Bad Things Happen When Lawyers Stop Representing Clients, and Start Representing Causes – John Blaha Ordered to Pay Rightscorp Attorney’s Fees

An interesting development in the world of copyright litigation, as rights holders secured a major victory in California on Friday. A court has ordered Morgan Pietz’s client in John Blaha v. Rightscorp to pay attorney’s fees due to a successful anti-SLAPP motion filed by the defendants. It raises ethical issues about using clients to try and further an anti-copyright law agenda, and drum up business.

A little bit of background…

Rightscorp is an anti-piracy corporation. It monitors BitTorrent usage, and then sends out notices to pirates who are stealing and distributing copyrighted content. From there, the company requests that pirates stop stealing the content, and pay the rights holder a reasonable fee of about $20. In this instance, Rightscorp was contacting people who stole and distributed films like The Shawshank Redemption and The Lord of The Rings: The Fellowship of the Ring, two of my favorite movies. Notably, Lord of the Rings is available on Amazon.com for $9.99, and Shawshank Redemption is available for the same price. If you’re that hard up for cash but really want to watch the movies, you can even rent them for a whopping $2.99.

Surprisingly, people routinely steal movies using BitTorrent, even though they are available for immediate purchase on Amazon and iTunes. People on the internet say it’s unfair when they get caught and sent a notice from Rightscorp, or sued. Of course, if you were caught stealing the same movie in Target, you would be arrested, prosecuted, forced to spend a lot of money on lawyer fees and restitution, and then at the end of the day you would have a criminal record for the rest of your life. So in the grand scheme of things, Rightscorp’s approach seems pretty reasonable.

Why I Hope You Get Sued For Copyright Infringement – A Response to the EFF on Maximum Statutory Damages

It’s Monday morning. Time to get pumped for the day. I click on my Pandora icon and a song comes on. I love Pandora One. It costs me about $50 a year, but I can stream music all day. At the gym, my living room, anywhere.

This song sounds good… Geometer by Slidecamp. Never heard of these guys before, but I can dig it. Let’s see if they’re on iTunes. Awesome. The entire album is available for exactly $7.92. That’s about two cups of coffee. I’ll bite.

BOOM – now the entire album is now on my iPad, my iPod, and my computer. I can listen to the song I want on repeat. Sweet. Gonna be a good day at the gym today.

For a second, I can’t help but think back to when I was a kid. There were two ways to listen to music – tapes and CDs. CDs sounded better, but you couldn’t take them into the gym because it skips. So you had to use tapes for any type of workout, and then listen to CDs in your house. After awhile, the CDs would get banged up, scratched, and useless. I think I bought Pearl Jam – Ten about ten times. To get a CD, you had to drive to Sam Goody and buy the entire album when all you wanted was one song. My bedroom had CDs spewed all over the place at any given time. And damn, I left my tape player on the bus again. Hopefully Ms. Gomez found it. It’s got my Green Day tape in there.

My how things have changed since then. Now any content I want is available at the click of a finger through Amazon, iTunes, or often directly from the producer’s website. It’s backed up in the cloud. MP3s don’t skip, and all the music goes to all your devices. And it gets better – movies, software, games, you name it, available in one click. No more braving the mall, no more Sam Goody, no more Electronics Boutique. Everything you want is available right here, right now, and for a fraction of what it used to cost. and if I break my computer I just buy a new one and all my music is back.

Welcome to the new millennium.

Jordan Rushie joins Randazza Legal Group

When I was in law school, I used to read The Legal Satyricon. I remember thinking “This blog is awesome! But I could never do anything like that.” Marco has always been known for his high flyin’, foul mouthed, unique breed of legal representation. Something I always wanted to do but couldn’t. Because I was a nameless, faceless associate at a law firm billing hours and serving corporate clients.

One fateful day in April of 2011, I was checking my email before going to Whole Foods. Little did I know how much my life would change that fateful morning. As I was checking Solosez (a lawyer listserve where stupid people go to ask other stupid people stupid questions to get stupid answers), I learned that I had been named as a defendant in Rakofsky v. The Internet (hysterically and appropriately named by Scott Greenfield). Not sure what to do, I called Brian Tannebaum, a lawyer who used to write a good blog (two, actually), that I read regularly. When Brian got done yelling at me for interrupting his day, he put me in touch with Marc Randazza, who became my lawyer and proceeded to decimate the lawsuit.

