Porn Copyright Firm That Harassed Users for Downloading Single Video Blasted by Judge
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07 May 2013
In his “Order Issuing Sanctions” on a half-dozen sleazy lawyers who specialized in pornography copyright litigation, California District Judge Otis D. Wright II writes like a man expecting the entire Internet to go gaga over his every word.
The opening two paragraphs deserve reprinting in full:
Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle — for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow starving attorneys in this electronic-media era to plunder the citizenry.
Plaintiffs do have a right to assert their intellectual-property rights, so long as they do it right. But Plaintiffs filing of cases using the same boilerplate complaint against dozens of defendants raised the Courts alert. It was when the Court realized Plaintiffs engaged their cloak of shell companies and fraud that the Court went to battlestations.
Astute geeks may recognize more than a slight taste of sci-fi nerdery in Wright’s opening salvo (resistance is futile, engaged their cloak, battlestations). There are, by my count, no less than seven references to “Star Trek” sprinkled through the Order, including a quote from “The Wrath of Khan” — “The needs of the many outweigh the needs of the few” — to kick off the document.
But the Order Issuing Sanctions is more than just a Trekkie geek wet dream. It’s also an incisive analysis of the dodgy behavior engaged in by lawyers affiliated with Prenda Law, the infamous “porn copyright trolling” outfit that I wrote about two months ago.
Using a stolen identity, the lawyers created a couple of holding companies for the sole purpose of pursuing damages for copyright infringement on a handful of pornographic movies.
They created these entities to shield the Principals from potential liability and to give an appearance of legitimacy…. Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright infringement claim for about $4,000.
Judge Wright had previously ruled that the plaintiffs had not done the work necessary to find out whether the parties to whom they were sending cease-and-desist letters had actually personally downloaded the data in question.
Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video. Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access. Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video.
Which is why, if any defendant actually contested the cease-and-desist letter, the porn-trolling lawyers just dropped the case.
But the shoddiness of Prenda Law’s litigation strategy is not what got Judge Wright’s dudgeon up and forced him to order sanctions. Rather, it was the pattern of “brazen misconduct and relentless fraud” involved in the “cover up” activities of the lawyers involved, as they attempted to deceive various courts across the country as to the nature of their activities. The stolen identities, the outright lies in Wright’s court, the elaborate efforts at misrepresentation — there was a lot of “obfuscation” going on, and Judge Wright didn’t like it. Ultimately, he ordered $81,000 in damages, referred the plaintiffs to their respective state and federal bars for potential disbarment based on his determination that “there is little doubt that that… [the lawyers] suffer from a form of moral turpitude unbecoming of an officer of the court” and, finally, also referred the case to the United States Attorney for the Central District of California (with one last grand Star Trek flourish!) for potential criminal prosecution.
…[T] hough Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage.