7 ms·

Prenda Law's Attorneys Take The Fifth

105 points by jstalin 14y ago

ChuckMcM 14y ago
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 14y ago
  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.
  - bediger4000 14y ago
    The attorney-client privilege is most zealously defended, no? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976478 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976478 And the complexity of copyright law is really astounding: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136372 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136372
  - Symmetry 14y ago
    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?
  - DannyBee 14y ago
    At some point, they will need to prove this person exists, or else the court is likely to strip the privilege. After all, otherwise as a lawyer you could just avoid testifying about anything ever, by claiming you have this client you see, and well, he told me things about this, and thus it's privileged.
- Guvante 14y ago
  It is really hard to testify to what others had done without implicating yourself if you worked together.
- will_brown 14y ago
  It is very likely the Judge will refer this to the Attorney General for criminal investigation and the State Bar to any and all state's the individual attorneys are licensed, but the Judge's actions were appropriate in a Order to Show Cause. The problem with asking anyone involved questions regarding the other is that they may technically be co-conspirators. Since Conspiracy can be a charge unto itself compelling someone to testify about a co-conspirator would trigger the 5th, b/c that testimony could be incriminating as it would demonstrate how much someone knew about the conspiracy or what steps were taken in furtherance of the conspiracy.
- DannyBee 14y ago
  So, think of it this way: It doesn't read like he is running his own investigation, he is in fact, running his own investigation. In this case, for this particular issue, he is also the fact finder. So he's trying to find facts. Being a court, rather than an investigative body, the ways he can go about finding facts are rather limited, but he can still do a few things. As for the fifth amendment: 1. As Ken at popehat points out, the fifth amendment taking is going to end up being held against them in every civil matter. 2. Yes, you can compel people to testify about others (with limited exceptions), assuming it does not also incriminate you. Even in that case, they could just give the paralegal (or someone) immunity and force them to testify. They can basically force immunity on you and then force you to testify.
  - ChuckMcM 14y ago
    Oh I like that last bit. That would be interesting thing to play out.
  - antihero 14y ago
    "2. Yes, you can compel people to testify about others (with limited exceptions), assuming it does not also incriminate you." Is that what happened with those grand jury resistors?
    - DannyBee 14y ago
      In general, yes. Before a grand jury, you don't have as many rights as you do otherwise. (For example, they can use evidence obtained illegally)
      - antihero 14y ago
        How is a grand jury a thing if it's in clear violation of the constitution?
- Spooky23 14y ago
  Judges are incredibly powerful and have broad discretion to do lots of things. Doing something that provokes one's ire is generally a dumb thing to do.
at-fates-hands 14y ago
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-law-business-model-monetizing-squalid-douchebaggery/ http://www.popehat.com/2013/03/06/deposition-reveals-prenda-...) As a funny sidenote, it appears they're having some issues with their website too: http://wefightpiracy.org.previewdns.com/notable-decisions/ http://wefightpiracy.org.previewdns.com/notable-decisions/
- smackfu 14y ago
  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 14y ago
    >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.
parfe 14y ago
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 14y ago
  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 14y ago
    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 14y ago
      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.
icefox 14y ago
It would be nice if there was a brief sentence or two explaining what "Prenda Law's" is.
- RexRollman 14y ago
  That is something the judge would like to know too.
- commandar 14y ago
  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.
- duskwuff 14y ago
  One of the parties involved in this (admittedly bizarre) case is a law firm called "Prenda Law".
Millennium 14y ago
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 14y ago
  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 14y ago
    > 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.
- ufmace 14y ago
  This is not a criminal case against these lawyers, though. This is a continuation of a lawsuit that they filed. The judge essentially said that he was summoning them to court to explain how the business arrangement that they had set up and the suits they were filing was not an attempt to defraud the court and abuse the legal system. Since they declined to explain anything, they may be subject to such consequences as being disbarred or being fined for court costs. Since it is not a criminal or even civil trial against them, the rules are different, but there is no direct possibility of jail time or punitive fines. Now, the judge could very well refer the case to the US Attorney, in which case criminal charges could be filed against any or all of the attorneys/employees in question. In any trials ensuing from such charges, pleading the 5th cannot be used as evidence against them, but there would presumably be plenty of other evidence to demonstrate their guilt.
manglav 14y ago
This is the best summary of the overall case that I could find. http://abovethelaw.com/2013/02/judge-threatens-alleged-copyright-troll-with-jail-over-porn-complaints/ http://abovethelaw.com/2013/02/judge-threatens-alleged-copyr...

