Troll news - Prenda lawyers "take the fifth"

A reportedly very very angry US District Judge, Otis D. Wright II, has finally had his day in court with the now much maligned 'Prenda' copyright "trolls" - with one blogger applauding Judge Wright as “the judge who figured out that Prenda was running something that looked a blackmail racket that involved systematic fraud against courts around the country”.  We first covered this torrid tale back on March 10th this year. 

The four lawyers and one para-legal, grouped together under the 'Prenda' banner, and a number of claimant companies they allegedly control, include John Steele of Steele Hansmeier PLLC and Prenda Law, Inc.,  Paul Hansmeier of Steele Hansmeier PLLC and/or Livewire Holdings LLC, Paul Duffy of Prenda Law, Inc., Angela Van Den Hemel of Prenda Law, Inc., Mark Lutz of Prenda Law, Inc., AF Holdings LLC and/or Ingenuity 13 LLC, and Peter Hansemeier, of 6881 Forensics, LLC, and all were ordered to court for a March 29th hearing by Judge Wright to explain their own and their firm's legal practices. In a 12 minute hearing, the various lawyers all took the 'fifth amendment', refusing to speak: Steele's lawyer confirmed his client would exercise his right to remain silent. Attorneys for Paul Hansmeier, Paul Duffy, and Angela Van Den Hemel confirmed their clients, too, would invoke their right to protect themselves against self incrimination.

Prenda came to prominence as a "porn troll", filing lawsuits against internet subscribers whom it alleged had downloaded copyrighted X-rated movies and then demanding a sum of money to settle the matter with one blogger describing Prenda as "the sleazy "law firm"/copyright trolls who use the courts to get the names and addresses of people whom they allege have downloaded pornographic videos with embarrassing names, and whom they then threaten with public humiliation and a lawsuit unless the victims pay a quick cash settlement." 

Adding for good measure

"One of the great mysteries about Prenda is who the firm actually is -- which individuals are behind it? In past, Prenda's representatives have claimed to be working for "Alan Cooper" -- a former caretaker for one of the Prenda reps who claims they have stolen his identity." Judge Wright had  also voiced his belief that the "clients" Prenda claimed to represent were actually shell companies created by Prenda itself, meaning the firm was really suing people for its own enrichment.

Judge Wright certainly wasn't impressed by the row of silent lawyers in front of him saying in the brief hearing "It should be clear this court's focus has shifted dramatically from litigation of intellectual property rights to attorney misconduct – such misconduct as brings discredit to the profession".

Judge Wright now has a variety of avenues he can pursue, ranging from referring the issue to relevant attorney's state bar associations for misconduct, seeking United States District Court and Circuit Court bars, referring the matter to the United States Attorney's Office if fraud is suspected, particularly if he believes Prenda Law attorneys misappropriated Alan Cooper's identity and / or created entities like AF Holdings and Ingenuity 13 to conceal their own financial interests in the cases they brought, and / or  lied to and concealed facts from both defendants and federal courts. As a district court judge, Judge Wright has numerous tools with which he can address the alleged misconduct before him, including Rule 11 of the Federal Rules of Civil Procedure, federal statute, Title 28, United States Code, Section 1927: 28 U.S.C. section 1927, along with his inherent authority and local rules, although each tool has its own limits. As a Federal judge, Judge Wright also has the power to hold the Prenda lawyers in contempt of court; sanctions for contempt include fines and/or imprisonment. Anything more from any of our US readers would be much appreciated as its not my forte. 

Lots more for troll fans on Boing Bping here http://boingboing.net/2013/04/02/notorious-porno-copyright-trol.html and The Register here http://www.theregister.co.uk/2013/04/03/prenda_pleads_the_fifth/

And more on troll's here http://slworona.wordpress.com/2012/05/03/judge-tells-copyright-trolls-they-came-to-the-wrong-court-for-help-with-their-shakedown-racket/ and on the ACS:Law "train crash" over here in the UK here http://the1709blog.blogspot.co.uk/2011/01/acslaw-seeks-to-end-pursuit-of-alleged.html

Broadcasters triumph in battle to define internet streaming

The US based television streaming service ivi suffered a major setback this week after the federal appeals court upheld a lower court’s temporary injunction against the controversial company.

The case was brought against  Seattle based ivi by ABC, NBC, Universal, Univision, Fox Television, CBS and several other broadcasters, networks and rights owners, asserting that the startup was infringing their copyrights by live-streaming their programming without permission. Initially, ivi began retransmitting signals from about 30 New York and Seattle stations in 2010, but it quickly expanded, retransmitting signals from Los Angeles and Chicago and offering several thousand copyrighted programs to its subscribers. For about $5 per month, subscribers could access content owned by and distributed through major networks. 

