Judge Has Questions About Lawyers Behind Porn Copyright Actions
The National Law Journal
A sanctions hearing in Los Angeles on Tuesday could decide the future of a tide of copyright infringement lawsuits against people accused of illegally downloading pornography.
Some 1,000 cases during the past few years have targeted individualsusually unnamedon behalf of companies claiming to own the copyrights to the downloaded movies. Most have settled or been dismissed. Lawyers who represent the defendants have accused their opponents, whom they refer to as "copyright trolls," of using the courts to extort settlements from their clients.
U.S. District Judge Otis Wright has ordered four attorneys associated with a law firm called Prenda Law Inc., which has filed hundreds of cases, into court to answer questions about how they operate. "This Court has a duty to protect the innocent citizens of this district from this sort of legal shakedown, even though a copyright holder's rights may be infringed by a few deviants," he wrote. According to court documents, Prenda Law is based in Chicago.
"I do think this will send a message to people considering going into this litigation business model that judges are going to sit up and pay attention," said Mitch Stoltz, staff attorney at the Electronic Frontier Foundation, a San Francisco nonprofit organization focused on digital rights.
The influx of suits against individuals over copyrighted pornography began about three years ago, modeled in part on the legal strategy of the Recording Industry Association of America, which famously sued individuals accused of illegally downloading songs from file-sharing sites, Stoltz said.
The EFF, which has represented the authors of two sites called dietrolldie.com and fightcopyrighttrolls.com, maintains that the tactics at issue aren't limited to Prenda Law.
"There are a fair number of attorneys out there who are taking advantage of over-broad copyright law to run what are essentially shakedown schemes," he said. "In general, pornography [as a litigation topic] is popular because it adds an element of embarrassmentwhich is just an additional way to coerce settlements from people regardless of whether they are infringing copyrights or not."
In 2011, U.S. District Judge David Godbey in Dallas granted a sanctions motion against Evan Stone, an attorney in Denton, Texas, after he sent unauthorized subpoenas on behalf of the producer of Der Gute Onkel (The Good Uncle). The EFF and Public Citizen, a consumer group in Washington, which represented "John Doe" defendants in the case, had filed the motion. On July 12 of last year, the U.S. Court of Appeals for the Fifth Circuit affirmed that decision, which required Stone to pay $10,000.
Wright wasn't the first judge to question lawyers associated with Prenda Law. U.S. District Judge Mary Scriven in Tampa, Fla., raised questions in a copyright infringement case after the defense attorney accused Prenda Law of hiring local attorneys while clandestinely attempting to extort a settlement out of his client. Graham Syfert, a solo practitioner in Jacksonville, Fla., moved to dismiss a case brought by Sunlust Pictures LLC, which claims to own the copyright to Sunny LeoneGoddess.
A local attorney for Sunlust, Matthew Wasinger of Wasinger Law Office in Orlando, Fla., called the allegations "an affront to the dignity of the legal profession." He then moved to withdraw from the case.
Scriven ordered that a principal of Prenda Law show up for a November 27 hearing on the motion. A man named Mark Lutz arrived, claiming to be a corporate representative of Sunlust, accompanied by attorney John Steele, according to court records. When Lutz failed to answer simple questions about Sunlust, such as the name of the president, Scriven dismissed him, citing "attempted fraud on the Court." She invited a sanctions motion "against this Sunlust entity and everyone affiliated with it."
She also invited a motion for sanctions against attorney Paul Duffy for his "lack of candor in relation to his connection with this matter." Duffy, she said, had written her a November 18 letter claiming to be the sole principal of Prenda Law but denying any association with the case.
Meanwhile, Jonathan Torres, an attorney in Altamonte Springs, Fla., who had replaced Wasinger as Sunlust's local counsel but moved to withdraw from the case six days before the hearing, told the judge by telephone that he had been brought in by Brett Gibbs, an attorney for Prenda Law, as local counsel in the case, according to court records.
Scriven, who dismissed the case on December 18, said she would consider referring the matter to The Florida Bar.
Meanwhile, Syfert has filed sanctions motions against Wasinger, Steele, Duffy, Gibbs and Prenda Law. Steele, Duffy, Gibbs and Prenda Law, which have retained attorney James Felman of Tampa's Kynes, Markman & Felman, have accused Syfert of "speculation regarding the degree of involvement of Prenda Law in the litigation of this matter." Felman did not return a call for comment.
The Los Angeles hearing
In Los Angeles, Wright, who is overseeing cases brought by Ingenuity 13 LLC and A.F. Holdings LLC, first raised concerns about Prenda Law's practice of using only an Internet protocol address to identify an alleged infringer. But he expanded his concerns, issuing an order to show cause on February 7 why Gibbs, of Mill Valley, Calif., should not be sanctioned for possibly stealing the identity of a Minnesota resident named Alan Cooper to validate a potentially sham client.
Cooper has claimed that his signature was being used without his permission as a principal of Ingenuity and A.F. Holdings. Cooper, a caretaker for property owned by Steele, retained Paul Godfread of the Godfread Law Firm in Minneapolis, to file a lawsuit on January 23 against Steele, Prenda Law, A.F. Holdings and Ingenuity 13, in the Fourth District Court in Hennepin County, Minn., for invasion of privacy and deceptive trade practices.
During a March 11 hearing, Cooper told Wright that he wasn't the person named in the documents, said Morgan Pietz of The Pietz law Firm in Manhattan Beach, Calif., who attended the proceedings. Pietz represents a "John Doe" defendant in one of the cases and was the first to raise concerns with Wright about Prenda Law's role in the cases.
Following the hearing, Wright expanded his order for possible sanctions to include Duffy, Steele and his former law partner, Paul Hansmeier of Steele Hansmeier, the predecessor to Prenda Law, as well as paralegal Angela Van Den Hemel. Additionally, Wright ordered Lutz, identified by Gibbs as chief executive of A.F. