As far as I've been able to tell through clever googling in my favorite search engine, the renowned and much beloved Pirate Resignation Letter was written by Chris Castle and delivered to James Bear (deceased), former managing partner of Knobbe, Martens, Olson & Bear, LLP.

After using the letter, Castle shared it with his friend, user "Otter Von Pop" of the (now defunct) BirdSunEye.com forum, and that user posted it on 17 October 2003 both as a forum post and as a Word doc attachment.

Later that morning, Chris Castle, posting as "The Bartender" confirmed the story and reported on the (first ever!) recipient's humorless (or brilliantly funny!) reply.

Harvested from the past and hosted right here on Popehat is that original forum thread:

Original Pirate Resignation Letter Thread

Enjoy this bit of net.history! And if you have anything to add about the people or circumstances, please share what you know in the comments.

UPDATE: There's a new pretender to the helm!

via @copblock:

My favorite quote is in the post title, but I also enjoyed "Each time the SWAT team would rescue a family at the point of a gun" and "they would rush into a home in an armed line".

Thoughts?

One of my favorite features at this blog is Ken's "The Road to Popehat".

While playing around in the admin pages I looked at yesterday's search terms and decided that I should take a stab at it. Ken isn't an IP attorney, so stealing his licks should be safe, right?

Right?

quote you fuck with us we close down the city and find you boston terrorist – I'm tempted to say that someone overheard Rahm Emmanuel talking to his dry cleaner about a mustard stain, but the reference to Boston leaves me a little unsure.

pirate resignation letter – I can't find the document you're referring to, but based on my experience in such things, I'm sure it starts with "Arrr!" and degenerates into a list of complaints about too little rum and too much sodomy.

sex college – given the higher education implosion, I have to give a nod of appreciation to whoever came up the idea of boiling a B.A. degree down to the essentials.

dr steven kirschner tattoo – I expect that in a few days when this visitor sobers up we'll see another search, this time for "dr steven kirschner tattoo removal".

why dos a nabeor keep throwing rocks and making sounds wither ph to heras me becuse i dont want anything to do with her – we don't know, but based on the facts you present, we don't want anything to do with her either.

popehat origin – it involves a family sized bag of Doritos, electricity, and a late night dare. Beyond that, I've been sworn to secrecy.

cure for chewing on fingers – your own or someone else's?

how to dislodge a hotdog – usually I just slap Ken hard on the back and warn him that one at a time is safer.

angry dick – You're not the first one to end up on the 'Clark' author page this way.

pointless carry on story to annoy of failure – you really like that 'Clark' page, don't you?

lesbian wear in grope suit been punish – of course she has; the Guild of Lesbians has a very strict dress code.

what will happen if i don't respond to a lawyer's letter – the whole issue will go away. Trust me. On the other hand, I'm the one non-lawyer here at Popehat.

shooting joe pullen in the face with a badger launchers – I don't even know who Joe Pullen is, and I already love this search.

Now, if you'll excuse me, it's time for me to go offline, draw the shades, and peek out so that I see Angry Ken coming for me.

TL;DR : Cops can be real assholes, you guys.

C.J. Grisham is a stone-cold badass.  I would never say anything awful about him (to his face).

But Mr. Grisham needs to learn him some damn manners. 

Army Master Sgt. C.J. Grisham was on a ten-mile Boy Scout hike with his son in Texas when he was arrested and accused of “rudely displaying” his firearm.  Knowing there are wild boars, coyotes, and cougars in the area, he had an AR-15 rifle slung over his shoulder and was also carrying a .45 caliber pistol, according to Fox News’ Todd Starnes.

Assault level rifle to kill some wild boars?  Why not?! FUCK wild boars.  They taste great in any case.  .45?  Meh, only newbs bring that.  The low fire rate means you'll get maybe one, two guys before you get pegged.  And there goes your kill streak.  The sidearm is a desperation weapon anyway.  In almost all cases unless you're achievement hunting, you're better off just picking up some random's gun.  I like to go for the rapid fire pistols, but then I tend to like the weapons that just spray bullets all over place.  I refer to them as "guns that go THBBBBBT".  I'm good at Call of Duty.

In any case, Ken was busy getting ready for the LA County Furmeet, law something whatever.  Something to do with pandas?  In any case he asks for help dealing with this story.  All I initially hear is that some dude was arrested for "rudely displaying" a firearm.  No shit?  HOW?  Was he twirling it around and shooting it in the air like Yosemite Sam?  It is Texas after all.

He would only be in trouble if he had been carrying the rifle in a way “calculated to cause alarm,” like waving it in the air — not strapped to his chest and pointed towards the ground.

The hell?  That's not rude at all.  Not like…

Riding it like a horsey?

Nah, too unrealistic.  It's too awesome to really be considered "rude".  Plus seriously, why would he not wear shoes?  He's outside with all the dirt and rocks.  Whoever drew this picture is an idiot.

Holding it between his legs and poking people with it like a fully automatic winky doo?

See, I don't buy this one either. Generally you'll want to hang onto it with your hands when you're going to be humpin' away.  And isn't it just a modified version of the horsey-style anyway?  Plus where the hell are the guy's pockets and fly?  Is he wearing tan sweatpants? And what the hell is up with that stupid ass confederate flag belt buckle.  It's almost as if Ken put a note out there a few nights ago and some drunken idiot called dibs and then went to town with MS Paint.  And a fat cop (wearing his pants backward), nice.  Why don't you just give him a pig face and eating some donuts?  Not all cops are fat…

Right

Look, if I see a guy walking around with an AR-15… I'm calling the cops.  That's happening.  But it's just a dude walking with his kid, carrying some weapons for defense against fierce animals.   What I'd expect is police to give him a talking to… and that's it.  What I don't expect is "Bad Boys" to start playing.  Maybe he got a bit smart-alecky; but if that was a crime, this whole blog would be breaking rocks in a re-education camp by now.

