Prenda Law shall troll no more.

[40hz]

Well, it happened. And it's enough to start a new thread for...

Today, a cast of characters employed or involved with Prenda Law (a firm we've been discussing here) faced the full wrath of a federal district judge in California over his suspicions of fradulent behavior in bringing cases alleging copyright infringement before his court.

It was a grim morning in the courtroom, in which all those ordered to appear involved invoked their Fifth Amendment right to refuse to answer questions in order to avoid possible self-incrimination. Our good buddy attorney Ken White over at Popehat made this observation (emphasis added):

I'm a criminal defense attorney. I cherish and support the Fifth Amendment. Its invocation here was completely lawful. But its invocation will have catastrophic consequences for the Prenda Law enterprise, which cannot possibly continue. When they appeared today, John Steele, Paul Hansmeier, and Paul Duffy were not merely individuals facing the overwhelming power of the state. They were also officers of the court and, according to the testimony of Brett Gibbs, the very attorneys who directed nationwide litigation for the Prenda Law enterprise. Judge Wright ordered them to answer for the conduct of that enterprise in his court, as he had the right and power to do. Their invocation of their Fifth Amendment rights in the face of that order is utterly unprecedented in my experience as a lawyer. In effect, the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution.

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[TaoPhoenix]

This is that point when in the normal world we all say "Bad Trolls. Go Away".

However there is a small LED flashlight/torch on in the Basement where we wonder "Was it really that easy?!" You know, silly lawyers doing mean things on an epic scale and expecting ... what? Look at the chart in one the links. Those guys are young. Did they really throw an entire law career away on this just like that? That fast?

[Tinman57]

  True justice would be disbarring those lawyers involved in this scam, fining the hell out of them, and putting all their asses in jail.

[TaoPhoenix]

  True justice would be disbarring those lawyers involved in this scam, fining the hell out of them, and putting all their asses in jail.

I'd like to see one more - some judicial advisory precedent to future courts so that they or their proteges can't just bubble back up and do it all over again in similar circumstances.

[Tinman57]

  True justice would be disbarring those lawyers involved in this scam, fining the hell out of them, and putting all their asses in jail.

I'd like to see one more - some judicial advisory precedent to future courts so that they or their proteges can't just bubble back up and do it all over again in similar circumstances.

  Yeah, that too! 

[40hz]

They really don't need an advisory in that most federal justices will defer to precedents set by other rulings. They're not necessarily obliged to do so. But in most cases they will. So the simple fact this is on record bears substantial weight throughout the federal court system.

What's really at issue here is the validity of John Doe warrants based on no more evidence than an active connection on a given IP address at the time of the alleged infringement. Dubious at best - and considering how an IP address can be spoofed, hardly incontrovertible proof of guilt. But unfortunately, little of this current sideshow (beyond judge Wright's earlier skepticism) addresses that issue. As Wright said at the hearing:

"It should be clear this court's focus has shifted dramatically from litigation of intellectual property rights to attorney misconduct — such misconduct as brings discredit to the profession,"

So right now it's all about Prenda's abuse of the legal process and professional misconduct. And that alone is what they're in real trouble for. Not for bringing such weak cases before the court, but rather for the procedural shenanigans they tried to pull when they did so.

What is truly unfortunate is the fact this all revolved around lawsuits for downloading pornography - an industry judge Wright can play hardball with without fear of much in the way of public censure. Had this been the RIAA or MPAA things might have gone differently - although I doubt either group would have been so foolish as to let their lawyers play so fast and loose with the law that they'd be in this situation to begin with. (Credit where credit is due, I guess. Sorta.)

Either way, it's pretty apparent that most of the parties involved will loose their license to practice law. And a few will likely face some jail time too. And that's about as good as it will probably get.

But for the time being, it's enough.

Onward!

[kyrathaba]

At least it sends a message to the world of those practicing law: Hmm, better actually pay attention to my duty to the law and what's ethically acceptable...

[app103]

Did anybody stop to wonder where they originally got the IP addresses of the people they extorted?

What if they set up a website somewhere meant to appeal to a certain demographic, one most likely to suffer the greatest embarrassment, and logged the IP addresses of those that accessed it?

What kind of evidence do lawyers have to present to convince a judge to order an ISP to reveal the identity of the customer that had that IP address at the stated date & time?

Is it as simple as "We logged this IP address. See, here's the log"? Does anyone ever really question what the logs are really from?

How hard is it to fake "evidence" to make a person look guilty? Does anyone ever question the authenticity of the evidence?

Could one set up a site providing information on menopause or prostate cancer, log the IP addresses of those that access it, and then accuse them of copyright infringement, claiming they were sharing porn?

[kyrathaba]

Scary questions, app. And the answer is ... I don't know. Could something like that happen? Sure seems possible in today's low-morality screwed-up legal system.