In its ruling, the U.S. Court of Appeals for the Second Circuit said that allowing ivi to resume service could “threaten to destabilize the entire industry” and inflict irreparable damage on the networks.   It also determined that ivi was not legally the same as a cable network, noting in particular that it “retransmits broadcast signals nationwide, rather than to specific local areas". Ivi’s position is that as it was an "Online Video Distributor" that could be considered a cable system, it only required the same compulsory licenses the U.S. Copyright Office grants to cable providers under §111 of the Copyright Act, and that it didn’t need consent to retransmit signals because as an online service it is outside the Federal Communications Commission’s remit.  The company argued that like other cable systems, it merely had to pay a statutory rate of about $100 a year to have access to the content. 

Giving the unanimous judgment of the Court, Judge Denny Chin reviewed ivi's system of capturing and retransmitting programming, with the ability to record, pause, fast-forward, and rewind streams, and its legal arguments. The judge says that based on the statutory text of the copyright provision, it was "not clear" whether a service that retransmits live television programming over the Internet constitutes a cable system and said the growth of "cloud-based systems...highlights the uncertainty". But Judge Chin then noted that "Congress has not codified a statutory provision for Internet retransmissions, nor has it included the 'Internet' as an acceptable communication channel under § 111.7." and that the statutory licensing system was put in place to allow remote rural  communities to obtain a stronger TV signal – and that Congress was not “opening the door to digital streamers”. Put simply, the Second Circuit said that streaming services are not cable systems. 

Upholding the February 2011 decision of Judge Naomi Reice Buchwald in the U.S. District Court for the Southern District of New York, granting a preliminary injunction barring ivi from transmitting copyrighted material belonging to such as ABC, CBS, NBC, Fox Television and Major League Baseball, Judges Chin, Ralph Winter and Christopher Droney said “The absence of a preliminary injunction would encourage current and prospective retransmission rights holders, as well as other Internet services, to follow ivi’s lead in retransmitting plaintiffs’ copyrighted programming without their consent” and noted that if ivi’s service were to continue “The strength of plaintiffs' negotiating platform and business model would decline. The quantity and quality of efforts put into creating television programming, retransmission and advertising revenues, distribution models and schedules –- all would be adversely affected. These harms would extend to other copyright holders of television programming. Continued live retransmissions of copyrighted television programming over the Internet without consent would thus threaten to destabilize the entire industry." 

"We are very pleased the Court recognized that ivi's unauthorized streaming of our copyrighted content would substantially diminish the value of television programming," said ABC, NBC, CBS and Fox in a statement. "

1709 Readers will remember that Judge Chin was also the judge in the 'Google Books' settlement - where he rejected in Google's first offering as it gave Google a significant advantage over competitors, and would have rewarded the web giant for wholesale copying of copyrighted  works without permissions.

More at the Hollywood Reporter and The New York Law Journal

WPIX v ivi 11-788-cv

An IP address is not a person

In the USA, Judge Magistrate Gary Brown (US District Court, Eastern District of New York) has gone to great lengths to explain why an IP address is not the same as a person and cannot be used to bring claims against alleged copyright infringers.

In the States, Mass-BitTorrent lawsuits have been “dragging on for more than two years” and involve more than a quarter million potential illegal downloaders. The copyright owners who start these cases generally provide just an IP-address as evidence of the infringement and as the identity of the ‘John Doe’ infringer. The court is then asked to grant a subpoena, allowing the claimant to require an Internet Service Provider for the personal details of the alleged offenders. Judge Brown is of the opinion this is a “waste of judicial resources” and that the argument that IP-addresses can identify the alleged infringers is very weak with Judge Brown saying

“The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time” 

adding

“An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones ….  Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call”. 

Judge Brown went to explain that in his opinion having an IP-address as evidence of an infringer is even weaker than a telephone number, as the majority of US homes now have a wireless network - meaning that many people, including complete strangers if one has an open network, can use the same IP-address simultaneously.

This latter point was tested by the courts in Germany where the German Supreme Court (BGH) indicated that a subscriber who left their wi-fi open without password protection was potentially liable for others' infringing activities but only in as much as the subscriber could be enjoined to an action and forced to take necessary precautions - they would not be liable for damages (financial penalties) for another's infringement.

http://torrentfreak.com/judge-an-ip-address-doesnt-identify-a-person-120503/ and http://www.scribd.com/doc/92229567/Judge-Gary-Brown-IP-Address-Ruling and an opinion on copyright ‘trolls’ here http://slworona.wordpress.com/tag/judge-gary-r-brown/ and for the German position see here http://ipkitten.blogspot.co.uk/2010/05/germany-liability-for-unsecured-private.html