Copyright Infringement Advisor

Copyright Trolling: Don’t Get A Default!

Posted in Contingent Fee, Default, I.P. Address Suits

Copyright Troll Default Judgment for $150,000We all talk about these mass bittorrent lawyers like they are stupid. They might be, but they do know how to get some press. Today, Prenda Law secured a “default judgment” against someone named Darryl Lessere in Florida for $153,770.oo (see below). Yes, that’s a lot of money. Will AF Holdings ever collect? Almost certainly not. But they do have this shiny new final judgment that they can wave around to try and scare new people.

That said, should you be scared by this? Actually, yes, a little. A default judgment is no joke. Sure Prenda just got it by serving some youngster with legal process that he likely didn’t understand. But they get defaults like this all the time.

You might ask, is this default judgment enforceable? Yes, it is.

Maybe you don’t have any money right now. Maybe you’re out of work and broke. But if you win the lottery, the first of it goes to pay off that default judgment. In fact, if you ever make any money, they can use that default judgment to take it.

So what to do? Well, for starters, don’t get a default judgment!

How do you avoid a default judgment, you ask. I’ll tell you: Do anything you want to prevent it. That’s pretty much it. Do you have to hire a lawyer? No, but it helps. That said, just don’t let the time frame (21 days from service) pass without doing anything. Just do something, even if it’s as little as calling the Court clerk and saying “I didn’t do this, can I send you a letter explaining?” That alone should be enough to at least avoid a default.

The problem is that if you don’t do anything, the bad guys get to ask the Court for pretty much anything they want and you can’t say anything about it. That means you end up with a $150,000 default judgment against you that will haunt you for possibly the rest of your life.

I absolutely hate to see these kind of default judgments because they are so easy to avoid. Look, if you get served and you have absolutely no money at all (I mean not a penny), and no idea what to do, CALL ME! I’ll at least help you out enough for free to avoid a default judgment like this.

And for what it’s worth, I understand that no one wants to hire a lawyer to defend these almost frivolous suits. Lawyers can be expensive. But you can’t just ignore a federal lawsuit against you. The threat is real, but easy to avoid.

It’s like polio.

EDIT: I added the Service of Process certification below to show that Mr. Lessere wasn’t even personally served. Some woman who doesn’t even have his same last name was served. Then I checked Zillow for the house, and guess what. Mr. Lessere lives in a $1.6 Million home. Uh oh.
Lessere Judgment
Lessere Service of Process

copyright trolls get $153,000 default judgment

Copyright Trolling: AF Holdings Names Another Doe

Posted in I.P. Address Suits, Interesting Cases, Open Wi-Fi, Porn Industry, WiFi Negligence

Update on weaknesses of copyright troll casesIt looks like the Copyright Trolls are trying to make good on their threats to start suing individuals who refuse to settle up. Earlier, Daniel G. Ruggiero named Robert Liberatore in a suit filed in the Eastern District of Pennsylvania. Now, Ruggiero has filed another suit, also in Pennsylvania, this time against Edward Huynh.

The two complaints are nearly identical, and both make the same claims of “civil conspiracy” and “negligence.” As I mentioned before, those claims are frivolous. The details of why are fairly academic, but they are real. Bottom line: State law claims are preempted by federal law, which means the claims of copyright infringement are the only ones that can be brought for that conduct. Trying to use a negligence claim to overcome the weaknesses of its copyright claim is an end run around the substantial hurdles presented by the elements of vicarious copyright liability.

Basically, it’s hard to prove vicarious liability for copyright infringement. You can’t make it easier by just saying “well maybe you didn’t infringe, but you were negligent.” It doesn’t work that way. If you file a copyright case, then you have to prove a copyright case. Simple as that. There is no such thing as “lesser included offenses” in copyright infringement.

Also, to prove negligence, you have to show that the accused owed some duty of care to the accuser. In other words, if I don’t have any reason to protect your stuff, then I’m not negligent if your stuff gets lost or stolen. At least one Court threw out a negligence claim for exactly the reason that the accuser (the troll) couldn’t show that the accused (the Doe) had any reason to try and prevent the copyright infringement. Exactly. It’s not my job to protect someone’s copyrights from someone else.

