
Judge Wright issues Prenda Law order - faithful_droog
http://www.popehat.com/2013/05/06/does-prenda-believe-in-no-win-scenarios-because-judge-wright-just-gave-them-one/
======
grellas
Judge Wright took tremendous offense to the idea of lawyer-sharpie types
trying to use his court (among others) as home base for a naked scheme of
extortion.

Think about how he characterizes the lawyers and their conduct: (1) they were
lawyers with failed practices; (2) they figured a way to shake down victims
out of an aggregate of millions of dollars; (3) they did this by threatening
to expose them as downloaders of pornographic material via the filing of
lawsuits ostensibly asserting copyright violations; (4) yet, the people
asserting the claims did not have any good evidence actually proving any form
of violation in any given case; (5) and, when someone offered any real
resistance, the case was dropped; (6) and when the ostensible holders of the
claims needed to be real holders of the copyrights in question, shell entities
were set up (controlled and dominated by the lawyers) in order to create a
false appearance that this requirement was met; (7) and when the federal
court's procedural rules specifically required the lawyer bringing the case to
identify all known related cases so that the court can understand the true
party relationships, the lawyer suppresses all the known facts about the
relationships in order to deceive the court; (8) and when a formal assignment
of copyright is needed to meet the legal requirement of standing, the lawyers
set up a dummy name and forge the person's signature in order to meet the
requirement; (9) and when the scheme turns on a fishing expedition by which
the lawyers hunt out a list of IP addresses and then ask the court for the
right to subpoena the ISP to get the names associated with those addresses,
and the judge issues a discovery order saying, in effect, "hold on, you can't
do this here," and yet the lawyers still proceed to serve the subpoenas on the
ISPs in order to keep generating opportunities to extort settlements from even
more victims; (10) and when the court finds out that the lawyers are
deliberately flouting the court's orders and authority, the lawyers refuse to
appear until forced to and, when they do appear, refuse to account honestly
for their conduct.

Summing up and paraphrasing what the judge concluded based on these findings:
This is not lawyering. It is naked extortion covered by a thin veneer of
lawyering. Rules don't matter. Honesty doesn't matter. Decency doesn't matter.
Whatever it takes to keep the scheme going, right or wrong, fair or foul,
justified or not.

The result: not a severe money sanction, which would have been but a slap on
the wrist when many millions had been gathered under the lawyers' scheme, and
apparently gathered tax free to boot. Instead, something much worse, to wit, a
clear conclusion that the lawyers had engaged in acts of moral turpitude,
justifying referral to the state bar of every jurisdiction in which they are
authorized to practice, and likely eventual disbarment; a criminal referral to
the U.S. attorneys' office for possible RICO violations; a referral to the tax
authorities; and an order that this devastating order be served and filed in
every single legal action that has been filed by these attorneys anywhere in
the nation.

This, to put it mildly, amounts to evisceration. This judge got mad. This
judge had guts. This judge is smart. And that, for these lawyers, is a lethal
combination.

~~~
haberman
It's interesting to me that the judge lets so much raw contempt show. I am
more accustomed to judges presenting a dispassionate attitude; I always
figured that this was an important part of their role of making impartial
rulings in an adversarial system.

Would showing this much unmasked disgust towards one party leave a ruling more
vulnerable to accusations of bias on appeal (presuming this can even be
appealed)?

~~~
cstross
I suspect the turning point was the Prenda Law people turning up in court and
taking the fifth.

By refusing to testify on the basis of the right to avoid self-incrimination,
they effectively admitted _on the court record_ that they'd committed a crime.
At which point, the judge can see the smoke, and though he may not be allowed
to investigate the ignition source he can certainly point the DOJ in the
general direction of the fire.

~~~
SEMW
> By refusing to testify on the basis of the right to avoid self-
> incrimination, they effectively admitted on the court record that they'd
> committed a crime

I'm not a US lawyer, or even from the US. But surely, if courts can draw
adverse inferences from someone 'taking the fifth', that makes it a pretty
pointless right, no? It's not much of a right to avoid self-incrimination if
exercising it incriminates yourself. Can someone from the US clarify whether
that's really how it's interpreted?

