATING
      MAY 6, 2013 SANCTIONS AGAINST
      BRETT L. GIBBS [240]

      The Court is in receipt of the Motion for Indicative Ruling Vacating May 6, 2013 Order Issuing Sanctions Against Movant Brett L. Gibbs. (ECF No. 240.) Gibbs’ Motion specifically seeks an indicative ruling from the Court that, if given the opportunity, it would vacate Gibbs’ joint and several liability for the monetary sanctions imposed in the May 6, 2013 Order. (ECF No. 130.)

      Since the May 6, 2013 Order is currently on appeal in the Ninth Circuit, the Court’s authority over this Motion is governed by Federal Rule of Civil Procedure 62.1 and Federal Rule of Appellate Procedure 12.1. Under these two procedural rules, a district court may issue an indicative ruling stating that it would grant a motion if the court of appeals remands for that purpose. Fed. R. Civ. P. 62.1(a)(3); Fed. R. App. P. 12.1. Accordingly, after carefully considering the papers filed in support of and in opposition to the instant Motion, the Court hereby GRANTS the Motion for Indicative Ruling. If the Ninth Circuit were to remand the matter, the Court would vacate Gibbs’ joint and several liability for the monetary sanctions imposed in the May 6, 2013 Order based on his dissociation with the Prenda parties. The Court makes no statement with regard to the other parties subject to the May 6, 2013
      sanctions. The November 18, 2013 hearing on the matter is accordingly VACATED and no appearances are necessary.

      IT IS SO ORDERED.
      October 30, 2013
      ____________________________________
      OTIS D. WRIGHT, II
      UNITED STATES DISTRICT JUDGE

    • whheydt  •  Oct 30, 2013 @1:10 pm

      Re: Jim Tyre…

      Of course if the appeals court *doesn't* remand to Judge Write, then Gibbs is still on the hook for monetary penalties. Cute.

    • PonyMaster2k  •  Oct 30, 2013 @2:25 pm

      logisitics question here:

      This docket only goes up to file #223

      http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.docket.html

      But there are clearly items that go past that, such as #232
      http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.232.0.pdf

      Why is the docket truncated? Is there a way to see the full docket with more recent items?

    • Daran  •  Oct 30, 2013 @3:47 pm

      Did the Prenda principals respond to Gibbs' motion?

    • whheydt  •  Oct 30, 2013 @5:02 pm

      Re: Daran

      What could they say? Please don't let him off the hook, we want him to share the pain? Or, please don't let him off the hook because it's easier on us to have an N-way split than an (N-1)-way split of the penalty?

      Besides, if they did say something it would probably just either add evidence that Judge Wright was correct, or it would blow the covers off their 5th Amendment pleas.

    • Daran  •  Oct 30, 2013 @6:09 pm

      What could they say? Please don't let him off the hook, we want him to share the pain? Or, please don't let him off the hook because it's easier on us to have an N-way split than an (N-1)-way split of the penalty?

      I would have expected them to try to discredit the new evidence he produced, and to try to deflect the blame from themselves onto him, just as he did from himself onto them.

      Besides, if they did say something it would probably just either add evidence that Judge Wright was correct, or it would blow the covers off their 5th Amendment pleas.

      Haven't they already done that? In any case, 5th amendment pleas preclude testimony, not briefings.

    • Daran  •  Oct 30, 2013 @6:12 pm

      comment disappeared. Perhaps in spam filter?

    • That Anonymous Coward  •  Oct 30, 2013 @6:23 pm

      @Eric – I like to think I have the attention of several Federal Judges. Pretty sure I've said things they wish they could say. Plus Pretenda does keep submitting things I've 'said' to courts, so I didn't seek the attention, I'm just willing to do whatever I can with it.

    • snjwffl  •  Oct 30, 2013 @8:20 pm

      In case people didn't catch it in PonyMaster2k's post: the transcript of Steele's argument with Wright is finally up.

    • Jim Tyre  •  Oct 30, 2013 @9:08 pm

      Shockingly (not), Gibbs just filed in the Ninth Circuit Court of Appeals the notice of what Judge Wright ruled today. The heart of his filing:

      Pursuant to FRAP 12.1, Mr. Gibbs hereby respectfully requests that the Court of Appeals remand the case of Ingenuity13, LLC and Brett Gibbs v. John Doe, Case No. 13-55871, to the District Court for further proceedings. The District Court’s Order applies only to Case No. 13-55871 and does not apply to the seven other cases with which Case No.13-55871 has been consolidated. Mr. Gibbs further requests that the Ninth Circuit Court of Appeals remand Case No. 13-55871 without retaining jurisdiction and expressly dismiss his appeal.