Cops have it rough.  For every unbelievably heroic event, such as the recent Boston Marathon Bombing, 9/11, or countless others… there are events like this, where some dude waves a badge and gets his asshole on.  But I think in spite of everything… gun control, 2nd amendment, reasonable bounds on police authoritay, we can all agree on one thing.

Leave Dr. Moreau alone.

Last week we invited Cathy Gellis to guest-post her observations of a hearing in AF Holdings v. Navasca, a Prenda Law case. Today, she gets to guest-post the result: an order that may be the harbinger of how courts will treat Prenda Law and its associated Prendarasts. Cathy practices cyberlaw in the San Francisco Bay Area and maintains a blog at DigitalAgeDefense.org, exploring how criminal consequences have been attaching to technology use and development.

All of Popehat's Prenda coverage is collected here.

———————————————————————————-

Later this week it will be World Intellectual Property Day, the day that the World Intellectual Property Organization has selected for us to appreciate all that intellectual property has to offer us.

Might that include the welcome, and potentially expensive, come-uppance of those who have sought to unjustly abuse its laws for their own enrichment? We are speaking in this instance, of course, of Prenda Law and the latest news of its self-induced misadventures in the San Francisco federal court.

When we last left our heroes Paul Duffy had managed to appear in open court and yet somehow seemingly not directly inculpate himself in Prenda Law's affairs, at least no more than he had done so previously. He was there because Prenda Law is now running for the exits, seeking to dismiss AF Holdings' case against defendant Joe Navasca "without prejudice" — meaning, with the option to re-file. In this particular case it needed the court's permission to do so. As Judge Chen noted in his devasting-to-Prenda ruling today:

Under [Federal Rule of Civil Procedure] Rule 41, a plaintiff may voluntarily dismiss without a court order by filing a notice of dismissal before the defendant serves an answer or a motion for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A). Here, because Mr. Navasca has filed an answer, see Docket No. 20 (answer), AF may dismiss only by an order of this Court and on terms that the Court considers proper. See Fed. R. Civ. P. 41(a)(2).

Prenda did get the order it sought to drop the case — but not on terms it asked for, and certainly not on terms it's going to like.

The judge is always Wright

The ruling began with a summary of the case thus far, a calm, methodical, and accurate recounting that serves to buttress Judge Chen's ultimate decision. Lest there be any doubt, he knew what had happened in Los Angeles. After first discussing how Prenda Law had apparently tried to stay discovery to prevent the (ultimately disastrous deposition of AF Holdings' representative), the court continued:

It is possible that AF was motivated to seek a stay of discovery not only to deprive Mr. Navasca of evidence to oppose AF’s anticipated motion to reconsider but also to prevent adverse information from being brought to light which could be used against it in a proceeding before Judge Wright of the Central District of California. Notably, on February 7 – i.e., the same day that AF filed its motion to stay – Judge Wright issued an order to show cause as to why sanctions should not be issued against AF’s counsel based on, inter alia, the Alan Cooper problem. (emphasis added, more on that later)

[As a wag on Twitter said, "the Alan Cooper Problem" would be an excellent name for a band. -- Ken]

The Judge Chen even noted in a footnote that Prenda Law asked for the stay that very evening. He then went on to note that "the day after Judge Wright’s order to show cause – or in the immediate days thereafter, AF and/or a related entity (Ingenuity 13) initiated voluntary dismissal of numerous copyright infringement cases that they had initiated in federal courts in California." For those cases Prenda Law was able to get out of them "without court intervention and without risk of liability for costs as the defendant had not answered or filed a motion for summary judgment.

But such a smooth escape was not an option here:

In the instant case, the Court finds that, if it were to dismiss AF’s action without prejudice, then Mr. Navasca would in fact suffer legal prejudice in that he would be deprived, at the very least, of the benefit of rulings favorable to him. In other words, the Court finds that AF is seeking to dismiss the case in order to avoid an adverse determination on the merits as well as the effect of other unfavorable, though not necessarily, dispositive rulings of this Court.

Judge Chen listed three examples of very real adverse rulings Prenda Law was facing, which I'll touch on in reverse order. One was that it was trying to avoid the consequences of the ruling requiring the undertaking (in other words, the ruling requiring them to post a bond to cover costs if it lost), like it had to face in the Trinh case. In that case Prenda Law's failure to make the undertaking allowed the defendant to move for an involuntary dismissal, thereby making it eligible for a fee award as a prevailing party. Given that Prenda Law really didn't want to pay for the undertaking in this, the Navasca case. Yet, as Judge Chen noted, Prenda was also unwilling to appeal the order requiring it to post the undertaking despite being given ample opportunity to. This case was therefore inevitably heading towards the same end as the Trinh one, a fate Prenda Law was now trying to dismiss itself out of in order to avoid.

Then there was the second example:

AF also risks an adverse determination on the merits as a result of the investigation that Judge Wright has been conducting in the cases before him in the Central District of California. As Mr. Navasca points out, it is telling that, the day after Judge Wright issued his order to show cause, AF and/or Ingenuity began to initiate voluntary dismissal of a number of cases that it had filed in California. If these cases had validity or if AF had a good chance of prevailing on the merits, then it is hard to imagine that it would give up all these cases.

