I don’t know how to say this other than in my field of work, it is not often that I am shocked. I often speak to local counsel who get excited that they are handling a “porn” case. Just a few days ago, I called one of Steele’s (a.k.a., “Anti-Piracy Law Group”) local counsel. When I introduced myself, he said to me (with a boyish excitement), “Aren’t you the porn lawyer?” to which I responded, “Aren’t YOU the porn lawyer?!?”
Anyway, I cannot help but to generalize these cases into “okay, one more production company suing a college kid or husband for clicking on a link and viewing copyrighted materials.” What I often forget is that there is usually some guy behind the scenes who has trailed so far into the world of pornography that he has opened up his own company, produced some porn videos, and now is suing defendants for their download.
The motive is usually the same. Instead of “let’s punish these pirates” as they would like you to believe, their motive is rather, “let’s hit up as many people for thousands of dollars each until we get shut down by the courts.” In my opinion, this was the motive of the Hard Drive Productions, Inc. lawsuits.
Digressing, the epic news of the day is that the Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case has been dismissed. Congratulations to the Cashman Law Firm, PLLC defendants who have been released from this case.
I don’t need to go into details about the case history — it has been riddled with controversy since they started suing internet users 2+ years ago. As far as the legal issues were concerned, this was a typical copyright infringement lawsuit plagued with the same procedural issues that most of the other cases of its time suffered from — improper joinder (defendants were not part of the same “swarm”), and improper jurisdiction (defendants were sued in a court which did not have personal jurisdiction over them because the DC court’s reach could not decide the case against most of the defendants who were implicated in the lawsuit because they lived outside of the court’s jurisdiction).
What surprised me about the Hard Drive Productions, Inc. case was not Hard Drive Productions, Inc., but the District of Columbia judges who made a political mess of these cases. Judge Beryl Howell came on the scene making pro-copyright troll rulings, such as 1) “you don’t need to decide jurisdiction or joinder until a defendant is named and served in a lawsuit,” 2) an ISP cannot file a motion to quash on behalf of their subscribers, and 3) accused John Doe Defendants cannot file motions to quash until they are named as defendants in the case. Mind you, she was a copyright lobbyist before she was appointed a federal judge.
Then in February, 2012, Judge Facciola came in with a ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case which I was sure was going to kill the Hard Drive Productions, Inc. case and all the other bittorrent cases in DC. In his order, he ruled that “a defendant who does not live in the District of Columbia cannot be sued in the DC court because the DC court lacks jurisdiction over those defendants.” However, at some point, it appears to me as if the RIAA/MPAA copyright lobby (probably by using Judge Beryl Howell as their mouthpiece) pressured Judge Facciola into giving into the copyright lobby’s pressure, and with a few contradictory rulings, he transitioned over to being Judge Beryl Howell’s sidekick in these cases.
Judge Bates also came in appearing to protect the procedural rights of the accused defendants who lived outside of DC, but once again, after what appeared to be some pressure from the RIAA/MPAA copyright lobby (once again, my educated guess is that Judge Beryl Howell was the force behind what happened), he was removed from the case which Judge Facciola took over. Then, after some time, it appears as if Judge Bates too eventually caved in to the RIAA/MPAA copyright lobby (some refer to them as the “mafia,” or the copyright police), and on my September 27th, 2012 post, Judge Bates reversed his decision in Hard Drive Productions, Inc. case and let the “extortion” of the John Doe Defendants at the hands of John Steele and Co. (a.k.a., Steele Hansmeier PLLC, a.k.a., Prenda Law Inc., and now a.k.a., the “Anti-Piracy Law Group”) continue.