      DATED: October 30, 2013
      By: ____/s/ Brett L. Gibbs, Esq._______
      Brett L. Gibbs, Esq. (SBN 251000)
      28 Altamont Avenue
      Mill Valley, CA 94941
      brett.gibbs@gmail.com

    • Lucius  •  Oct 30, 2013 @9:09 pm

      That transcript is very enjoyable reading.

      It seems unimaginable that an attorney could show up before a federal judge to object to his past ruling, and not even be able to identify some specific law or ruling that forms a basis for his objection. When Steele did make an argument, it was usually vague and irrelevant to what he wanted. Each time he did this, he was unprepared to explain exactly why it was relevant. He seems unable to stay sharply focussed on any one point long enough to build a case.

      If Steele attempts to argue in court again, it would be a good idea to prepare enough to know more about his own points than the judge hearing the case.

      John Steele obviously skipped the remedial clinic for pro se litigants he was offered.

    • whheydt  •  Oct 30, 2013 @9:29 pm

      Re: snjwffl

      That is one annoyed judge. It's almost a pity Steele didn't try to speak again after Wright told him "Get out."

    • Myk  •  Oct 30, 2013 @10:19 pm

      @Lucius

      It seems unimaginable that an attorney could show up before a federal judge to object to his past ruling, and not even be able to identify some specific law or ruling that forms a basis for his objection.

      While the various blog postings gave us the blow-by-blow of this hearing, reading the transcript really drives home one point: if a disinterested observed was asked to identify, based on submissions and in-court behaviour alone, which Predatard had suffered brain cancer and was potentially cognitively impaired, they would be fairly likely to pick Steele.

    • Dormammu  •  Oct 30, 2013 @11:04 pm

      @ Myk,

      Steele doesn't seem cognitively impaired to me (but then I am not impartial). He seems manipulative, arrogant, and childish. Your mileage may vary.

    • mcinsand  •  Oct 31, 2013 @6:36 am

      @snjwffl, Thank you for pointing back to the link PM2k posted. My day really needed that. At the same time, I wonder if or when the Prenda crowd will realize that their prime adversary, the main source of their struggles, is… John Steele. No person makes more trouble for them, no entity damages them, more than their very own bumbling puppet master.

    • Dan  •  Oct 31, 2013 @6:38 am

      The transcript is very enjoyable reading indeed–thanks for posting the link! I'd agree, from other things I've seen, that Steele doesn't seem to be cognitively impaired, but foolish and self-destructive on an epic scale.

    • James  •  Oct 31, 2013 @6:40 am

      Some judges are lazy and let lawyers get away with anything while others are sticklers on the rules. Judge Wright just asked Mr. Steele to plead the law, and he failed to do so. Frankly I am surprised the hearing lasted as long as it did; I would have expected him to ask the question no more than twice . . . unless he was trying to paper the record to show what an ass-hat Steele so that it is out there on the appeal.

    • Steve Simmons  •  Oct 31, 2013 @8:25 am

      @PonyMaster2k: If you look a bit closer at the docket, you'll see there are lots of discontinuities. Darned if I know why, but clearly it's not just a case of the newest stuff not being entered.

    • Christenson  •  Oct 31, 2013 @12:26 pm
    • Jim Tyre  •  Oct 31, 2013 @12:59 pm

      Exclusive!

      Drone strike about to hit EFF!

      https://twitter.com/EFF/status/395997764393242625/photo/1

    • James  •  Nov 1, 2013 @9:12 am

      @Jim Tyre Given all the invective from Prenda directed at EFF, I would have thought more of you would have dressed up as pirates.

    • jimmythefly  •  Nov 1, 2013 @11:48 am

      From that transcript (thanks for pointing it out)

      THE COURT: But you are getting all the due process you can stand.

      ZING!

      also loved this bit:

      THE COURT: No. No. You have got to understand the ground rules. I put a question to you, your response is you don't see how that is relevant, I won't detain you. You can leave if you can't tell me how this e-mail which addresses an undisputed issue which is also irrelevant, an undisputed issue entitles you to reconsideration of a motion that has already been argued, heard and decided.