And then there was the first example.

The Alan Cooper Problem

AF is likely to face an adverse determination on the merits because of its apparent inability to prove standing to assert its claim of copyright infringement. Throughout the proceedings before the Court, AF has never offered a declaration from its representative “Alan Cooper” showing that he was a signatory to the assignment document that purportedly transferred ownership of the copyrighted material at issue to AF.

The Alan Cooper problem is at the heart of Prenda Law's current troubles. Supposedly at some point, an actual copyright holder transferred its copyright to the purported AF Holdings. Had this all worked the way Prenda Law claimed, AF Holdings would now be in the position to fully enforce any rights that copyright entitled to it, just as the predecessor owner would have been. Prenda Law "has staked its position on the argument that the Copyright Act only requires proper authorization for assignment by the copyright transferror, not the transferee," Judge Chen summarized. And proper authorization by the transferor is, indeed, important; we saw what happened in the Righthaven cases when the transfer was improperly done (they ended up getting dismissed). But transferring the copyright is only the first step: it shows that someone has a copyright. It doesn't show that someone has standing to come into court to enforce it. Given that Prenda Law has been unable to substantiate who that someone is, all of these cases have become suspect on that basis. Judge Chen noted:

[I]t is telling that AF moved for a voluntary dismissal only two days after its 30(b)(6) deposition was taken, [that's referring to the ridiculous deposition of Paul Hansmeier as the representative of AF Holdings] during which problems related to its standing were explored and exposed by Mr. Navasca.

And the band of tiny violins played on

As to Prenda Law's arguments for why dismissal was not improper, the court was unimpressed. The complaints of spoliation (that is, destruction of evidence) were not compelling, and, indeed, Judge Chen noted the magistrate's earlier caution to Prenda Law that “allegations of spoliation are extremely serious” and that it should “review the facts very carefully before pursuing this avenue based solely on an eHow.com article. In particular, [AF] should review the expert declaration that Navasca filed with his letter brief, to fully understand the purpose and effect of CCleaner.” (emphasis added)

However, there is no evidence to suggest that AF did that or any other investigation into whether CCleaner would in fact irrevocably destroy electronic files. Furthermore, as the Court noted at the hearing, even if CCleaner did irrevocably destroy electronic files, that might actually work in AF’s favor; in other words, the stronger the evidence of improper spoliation, the better the chance AF stood of obtaining, e.g., an evidentiary sanction or adverse inference in its favor based on the spoliation.

As to the complaint that the undertaking made the case too expensive, the court was also unmoved. First, Prenda Law could have appealed the order but chose not to. It also could have tried to demonstrate its claimed poverty, but it didn't do that either. Instead it claimed the expense made the case not worth pursuing, to which Judge Chen declined to cry them the river they sought.

[T]o the extent AF suggests that it may be financially able to pay, but the bond is simply more than the value of the case, see Mot. at 2 (arguing that Plaintiff cannot “afford to tie up nearly $50,000 in capital simply in order to proceed with its claims against a single infringer”), it ignores the fact that a bond may be required in any given case in California (based on California specific law). As the plaintiff which initiated the action, AF knew at the outset that a bond might be required. A plaintiff cannot invoke the benefits of the judicial system without being prepared to satisfy its obligations as a litigant.

The court then noted that Prenda Law had tried the same move in the Magsumbol case, trying to withdraw the case before it could get hit with an undertaking requirement, an effort that was denied there too.

Alan Cooper's ghost

For all the aforementioned reasons, Prenda Law was granted its motion to dismiss, but with prejudice, thereby making the defendant, Mr. Navasca, a prevailing party able to pursue an award under the copyright statute for the fees he expended in having to defend himself in this case. However, although the ruling was issued today, April 23, it won't be entered (or put into effect) until April 29. That's because Prenda Law needs to do something first.

If you are just now tuning into coverage of this mess, Prenda Law's problem is that it sued ostensibly on behalf of an entity "AF Holdings," the entity that purportedly now owns the relevant copyright. But when called to account for who AF Holdings is, Prenda Law can't or won't do it, leading to the conclusion that it is none other than Prenda Law itself, which would at minimum violate court rules in bringing this litigation and may suggest even more wrongfulness given how it has obfuscated the ownership question. The Alan Cooper problem described above stems from certain paperwork allegedly "signed" by a Mr. Cooper that doesn't seem to exist, thereby creating a fundamental standing issue for all these cases, an which Judge Wright has diligently been exploring.

Ah, but Prenda Law has a workaround. See, AF Holdings is really owned by this trust, one apparently called "Salt Marsh." We learned from an angry, angry filing last week that "Salt Marsh" is arranged for the benefit of the as-of-yet hypothetical and unborn children of Mark Lutz, a former paralegal for Steele and Hansmeier. Who controls and speaks for Salt Marsh? That's not clear. But that didn't prevent Salt Marsh from having "signed" the ADR document earlier in this case. It was a pro forma filing, basically an attestation that each of the undersigned had read the court's rules about alternative dispute resolution (an option parties can often choose to pursue instead of full-on litigation). And it was signed by a "Salt Marsh," although one wonders how a non-human entity could possibly attest to reading anything. [Cathy is not a true geek and therefore doesn't know SHODAN. Forgive her. --Ken] There had to have been a human being behind that attestation. But whom?

