Who is the “Real Party in Interest” in the Strike Three Holdings movie lawsuits?
Last night, I set out to explain the differences between the recent Strike Three Holdings ISP subpoena lawsuits and the Malibu Media lawsuits, but the similarities ended up haunting me. Seeing yet again the makings of another copyright holder who is playing what is starting to look like a “corporate shell game,” I am again weighed down in wondering whether Strike 3 Holdings movie lawsuits (think, “Tushy.com [NSFW],” “Blacked.com [NSFW],” and “Vixen.com [NSFW]”) is really the old wolf — Malibu Media LLC — in sheep’s clothing.
What bothers me about each of these movie (or here, “adult film”) cases is the slick non-transparency between who the copyright holder is, who is actually the party filing the lawsuit (legally, the “real party in interest,”) and who the interested parties are in the lawsuit.
From a lawyer’s perspective (my own attorney “kidneys”), it really bothers me that lawyers LIE to judges and courts now when they file lawsuits. Maybe this has always been the case, and what do I know — I’ve only been a lawyer active in my field for ten years now — but law school took SO MANY STEPS to teach us to be moral and ethical.
In order to be eligible to take the New York bar exam, we not only had to pass a [frankly, invasive] character and fitness review, but we needed to pass an ethics exam (the MPRE). In that ethics exam, almost every answer to the exam was, “be ethical, turn that lawyer in to the authorities.” This is what caused me to delve quite early into the legal malpractice field.
Our Legal System is BROKEN by attorneys who represent unethical clients.
But our legal system breaks when a small few attorneys allow their clients to engage in deception, distortion, and outright lies, as I suspect is already happening with the Strike 3 Holdings lawsuits.
Looking at the selection of each of the new lawyers that have been chosen to file cases, I can already see the outcome and how each of the cases will play out based on that particular lawyer’s proclivities and skillset.
Some of these lawyers are “new guys,” or “fresh meat” (as I jokingly call them) — not because I can take advantage of their ignorance of the law (or at least the ignorance of how copyright law is applied differently in each of the federal courts across the US), but because I know that they are local counsel to a centralized (and likely criminal) enterprise.
Thus, they will act as “empty shells” who follow the dictates of their client masters… as we have seen before, possibly at the peril of their own law licenses.
SIDE NOTE: Kudos to those local counsel who chose the ethical path, eventually.
Unrelated but relevant, I must note that a number of former “copyright troll” attorneys who have been local counsel to other attorneys are no longer “in the game,” so to speak. They no longer file copyright infringement lawsuits for their masters, and they stood up and said “no” when their copyright troll clients asked them to take part in activities that would have cost them their law licenses. I do take pride in commending these attorneys in taking a stand against their morally corrupt clients, and in a few cases, I know personally of a few attorneys who backed out of being local counsel and who likely saved their law licenses as a result.
Because many of these local counsel at one point were “fresh meat,” they took the copyright monetization (NPE) client [I’ll describe the “NPE” term later] thinking that this would bring in needed revenue to their law firm. They thought they would learn a lot, and they rationalized that they were on the “right side of the law.” This continued until they realized that they were representing a corrupted client, and then they were in too deep to drop them as a client.
Eventually, the copyright monetization (NPE) client turned on them (think, “honor among thieves,“) and told them to do something unethical. Risking loss of what became their entire law firm’s focus, they were forced to continue on their path hoping that they would never be caught by the state bar. Eventually, in one particular case, their client stopped paying them their own commissions and they were left working for a client who was cheating them.
I have spoken attorneys such as these on a number of occasions (many of these attorneys are the subject of past articles), and I hope to have contributed to their decision to leave their masters as a battered wife would leave her husband.
I am also happy to share that I have been screamed at by a number of attorneys who direct lawsuits (most notably, John Steele of Prenda Law Inc., now disbarred, and who is pictured at the top of this article) “for speaking to and advising his local counsel” as to their rights when their own client (Steele) put them in a precarious position.
In sum (and this was supposed to be a side note), not all local counsel are bad people. However, at the moment while they are still suing defendants, they know I believe they are on the wrong side of the law, and here is why.
Why the law requires the ENFORCEMENT OF TRANSPARENCY in copyright infringement / bittorrent-based lawsuits.