      And the ending was glorious:

      THE COURT:……This hearing is over.
      MR. STEELE: Am I going to get to respond to counsel? Your Honor does not allow me to ever respond to –

      THE COURT: Raise your voice again, and I am going to introduce you to the United States Marshals. Get out.

      (Proceedings concluded.)

    • JTG  •  Nov 1, 2013 @12:51 pm

      I just looked through the transcript. A couple of things come to mind:

      - It seems as though John Steele really likes to hear himself talk
      - Abbott and Costello's "Who's on first?"

    • rsteinmetz70112  •  Nov 1, 2013 @7:39 pm

      RE: Judge Wrights latest:

      IANAL but he wrote

      "the Court would vacate Gibbs’ joint and several liability for the monetary sanctions imposed in the May 6, 2013 Order based on his dissociation with the Prenda parties."

      To me that leaves open the possibility that Wright might impose separate, lesser, sanctions against Gibbs. It also does not recall the referrals to the Bar et al.

    • David Lang  •  Nov 1, 2013 @11:10 pm

      @rsteinmetz

      remember that Gibbs didn't ask for the referrals to the Bar et al be recalled. He explicitly said that he wants those to continue and will continue to cooperate with them

    • adam  •  Nov 2, 2013 @11:32 am

      So I finally caught up on reading all the comments. Was on vacation when the Gibbs filing went down, and naturally, you all have had an awful lot to say! Which is great!

      Regarding Tim's post and why #4… I don't think anyone has directly addressed what I think to be the reason.

      So why create the shells and obscure their interest in their business model? Well, why did the Nazis try to destroy evidence of what happened at concentration camps before the allies could get there? While I hate comparing anybody to an evil regime that slaughtered millions, I do think they are alike in that as much as they claim (and even largely believe) that they are the good guys, deep down they know much of what they are doing is morally bankrupt.

      I think a rational, ethical person could make a case that #1 and #3 are morally legitimate. That is assuming they are actually targeting infringers. But any amount of scrutiny of what they have done makes it obvious that they are not actually targeting infringers. They are targeting anyone they can convince to cough up some money, whether guilty or not, whether they have downloaded anything or not. Even they realize (though maybe only at a subconscious level) that there is nothing remotely legitimate about their approach.

      So the shell companies were meant to conceal who is really behind these suits, discovery requests, and letters. They are finding out that they haven't done nearly a good enough job of concealing this. However, I do suspect that, for a good while, the shells kept many judges from looking more closely into what they were doing than would have happened if they had disclosed their own interest in these cases from the very beginning.

      Perhaps I'm wrong, but I think the shells accomplished more or less what they were supposed to for a certain amount of time. Thanks to Pietz et al. now the courts are realizing the need to scrutinize team Prenda very carefully.

    • adam  •  Nov 2, 2013 @11:40 am

      One other thought I had:

      Folks have commented on what agency may have detained Lutz for 16 hours at the airport. But I wonder if Lutz's affidavit contained a typo in that perhaps he meant to claim that he was detained until 10 AM in stead of PM (or whatever time it was).

      I say this because I remember when people first expressed surprise at him being detained that long I was confused because I at first read it as AM not PM and had been thinking he was detained for only a few hours. When I went back to the affidavit and realized I had read it wrong, I then thought it very well might be a typo.

    • SJD  •  Nov 2, 2013 @11:46 am

      Plausible. Their sloppiness is their hallmark. Examine the footers on page 1 and page 2 of Duffy's affidavit in AFH v. Navasca that he filed yesterday.

    • Lucius  •  Nov 2, 2013 @12:43 pm

      SJD,
      Paul Duffy states that the only way he knows to send notices to Steele or Hansmeier is by email or phone. If he is reading this, he might check any of the motions linked in this thread to find the address of each filed in multiple court documents.

      Paul, don't worry about the fact that John routinely files a false address on his official court documents. He stated to Judge Wright that he manages to get whatever documents sent to that fake address that he chooses to admit receiving.

      You can also add a fourth '1' to the numerical part, and probably reach John's physical address, or at least a maildrop he maintains.

      Another clever tactic might be to ask them for their physical and fax addresses when you are contacting them via email or phone.