That's what the court wants to know: Who actually signed?

Finally, the Court addresses Mr. Navasca’s request that it order AF to produce the original of an ADR certification that was e-filed by AF as Docket No. 8. The ADR certification that was e-filed does not contain any actual signature from an AF representative; rather, there is simply the following e-signature: “/s/ Salt Marsh, AF Holdings Owner.” Docket No. 8 (ADR certification). As Mr. Navasca points out, under the Civil Local Rules, AF’s counsel should have maintained a copy of the ADR certification containing the original signature as a part of its files. See Civ. L.R. 5-1(i)(3) (providing that, in the case of a Signatory who is not an ECF user, the actual filer of the document “shall maintain records . . . for subsequent production for the Court, if so ordered, or for inspection upon request by a party, until one year after the final resolution of the action (including appeal, if any)”). Because Mr. Navasca has asked the Court for relief encompassed by the Civil Local Rules, the Court grants the request. AF’s counsel is hereby ordered to produce the original of the ADR certification, containing the original signature of “Salt Marsh” by April 29, 2013. If AF’s current counsel does not have the original document, then it must contact former counsel to obtain the document. On April 29, AF’s current counsel shall also file a declaration with the Court, stating whether it was able to provide a copy of the original document and, if not, why not.

(emphasis added)

Like a con artist who's taken a few too many marks with his shell game, Prenda Law is being compelled by the court to reveal how its magic has worked. We'll see in a few days what it will say.

—————————————————————-

Ken's postscript: Thanks to Cathy for following up on her observations of the Navasca case. This order is a body blow to Prenda Law. Judge Chen — who recently awarded substantial attorney fees against the infamous Charles Carreon in a case in which Cathy is co-counsel [edited: oops, no it wasn't -- that was a different judge] — is openly suggesting that Prenda's conduct suggests malfeasance and evasion of potential negative rulings. He invited Navasca to file a separate motion for fees, and this order strongly suggests that he will grant such a motion. Judge Chen's dismissal of Prenda's "it doesn't matter if Cooper's signature is forged" argument suggests that he suspects that Prenda's entire litigation strategy is premised on fraud — that Prenda has manufactured the dispute, and that AF Holdings is merely a front for Prenda Law lawyers. Finally, Judge Chen's order that Paul Duffy produce the original "Salt Marsh" signature presents a conundrum for Duffy. Brett Gibbs was Prenda's counsel in this case at the time when Prenda Law filed this case, and probably is the one with direct knowledge of the document purportedly electronically signed by Salt Marsh. Gibbs and Duffy are not currently on very friendly terms. If asked, what will Gibbs say? What can Duffy say under oath, in a declaration, about the Salt Marsh signature without digging himself deeper into this situation? It's bad, very bad, for Prenda — and like the transcript of the hearing before Judge Wright at which Prenda took the Fifth, you can expect attorneys across the country to file this order in Prenda Law's surviving cases.

Courtesy of Doug Mataconis, I see that the U.S. Attorney for the District of Massachusetts has charged Boston Marathon bombing suspect Dzhokar Tsarnaev.

The complaint and supporting affidavit, again courtesy of Doug, are here. At the time I write this, there's nothing on PACER yet.

A few observations about the complaint, and explanations of how this works:

1. Wait, what's a criminal complaint, exactly? As I explained last week, a criminal complaint is one way to begin a federal criminal case. To get one, a federal agent, with (Lord help us, hopefully) a federal prosecutor assisting, drafts an affidavit explaining the facts supplying probable cause for the federal charges sought. The agent takes the complaint to a United States Magistrate Judge. (Magistrate Judges are not Article III judges appointed by the President and approved by the Senate; they are selected by the Article III United States District Judges of any particular district to handle certain types of matters.) If the Magistrate Judge agrees that the affidavit supplies probable cause, he or she signs the complaint and (if sought) arrest warrant.

2. When did they get this complaint? Note here that the Magistrate Judge signed the complaint Sunday night. The government arrested Tsarnaev without a warrant on Friday, but wanted to ensure they obtained the prompt determination of probable cause the Constitution and Federal Rules of Criminal Procedure require.

3. What is he charged with? The complaint charges Tsarnaev with two federal crimes: use of a weapon of mass destruction under Title 18, United States Code, Section 2332a and malicious destruction of property resulting in death in violation of Title 18, United States Code, section 844(i).

4. A weapon of mass destruction? Really? Yes, because that's a term of art. (People paying attention to the news for the last 12 years knew that already.)

Here's what 18 U.S.C. 2332a says, in pertinent part:

A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction—

. . .

(2) against any person or property within the United States, and
. . . .

(B) such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
(C) any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
(D) the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce;

. . . .

shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.

In other words, if you use a WMD against a person or property in the United States, and there's an interstate commerce hook to provide a justification for federal jurisdiction, it's a federal crime. The Boston Marathon absolutely impacts interstate commerce; one could dispute how the law got that way, but that's pretty clearly the law.

The statute defines "weapon of mass destruction," for purposes of explosives, like this:

the term “weapon of mass destruction” means—
(A) any destructive device as defined in section 921 of this title

Dammit. Can't you people keep everything in one place? Okay. Title 18, United States Code, section 921 defines "destructive device" to include this:

The term “destructive device” means—
(A) any explosive, incendiary, or poison gas—
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;

If you're thinking that seems to mean the feds can charge anyone with use of a Weapon of Mass Destruction based on the use of anything that can be described as a "bomb," you'd be right. However, as an American, I live in confidence that the government would never exaggerate the existence of WMDs.