[TaoPhoenix]

Damn App, you hit the iceberg with a hammer. Because you're right:
**AA: "Your Honor, ____ Doe as represented by IP# _____ infringed my IP material."

And as we are learning from email spoofing and robocall spoofing, when the "prize" is in thousands of dollars per entry-item, what exactly stops more twerps from playing the Prenda game? That's why I was calling for strong judicial guidance, because the **AA has gathered lots of allies trying to assist them in their agenda.

And I have to keep mentioning the cautionary tale of Righthaven, which was sorta Prenda's predecessor, and they basically got off scott free. Where was this judge in that case?

And remember SCO? Remember how that managed to drag on for years with very little proof?

So yes, the law is quite erratic.

[40hz]

Did anybody stop to wonder where they originally got the IP addresses of the people they extorted?

Yes. And it was this same federal district judge by the name of Otis Wright - who basically called BS on the core approach Prenda Law was taking.

In his Order to Show Cause ruling back in December of 2012 he openly challenged the use and veracity of nothing more than an IP address when filing a lawsuit such as this one. He also noted the potential for harm and coercion if it were allowed to go forward.

The Court is concerned with the potential for discovery abuse in cases like this. Ingenuity 133 accuses the Doe Defendant of illegally copying a pornographic video. But the only information Ingenuity 13 has is the IP address of the Doe Defendant. An IP address alone may yield subscriber information. But that will only lead to the person paying for the internet service and not necessarily the actual infringer, who may be a family member, roommate, employee, customer, guest, or even a complete stranger. Malibu Media LLC v. John Does 1–10, No. 2:12-cv-01642-RGK-SSx, slip op. at 4 (C.D. Cal. Oct. 10, 2012). And given the subject matter of Ingenuity 13’s accusations and the economics of defending such a lawsuit, it is highly likely that the subscriber would immediately pay a settlement demand—regardless whether the subscriber is the actual infringer. This Court has a duty to protect the innocent citizens of this district from this sort of legal shakedown, even though a copyright holder’s rights may be infringed by a few deviants. And unlike law enforcement in child pornography or other internet crime cases, the Court has no guarantee from a private party that subscriber information will not abused or that it would be used for the benefit of the public. Thus, when viewed with the public interest in mind, the Court is reluctant to allow any fishing-expedition discovery when all a plaintiff has is an IP address—the burden is on the plaintiff to find other ways to more precisely identify the accused infringer without causing collateral damage.

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

I am really starting to like this judge.

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[wraith808]

The sad part?  Everything that he says is simple common sense. 

[app103]

OK, but that still assumes they got the IP addresses from an actual investigation into copyright infringement, from instances of file sharing and not acquired through the logs of activity unrelated to file sharing or copyright infringement.

It takes into account that multiple people could have had access to an IP to use it for file sharing and questions the method they will use to find the correct person that had access to it and did the infringing.

It does not question the method used to even come up with an IP, in the first place. It does not ask them to prove an IP was involved in file sharing. It still just takes their word for it.

They still could have come from access logs related to a website on menopause or prostate cancer.

[40hz]

It does not question the method used to even come up with an IP, in the first place. It does not ask them to prove an IP was involved in file sharing. It still just takes their word for it.

That's not what I'm reading.

The process of legal discovery and the rules of evidence are complex and I'm definitely not the best qualified person to try to discuss them. But from what I think I understand about how it works, our court system (in the absence of unimpeachable eyewitnesses to an act) relies on a preponderance of evidence to establish the proof of a claim.

So what the court seems to be saying is that an IP address alone is not  (in the court's opinion) sufficient evidence in and of itself to proceed with an intrusive discovery process.

I think the judge (quite correctly) has left the door open that an IP address could be admissible as corroborating evidence once something more reliable has been used to identify an alleged perpetrator.

It's like saying just having an IP address isn't sufficient evidence to accuse somebody of something. But if you were able to ID the person through a more direct, specific, and reliable forensic - then the fact you could also show a link to the person via an IP address (which points to the accused's location at the time of the violation)  would likely be acceptable and admissible as evidence at that point because it adds to the preponderance of evidence proving guilt.

Really not that different from using a credit card purchase to show the accused was in the general vicinity of the crime which they were being accused of despite their assertions they were 200 miles away at the time of the crime.

But by the same token, that's supporting evidence. Just combing through all the credit card transactions for twenty-four hours before and after a crime had been committed - and then cross matching them to anybody with a prior criminal record - wouldn't be enough to get a most judges to issue 50 warrants "just in case."

And John Doe warrants have never been very popular with most judges since they're ripe for abuse. About the only time I've ever heard of JD warrants being issued is for unnamed accomplices after one or more named warrants had also been issued. Like when a robbery takes place, and the witnesses say there were four gunman. If one or two suspects had been ID'd by a camera or another witness, a warrant would likely be issued for those individuals along with JD warrants for the remaining number since there isn't anything to attach a name to other than the fact the accused obviously had help.