These negligence-based theories are not new: FightCopyrightTrolls reported on a very similar case (IO Group v. Does 1-244*) about a year ago.

* I should mention that this case is a good example of why it may not be a good idea to completely ignore the trolls as two of the defendants in that case got hit with a $20,000 default judgment (see below) for just ignoring the case.
IO Group v Does

Open WiFi Is NOT Negligence

Posted in Motion Practice, WiFi Negligence

I wanted to post a quick note about the new case recently filed by Daniel G. Ruggiero in Pennsylvania, as reported by DieTrollDie. [EDIT: Earlier I incorrectly identified the case] This case isn’t particularly noteworthy, except that the complaint includes a claim for negligence based on the subscriber having an unsecured WiFi network. The good news is that claim should die a quick and miserable death. Since my earlier post on open WiFi, there have been more cases concluding that open WiFi is not negligence. In fact, a negligence claim is preempted by federal law.

Below are a couple of the actual orders issued by judges who conclude open WiFi is NOT negligent. Threatening people with punishment under a theory that has been soundly rejected already, several times, just redoubles the extortion stigma that already exists with these cases.

Liberty Media Holdings v. Tabora, et al., NYSD (7/9/12)
Tabora Dismissal Order

AF Holdings v. Hatfield, et al., CAND (9/4/12)
Order Granting MOTD

Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 (N.D. Cal. July 8, 2011)(tortious interference state claim premised on DMCA takedown notices preempted by Federal DMCA provision); see also Miller v. Holtzbrinck Publishers, LLC, No. 09-0919 (2d Cir. May 14, 2010)(tortious interference preempted by Copyright Act).

Copyright Trolls: What Does It All Mean

Posted in I.P. Address Suits, Online piracy, Porn Industry

Copyright Troll Litigation: What Does It MeanIn case you just got one of those letters from your ISP telling you that you have been selected for the latest bittorent extortion program, otherwise known as a subpoena for your personal records, then you might be asking yourself “what does this all mean?”

I myself wrote a brief article that describes your dilemma–what has come to be known as copyright trolling. So if you don’t have any history with copyright trolls yet, read that.

And if you are more in to the spoken word, DieTrollDie put together a nice little podcast where you can hear him explain how the whole thing works. Take a listen and you will learn something. Then go on to search for all the incredible help that exists today. Below is a list of what I believe are the best sites for information on the problem and help with the solution:

FightCopyrightTrolls.

DieTrollDie.

Electronic Frontier Foundation.

TorrentFreak.

TechDirt.

And arsTechnica has some pretty good stuff now and then.

If you think there are other good sites that should be added to the list, just let me know.

Seriously?!?! The CIA Has To Investigate Copyright Infringers? Updated

Posted in Interesting Cases

CIA spying on citizens over copyright squabbleTorrentFreak just reported that the Australian equivalent of our C.I.A. (the Central Intelligence Agency, not the Copyright Infringement Advisor) was illegally spying on Kim Dotcom to help the U.S. build a case against MegaUpload.

Turns out the Government Communications Security Bureau (GCSB), the Australian CIA, is legally prohibited from spying on New Zealand citizens like Kim Dotcom. Still, the GCSB was surveilling Dotcom and his family.

Seriously?  1984 much?

Today Australia’s Prime Minister called for an investigation into the illegal activity of the GCSB. Kim Dotcom’s U.S. lawyer, Ira Rothken, said he is looking forward to learning of any US involvement in the illegal spying.

So am I.  So. Am. I.

In times when our own are blowing each other up, and defecting to terrorist organizations, should our intelligence agencies really be spending time trying to keep Hollywood rich? I think not.

UPDATE: The beginning of the end. New Zealand’s Prime Minister has apologized to Kim Dotcom for the legal violations of New Zealand’s CIA, which was illegally spying on Dotcom to build a case against him. So now, if New Zealand has a system of justice similar to ours, all the evidence amassed as a result of that spying should be inadmissible in court.