~~~
jweese
I'm not a lawyer, but I am from the US. The Judge's order includes the
following footnote:

"Even if their refusal was based on the Fifth Amendment privilege against
self-incrimination, the Court still may draw adverse inferences against them
in this civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)"

The way I read it (again, not a lawyer) is that you can't convict someone
based on their refusal to testify, but this isn't a criminal proceeding. In
civil matters the rules are different.

~~~
comrade_ogilvy
Ah. Interesting.

So the fact that the lawyers are taking the Fifth can reasonably be used as
evidence that some of the specific claims and assertions already made are
materially fraudulent.

Taking the Fifth in your own lawsuit must be quite startling for a judge to
behold. One can imagine possible sound reasons why a defendant might take the
Fifth or the Sixth (right to consult an attorney, i.e. you caught me off guard
but I might answer your questions later), but that is not pretty either, in a
civil case.

------
patio11
Footnote number 5 is so acidic I feel burned just by reading it. (Context:
read paragraph #1 in the introduction first, summarizing the conspiracy's
business model.) [http://www.popehat.com/wp-
content/uploads/2013/05/PendaSanct...](http://www.popehat.com/wp-
content/uploads/2013/05/PendaSanctionsOrder.pdf)

~~~
rurounijones
It is not often I derive huge amounts of amusement from legal proceedings but
this case (and especially this judge) has been very fun to watch in a slow-
motion train-wreck kind of way.

We all knew this judgement would be good and the judge delivered.

------
ChuckMcM
Holy smokes. That is some serious smack down. One hopes it causes the entire
judiciary to awaken to this dark scourge of extortion through the courts.

~~~
rhizome
You can bet there are a lot of plaintiff lawyers paying attention as well.

------
Steko
No sympathy for Prenda but damn if this line didn't remind me of Aaron Swartz:

"Federal grand jury investigations are very slow, but represent experienced
practitioners bringing almost unlimited resources to bear against their
targets."

~~~
ghshephard
I wonder if there was ever a movie in which the Cavalry came calling to the
rescue, but went after the wrong target? I seem to recall a Twilight Zone
episode (or maybe it was a Stephen King Short Story) in which an infantry
platoon razed a village, only to discover that it was actually their own
hometown, somehow masqueraded as some foreign land.

I willing to wager that if we looked at it with objective perspective, 95% of
the time the Federal Grand Juries are doing work for good, it's only 5% of the
time that they are misguided - but it's that 5% that we all seem to remember.

~~~
aidenn0
If you give someone a basket of grenades and 5% of the time they hit
friendlies, you'll probably take the basket away...

------
rdl
What confuses me is that the only stuff they got smacked for was deficiency in
how they operated, not anything fundamental to the business of copyright
trolling. Another group of lawyers could easily do exactly this, while
maintaining more arms-length relationships with the copyright owners, and not
taking shortcuts on the cases, and be completely within the law.

~~~
noonespecial
That was the only thing they could be smacked for, so the judge smacked hard.
It is possible to conduct this extortion _within the law_ and that is a
problem, but judges can't change law. Notice has now been sent however that if
you're going to flaunt the law's deficiencies for personal gain at the expense
of the legal commons, you damn well better bring your A game.

~~~
belorn
Beyond that, they also showed that such actions now has risk involved.
Hopefully this will lead to the lawyers getting jail time, and that will in
turn discourage more legit lawyers from trying a similar scheme even with a A
game performance.

------
dmix
<http://en.wikipedia.org/wiki/Prenda_Law>

> Prenda Law, also known as Steele | Hansmeier PLLP and Anti-Piracy Law
> Group,[1] is a Chicago, Illinois-based law firm that claims it battles
> copyright piracy, but is also strongly identified with copyright trolling

------
smutticus
I think this is my favorite Star Trek reference in the decision.

page 10 line 21: "Third, though 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."

I have never had more fun reading a decision from a judge. It is heartening as
well as entertaining.

------
noonespecial
Righteous indignation, distilled and aged to a fine vintage... and then served
up in Ten Forward by a United States district judge.

So this is the other side of the looking glass... when do I meet the
disappearing cat?

------
downandout
While I sympathize with the disdain everyone has for these guys, this
judgement is the result of some lawyers that took several possibly illegal
shortcuts. This case sets no precedents about the viability of copyright
trolling going forward, and in fact the judge's obvious bias may serve as
grounds for a successful appeal in this case. So, while this makes for amusing
reading, at the end of the day it won't mean much. Everyone should still CYA
when downloading torrents.