So no, I don't think Wright erred in not slamming the door on using any IP address as evidence. But I do think he was correct in saying you needed more than just that to ask the court to force an ISP to disclose the identities of subscribers associated with those addresses. Primarily because there isn't enough of a direct link to justify something that intrusive and potentially damaging to the reputations of those who might accused.

He's basically saying "I need something a lot better than that. Bring me a name first. Then I'll consider having the ISP say whether or not there's a match to that specific name with one of the IP addresses you've furnished."

I think that's a good and very reasonable call on the judge's part.

[app103]

It's still too easy to fake it all, frame someone, then go after them, threaten to sue them, extort money from them. And I won't go into the details of how, lest some greedy lawyer or rep from one of the **AAs come across my post and get some bright idea of trying it.

Send me a PM if you really want to know how....I could give you a step-by-step how-to that would be quite easy to do and might make you wish you were an evil lawyer, when I am done.

[40hz]

It's still too easy to fake it all, frame someone, then go after them, threaten to sue them, extort money from them.

I agree. But there are also tons of other ways to do that without needing to reference an IP address. This is just the proof that nobody keeps up with the times or technology better than the evildoers.

And I won't go into the details of how, lest some greedy lawyer or rep from one of the **AAs come across my post and get some bright idea of trying it.

Agree. At least don't post it on an open forum.

[tomos]

Two arstechnica links:

“Look, you may hate me”: 90 minutes with John Steele, porn troll (May 10th)
and
Prenda hammered: Judge sends porn-trolling lawyers to criminal investigators (May 7th)

(havent read the second/older one yet)

[TaoPhoenix]

Yep. Prenda-gang is "bawck".

Slashdot's copy:

New Prenda Law Shell Corp Threatening to Tell Your Neighbors You Pirated Porn
http://yro.slashdot.org/story/13/05/14/0134224/new-prenda-law-shell-corp-threatening-to-tell-your-neighbors-you-pirated-porn

[Stoic Joker]

New Prenda Law Shell Corp Threatening to Tell Your Neighbors You Pirated Porn
http://yro.slashdot.org/story/13/05/14/0134224/new-prenda-law-shell-corp-threatening-to-tell-your-neighbors-you-pirated-porn

From reading through the comments, it appears that Prenda is "specializing" in specifically gay porn. Which has a much higher knee-jerk reaction (closet...) factor. So they are specifically targeting the people that are the most likely have a vested interest in keeping things as quiet as possible. Because it impossible to be in court and "the closet" at the same time ...(hence)... Pay up or we'll out you.

These people should be burned at the stake, in the town square, and on live TV.

[wraith808]

These people should be burned at the stake, in the town square, and on live TV.

Exactly.  Hopefully they'll go before the same judge at some point, and get prison time from the criminal proceedings.

[TaoPhoenix]

More Prenda Law fun:
Motion To Delay Sanctions Against Prenda Lawyers Denied
http://yro.slashdot.org/story/13/05/20/2243230/motion-to-delay-sanctions-against-prenda-lawyers-denied

Slashdot's copy:

"On Friday, Paul Hansmeier, a Minnesota attorney who has been pointed to as one of the masterminds of the Prenda copyright-trolling scheme, filed an emergency motion to stay the $81,000 sanctions order while he and his colleagues could mount an appeal. Today the appeals court flatly denied his motion. Two appellate judges signed this order, and it gives Hansmeier the option to make a plea for delay with the district court judge. That would be U.S. District Judge Otis Wright, the judge who sanctioned Hansmeier in the first place. Hansmeier is also getting kicked off a case he was working on that was totally unrelated to Prenda's scheme of making copyright accusations over alleged pornography downloads.

On Friday, the 9th Circuit Commissioner ordered Hansmeier, in no uncertain terms, to withdraw a the case involving Groupon since he has been referred to the Minnesota State Bar for investigation. The commissioner has delayed Hansmeier's admission to the 9th Circuit because of Wright's order, which refers to Wright's finding of 'moral turpitude.'"

[TaoPhoenix]

Just in case y'all forgot about this case:
A rather funny update:

Comcast Threatens to Sue TorrentFreak for Copyright Infringement (updated)
https://torrentfreak.com/comcast-threatens-to-sue-torrentfreak-for-copyright-infringement-130821/

followed by:
"Update 7pm CET: A Comcast spokesperson responded to an inquiry we sent to the company’s lawyers:

“I am replying to let you know that the cease and desist was sent in error, and you may disregard it. We apologize for any confusion this may have caused.”

As in "The Big Bad Internet made us look like fools, so we'll back down, but it would have worked if it hadn't gone viral, ya know".