Since then, I have started my own firm, wrote an ABA 100 Law Blog, and have had a career that I never could have imagined in my wildest dreams. Much of which involves protecting the First Amendment, intellectual property rights, and zoning. I went from working in a law job to having a practice that I feel excited and energized about every single day. Life is good. [Editor’s Note: Scott Greenfield nominated Philly Law Blog to the ABA 100. I love him forever.]

I blame Marc for most of it. 

Over the last few years, we’ve done a lot of work together, a lot of which was in the press. Just one of many examples, Me and Marc handled The Bellwether Trial, which was the first bittorrent case ever to see the inside of a courtroom. We are currently working on other interesting cases throughout the country, most of which I can’t blog about just yet. (stay tuned).

It’s been a wild ride.

So, in the interest of keeping things simple, I have decided to join Randazza Legal Group as Of Counsel. This actually happened awhile ago, but I was too busy to write about it.

It’s a great honor to be working with someone who I have idolized for many years, who defended me in my first lawsuit, and helped me get my own career off the ground.

And don’t worry. Fishtown Law won’t be changing one bit. Me and Leo continue to be your neighborhood Fishtown Lawyers, drinking all the craft beers and hanging around town. I will still be working out of 2424 Studios here in Fishtown and harassing Leo on an everyday basis (although I will be in Vegas from time to time, mostly to skirt open container laws).

 

Talking Torrents: Judge Baylson Issues Final Memorandum Opinion on the Bellwether Trial; Kills Mass Joinder Torrent Actions

Today the Bellwether case officially concluded. Judge Baylson has issued his final memorandum opinion, found here.

Notably, you may recall that we filed a motion to dismiss at the outset of the case, arguing that all of the swarm are indispensable parties. Joinder is either proper or its not. The court rejected that argument and denied our motion.

Interestingly, the court’s opinion memorandum opinion issued today held that joinder is not approprriate in a bittorrent case:

I now believe that joinder of multiple defendants in a single complaint alleging copyright infringement through the use of BitTorrent technology is neither necessary nor appropriate. …  As I held then and believe even more firmly now, members of BitTorrent “swarms” are not essential parties for copyright infringement suits involving BitTorrent technology because the “swarm” is formed automatically by the software, and not by any actual association of these defendants. Moreover, there are downsides to allowing permissive joinder. As trial judges are well aware, a large number of defendants in a single complaint poses significant management problems and often delays disposition of cases. Further, joining multiple defendants allows the plaintiff to avoid separate filing fees, and also pressures individual defendants to settle because their costs of defending a multi-party case are likely to be larger than if there is only one defendant. For these reasons, and based on the record made in this case, I recommend against requiring joinder under Rule 19 and also against allowing it under Rule 20(a).

While this opinion will most likely end the era of massively joined bittorrent actions, I don’t think this is the end of torrent lawsuits. I suspect you will see more actions filed against individuals accused of massive infringement.

But absent massive joinder actions, is this the end of what is popularly characterized as “copyright trolling?” Does this mean that now plaintiffs will be more willing to take their cases to trial?

We shall see.

You may also recall that last year, I wrote an article suggesting that mass joinder actions may be better for individual John Doe defendants.

There is a lot going on in this opinion, and I’m sure you will all have interesting takeaways from it.

Talking Torrents: Some Thoughts on Prosecuting and Defending Bittorrent Cases

Many of you have heard of bittorrent litigation by now. In short, copyright holders will sue a group of people sharing their work on bittorrent. Often the lawsuits involve pornographic movies. Many of these lawsuits also involve large amounts of defendants, e.g., Media Company v. Does 1-50, which has lead to significant amounts of criticism. This month I had the pleasure of defending the first ever bittorent case to ever see the inside of a courtroom in the Bellwether Trial – Malibu Media v. Does 1, 13, and 16.

