You can do so much with a law degree: securities litigation, real estate, executive compensation, porn production…wait, what?

The Internet, one of the greatest technological achievements in human history, is mostly for porn distribution (not really, but that’s the popular misconception). And if the Internet is littered with copyrightable pornographic material, there’s an opening for attorneys to make some money helping clients go after those who steal that material.

But what if a law firm, operating through shell companies, started making its own porn in order to concoct its own causes of action? I mean, that couldn’t happen, right?

Well, Judge Otis Wright of the Central District of California suspects that may have just happened in his courtroom, and he’s not happy….

This matter revolves around Prenda Law, Inc., as the successor to Steele|Hansmeier. Prenda filed a number of suits on behalf of clients such as AF Holdings, alleging copyright infringement (usually by “John Does”). Prenda’s clients purported to be assignees of copyrighted material and, in the ideal case, would secure settlements from the defendants before having to go to court. Because the average person accused of downloading Internet porn prefers to avoid a public record.

Judge Otis Wright is not pleased.

If this sounds like the Righthaven cases, where Righthaven tried to obtain the right to bring copyright lawsuits on behalf of a few newspapers (and force settlements from unsuspecting bloggers), you’re right. And we all know how well that worked out for Righthaven.

But a couple of alleged differences take the Prenda cases out of the Righthaven realm. First, Prenda’s primary clients, like AF Holdings, are incorporated in the Caribbean. This makes their corporate structure much more difficult to probe, leading to allegations that the lawyers have a direct financial stake in their clients, a possible ethical issue that we’ll soon see Judge Wright has some issues with.

Second, there are allegations that Prenda Law itself is producing porn for these offshore entities and using those productions — with no intention of ever selling them outright — to troll for copyright violations. Indeed, in the story linked above, a Twitter handle run by the porn production appears to identify a Prenda partner as the film’s producer. Potentially trouble.

This sounds like a good plot for the sequel to Zack and Miri Make a Porno.

And third, Judge Wright points out that Prenda made almost no effort to identify the people it chose to sue (who could have been house guests or neighbors stealing wifi for all Prenda knew), or even to ensure that copyright theft really took place. In the Righthaven cases, articles were clearly posted on the targeted websites. Here, Prenda took snapshots of bittorrent downloads in progress. Judge Wright counters:

What is more, downloading data via the Bittorrent protocol is not like stealing candy. Stealing a piece of a chocolate bar, however small, is still theft; but copying an encrypted, unusable piece of a video file via the Bittorrent protocol may not be copyright infringement. In the former case, some chocolate was taken; in the latter case, an encrypted, unusable chunk of zeroes and ones. And as part of its prima facie copyright claim, Plaintiff must show that Defendants copied the copyrighted work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). If a download was not completed, Plaintiff’s lawsuit may be deemed frivolous.

This whole affair began to unwind when the named CEO of AF Holdings, Alan Cooper, came out of the woodwork to claim that he had no role with the company and was a victim of identity theft. When asked if AF Holdings was using this man’s name and information to run a bogus company, counsel replied:

As I told you over the phone, when you asked “Is there another Alan Cooper?”, I said “I am sure there are hundreds of Alan Coopers in this world.” If your question had been framed more pointedly, and not so vague, maybe I could have provided you with a specific answer.

Not exactly a confidence-building response. Judge Wright started asking questions about Alan Cooper, too. So Prenda tried to have him disqualified. After this failed, Prenda started dropping all of its suits.

But Judge Wright wasn’t willing to let Prenda walk out the door just by dropping its claims. Instead, he issued an “Order to show cause re sanctions for rule 11 and local rule 83-3 violations.” How bad can that be?

Based on the evidence presented at the March 11, 2013 hearing, the Court will consider whether sanctions are appropriate, and if so, determine the proper punishment. This may include a monetary fine, incarceration, or other sanctions sufficient to deter future misconduct. Failure by [counsel of record Brett L.] Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt.

So pretty bad. “Incarceration” is not a term you want a judge writing in an order about you.

Judge Otis Wright Is Fed Up With Brett Gibbs’s and Prenda’s frauds, Hints At Incarceration [Fight Copyright Trolls]
Livewire Holdings: Evolution of Prenda’s Fraud Part 1 [Fight Copyright Trolls]
Man Charges Porn Trolling Firm Prenda Law With Identity Theft [Ars Technica]
Copyright Troll Prenda Law Dances Around The Simple Question: Which Alan Cooper Runs AF Holdings? [TechDirt]
Remember Righthaven? On appeal, copyright troll looks just as bad [Ars Technica]

Earlier: How Porn Copyright Lawyer John Steele Has Made A ‘Few Million Dollars’ Pursuing (Sometimes Innocent) ‘Porn Pirates’


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