5. So, what does the government have to prove? On the WMD count, they have to prove that Tsarnaev "(1) knowingly used, or attempted or conspired to use, a weapon of mass destruction, and (2) knowingly did so against persons in the United States."

6. What about the destruction of property charge? I'm glad you asked! Here's what that statute says:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.

This crime requires proof of the following elements: that Tsarnaev (1) maliciously; (2) damaged or destroyed a building; (3) by means of fire or explosive; and (4) the building must have been "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce."

7. So, how is the affidavit in support of the complaint? The affidavit in support of the complaint is not terrible. It establishes probable cause by (a) the FBI agent's testimony that he has reviewed a video showing a suspect leaving a backpack at the site of the explosion, and that having viewed Tsarnaev believes that Tsarnaev is the one on video dropping the backpack and acting suspiciously afterwards, (b) that two carjackers bragged to their victim that they had committed the bombing, and that the carjacker who wound up dead was identified by fingerprints as Tsarnaev's brother, and that the other carjacker was caught on video at an ATM and is identifiable as Tsarnaev, (c) the marathon bombs and the bombs found at the scene of the post-carjack shootout used similar elements, including a pressure cooker, and (d) a search of Tsarnaev's room revealed a hat and jacket that appear to be the ones in the video of the suspect who dropped the backpack at the marathon. The agent also alleges facts sufficient for this stage to suggest the marathon explosion impacted interstate commerce.

That's more than enough for probable cause.

My criticism of the affidavit is that the attribution is sloppy. Attribution is the practice of making it clear how the affiant knows each fact stated in the declaration. "On April 20 I spoke to Police Officer Smith, who told me that earlier that day he searched the scene described above and found a piece of a pressure cooker," is an attempt at attribution; "police found a piece of a pressure cooker at the scene" is not. Here the FBI agent does a generic gesture at attribution by saying everything in there was learned from law enforcement. It's not as bad as the genuinely awful probable cause affidavit against George Zimmerman, but it's sloppy, and bad practice. The feds are generally better at attribution, and I would have expected more care in the most high-profile case in the United States. Ultimately, it probably won't make a difference.

8. Is this really all the government has on Tsarnaev? Probably not. They are just starting to devote vast resources to interviewing witnesses, tracking phone traffic, examining financial records, and evaluating bomb components. There's no reason to put more than is necessary in the affidavit; it only leaves the witness more vulnerable to cross-examination later.

9. So what happens next? I described that here. Short answer: once he's well enough he appears in court, and the feds swiftly seek an indictment from a grand jury.

Edited to add: The New York Times reports that a magistrate conducted an initial appearance hearing at Tsarnaev's bedside. The transcript is here. The government and Tsarnaev's lawyer agreed to set the deadline for a preliminary hearing at the end of May, which may signify that Tsarnaev and his attorneys will attempt to resolve the matter with a plea. Normally the judge would be required to set the preliminary hearing within 14 days, and the government would rush to indict before then. But if the defense is contemplating the possibility of waiving indictment and pleading guilty, they might waive that deadline as they have today. The defense doesn't need time to prepare for a prelim — there won't be one, the feds will obviate the need for the prelim by indicting. The defense doesn't have any role in the indictment. The defense might need more time for Tsarnaev to recover from his wounds, but they could get that from the assigned United States District Judge after the feds indict. Generally the only point in stipulating to a long period before the prelim is negotiation.

Edited again to add: I forgot one point. The indictment, if there is one, will very likely charge an array of other federal crimes. Complaints are often narrower than the indictments that follow; there's usually no need to make them broad.

A reminder: there's a link in the left sidebar that takes you to the Popehat forums.

After you register, you can read and post even more Popehat themed bull.

Available varieties of bull include:

• Colosseum – A forum for all types of games.
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• Popehat adoption forum – (to read and write here you need to register on the forums, and then send Ken a personal message to join.)

Hi, this is Ken. Normally I wouldn't hijack a co-blogger's post. But if Clark were paying attention he'd know the forum software is returning false "you've been banned" messages to people trying to register. People then email me. All day. Every day.

Hi, this is not Ken.  Normally I wouldn't hijack a co-blogger's post either, and instead would be doing something constructive for society like keeping the streets of the city I live in zombie free.  Being one of the founding members, I can take these liberties and I don't see any reason to sugar coat that particular aspect, unlike Ken who  would like you to maintain calm but is abusing his powers for nefarious purposes.  I digress.  The forums are getting replaced wholesale because phpBB3 sucks goat ass.  Well, the vast body of existing forum software sucks goat ass, point of fact.  Something that didn't finally materialized earlier this year.  It is our hope that we'll be taking all of the data with us but we can't offer any definitive details.  Stay tuned.

Clark, you will pay. Don't think you won't pay.

Ken here. STOP HIJACKING MY HIJACK OF THIS POST. It appears that forum registrations are now working. I am activating them as they come in.

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

The Prenda Law crew has been up to shenanigans for many months, and Ars Technica and Techdirt and Die Troll Die and Fight Copyright Trolls were all doing great work covering them long before I took notice. I was preoccupied by crucial legal issues like Bigfoot and ponies and thus-and-such until Prenda Law blundered into my core area of interest: bogus defamation suits calculated to silence critics.

