

A Blow for Copyright Trolls - panarky
https://www.eff.org/press/releases/crushing-blow-copyright-trolls-appeals-court-halts-af-holdings-extortion-scheme

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tptacek
If this is the same AF Holdings/Prenda Law that we've been reading about on
Popehat for a year, it might be tough to extrapolate this ruling into any kind
of "crushing blow" against the concept of trolling; it would be understating
it significantly to say that Prenda was already "on the ropes".

[http://www.popehat.com/tag/prenda-law/](http://www.popehat.com/tag/prenda-
law/)

(Popehat's coverage of Prenda is _golden_ ; a highly recommended and amusing
read.)

 _Later_

Having read the opinion, it's a little of both. (I'm not a lawyer and expect
to be corrected here).

First, the Appeals court ruled that Prenda/AF's attempt to compel service
providers to cough up records created an undue burden on the providers. That
burden was undue because in attempting to do that, Prenda/AF needed to
demonstrate a good-faith belief that the records they were speaking were
discoverable.

The DC circuit points out that it would have been possible to file such a suit
and make such a demonstration, but, of course, Prenda/AF did not do that.

Second, the court ruled that Prenda/AF's attempt at joining all their 1000+
suits into a single case was invalid, because Prenda/AF didn't demonstrate in
a meaningful way that the cases were related. Again, the court explained that
there was a reasonable way Prenda/AF could have legitimately filed such a case
(albeit with fewer defendants), but the slapdash way they actually filed the
case made it easy to reject their joinder request.

To the extent that the details of this ruling pertain to the specifics of the
Prenda/AF case, they are less useful, because you'd have to imagine after
reading more about Prenda/AF that any copyright troll in the world would have
to be smarter than them.

~~~
ajtaylor
I agree with you on the popehat coverage. It was simultaneously horrifying,
entertaining and thrilling. I don't regret for a moment the hours I spent
reading the reports.

------
wmf
People probably don't want to hear this, but I think the anti-trolls are
winning on technicalities. In many cases a reverse DNS lookup can determine
the proper jurisdiction. Improper joinder can be solved by just not joining
defendants. Prenda may be making simple mistakes but Malibu appears to be
learning from them.

~~~
rhizome
Isn't a use of the word "technicality" in a legal context an indicator of
bias? Are you saying that the precedent set is weak?

~~~
JoshTriplett
That's exactly what it means. Most courts tend to make the narrowest possible
ruling rather than setting broad precedent: if they can throw out a case on a
technicality, they'll do that rather than rule on the merits of the case
itself. When that _doesn 't_ happen, people start throwing around phrases like
"activist judges".

So, in the areas of copyright and patent trolls, it's nice to see victories,
but it's nicer to see victories on the merits of the case rather than on the
details a particular troll got wrong.

~~~
rayiner
But in this case, the procedural stuff is what makes AF is a troll, isn't it?
What useful precedent would come out of getting to the merits?

~~~
JoshTriplett
> But in this case, the procedural stuff is what makes AF is a troll, isn't
> it?

Only in part. Sure, procedural stuff like hostile choices of venue and
settlement-seeking behavior seems common to trolls, but there's also the more
general environment that makes trolling possible: the general expectation that
going to court is an expensive gamble and you might not even get your costs
back.

That's leaving aside the fundamental IP issues supporting patent trolling to
begin with, but I don't expect to see a precedent on _those_ anytime soon.

> What useful precedent would come out of getting to the merits?

Precdents that would completely change the expected outcome of taking a troll
to court: universal expectation of covering attorney fees, criminal penalties
for broad-scale carpet-bombing with just-less-than-court-cost settlements (
[http://en.wikipedia.org/wiki/Barratry_%28common_law%29](http://en.wikipedia.org/wiki/Barratry_%28common_law%29)
), and piercing the corporate veil on troll shell companies to stop them at
the source.

------
phkahler
Shouldn't they take them to court first? At what point does "give me money or
else..." become extortion? Does it matter if they phrase it "I'm going to...
but you can prevent that by paying me now."