The point of this article is that the law requires transparency and disclosure when filing lawsuits, and judges tend to rely on the filings of the plaintiff attorneys (in an honest world, those representing the copyright holder). However, when copyright monetization entities (e.g., RightsEnforcement, etc.) step as a buffer entity in between the copyright holder and the defendant, this creates a disparity in favor of the local “empty shell” attorney filing identical documents (serially, or over-and-over) on behalf of his “boss” (the attorney who is running the copyright troll lawsuit campaigns for each of his copyright holder clients). As a result, the individual accused John Doe Defendant is harmed by this disparity by being thrown into trying to defend against an elaborate copyright enforcement scheme which could ultimately cost him his entire life savings.
DISCLOSURE can lead to an equal playing field.
I feel strongly that a copyright monetization company should openly and honestly disclose exactly who they are, what benefit the actual copyright holder is getting from the lawsuit, and who else has an interest in the outcome of the litigation. At least then, the judge could understand who else this monetization company is representing, and he could “tame” them and their tactics so that the accused downloaders (the “victims” of what will end up being a settlement extortion scheme) will at least have an equal playing field in order to defend themselves and the claims against them.
I don’t wear the pope hat.
And while writing this, I don’t want you to think that I am wearing the pope hat. I started my law career on the wrong side of the law. As a brand new attorney, I worked for an entity who ended up representing “Intellectual Ventures,” a prolific patent troll. I observed the shell companies they used and the games they played to purchase patents (or at least the rights to enforce them), only to turn from a harmless company to a patent troll with sharp teeth.
Needless to say, Intellectual Ventures turned “evil” (so to speak), and started enforcing their patents to “force” (I want to use the word extort) companies almost-remotely-maybe-infringing that patent into accepting a license so that Intellectual Ventures could take a mafia-share royalty off of each of that company’s profits. So long as Intellectual Ventures (under their RPX Corp entity) received “tribute payments” in the form of a “membership fee” for entrance into their patent troll organization, they would not be sued by the patent holder (or the “NPE” patent troll conglomerate organization who held the patents).
In short, I learned how to defend against copyright trolls by working on behalf a powerful patent troll [and if you want to read the articles I wrote on that topic and the RPX Corp (what Intellectual Ventures became), please feel free to visit my articles from 2008 on the topic]. I wasn’t very active at the time in blogging, but the articles are still interesting to read.
Why NON-PRACTICING ENTITY (NPE) STATUS should be applied to copyright trolls.
What is relevant to my experiences with Intellectual Ventures (and later, RPX Corp) was the concept of a “Non-Practicing Entity,” or an “NPE.” In patent litigation, a non-practicing entity is a corporate entity who enforces patents which it did not create. Shortly after patent trolls and NPEs made a killing in the federal courts, the rules changed to make these kinds of lawsuits unprofitable.
I believe that the same “Non-Practicing Entity (NPE)” status should be applied in the federal courts to copyright holders as well.
AND HERE IS WHY.
My point: The copyright law gives copyright holders rights to enforce their copyrights. The purpose of these rights are to benefit the copyright holders (to reward their creativity, their ingenuity, and their contribution to the arts). When a slime and base organization comes in and purchases those copyright rights to benefit financially from the rights due the copyright holders, the law should not allow those entities to benefit as if they are the copyright holders.
WHY COPYRIGHT TROLL NON-PRACTICING ENTITIES SHOULD NOT BENEFIT FROM COPYRIGHT LAWS.
Copyright Troll NPEs never contributed anything to the arts. They do not benefit society. They do not benefit the copyright holders (who are often cheated by them or only receive a small piece of what could be theirs under the copyright laws). They do not benefit the actors, writers, or artists who created the copyrighted work. Rather, NPEs make their attorneys wealthy and they target and destroy the lives and the savings of thousands of households each year, separating the working class from their hard earned savings.
So I ask you — should NON-PRACTICING ENTITY (NPE) STATUS be applied to bittorrent-based copyright infringement lawsuits who are deceptively managed by these NON-PRACTICING ENTITY (NPE) conglomerates who only serves to monetize the copyrights of others for their own benefit?