My first post about Prenda explained how Prenda Law and its principals Paul Duffy and John Steele filed three defamation suits in three federal districts against Alan Cooper (the man who accuses Prenda of stealing his identity as a front man for fake plaintiff entities), Paul Godfread (Cooper's lawyer), and various unnamed John Does. I also reported when Alan Cooper seized the initiative and filed counterclaims against Prenda Law and Paul Duffy. Steele shrewdly dismissed his defamation suit in Florida before Cooper could counterclaim.

Today there were updates in the defamation cases — anti-SLAPP motions filed by Godfread and Coooper. In addition, Morgan Pietz — whose defense of John Doe defendants has led to Prenda's downfall — filed his promised supplemental brief before Judge Wright. Meanwhile, in Florida and Arizona and San Francisco, attorneys nip at Prenda's heels.

April is the cruelest month for Prenda. You might want to grab a sandwich; there's a lot going on, and this will take a while.

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Nothing funny or legal or dramatic to see here. Mushy stuff. Move along.

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All of my coverage of the saga of Charles Carreon, his threats against Matthew Inman of The Oatmeal, and his dispute with a satirical blogger are collected here.

When I write about prolonged bad behavior in the legal system, I often get angry comments from people who say "when will the system impose consequences on people who act this way?" Take heart, I respond. The wheels grind slowly, but they grind. "Bullshit," comes the response. "Prove it."

Very well. How about an order requiring Charles Carreon to pay $46,100.25 in attorney fees?

Charles Carreon became infamous when he rashly threatened Matthew Inman of The Oatmeal, leading to infamy and spectacle. Later he made very foolish and extravagant threats against a satirical blogger, leading to a declaratory relief action against him. He evaded service for a while, then capitulated in that case, but has been fighting over whether he should have to pay attorney fees.

Today a federal judge in the Northern District of California granted the motion for fees by the satirical blogger, granting $46,100.25 in fees to the blogger's attorneys, Paul Alan Levy of Public Citizen and attorney and blogger Cathy Gellis. They had been seeking a total of $77,765.25.

Judge United States District Judge Richard Seeborg's order awarding fees is devastating to Carreon. Judge Seeborg rejects Carreon's arguments one by one, and finds Carreon's litigation conduct rendered the case exceptional, justifying a partial award of fees under the Lanham Act:

While defendant’s threatened claims were not “exceptional” at the outset of this case, defendant’s actions throughout the litigation certainly transformed this case into an “exceptional” matter, deserving of an award of attorney fees. The Ninth Circuit has stated that “bad faith or other malicious conduct satisfies the exceptional circumstances requirement.” Boney, 127 F.3d at 827. Evidence supports a finding of malicious conduct during the course of this case. Defendant first went to great lengths, imposing unnecessary costs on plaintiff, to avoid service. Then, in response to this motion for attorney fees under the Lanham Act, defendant engaged in unnecessary, vexatious, and costly tactics in preparation of his opposition to the motion. The Ninth Circuit discourages major litigation with respect to attorney fees. See, e.g., Camacho, 523 F.3d at 981; Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“A request for attorney’s fees should not result in a second major litigation.”). Defendant’s serving of interrogatories and taking of plaintiff’s deposition amounted to a mini-trial on plaintiff’s motion for fees. Indeed, plaintiff incurred an additional $37,650.25 in fees and costs after his motion was filed. Despite this additional discovery, defendant has presented no evidence to support his initial contention that plaintiff’s attorney is on a mission to “turn Internet gripe sites into profit centers for him and
Public Citizen Law Group.” Doc. #45, at 4. Defendant has failed to show that his additional discovery efforts led to anything other than additional frustration for plaintiff and his attorneys. Accordingly, plaintiff’s efforts to respond to defendant’s litigation tactics merit the imposition of a fees award.

Judge Seeborg rejects Carreon's argument that the settlement precluded an award of attorneys fees. Carreon drafted his own offer of judgment. He could have made it clear that the offer precluded fees. He didn't.

Defendant cannot now escape the consequences of his inartful drafting.

Charles Carreon could have escaped with a much lower award, or no award at all. The court declined to award fees for the filing of the declaratory relief suit itself, or for the brief litigation of its substance, finding that Carreon's initial threats did not render the case exceptional under the Lanham Act. The bulk of this order — $37,650.25 — results from Carreon's bizarre discovery demands in response to the motion for fees itself, which the court described as "unnecessary, vexatious, and costly." Most of the rest of the order — $8,450 — results from Carreon's evasion of service. So, instead of facing a costs bill for a few thousand dollars at most, Charles Carreon is facing a bill for $46,100.25. Character is destiny.

There are consequences for bad behavior. They come slowly. But they do come.

Note: I was going to wait for Paul Alan Levy to write about this first, since it's his win based on his work. But Adam Steinbaugh and Mike Masnick scooped me.

Edited to add: Paul Alan Levy offers his thoughts, plus some very kind words for which I am grateful.

Here's a story I've told before: many years ago, a friend's client was being arrested in a case that had made local newspapers. The DA investigators showed up early one morning at the client's house to arrest him, cuffed him, and put him in their car. Then a reporter and photographer — tipped by someone on the prosecution side — showed up, late. They complained to the DA investigators that they had missed the perp walk — the iconic shot of the defendant being led away in handcuffs. The DA investigators obligingly got the client out of the car, walked him back into his house, and then turned around and walked him back to the car so that the photographer could get his perp-walk shot. The paper in question ran the perp-walk shot, but didn't mention that the cops had staged it. To the journalists involved, a picture of a suspect in handcuffs is news; the willingness of law enforcement to stage that picture is not news.