    • Dormammu  •  Nov 2, 2013 @3:18 pm

      If Duffy says phone and email are reliable means of contacting Steele and Hansmeier and other means are not, and he certifies he has contacted them by those means, then as an officer of the court, doesn't he have to share that information with the court?

    • WDS  •  Nov 2, 2013 @3:25 pm

      @SJD,

      Re: Sloppiness & footers, No matter how much Steele might shout in court "It's called cut and paste" They are apparently not very good at that either.

    • Nicholas Weaver  •  Nov 3, 2013 @8:37 am

      SJD: Wow, the footer, just, well, wow.

    • Ken White  •  Nov 3, 2013 @9:01 am

      OK, as a litigator, I'm not going to throw the first stone on that one. I need to do a declaration, I pull up from my desktop the last declaration I drafted and revise it for the new declarant and with the new content, and maybe I forget to change a footer. Also, it's not unusual for a lawyer to prepare the declaration for a client or witness, even when the client or witness is a lawyer.

    • SJD  •  Nov 3, 2013 @10:13 am

      @Ken: you know I hate the very notion of "zero tolerance," but when sloppiness becomes a pattern, we have all the right to ridicule that. "Our" side attorneys make mistakes to, and many commenters in the previous Prenda thread pointed to a very badly proofread first motion for sanctions in Prenda v Internets, but it was rather an isolated incident.

      P.S. I t will take 15 years or so until ECF will display "Click to Edit – 7 minutes and 27 seconds" after the submission.

    • rsteinmetz70112  •  Nov 3, 2013 @2:43 pm

      @Ken

      Yes but Steele sorta maintains he is pro sae. Why would Duffy have his affidavit? Duffy is not his lawyer but if he is isn't Steele pretending to pro sea another fraud on the court?

      Steele was directly asked by Wright why he didn't update his contact information. He dissembled and talked in circles. He never answered. He is hiding out.

      Lutz has now not showed up on at least 3 different occasions. The Prenda team has so far avoided all appearing in the same court room at the same time.

    • Mike  •  Nov 3, 2013 @3:31 pm

      rsteinmetz70112 • Nov 3, 2013 @2:43 pm

      @Ken

      Yes but Steele sorta maintains he is pro sae. Why would Duffy have his affidavit? Duffy is not his lawyer but if he is isn't Steele pretending to pro sea another fraud on the court?

      Steele was directly asked by Wright why he didn't update his contact information. He dissembled and talked in circles. He never answered. He is hiding out.

      Lutz has now not showed up on at least 3 different occasions. The Prenda team has so far avoided all appearing in the same court room at the same time.

      1. Steele isn't pro se in the Navasca case because he isn't (yet) a party in the Navasca case. He is pro so in Judge Wright's case.

      2. It isn't unusual for an attorney to draft (or have a hand in drafting) the declaration for a third-party witness. Steele has already signed a declaration in this case; Duffy probably used that document as a template for his declaration so he wouldn't have to do all the case caption information

      Steele declaration

    • rsteinmetz70112  •  Nov 3, 2013 @6:58 pm

      @Mike,

      Possible but not probable.

      Since Duffy has not entered an appearance for Steele in this case why would he have Steele's affidavit?

      Is Duffy representing Steele in any case? I can't think of any.

    • Mike  •  Nov 3, 2013 @8:09 pm

      What do you mean possible but not probable? Duffy did file a declaration from Steele; it's linked in my post and was submitted in connection with the August 20 hearing. Attorneys can and do get declarations from witnesses; it doesn't suggest any sort of attorney-client relationship. Witness declarations can be submitted without making that witness a party to the case.

    • PonyMaster2k  •  Nov 4, 2013 @1:09 pm

      S&H both move to be vacated from order (#66 and #68):

      http://ia600705.us.archive.org/3/items/gov.uscourts.ilsd.58824/gov.uscourts.ilsd.58824.docket.html

      Are they throwing Duffy under the bus here? As far as I can tell, their arguments are "We weren't part of the vexatious actions". Doesn't that just leave Duffy holding the bag?

    • Mike  •  Nov 4, 2013 @1:40 pm

      @ PonyMaster2k – I don't think we can draw the conclusion that S/H are throwing Duffy under the bus. Rather, (1) they always push the theme that they are not all involved together, so filing separately is consistent with that, and (2) the arguments S/H make don't readily work for Duffy.