So the government seized millions of dollars in cash, cars, and guns based on illegally obtained evidence. This is exactly why the citizenry needs protections from an overly zealous government out to punish those its sees as “wrong doers” without any consideration of the law. A government agent being convinced someone is doing something wrong does not ever justify throwing out all of that person’s rights.

Apple Infringes Swiss Rail Copyrights

Posted in Firm Cases, Interesting Cases
Copyright attorney explains how Apple infringes clock face copyright

Apple or Swiss Rail: Which is which?

So you would think after Apple wins a billion dollars against Samsung for patent infringement, that they would be a little more sensitive about infringing the rights of others.

Well, guess again.

Swiss Federal Railways just announced that it may be pursuing legal action against Apple for putting a knock-off clock face in iOS 6. Clearly the two clock faces are the same. Whoever is responsible for putting that clock face in iOS6 has some ‘splainin’ to do.

Here’s what Swiss Rail had to say:

SBB is the sole owner of the trademark and copyright of the railway clock. The railway company will now get in touch with Apple. The aim is a legal, as well as a financial solution. It is not right that [Apple] simply copies the design.

For a company so quick to accuse others of copying their stuff, Apple sure does its [un]fair share of infringing the work of others. One. Two. Three. Four.

Abrahams v. Hard Drive: Update 2

Posted in Contingent Fee, Doe Counter-Suits, I.P. Address Suits, Interesting Cases, Porn Industry

Copyright Troll Case Thrown OutWell this is big news:  Following up on my earlier update on this case, there was a hearing today on the Abrahams v. Hard Drive case to argue Abrahams two-strike dismissal motion.  I’m not exactly sure what was said, but here is the order basically dismissing Hard Drives claims.

What?!?!

It was stipulated that the two-strike rule applies, so Hard Drive’s claims are barred by res judicata. What that means is Hard Drive’s lawyers showed up at the hearing today and actually agreed that their claims were barred.  What happened to all that talk about how the claims weren’t barred?

The interesting thing about today’s order is that Abrahams has been ordered to file a brief on subject matter jurisdiction. In case you’re not a lawyer, the reason for that is this: Now that Hard Drive’s claims against Abrahams have been dismissed with prejudice, there is no longer a “case or controversy” between Abrahams and Hard Drive. Hard Drive can’t sue Abrahams any more. And unless there is a real case or controversy, the Court does not have the authority (subject matter jurisdiction) to listen to the dispute–basically because there no longer is a dispute. Interesting.

I’m still scratching my head.  This is some of the weirdest lawyering I’ve ever seen.

You infringe!

No you don’t!

Yes you do!

No you don’t!

See today’s order below.
Order on Abrahams Motion to Dismiss Hard Drive’s Claims

Abrahams v. Hard Drive Productions: Update

Posted in Doe Counter-Suits, I.P. Address Suits, Porn Industry

seth abrahams and hard drive productions copyright troll battleSo Seth Abrahams is fighting back hard against Hard Drive Productions in an excellent bittorrent battle down in California.

Before we go any further, it’s important to get all the cases straight. First, Hard Drive originally sued a bunch of Does (11-1567).  Then, Hard Drive dropped that case and re-filed against only one Doe (11-5634).  Although he wasn’t specifically named, that one Doe was Seth Abrahams. Seth didn’t like being singled out, so he filed his own counter-suit back against Hard Drive (11-1006).

Confused yet?

So while Hard Drive’s case against Seth-Doe was pending (11-5634), the parties had what is called a case management conference with the judge in the other case (11-1006).  I don’t know what exactly happened during that conference, but I do know that after it the judge issued an Order that required Hard Drive to dismiss the Seth-Doe case (11-5634) so the parties could duke it out in the Abrahams case (11-1006).

That’s where it gets interesting.

See, there’s this relatively-obscure rule that if you voluntarily dismiss a claim against the same defendant twice, then you can never bring that claim again.  That’s called Rule 41(a)(1)(B), or the two-strikes rule. DieTrollDie wrote a good article about it.

