Copyright Infringement Advisor

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.


    This case is particularly interesting because the adult film in question, Amateur Allure – Samantha Saint, was not registered with the Copyright Office until 8 months after Abraham’s alleged act of copyright infringement took place. The original mass-Doe case, Hard Drive Productions, Inc. v. Does 1-118 was filed in March 2011, but the date of registration for the work is November 2011. I would link to the registration record but the Copyright Office website has some terrible search session token thing that expires so I can’t figure out how to get a permanent link.

    According to the Copyright Office’s guide to registration, once an application is processed, the registration date is backdated to the date that a complete application was received. This being the case, it is reasonable to conclude that Hard Drive had not even applied for registration when they filed the original mass-Doe case, even though the complaint states that an application has been filed and requests statutory damages (which require a timely registration as a prerequisite).

    The short story is that the entire sequence of cases brought by Hard Drive and Prenda’s CA attorney Brett Langdon Gibbs were fraudulent, and they probably knew they were fraudulent. I don’t think that surprises anyone who follows these cases, but I do find it a little bit surprising that they want as far as to file “individually” against Abrahams under those circumstances, especially since the “individual” cases were the higher-risk showcases meant to scare the stubborn, unsettling Does into thinking Prenda is serious about suing people. Apparently Prenda’s attorneys are either so stupid or so arrogant that they figured nobody would do the most basic due-diligence against their claims and failed to make any preparations for a Doe mounting a defense much less filing a countersuit.

    I would like to see Abrahams succeed, as there must be a limit to the number of times an attorney can file and refile the same claim just to harass people. Remember, the original case, HDP v. Does 1-118 was voluntarily dismissed by Gibbs after judge Beeler issued an order to show cause due to failure to name and serve defendants. At this point Gibbs had plenty of contact information and thus plenty of Does to name and serve as defendants, but instead he chose to voluntarily dismiss the case and harass them behind the scenes, even sending out dunning letters that claimed there was a case actively pending after it had been dismissed. This is just everyday fraud over at Prenda Law, so I’m curious how long you believe this should be allowed to go on before these guys have to act like they are litigating a case. The court asked Prenda to follow through with their litigation and they refused, how many chances should they get? As it is, I am extremely disappointed with the courts for allowing Prenda to perpetuate their fraud, as a simple check on the part of court clerks to make sure that the basic requirements for claiming statutory damages were met (i.e., simply querying the Copyright Office’s records to verify that the registration was timely) would have saved the courts and Does a lot of hassle. But apparently legal professionals are not held to very high standards, if to any standards at all.

    That said, given that there was not a valid copyright registration when the alleged infringement took place, I would also dearly love to see this case litigated on the merits, as that would pretty much be a doomsday scenario Prenda and Mr. Gibbs. With their original claim based on lies, Yuen should have a good chance of extracting a big lump of attorney’s fees, but no doubt Prenda will desperately try to settle the case before that happens, as they did with Wong.

    • John Whitaker

      These are great points, and this is exactly why I would like to see Abrahams’ motion denied. I don’t think I can imagine a more perfect case to move forward and punish the plaintiffs than this one. Hard Drive can’t get statutory damages or attorneys fees, so Abrahams has almost nothing to lose. Plus, if this case gets litigated on the merits with a big judgment against the plaintiff, this one should serve as a huge deterrent to this type of extortionate litigation.

      PS, I went and got a copy of the registration for the “work” at issue, Amateur Allure – Samantha Saint. You’re right, date of registration: November 18, 2011.

    • That_Anonymous_Coward

      A troll filing a case without proper copyright on the material?! That could never happen.

      Evan Stone never filed and dropped a case because they lacked copyright and fudging the date on the record wouldn’t cut it. (Mick Haig)
      A Music troll based outside the US would never file a copyright case, against the wishes of the band allegedly infringed upon, only to find out the label did not hold the copyrights to the music (there were none).( World Digital Rights, Inc.)
      A troll would NEVER have a movie recut and get a new copyright date for a film with an older copyright, and then not declare it as such violating the rules of the copyright office. (Prenda IIRC)
      A troll would never acquire the rights to a movie and cut and paste the first trolls motions looking for a payday as their own. (Nude Nuns with Big Guns)

      How dare you cast dispersions on these poor innocent trolls who are saving the world from imaginary dollars being stolen from an industry that refuses to accept the world changed and they didn’t.

      The preceding was pure unadulterated sarcasm, use caution in handling.

      While they claim all of the Does are breaking the law, one must remember the ones screaming the loudest are often doing much worse themselves.
      Public threats to go to the neighbors asking if they downloaded the porn on your connection… and somehow this extortion keeps moving forward.
      Contracts with companies known to make the material available for filesharing so they can provide expert testimony that your IP downloaded the file… that they made available in the first place.
      And somehow the cases keep coming…