      Just as adding as many names/iterations to the judgment makes it easier to collect against Team Prenda, conversely Team Prenda can make it harder to collect against them by limiting the scope of judgments/awards. Not a definitive sign of internal division.

    • Dormammu  •  Nov 4, 2013 @3:57 pm

      They are trying to limit the judgement to AF Holdings, because (based on the Gibbs filings) they know that AF is an empty shell with no assets and thus nothing to pay judgements with. That's why they set the shells up, in my opinion–to prevent them from having to pay when things go as wrong as they have.

    • WDS  •  Nov 4, 2013 @7:11 pm

      @Dormammu, The company in question in this case is Lightspeed media, which is at least a little less "shellish" than AF Holdings. The point remains however that they are trying to keep the awards to the company(s), which will turn out to have no assets and been losing money for however long they have been in existence.

    • MCB  •  Nov 4, 2013 @7:36 pm

      Anyone else notice that Paul Duffy now lists himself as "one of [Prenda's] attorneys?" (http://ia601705.us.archive.org/24/items/gov.uscourts.ilnd.284511/gov.uscourts.ilnd.284511.53.0.pdf) Is he not supposed to be the sole partner in Prenda? I thought the practice was sold to him.

    • Christenson  •  Nov 5, 2013 @10:15 am

      MCB, you haven't been paying attention if you think anything filed by a Prenda attorney or principal about Prenda is truthful! Finding the contradictions like the one you noticed is a sport around here!

      @Jim Tyre: Prenda seems to have a new business: ADA collections. That law needs to be re-written so settlements end up improving access, not impoverishing businesses, and so businesses get more than 1 or two letters only a month before getting sued.

    • WDS  •  Nov 5, 2013 @10:55 am

      @Christenson,

      ADA collections is even more low life than Class Action objection.

    • rsteinmetz70112  •  Nov 5, 2013 @11:09 am

      @MCB

      He has used that same styling in other documents for other "clients", probably to deflect sanctions.

      Many lawyers won't represent themselves. If I Recall Correctly the Lawyers opposing Prenda hired their own lawyers when they needed to appear before Judge Wright.

      In this case I would understand the phrase "one of [Prenda's] attorneys?" to mean that other lawyers also represent Prenda. Although I don't think we know who they are.

    • Christenson  •  Nov 5, 2013 @11:19 am

      @WDS: If you care to meet me in your favorite bar and let me buy you dinner and your favorite beverage, you may discuss with me which of Prenda's "businesses" is lowest life, scummiest, or most extortionate — not one of them has anything to do with justice. Hopefully we will both enjoy the meal!

    • James  •  Nov 5, 2013 @12:28 pm

      Steele got a hearing on his motions; it is set for next Wednesday morning in East St. Louis (the garden spot of Illinois). We can only hope he treats Judge Murphy the same way he treated Judge Wright.

    • WDS  •  Nov 5, 2013 @1:03 pm

      @Christenson,

      While the offer sounds nice, I fear the discussion would turn both of our stomachs making the enjoyment of the meal difficult. Having a mother who has spent some 20 years in a wheelchair, the abuse of the ADA for personal gain rubs a raw nerve with me.

    • Lucius  •  Nov 5, 2013 @2:08 pm

      @James,
      Steele may be more moderated at the Nov 13 hearing, since if he begins to shout at or threaten the judge, Hansmeier could take over with a less-abrasive argument, even if still flawed and irrelevant. I hope Judge Murphy is prepared to focus arguments only on what is valid and relevant as well as Judge Wright was.

      The numbers for attorney's fees will be filed by Fri Nov 8. Would this timing allow Judge Murphy to make a final ruling based on the Nov 13 hearing, possibly tripling fees because of abuse of court trust, as has been done before?

      This has great potential for an interesting session. Will someone be at that hearing who can quickly report on what happens?

    • rsteinmetz70112  •  Nov 5, 2013 @3:00 pm

      @James

      I suspect that the hearing is more of a way to give Steele and Hansmeier all the due process they can handle.

      Even if they weren't originally served the hearing will fix that.

    • Daniel Neely  •  Nov 5, 2013 @4:18 pm

      @rsteinmetz70112 a lawyer who represents himself in court has a fool for a client.