In Seth’s case, he has now filed a motion to dismiss Hard Drive’s claims against him because Hard Drive has dismissed its claim against Seth twice (11-1567 and 11-5634). So, Seth Abrahams is trying to invoke the two-strike rule and have Hard Drive’s claim against him dismissed, which would–oddly enough–leave nothing except Seth’s claims against Hard Drive to litigate.

DieTrollDie has written an excellent piece about the weaknesses of Hard Drive’s opposition to Seth’s motion.  Not to take anything away from DTD’s analysis, but in my view, Seth’s motion should be denied for at least a few reasons.

First, Hard Drive is kind of right. Hard Drive’s opposition points out that two judges in earlier cases already concluded that the dismissed cases were not sufficiently similar to Seth’s case to consolidate them. That’s a pretty good argument, since it’s true. But for some reason, Hard Drive didn’t give it any more than a mention in one footnote.  I like to put my good arguments actually in the meat of the brief, but whatever. Prenda Law isn’t exactly known for good lawyering.

Second, Hard Drive seems to have completely missed the real point of the two-strike rule–to avoid actual Court oversight by dropping suits before the Court can get involved. In other words, the two-strike rule only applies to cases that are voluntarily dismissed without a Court order. Here, Hard Drive dismissed its second case as directed by a Court order. So in reality, the Seth-Doe dismissal (11-5634) was pursuant to Rule 41(a)(2) and not Rule 41(a)(1) like Hard Drive said in its Notice of Dismissal. The two-strike rule doesn’t apply to a 41(a)(2) dismissal. Hard Drive never even mentioned that small detail. Why would Prenda not even mention its best argument? Again, whatever.

Third, I want to see this case get resolved on the merits. A two-strike dismissal doesn’t even touch on the merits of the case, and I want to see the issues actually get litigated. Abrahams made some interesting points in his complaint, like whether hardcore porn is even subject to copyright protection and whether Prenda’s settlement tactics constitute copyright misuse. Those are good arguments that I want to see fleshed out properly.

Understand that I despise the copyright trolls just as much as anyone else. Well, maybe not as much as FightCopyrightTrolls, but quite a bit. But I really do want to see Judge Sparo deny Abraham’s motion because, as a matter of law, it should be. Plus, it’s time that the real issues get litigated properly and decided, once and for all.

Ye Olden Tale of the Copyright Decree

Posted in Uncategorized

I had a request from Jason Lamb, a third-year student at the Temple University Beasley School of Law in Philadelphia, PA, to publish an interesting article that he wrote.  It’s a parodic history of copyright law, set in a medieval fantasy context.

So enjoy, and thank you Jason. . .

 

Ye Olden Tale of Social Media Pubs and the Copyright Decree

Once upon a time in the land of Litigious there lived a young lawyer named Squire Young-Law. Young Law had apprenticed for years under the respected and venerable Sir John Old-Law. Together, Young-Law and Old-Law had defended shop owners and individuals from the attacks of the MPAA gang and their lawyer, Sir Sues-A-Lot. For decades Old-Law had used his vast knowledge of the law to give his clients the upper hand. But the winds of changes had been blowing in Litigious, and Young-Law saw his chance to break out on his own as he began to notice that the once unbeatable Old-Law had failed to keep up with the times and started to lose to Sir Sues-A-Lot. Old-Law was beginning to lose to the ability to protect his newer high dollar clients, the wildly popular Social Media Pubs. Continue Reading

Motion to Quash; Motion to Sever; Motion to Dismiss: What’s the Difference?

Posted in I.P. Address Suits, Motion Practice

Motions to Quash Sever and Dismiss Copyright Case

The good folks over at FightCopyrightTrolls and DieTrollDie do a great job, probably better than anyone, at keeping everyone informed about the state of mass bittorrent litigation, frequently called copyright troll suits. One of the hottest topics, always, is what to do when you get that letter or email from your ISP telling you that they got a subpoena for your private information. I already wrote a little about what it means when you get that letter. Now I’m going to tell you what the three most common options actually mean.

Your three main options when you are informed about one of these ISP subpoenas are:

  • file a motion to quash
  • file a motion to sever
  • file a motion to dismiss

You can do any one or more of those, in any combination. Actually there are several more options than that, but those are the most frequent, especially if you want to resist the subpoena. Of course, you could just do nothing, but that’s not any fun.