So. The story with this dismissal is not necessarily a Hard Drive Productions, Inc. story, but a story of the forces behind the public interest groups and lobbyists who pressure Washington to always rule in favor of the copyright holder, regardless of whether the copyright holder is a pornography company, or whether the copyright holder is involved in making B-movies. Bottom line, these lobbyists insist that WASHINGTON MUST CONTINUE TO BE PRO-COPYRIGHT AND MUST CONTINUE TO RULE IN FAVOR OF THE COPYRIGHT HOLDERS, regardless of who the copyright holder is, or at what cost.
So as things stand in DC, there is still a split as to the rights of unnamed John Doe Defendants between the rulings of Judge Wilkins (relating to the “motion to compel” lawsuit by Prenda Law Inc. against Comcast relating to their Millennium TGA, Inc. cases [BTW, dismissed last week]) and the rulings of Judge Beryl Howell, because as you read, Judge Howell certified an interlocutory appeal to answer questions relevant to these cases, but it appears to me that someone is dragging their feet there in DC and hoping for a dismissal so that they don’t have to decide the issues.
Lastly, there is a lot of activity on Twitter as to the 28 or so defendants who have settled their case, and some anger directed at these anonymous defendants who have settled. Quite frankly, they are not all anonymous. What happened with these is that without warning, Prenda Law Inc. turned around and sued one of these defendants (or threatened to imminently sue these defendants) in lawsuits in their home states. I understand that many, if not most of the defendants in the “Hard Drive Productions, Inc. v. John Doe” cases which were filed towards the end of 2011 probably settled (I’ve listed a few of the named defendants in the “At What Point Does a Copyright Troll Stop Being a Troll” article.)
In closing, people are asking me whether I think Hard Drive Productions, Inc. is dead, or whether this is just the next logical progression before a slew of defendants being named. I must note that Hard Drive Productions, Inc. got their butts kicked quite a few times, especially with the Hard Drive Productions, Inc. v. John Doe, 3:11-cv-05634-JCS (Seth Abrahams) case and the Hard Drive Productions, Inc. v. John Doe, 4:11-cv-05630-YGR (Liuxia Wong) case, both in California. If you look at the http://www.rfcexpress.com website, there have been ZERO filings since March, 2012. A defendant must also understand that with the egos of these copyright troll attorneys, there is the saying, “As the ego of the attorney inflates, so does his hourly rate.”
We also know there have been squabbles between Prenda Law Inc.’s local counsel and Steele, and we know that their own attorneys have been jumping ship (and in some cases even testifying against Prenda Law Inc. in their attempts to withdraw as local counsel.) Thus, there are problems all around, so my best advise is to watch the http://www.rfcexpress.com website and see whether Hard Drive Productions, Inc. starts a flurry of lawsuits across the U.S. or not. And remember — behind every lawsuit there is a person (joking using the term “person” to mean a human, a fictitious person (who might not exist), or an offshore entity) who needs to pay Steele’s legal fees so that he can pay for his Las Vegas lifestyle of traveling the country “not” representing his clients in these matters.
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Great article with a proper emphasis: it’s even not about the trolls, alas, but about more powerful and no less evil forces. I feel very exhausted and frustrated. This morning I woke up with the worst mood I had in months: fortunately I invited to a birthday party that will take place in a couple of hours and my mood will likely improve.
I wouldn’t say that a couple of my tweets and today’s article is a “lot.” I wouldn’t call it “anger” either: though I expressed my frustration in a rather rude form, I explicitly stressed that I’m sad, not angry.
To settle or not is a a controversial topic, and I admit that I often take an extreme position on this. But we don’t have to agree on every detail while generally see the majority of things similarly, right?
You emphasis is proper: it’s even not about the trolls, alas, but about more powerful and no less evil forces. I feel very exhausted and frustrated. This morning I woke up with the worst mood I had in months: fortunately I invited to a birthday party that will take place in a couple of hours and my mood will likely improve.
I wouldn’t say that a couple of my tweets and today’s article is a “lot.” I wouldn’t call it “anger” either: though I expressed my frustration in a rather rude form, I explicitly stressed that I’m sad, not angry.