      AFAIK all of the lawyers for Cooper and the various Doe's who've been frivolously sued by the predanistas hired outside council. The pretendtard's are not only stupid enough to think going it alone is a good idea; but after the whole not paying Klinedinst stunt getting any third parties to represent them has to be an interesting exercise. (I assume their new lawyer demanded 100% payment in advance.) Gibbs is going pro se because he's broke, out of work, and has no other choice.

    • rsteinmetz70112  •  Nov 5, 2013 @4:51 pm

      @Daniel Neely

      You are probably right, I wasn't sure if everyone had hired outside counsel.

      I was trying to avoid the obvious, trite, tired, old saw.

      Gibbs has little to lose. But I am still looking for some proof of his poor mouthing. He may also be getting help from DoJ or some other TLA.

      Steele, Duffy and Hansmeier are a near terminal combination of stupid and arrogant. Fool fits them quite nicely.

    • Christenson  •  Nov 5, 2013 @5:39 pm

      @WDS
      In that case, you will have to come to dinner anyway, to celebrate a new address for Mr Steele and his friends, courtesy of a favorite TLA

    • That Anonymous Coward  •  Nov 5, 2013 @6:25 pm

      I might be a party in Pretenda/Duffy v The Interwebs, and I saw no reason to confuse the case any further than it already is, and my identity is still secure. If that changes, I'm pretty sure I'll get a courtesy nudge telling me its time to lawyer up.

      In a perfect world I would be represented by all of the lawyers Pretenda have accused of being me or behind the websites at the same time. Putting all of us into the same place at the same time might FINALLY convince them I'm not a lawyer, and really underscore the idea of suing was insanely stupid. The bonus of being able to take all of Doe Defenders to dinner to thank them for annoying Pretenda as much as they have would be incing on the cake.

      There is one lawyer I'd love to get, but we have a 'complicated' relationship… not sure he hates Pretenda enough to rep me thou.

    • Jim Tyre  •  Nov 6, 2013 @12:13 am
    • That Anonymous Coward  •  Nov 6, 2013 @1:58 am

      @Jim Tyre – But we'd have to lure them back to CA to get a 5150 issued… oh wait, did you mean the bad lawyering and not the mental issues? :D

    • James  •  Nov 6, 2013 @5:49 am

      @Jim Tyre Wow, that judge was a very patient man. Despite the natural tendency of the courts to go the extra mile to see that justice is served, this was really egregious. I would have tossed the suit after the attorney ignored the third order of the court.

      You could have saved yourself a long read if you had started at the end of the filing. All the noticed attorneys had email addresses that were abbreviations of their firm's initials while the attorney being slapped around had a Gmail address. Are we sure this guy wasn't hired off of Craig's List?

    • rsteinmetz70112  •  Nov 6, 2013 @11:15 am

      Is it too late for the ISP's to file for attorney's fees in Minnesota?

    • Lucius  •  Nov 6, 2013 @2:07 pm

      @rsteinmetz70112,

      Steele, Duffy and Hansmeier are a near terminal combination of stupid and arrogant. Fool fits them quite nicely.

      Isn't that their main legal defense: that they are all helpless puppets controlled by their insidious super-genius mastermind, Mark Lutz, now disappeared somewhere within an unknown secret compound?

      It's not fair to blame only clumsy, foolish henchmen for what the boss forces them to do, no matter how evil the action.

    • Jim Tyre  •  Nov 6, 2013 @4:56 pm

      In MN, Magistrate Judge Noel just dropped the hammer. Denied the motion to disqualify himself, ordered Prenda/AF to return settlement funds to these defendants who settled, pay them their atty fees.

      Oh, and he referred the matter to the U.S. Attorney for his district, the MN Attorney General, and the lawyers' disciplinary boards for MN and IL.

      (Sorry for not RECAPing it, someone should. It was sent to me.)

    • darthskeptic  •  Nov 6, 2013 @5:14 pm
    • Ken White  •  Nov 6, 2013 @5:31 pm

      See new post.

    • Jim Tyre  •  Nov 6, 2013 @5:34 pm

      Ken started a new Prenda thread, on he MN order. Move along folks, move along.

      http://www.popehat.com/2013/11/06/another-hammer-drops-on-prenda-law/

    • Kat  •  Nov 7, 2013 @1:53 am

      Man, I picked the wrong time to have a baby. lol