Motion to Quash Subpoena

The motion to quash is basically a request to kill the subpoena, but not the lawsuit. So the subpoena is actually nothing except an order by the Court to produce some information. In these cases, that information is your personal name and address. So the subpoena is an order to your ISP to produce your name and address to the accuser (the troll). So if your motion to quash is successful, all you have done is prevented the troll from learning your name and address directly from the ISP, at least for now. You are still a defendant in an active federal litigation matter. In other words, you have still been sued and that case is still moving forward.

A winning motion to quash must attack the sufficiency of the subpoena itself, not the merits of the lawsuit. In other words, informing the Court that they don’t have personal jurisdiction over you might be proper grounds for a motion to quash. But just telling the Court you didn’t do it is not proper grounds. If you want to address the merits of the lawsuit, that’s what the litigation process is all about.

Motion to Sever

The motion to sever is basically a request to separate out all the defendants, but continue the lawsuit. Ordinarily when these mass bittorrent cases are filed, the plaintiff (the troll) names a large number of defendants (the subscribers), sometimes in the thousands. If you got one of these ISP letters, that means you are one of those defendants. A motion to sever is basically asking the Court to divide up the several defendants into their own, unique and individual lawsuits. So if the original lawsuit had 1,000 defendants, a successful motion to sever would result in converting one lawsuit into 1,000 individual and separate lawsuits. But still, even if your case is severed, you may well still be in an active federal litigation matter, just not the same one as was originally filed.

A winning motion to sever must attack the propriety of having lots of defendants in one lawsuit, again, not the merits of the case. Proper grounds for a motion to sever are that the multiple defendants don’t have anything in common and each defendant has his or her own unique defenses that should properly be litigated separately. Also, proper grounds can include the difficulties of such a large number of individual defendants having to show up for hearings at the same time. In a nutshell, you should argue that keeping all the defendants in one lawsuit would be impractical for the Court.

Motion to Dismiss

The motion to dismiss is the big one. A motion to dismiss is a request to the Court to let you out of the lawsuit. In other words, a successful motion to dismiss is the only way you are officially completely let out of the suit. If your motion to dismiss is successful, you are no longer a defendant in any federal litigation matter.

A proper motion to dismiss is the only place that you can address the actual merits of the case, and even then the evidence must be overwhelming. Remember, the litigation process is exactly how all the he-said-she-said disputes are resolved. So you will not win an actual motion to dismiss with just “the troll can’t prove I did it” or even worse “trolling is just bad.” You have to advance clear undeniable evidence that it wasn’t you, like “that IP address was never mine” or “I’m not even a Comcast subscriber.”

Those are tough cases to make, and those facts are probably rarely true. But the best winning argument you can make is that the Court where the case is currently filed doesn’t have personal jurisdiction over you. To do that, you would have to inform the Court that you have absolutely no ties to the state where the lawsuit is pending. You would have to include an affidavit or declaration, and it would need to say things like “I do not now nor have I ever lived in Forum State,” “None of the acts complained of occurred in Forum State,” and “I do no business in Forum State.” That is a much easier argument to make, and due to the nature of these types of cases, those facts are usually true. And the good news is if those facts are true, and you put them forth in a clear and easy format, the Court is very likely to grant your motion to dismiss.

What does it all really mean?

So those are the technical differences between your three main options to respond to one of the ISP subpoena letters. I should mention that although only the third one (M2D) actually lets you out of the lawsuit, as a practical matter any one of the three would do it. If any one of these three motions is granted, then the cost to the troll plaintiff goes way, way up (orders of magnitude). That extra cost usually makes pursuing the case cost-prohibitive and the trolls just go away. The copyright trolls are having a tough time pursuing their main objectives. So far (with a few exceptions) the trolls stick to the low hanging fruit.

Hopefully, this has cleared up a little confusion that some of you may have had about the legal differences between those three motions. If you still have questions, feel free to contact me or put them in the comments below, anonymous if you’d like.