105 points by jstalin 14y ago

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 14y ago
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.
- bediger4000 14y ago
  The attorney-client privilege is most zealously defended, no? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976478 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976478 And the complexity of copyright law is really astounding: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136372 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136372
- Symmetry 14y ago
  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?
- DannyBee 14y ago
  At some point, they will need to prove this person exists, or else the court is likely to strip the privilege. After all, otherwise as a lawyer you could just avoid testifying about anything ever, by claiming you have this client you see, and well, he told me things about this, and thus it's privileged.
Guvante 14y ago
It is really hard to testify to what others had done without implicating yourself if you worked together.
will_brown 14y ago
It is very likely the Judge will refer this to the Attorney General for criminal investigation and the State Bar to any and all state's the individual attorneys are licensed, but the Judge's actions were appropriate in a Order to Show Cause. The problem with asking anyone involved questions regarding the other is that they may technically be co-conspirators. Since Conspiracy can be a charge unto itself compelling someone to testify about a co-conspirator would trigger the 5th, b/c that testimony could be incriminating as it would demonstrate how much someone knew about the conspiracy or what steps were taken in furtherance of the conspiracy.
DannyBee 14y ago
So, think of it this way: It doesn't read like he is running his own investigation, he is in fact, running his own investigation. In this case, for this particular issue, he is also the fact finder. So he's trying to find facts. Being a court, rather than an investigative body, the ways he can go about finding facts are rather limited, but he can still do a few things. As for the fifth amendment: 1. As Ken at popehat points out, the fifth amendment taking is going to end up being held against them in every civil matter. 2. Yes, you can compel people to testify about others (with limited exceptions), assuming it does not also incriminate you. Even in that case, they could just give the paralegal (or someone) immunity and force them to testify. They can basically force immunity on you and then force you to testify.
- ChuckMcM 14y ago
  Oh I like that last bit. That would be interesting thing to play out.
- antihero 14y ago
  "2. Yes, you can compel people to testify about others (with limited exceptions), assuming it does not also incriminate you." Is that what happened with those grand jury resistors?
  - DannyBee 14y ago
    In general, yes. Before a grand jury, you don't have as many rights as you do otherwise. (For example, they can use evidence obtained illegally)
    - antihero 14y ago
      How is a grand jury a thing if it's in clear violation of the constitution?
Spooky23 14y ago
Judges are incredibly powerful and have broad discretion to do lots of things. Doing something that provokes one's ire is generally a dumb thing to do.

at-fates-hands 14y ago

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-law-business-model-monetizing-squalid-douchebaggery/ http://www.popehat.com/2013/03/06/deposition-reveals-prenda-...) As a funny sidenote, it appears they're having some issues with their website too: http://wefightpiracy.org.previewdns.com/notable-decisions/ http://wefightpiracy.org.previewdns.com/notable-decisions/

smackfu 14y ago
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 14y ago
  >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.

parfe 14y ago

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 14y ago
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 14y ago
  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 14y ago
    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.

icefox 14y ago

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

RexRollman 14y ago
That is something the judge would like to know too.
commandar 14y ago
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.
duskwuff 14y ago
One of the parties involved in this (admittedly bizarre) case is a law firm called "Prenda Law".

Millennium 14y ago

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 14y ago
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 14y ago
  > 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.
ufmace 14y ago
This is not a criminal case against these lawyers, though. This is a continuation of a lawsuit that they filed. The judge essentially said that he was summoning them to court to explain how the business arrangement that they had set up and the suits they were filing was not an attempt to defraud the court and abuse the legal system. Since they declined to explain anything, they may be subject to such consequences as being disbarred or being fined for court costs. Since it is not a criminal or even civil trial against them, the rules are different, but there is no direct possibility of jail time or punitive fines. Now, the judge could very well refer the case to the US Attorney, in which case criminal charges could be filed against any or all of the attorneys/employees in question. In any trials ensuing from such charges, pleading the 5th cannot be used as evidence against them, but there would presumably be plenty of other evidence to demonstrate their guilt.

manglav 14y ago

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