That too-cozy relationship between the press and law enforcement drives coverage of criminal justice in this country, which contributes to bad things — uncritical support for the "law and order" mindset, exaggeration of the risks of crime, insufficient coverage of misconduct and abuse, and journalism by spectacle. The relationship also encourages law enforcement to view journalists in an autocratic and entitled manner.

This phenomenon explains why I have mixed feelings about Fox News reporter Jana Winter's decision to risk jail to protect the source of a leak about the James Holmes prosecution in Colorado. You can read more about that story at Patterico or A Public Defender.

Jana Winter reported on a leak from someone she called a "law enforcement source," reporting that James Holmes, the apparent perpetrator of the Aurora theater massacre, had mailed a notebook filled with murder plans to a University of Colorado psychiatrist. Holmes' attorneys want to discover the source of the leak, arguing that the government violated a gag order issued by the court. Winter has been facing the stark choice between revealing a confidential source and going to jail for contempt.

It's imperative that we protect press rights vigorously under the First Amendment. Confidential sources are crucial tools in reporting important stories, informing the public, and uncovering misconduct. Many jurisdictions have laws protecting reporters who want to keep their sources confidential. That's a good thing.

But those are not the only values in play.

When journalists accept inside information from the government — from whatever source — they are making value judgments about what is news and what is not. When the journalists in my story ran a perp-walk picture, they made the judgment that a picture of someone in handcuffs is newsworthy and cops staging pictures is not. When Winter ran this story, she made the judgment that a scoop of Holmes' pre-massacre threats was newsworthy, and the willingness of law enforcement to violate a gag order was not. In making that choice, Winter and journalists like her necessarily abandon certain lines of inquiry. What's the purpose of this leak? Is it truly a leak from a rogue insider, or is it orchestrated by the prosecution? How does it help the prosecution's case or hurt the defense? Is it part of a pattern of leaks by this agency in certain types of cases? What laws did it violate? Has anyone with this agency ever been held accountable for leaks? Should they be? Was every part of the leak accurate, and how was that accuracy investigated?

When journalists make that value judgment, their choice is informed by their relationship with law enforcement — a relationship characterized by too much deference, uncritical acceptance, and interdependence. The choice is also informed by the modern media sensibility that favors sensationalism, the fast news cycle, and if-it-bleeds-it-leads thinking. Splashy stories about horrors are favored; complex stories about structural and cultural problems with criminal justice are disfavored.

Journalists will have you believe that when they print leaks from law enforcement they are keeping the public informed and promoting the free flow of information. Perhaps they are. But they are also acting as the tools of the government — whether willingly, indifferently, or ignorantly. The government leaks information — often in violation of law, often in violation of the defendant's constitutional and statutory rights — to control the narrative about the case, and to inflict unofficial punishment on suspects and defendants. This is an abuse of state power. The profession of journalism seems to have decided, collectively, that this abuse of power is not the story, or that it is, that it is outweighed by the benefits the public reaps from the abuse of power. Even though journalists claim that this decision is in service of the search for truth, sometimes it leads to participation in lies. Consider, for example, the scandal that surrounded the BALCO grand jury investigation, in which a defense attorney leaked grand jury transcripts to the media and then accused the government of doing it, seeking to have his client's case dismissed on that basis. In that case the defense, not the government, was the wrongdoer, but the media was an instrument of untruth and obstruction of justice. The journalists in that story valued protecting their sources of leaks above telling the public the truth about grave accusations of misconduct.

I'm not saying that laws shielding journalists are wrong. I'm not saying Jana Winter should go to jail. I'm saying this: maybe we should start asking journalists why they don't investigate leaks rather than accepting them. Maybe we should question the media's value judgments when it decides what misconduct is news, and what misconduct isn't. Maybe we should respond to leaks not with glee at getting inside dirt, but with demands that the government be held accountable for its conduct.

Former Diablo 3 Director Jay Wilson discusses Diablo 3's Auction House

He thought they would help reduce fraud, that they'd provide a wanted service to players, that only a small percentage of players would use it and that the price of items would limit how many were listed and sold.

But he said that once the game went live, Blizzard realized it was completely wrong about those last two points.

No shit.

That, said Wilson, made money a much higher motivator than the game's original motivation to simply kill Diablo, and "damaged item rewards" in the game.

 

"I think we would turn it off if we could," Wilson said during his talk.

Blizzard, Wilson said, doesn't want to remove a feature that lots of players will be unhappy to see go. But he did say that the team is working on a viable solution, without giving any other details about what that would be like.

Buy Torchlight 2.

It was a bad one.

There was a police state.

My dogs almost fell off the roof of a six story rickety slum structure that looked like Kowloon Walled City.

Massive trains pulling huge industrial equipment cut across the streets without warning.

A naked man took me hostage and grabbed me in a surprisingly intimate way.

Anyway, getting on to the part that was bad:

I voted.

All of which is to say that I've had a long-form blog post bubbling up for several weeks with a tentative title of "democracy: end or means? (why it should be neither)".

My hope is by making a public commitment (and thus shaming myself if I don't deliver the post by, say, 31 March) I'm going to goad myself into writing it.

Please feel free to mock me if the post doesn't arrive on schedule.

P.S. Don't do a google image search for "public commitment" where anyone can see your monitor. Trust me on this.

P.P.S. Seriously, I did have the above mentioned dream. It was freaky.

So I'm doing an Ask Me Anything On Reddit today, 1-4 PST.

Here.

Behave.

Edit: Done. That was fun.