~~~
bickfordb
What is the judge's bias?

~~~
downandout
A good appellate lawyer would likely argue that the judge's over-the-top
reaction, along with his written commentary showing clear disdain for the
business model of the plaintiffs and the attorneys, shows that the judge was
unfairly biased against them from the outset of the case. I don't know if they
would ultimately prevail on appeal, but the judge certainly opened the door
for it.

~~~
pdovy
I'm curious, what can they really appeal here? It seems like the biggest
impact of the ruling is the circulation of the ruling to other jurisdictions
and the referral of the matter to local / federal authorities. Is that
something that is immediate and an appeal can only reduce the monetary
finding, or is the whole order in stasis if they appeal?

~~~
downandout
Anyone can refer any matter to local or federal authorities, so that cannot be
appealed, but the monetary judgement may be subject to appeal. A large portion
of the basis for the findings of fact and punishments seems to pertain to
conduct that simply isn't illegal. Statements like the following undermine the
judge's impartiality:

"So now, copyright laws originally designed to compensate starving artists
allow, starving attorneys in this electronic-media era to plunder the
citizenry. "

It is quite obvious that this is the conduct that the judge intends to punish
through this order, but that conduct is entirely legal under current law. So
are many of the other things the judge complains about, including the use of
boilerplate language in the lawsuits, which is routinely done.

This judge disliked the plaintiffs from the outset and went combing through
their conduct to find any way he could to nail them. Judges are not supposed
to decide who they do or don't like in a case, then craft an outcome based
upon those personal feelings. But that is exactly what happened here. Popular
rulings aren't always legally sound.

~~~
Natsu
It seems rather silly to enrage a judge via misconduct during the case and
then claim the judge's indignation is a form of bias. Judge Wright wasn't mad
at them at the start of the case. Rather, he became angry after seeing how
they conducted themselves before him.

That reminds me of the story of the child who murders his parents only to beg
the court for mercy because he is an orphan.

------
ajtaylor
I've enjoyed following the ongoing saga of this case. Many thanks for the
detailed followups of each court session. It would be safe to say that the
judge has gone with the "nuke them from orbit" option, as it's the only way to
be sure these predators won't continue their dirty actions.

~~~
emeraldd
If you remember, the Xenomorphs survived being nuked ...

~~~
jlgreco
I wouldn't say they survived being nuked. One hitched a ride off the planet,
infected a dog/cow, and was later killed; and apparently another hitched a
ride inside of Ellen. Since neither were present for the nuclear blast I
wouldn't say they survived it. Ellen/It were later cloned to recreate
xenomorphs, but I don't think there is anything in the canon to say that the
xenomorphs which were nuked were able to survive.

Nuking xenomorphs from orbit does seem to be a very good way to be sure.

------
not_that_noob
It's the end of the road for this brand of copyright shakedown. This is an
amazing good-guys-win outcome for sure, but much more than that, it signals
the end of of the random copyright troll lawsuit.

------
betterunix
I have not read many court orders/rulings/etc. in my life (IANAL), but of
those that I have read, this is by far the angriest and most vicious.

------
mindslight
Hooray! for an occasion when the system worked. It's of course quite
heartwarming to see someone in a position of authority coming to a sane
opinion, getting incensed at the ridiculousness, and even going on the
offensive.

But what of all the others that have been mired in endless litigation with no
such happy ending? And while fitting, is it really _desirable_ for Prenda's
punishment to mainly consist of being ground down by the bureaucracy?

Wouldn't we rather an efficient system where ridiculous cases were dismissed
outright, unenforceable laws were retired quickly, the lawyer protection
racket was unnecessary, and the innocent could be reasonably confident of
ultimately prevailing instead of simply settling to avoid years of stress?

