
Prenda Law's Attorneys Take The Fifth - jstalin
http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take-the-fifth-rather-than-answer-judge-wrights-questions/
======
parfe
I was childishly hoping for some explosive TV-style courtroom drama but this
leaves me satisfied.

One thing I don't understand is why all the shadowy connections and potential
fraud? Couldn't one of the attorney's started a media holding company which
acquired the copyrights, and then hired the second to pursue lawsuits? Then
keep track of payouts and payments to the lawyer.

The tax evasion theory I guess would make them some more money, but still, why
risk it if you've got a money making scheme running?

Also, Popehat is great to follow, along with Groklaw, for reading legal news.

~~~
MichaelGG
From the bits I've read, you must disclose who has interest in a copyright
suit. And you can't sell the "right to sue" to other entities. So if company X
owns a movie, and wants company Y to sue on its behalf, Y must list X as
having interest in the suit or X must transfer _all rights_ to Y.

~~~
parfe
Right but if they just had company A owned by dude X purchase the rights and
hired company B owned by dude Y as legal counsel what would the problem be?
How is that different than any other copyright suit? I'm not understanding why
they needy the shadowy shell corporation structure.

Edit: prenda has problems with a fake CEO and other issues of who is
responsible for what. That's really what confused me. Why not just put one guy
in charge and the other as legal counsel?

~~~
will_brown
By statute the Copyright Act provides for attorney's fees to the prevailing
party (Plaintiff only). An attorney representing themselves (or with interest
in the matter) is not entitled to the statutory attorney's fees, so it
_appears_ that ownership of the company was willfully obscured by the Firm so
the Firm could represent the Company and seek prevailing party fees that they
would otherwise not be entitled to.

You are correct a lawyer can purchase IP or a Company that owns IP and enforce
the same, they can hire another attorney to represent them (as you suggested),
and if they win be entitled to attorney's fees, or they could represent
themselves but not be entitled to prevailing party attorney's fees. To take it
a step further, even if an attorney owned the IP, and had the Firm he/she
worked for represent the individual attorney this _can_ still be very
problematic.

Here they _appear_ to be having their cake and eating it too, not only does it
appear to be willful fraud on the Court but willful fraud on the Court by a
officer of the Court.

As the saying goes the lawyer that represents themselves has a fool for a
client.

~~~
parfe
Thank you. So their scheme might be something like sue someone for $1,000 or
whatever, and if they win collect $10,000 in attorney fees.

But without the shadow ownership, they would only be entitled to the $1,000?

edit: although on rereading my hypothetical, I still don't understand why
strictly separating ownership of the media company and the law firm wouldn't
have been sufficient.

~~~
will_brown
>I still don't understand why strictly separating ownership of the media
company and the law firm wouldn't have been sufficient.

Lawyers are not allowed to _knowingly_ misrepresent facts to the Court. So the
Firm's interest would/should always be revealed.

Ownership can always be traced back, this generally is revealed during
discovery, but if _as alleged_ the true ownership was not revealed because the
very Firm who both is attorney of record and actually owns the the Plantiff's
Company and the Firm willfully misrepresented that to the Court - never-mind
the allegation of identify theft to deceive the Court.

------
ChuckMcM
This is an interesting situation, since it reads like the judge in this case
is running his own investigation. Rather than having an investigative agency
like the FBI or local law enforcement doing it.

Further, while the folks could use the 5th amendment to avoid testifying about
themselves, it seems like they could be compelled (or held in contempt) to
testify about the others. It would seem is all you need is one going to prison
and that would unlock this particular deadlock.

Very curious, and amusing in a morbid sort of way.

~~~
jstalin
It gets hairy if the person they're being asked to testify about is a client
because that implicates the attorney/client privilege, which the article
mentions.

~~~
Symmetry
But who is the client in this case? In theory it's "Alan Cooper" but is there
actually an Alan Cooper who is the client to be the beneficiary of that
privilege?

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Millennium
So the judge is essentially taking their insistence on pleading the fifth as
evidence of guilt?

My main problem with this tactic is that it's not too tough to argue that this
is a violation of the Fifth Amendment. I have no sympathies for the defendant
in this case, but I'm concerned that a conviction along these lines wouldn't
stand up on appeal. They could get it declared a mistrial, and this is not the
sort of case one should leave vulnerable to that tactic.