My prior coverage of the Prenda Law saga is here.

Shortly before noon on Thursday, March 14 — three days after a dramatic hearing at which he expressed grave concerns about the operations of Prenda Law — United States District Judge Otis D. Wright II has issued a new Order to Show Cause directing principals of Prenda Law to appear before him, this time on March 29, 2013 at 10:30 a.m. [Edit: As is noted below, this has been moved to April 2, 2013 at 10:00 a.m.]

The order is here.

Here's what the order does, and the significance of its terms.

First, the judge retroactively denies the Prenda principals' ex parte request that he lift his order requiring them to appear. Judge Wright concludes — absolutely correctly based on the evidence, I submit — that he has jurisdiction over them. He also blasts them for their last-minute filing evading the March 11 appearance:

The Court has received the Ex Parte Application filed on behalf of John Steele,
Paul Hansmeier, Paul Duffy, and Angela Van Den Hemel, requesting the Court to withdraw its March 5, 2013 Order requiring their attendance on March 11, 2013.

Based on the papers filed and the evidence presented during the March 11, 2013 hearing, the Court concludes there is at least specific jurisdiction over these persons because of their pecuniary interest and active, albeit clandestine participation in these cases. Not only does the Ex Parte Application lack merit, its eleventh-hour filing exemplifies gamesmanship. Accordingly, the Ex Parte Application is
DENIED.

Specific jurisdiction means jurisdiction over a particular case (like this one), as contrasted with general jurisdiction, which means jurisdiction in any case anyone might care to bring. In other words, Judge Wright is suggesting that their actions in this case subject them to personal jurisdiction in connection with this case. Note the "albeit clandestine" line, a reference to Judge Wright's conclusion — supported by evidence in the record — that Prenda Law principals are concealing their financial interest in the putative clients acting as plaintiffs in their cases.

Next, Judge Wright gives a taste of what he has concluded:

The March 11, 2013 hearing raised questions concerning acts performed by other persons related to Prenda Law, Inc., Steele Hansmeier PLLC, Livewire Holdings LLC, AF Holdings LLC, Ingenuity 13 LLC, and 6881 Forensics, LLC. The evidence presented suggests these persons may be culpable for the sanctionable conduct explained in the Court’s February 7, 2013 Order to Show Cause, which the Court previously attributed to Brett Gibbs only. Further, it appears that these persons, and their related entities, may have defrauded the Court through their acts and representations in these cases.

Next, Judge Wright announces what he is ordering:

Thus, the Court amends its February 7, 2013 Order to Show Cause (ECF No. 48) to include sanctions against the persons and entities in subparagraphs a–m below:

a) John Steele, of Steele Hansmeier PLLC, Prenda Law, Inc., and/or Livewire Holdings LLC;

b) Paul Hansmeier, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;

c) Paul Duffy, of Prenda Law, Inc.;

d) Angela Van Den Hemel, of Prenda Law, Inc.;

e) Mark Lutz, of Prenda Law, Inc., AF Holdings LLC and/or Ingenuity 13 LLC;

f) Alan Cooper, of AF Holdings LLC;

g) Peter Hansemeier, of 6881 Forensics, LLC;

h) Prenda Law, Inc.;

i) Livewire Holdings LLC;

j) Steele Hansmeier PLLC;

k) AF Holdings LLC;

l) Ingenuity 13 LLC; and

m) 6881 Forensics, LLC.
These persons and entities are ORDERED to appear on March 29, 2013, at 10:30 a.m., TO SHOW CAUSE for the following:

1) Why they should not be sanctioned for their participation, direction, and execution of the acts described in the Court’s February 7, 2013 Order to Show Cause;

2) Why they should not be sanctioned for failing to notify the Court of all parties that have a financial interest in the outcome of litigation;

3) Why they should not be sanctioned for defrauding the Court by misrepresenting the nature and relationship of the individuals and entities in subparagraphs a–m above;

4) Why John Steele and Paul Hansmeier should not be sanctioned for failing to make a pro hac vice appearance before the Court, given their involvement as “senior attorneys” in the cases; and

5) Why the individuals in subparagraphs a–g above should not be sanctioned for contravening the Court’s March 5, 2013 Order (ECF No. 66) and failing to appear on March 11, 2013.

Judge Wright is demanding, in other words, that all the individuals and entities associated with Prenda Law show up and explain why they shouldn't be sanctioned for the full range of conduct he has been investigating: allegations that they filed lawsuits without adequate investigation of the identity of the John Doe defendants, allegations that they participated in fraud by using Alan Cooper's name as a fraudulent head of a shell company, allegations that they hid the true owners of the putative plaintiffs, allegations that they failed to appear as the true lawyers in the cases instead of using local counsel, and their failure to appear as ordered on March 11, 2013.

And if they don't?

Should the persons and entities in subparagraphs a–m above not appear on March 29, 2013, the Court is prepared to draw reasonable inferences concerning their conduct in the cases before the Court, including any inferences derived from their failure to appear. Failure to comply with this order will result in the imposition of sanctions.

The individuals named in the order are in a bind. On the one hand, an angry and motivated federal judge is considering sanctioning them. On the other hand, the same judge is accusing them of a broad scheme to defraud the court. I respectfully suggest that they should only submit to questioning about their conduct after a very serious discussion with competent attorneys about their constitutional rights.

Edited To Add: Judge Wright has moved the new hearing to April 2, 2013 at 10:00 a.m. The order appears to be a mere scheduling issue, not anything of substance.