When it comes to the nuts and bolts of litigating bittorrent cases, there is a popular narrative on the internet. It goes something like this: all the cases are a mass extortion scheme, the people accused were picked out of a hat, no one pirates anything on the internet, nothing could ever be proven in court, and if you just fight them a little bit these guys will run away and probably get sanctioned like Prenda Law.

If you read the internet, you would think everyone who gets sued in a torrent case is an unsuspecting victim forced to settle because it’s the cheaper route. And it doesn’t matter because none of theses case could ever be taken to trial anyway.

I disagree, and I think there is a lot of untrue information out there on the internet. This is my two cents, take it for what it’s worth…

The Bellwether Trial (Malibu Media v. Does) – What Have We Learned? My Five Takeaways From the Trial

This week Marc Randazza and I had the pleasure of trying the first ever bittorrent case to reach a verdict. Many thanks to my trial co-counsel, Leonard J. French and Ron Smith. Credit is also due to Charles Thomas and Thad Gelsinger, whose clients settled before trial. Finally, kudos to Malibu Media’s counsel, Keith Lipscomb and Chris Fiore, who demonstrated that they are exceptional litigators and trial lawyers. It was a hard fought battle among worthy adversaries.

If you are interested, you can listen to the Bellwether Trial in its entirety here:

Part 1 – Trial Audio (IPP Limited, Patrick Paige, court appointed expert Louis Cinquanto)

Part 2 – Trial Audio (John Doe Defendants, Judge Baylson’s final rulings)

(I can’t figure out how to embed it.)

So… what is this all about?

Last October, Judge Baylson ordered Malibu Media to take a bittorrent case to trial. Some had concerns that a bittorrent case could never be tried successfully in court.

That proved to be wrong… on June 10, 2013, Malibu Media tried three John Does accused of copyright infringement to a verdict.

A $112,500 verdict was entered against John Doe 16, in addition to attorney’s fees and costs. The judgment will be close to $500,000 once costs and attorney’s fees are entered.

No money damages were entered against Doe 1 and Doe 13 because they settled before trial to avoid an entry of a damage award.

Doe 16 was accused, and ultimately found guilty of, very serious perjury. In discovery he turned over a hard drive that had been wiped clean, with evidence planted on it to look as though it were operational. Malibu proved that Doe 16’s hard drive had been wiped, and that evidence had been planted on it. Doe 16 later admitted his wrongdoing and confessed after the court appointed its own expert. (it is a lot more complex than that, but you get the gist).

Doe 1 denied downloading the movies in a civil deposition, but later recanted.

Doe 13 never denied infringing on the copyrighted material, but made legal arguments as to why he should not be held liable. The court said Doe 13 had a legal right to do that.

At the end of the trial, the court rejected the legal arguments and found in favor of Malibu Media.

Now that the trial is over, there are many things we can take away from the Bellwether Trial for lawyers, Doe Defendants, and people who are generally interested in copyright law. These are a few things I thought were notable:

Prenda Law, John Steele, and Paul Duffy file suit against Alan Cooper, his lawyer Paul Godfread, and anonymous John Does

I am reserving commentary since I haven’t had a chance to look at the pleadings in depth. The answer to most of your questions is “I don’t know.” Are they suing the blogs? Commenters? I dunno.

So, without further ado, here are the pleadings. To use a lawyer phrase, they speak for themselves:

Paul Duffy v. Godfread, at. al.

Prenda Law v. Godfread, at. al.

Steele v. Godfread, et. al.

Dockets are found here:

Duffy v. Godfread docket

Prenda v. Godfread docket

Steele v. Godfread docket

Prenda and Paul Duffy filed in Illinois. Steele filed in Florida. Again, I don’t know why. Procedurally, these appear to be state court actions that were removed into federal court.

The named defendants in Illinois are represented by Erin Russell and Jason Sweet. It looks like Paul Duffy is representing himself and Prenda is represented by counsel. (I can’t make out the name in the pleading). In the Florida action, Brad Patrick is representing the named defendants, and John Steele is representing himself.