To settle or not is a a controversial topic, and I admit that I often take an extreme position on this. But we don’t have to agree on every detail while generally see the majority of things similarly, right?
P.S. F-ng spammers! I can’t say compliments without risking not to see my comment due to spam filter (most of the spam comments are “flattery” today)!
Happy Birthday, SJD. It is my opinion that you should keep the heat on those who settle, because that is the right thing to do. As an attorney, I sometimes need to settle a client and my frustration is that more often than not, it is a question of weighing how much it would cost for an attorney to defend the case versus settling it. This is why I wrote the POLICY LETTER to send to Congressmen, Senators, and Judges. I’ll be pushing this in January.
If a client came to me with an “I’m guilty, let’s settle and get me out of trouble,” that is one thing. More often than not though, the conversation gravitates towards weighing lesser evils of settling versus defending one’s case.
And the law shouldn’t lie that it is “innocent until proven guilty” because if a defendant cannot pay someone to draft a FRCP 12(b) motion or to file an answer, then that defendant is barred from being able to defend himself and must pay or else he suffers a default judgement. This sounds more like “guilty unless you can defend yourself” which is not okay.
Once again, HAPPY BIRTHDAY!
Thank you, but it was a typo, I should have typed “I am invited to a birthday party,” which means it’s not my birthday.
I’m issuing you a rain check that you can redeem in August and skip birthday wishes 🙂
I’ll take that raincheck. Enjoy the party.
Evening Rob….. I agree with you about the law lying when it comes to “innocent until proven guilty”. With all these cases, it’s the other way around. I think it sucks that if someone who has no means to pay for a written motion on their behalf, can’t defend themselves and they are basically up the creek. It would be great if some lawyers could draft motions for a reasonable fee (or free), to give some relief to someone in a position where they feel cornered. And if that person just happened to get named, then they could retain that lawyer who helped them initially, with a possible lower than normal fee. I don’t know, maybe I’m living in a fantasy world. But, I do believe that some things need to change. Laws need to change instead of being bought. And I think more respect for lawyers would be a great thing if more went out of their way to help those who need it and cannot afford it. The bad lawyers have hurt the profession and have put a bad name on the good ones. Again, if lawyers helped more, word would eventually get around and the respect would start to flourish.
In a world where a “lobbyist” admitted he is buying the laws he wants and nothing happens, this is what we have.
I am sure the cartels are annoyed at the porn trolls…
1 – the RIAA/MPAA campagin of terror didn’t work out so well.
2 – they never got the money coming in that the trolls today are getting.
3 – they are starting to push way to far and exposing the truth about the system.
The RIAA sued dead people.
Trolls have sued dead people.
One of these facts broke into the the mainstream, the other not so much.
The porn cases were/are getting less coverage than the RIAA did, with the occasional little old lady making an appearance in local market coverage.
The cartels need copyright to stay broken, it keeps them employed. This means they have to quietly pull strings and file briefs (its been a while since they openly did it.). Slowly the public is waking up to these cases being a farce, but the courts still aren’t there yet.
I get sad when a Doe settles, but I understand their motivations. All we are able to do for them online is give them truth but the final decision is always the Does. Some of them violated copyright, but demands of $20,000 are wrong. Some of them have circumstances where they are forced to pay because even if they were proven innocent the allegation would detonate their life. This playing field is unfair and the courts keep playing Lucy and ripping the ball away every time balance might be restored.
Steele has violated the letter and spirit of the law time and time again… when does he finally get his?
Oh that’s right, he is a rich lawyer… he gets special rules.
The end times are getting near for trolling, I worry if it will be soon enough.
But hey, we’ll stay busy informing does… mainstream movie trolling has moved to Canada, if they have any success the pron trolls will follow.
Maybe a moose will eat them… I can only hope.
Yah, the problem is Joel Tenebaum and Jammie Thomas ended up with huge judgements against them.
Jammie damned herself with the hard drive. Kazaa is not BT.