~~~
ScottBurson
I didn't see that anyone has suggested they could be _convicted_ simply for
taking the Fifth.

Disbarment is another matter, though. I don't know exactly how that works, but
I wouldn't be at all surprised if taking the Fifth in a situation like this is
sufficient to get one disbarred.

~~~
dragonwriter
> Disbarment is another matter, though. I don't know exactly how that works,
> but I wouldn't be at all surprised if taking the Fifth in a situation like
> this is sufficient to get one disbarred.

Taking the Fifth, by itself, won't get them disbarred. The evidence of
misconduct which is the basis for the judge hauling them in to show cause why
they should not be sanctioned, OTOH, might be -- taking the Fifth is just a
refusal to respond to the cause to show cause why they shouldn't be
sanctioned. The case for the sanctions is, in the judge's mind, _already made_
, they were just being hauled in to explain why the judge was _mistaken_ in
thinking they should be sanctioned.

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at-fates-hands
This looks more and more like some get rich scheme to strong arm people into
giving them millions. It borders on extortion really.

I'm pretty sure the lot will get disbarred and whoever is behind the company.
These dispositions just make this story even more
bizarre([http://www.popehat.com/2013/03/06/deposition-reveals-
prenda-...](http://www.popehat.com/2013/03/06/deposition-reveals-prenda-law-
business-model-monetizing-squalid-douchebaggery/))

As a funny sidenote, it appears they're having some issues with their website
too: <http://wefightpiracy.org.previewdns.com/notable-decisions/>

~~~
smackfu
The thing is, they aren't really getting in trouble for the original scheme,
which is essentially to sue on behalf of a porn studio for copyright
infringement, to join a lot of IPs in a single case in order to save on filing
fees, and then to make a lot of money on small settlements. That is still
pretty viable, although a lot of judges now are getting reluctant to turn
those massive list of IPs into names.

They seem to be running into trouble mainly because they decided that it would
be much easier to be their own client: have a shell company purchase the porn
video and take 100% of the settlements. But then that runs into issues with
attorney-client separation, and then they used some appropriated names on the
shell company to limit the paper trail, and suddenly there is real trouble
brewing.

~~~
commandar
>That is still pretty viable, although a lot of judges now are getting
reluctant to turn those massive list of IPs into names.

Actually, the judge in this case was shooting down their reasoning for
obtaining the identity connected to a _single_ IP, had halted discovery until
they could provide a basis for it, and specifically called out what they were
doing as abusing the courts to extort defendants. Prenda then moved to dismiss
the case in February, but the defending lawyer had already let the cat out of
the bag about all the other shenangians Prenda was engaged in, and the judge
started digging into possible misconduct from there.

Their business model was already in trouble if the statements the judge had
made to that point are any indication, but things got really bad for them when
it turned out they were pulling all kinds of other shady things behind the
scenes.

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manglav
This is the best summary of the overall case that I could find.
[http://abovethelaw.com/2013/02/judge-threatens-alleged-
copyr...](http://abovethelaw.com/2013/02/judge-threatens-alleged-copyright-
troll-with-jail-over-porn-complaints/)

------
icefox
It would be nice if there was a brief sentence or two explaining what "Prenda
Law's" is.

~~~
commandar
They're a copyright troll that was suing John Does for pirating pornography.
They'd go to court, say "this IP downloaded X" and subpeona for the identity
of the person assigned that IP. They'd then use the threat of the suit to
attempt to extort a settlement out of the person identified in order to avoid
the cost and embarrassment of being named in a suit for downloading porn.

The judge in this case had already called them out on this and refused to
allow discovery unless they could show that they could specifically identify
the person that had committed the infringement (specifically noting that IPs
identify the person paying for the IP, not necessarily the person who
committed the act), and that they could minimize the likelihood of the
incorrect person being named -- and therefore unfairly embarrassed -- by the
suit.

Prenda subsequently withdrew the case, but it turned out they were pulling all
kinds of shady shell games that the judge is now looking into as willful
misconduct and abuse of the court.