Get your popcorn, because this is going to get interesting…

Opposing Severance Is Now In Vogue – Using the Battlefield to Your Advantage in Bittorrent Litigation

Use the battlefield to your advantage. Do not simply charge the English heavy cavalry head on.

Back 100 years ago this July, Marc Randazza gained some attention for defending a bittorrent case a little differently. What was different? Randazza opposed severing all of the defendants. It was the first time anyone had opposed severance, as common knowledge dictated that one should always try and sever defendants in a mass bittorrent action.

The “anti-severance strategy” caused Randazza to get flack from Fightcopyrighttrolls and Ray Beckerman. Beckerman stated:

Said attorney has sued hundreds of BitTorrent users in the last year on behalf of copyright holder plaintiffs which raises the question of how and why he came to be making a motion, purportedly on behalf of a Doe defendant in that case, that clearly goes against the interests of the defendants in that case.

I mean, the ONLY way to defend one of these cases is to file a motion to sever, and a motion to quash, right? Right? That’s what the EFF said!!

Errrr… not so much. It looks like a few people owe Randazza an apology, because it’s becoming more and more apparent that severance may not be in the best interests of the Doe defendants in the current climate. In my opinion, it’s probably not in a Doe defendant’s best interest to sever a case in today’s climate.

Here is why.

Some truths and myths about bittorrent lawsuits

There is a lot of bad information out there about bittorrent lawsuits.

The call normally goes like this:

“Hey man, I found your name on the internet from someone who says you are a good lawyer. Well, I got a letter a couple of months ago about some lawsuit where apparently I’m a John Doe defendant. They’re saying I downloaded copyrighted stuff off the internet from bittorrent, and [I did it so now what?] [I definitely did NOT do it] [I pirate so much stuff off the internet that I have no idea if I did it or not] [what are these internets you speak of?]. When I first found out about the lawsuit, I went onto  internet forums and everyone told me I should just ignore the paperwork, so that’s what I did. Well, today I got some stupid letter saying something about default. What does all this mean?”

“Well, right now it means there is a good chance you are quite screwed.”

I get this type call more than I like to. Someone got caught up in a bittorrent lawsuit, they consulted the internet, and the internet gave them bad advice.

Right off the bat, the best advice I can give anyone who is caught up in a bittorrent lawsuit is to consult with an attorney. I know, I’m an attorney so that sounds self-serving, but it’s true. The second you get notice from your ISP that someone is seeking your identity, the best thing you can do is consult with an attorney. If you can’t afford one, you might be able to find one pro bono. But if you care at all about your assets and your reputation, you should trust those things to a good lawyer – not to an internet forum. I know, it could cost you money. Sorry, but that’s life.

That said, I am going to try and set the record straight on a few common myths and truths about bittorrent lawsuits.

Talking Torrents: Frequently Asked Questions About Bittorrent Litigation

One afternoon you check your mailbox and notice that your internet service provider has overnighted you a letter. You open the letter and find it says you’ve been named in a lawsuit for downloading porn, movies, or music on the internet. Your internet provider says they’re going to turn your name over to a law firm unless you file a motion to quash because of a court order.

Uh oh. This doesn’t sound good.

Now what? What the hell is going on?

First, take a deep breath. It’s not the end of the world.

Now I’m going to try and explain what’s going on here…

Ok, first off, what is bittorent?

Bittorrent is a file sharing tool that enables peer to peer file sharing. It works like this: imagine if there were a big puzzle, and when that puzzle was put together, it creates a complete file (like a complete movie). Joe Smith might have part of the puzzle in Iowa, and then he might share a piece with Mark Jones in California. Everyone can reproduce the puzzle. So now, once its downloaded, Joe and Mark both have a full puzzle. They can then replicate it and give copies to their friends, kind of like in Star Trek. Except they are not replicating cups of Earl Grey tea, they are replicating movies, music, and porn. A lot of which happens to be copyrighted. Everyone who was sharing the file is allegedly part of the “swarm“. That is the nature of peer to peer file sharing.

In laymen’s terms, bittorrent is an easy way to download stuff off the internet. It’s typically used to download music, movies, and porn. It is the next generation of Kazaa, Napster, etc.