Joel.. lets not even begin to deconstruct the problems with that 5 ring circus.
RIAA lawyers should not lie to Judges. But hey they wrote a lovely letter and let the family have a few days to grieve before pursuing their case again claiming the deceased was going to settle after having spending the end of his life fighting them tooth and nail. Even ticks stop trying to feed on the dead.
Part of the problem is the public perception that is being stoked merrily along that the content is worth billions, and everytime a file is downloaded communism wins. Inflated numbers from the best ‘statistics’ money can buy, sound scary… but the truth doesn’t get much media coverage.
The RIAA played fast and loose, but they can’t hold a candle to the wholesale extortion factories we have now.
I try and say the same thing on SJD’s blog and everyone gangs up on me! Is this a victory? Seems like it, but who knows? It probably is but…
Great post.
Your mind works differently, I blame the bar exam.
You are used to playing more angles and looking for all possibilities, you’d be a bad lawyer if you weren’t thinking in multiple dimensions.
Conveying that information sometimes requires a more delicate delivery for the mere mortals the rest of us are.
I know, me talking about delicate delivery.. that’s funny.
But if you examine my posting history you see just that happening…
I can go from scathing in your face with a troll, and then prepare a post getting a Doe to breathe, relax, and stop letting their imagination get ahead of the facts and follow that up with something humorous. Check out my “answers” in DTD’s informative post about depositions… buried in the narrative are some important things people need to consider.
It isn’t a victory until Steele’s arraigned… but we gain more on the pile showing how disgusting this fad is… eventually when the elephant in the room shoves you out a window even Beryl will need to see the light…
As I said over on SJD’s site, I do believe that this case is dead. HDP has no fight left in them, for the above stated reasons, and they won’t be perusing individual Does. However, glad that I am that this case is dead, it was going to quickly become a case that could’ve exposed how “deep the rabbit hole” really was.
With a principle fleeing the country do you think the end is nigh?
Someone left voice mail saying they were from Prenda Law stating that I needed to call them or they were going to proceed.
I am well aware of the recent calls made to dismissed defendants by Prenda Law Inc., and they are indeed very concerning. The threat is that unless a dismissed defendant settled, they will immediately name and serve them in the federal court in their home state.
I have literally been hearing about these threats for weeks, and there is a VERY EASY way to test whether their threats have merit or not — simply check to see whether Hard Drive Productions, Inc. has filed lawsuits naming individuals or not. The easiest way to do this is to visit http://www.rfcexpress.com, scroll down on the right-hand side, and check only the “copyright” button. Type “Hard Drive Productions” into the search, click submit, and you’ll see the last state and the last date they filed suit against defendants.
Now this should be common sense, but you NEVER want to be calling the attorney who is threatening to sue you. Especially when you already know that their game is to extort and solicit settlements from those they believe they can scare into settling.
Last, but not least, obviously Prenda Law Inc. (now the “Anti-Piracy Law Group”) has the capacity to name and serve many individuals. However, they are lawyers just as we are lawyers. And, whatever Prenda Law Inc. does on behalf of a client, somebody needs to pay the bill. If they are suing on behalf of Hard Drive Productions, Inc., then Hard Drive Productions, Inc. needs to pay the bills. Lawsuits are not cheap for a plaintiff, and the up-front cost of filing one ($350 per lawsuit), plus all the time drafting and responding to motions in front of a judge for each case is quite an undertaking.
Thus, if you have no reason to settle, then don’t settle. If you see that they are naming and serving individuals, then contact one of us lawyers. Depending on your circumstances and if I can figure out a way for you to fight your case without settling, that might be the cheaper alternative. Just please don’t try to respond to their calls thinking that you’ll negotiate your way out of this. The only way to get out of this is to back them into a financial corner forcing them to drop your case, defend your case on the merits, or to pay them to make the case go away. I like any option that does not include sending them a check.