------
andyjohnson0
The Star Trek references in the judgement are rather strange and (to me)
diminish the judge's credibility. Is it normal practice for judges in the US
to use popular culture references in their written judgements? Anyone care to
explain the reasoning behind this?

~~~
justinlink
It's not uncommon, for example here's a recent double-entendre ruling about a
strip club:

[http://www.woai.com/media/lib/12/5/9/5/59511ba8-415b-4b2e-a7...](http://www.woai.com/media/lib/12/5/9/5/59511ba8-415b-4b2e-a783-cc15b6c19cc0/Itsy_Bitsy_Teeny_Weeny_Bikini_Top_Order.pdf)

The lawyers out there speculated he did it as yet another smack down to Prenda
law. This will always be known in law circles as the "Star Trek Order". It'll
be more widely read, and the shame will always follow them.

His findings of law are correct, a little toying with them outside of his
findings is quite enjoyable.

------
DanBC
Reading this I'm kind of optimistic.

Star Trek quotes? Firefox screenshot? Amazing. I read a lot of negative stuff
about US law. I hope that's because people are interested in the negative
stuff and there's biases operating to not publicise that good stuff.

------
zarify
"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."

Is this likely to have any implications for a wider range of copyright-by-IP
address cases? Since I've only given a cursory glance past the details of
other (let's say music and video) cases, this level of 'proof' sounds quite
similar to what is being offered elsewhere.

------
sudhirj
Is there now any way that Judge Wright might turn his eye (and hopefully his
hammer) on patent trolling? The arguments he makes against Prenda's process in
general - not the illegal parts, but the intent and procedure - is pretty much
what the patent trolling industry does. If he sees something that he pass
commentary on in a legal capacity, then I'm sure courts can and should take
note that they're being played in the patent game too.

~~~
sudhirj
> I. INTRODUCTION > Plaintiffs1 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 Court’s alert. It was when the Court realized >
> Plaintiffs engaged their cloak of shell companies and fraud that the Court
> went to > battlestations.

Right at the top. Looks exactly like a writeup about patent trolling except
for the porn part.

~~~
chc
It looks exactly like a writeup about patent trolling except _it doesn't have
anything at all to do with patents_.

------
ultimoo
popehat is great, and in spite this being one of their smaller articles, I
fail to follow what it boils down to. Can someone please summarize what Prenda
has to now do -- Do they serve time? Do they pay millions? Are they not
allowed to practice again?

~~~
Sanddancer
They have to pay attorney fees of about 40 grand, and another 40 grand of
punitive damages. At this point, that's about it, but with a ruling like this,
there's no doubt that there are going to be many more problems for the Prenda
gang in the future. Don't worry though, given the gravity of the
recommendations Wright's sending to the DA and to the IRS, you can be certain
there will be much more popcorn to be had from this case.

~~~
TylerE
Actually, the biggest bit in the judgement might be the "referral" (and not
the _good_ kind of referral) to their state bar(s).

~~~
protomyth
I would say the worst referral is actually the IRS one. The IRS does not play
"innocent until proven guilty" it is "pay up first, then prove you are
innocent if you can". The referral for a possible RICO case isn't very nice
either.

Informing all other courts about this is going to kill their other lawsuits
and bring some interesting new lawsuits / appeals.

------
rdl
I hope all the people who paid to settle get their money back with extra
damages.

------
lettergram
I am grateful that judges can bring down the hammer from time to time.

------
Fando
Reading this article gave me great pleasure.

------
kislayverma
Smackdown!!!

------
jopof
Confused -- Why all the rigamarole, instead of going RIAA-style after the
thousands-to-millions of actual porn copyright-infringers?

~~~
adventured
Because the porn industry doesn't have the representation in DC; it doesn't
have the centralized power to pursue highly expensive legal warfare; it
doesn't have any sympathy vote; it has very little power; it has relatively
little money compared to Hollywood or the recording industry (to attract K
Street lobbyists). There is no porn industry equivalent of the RIAA.

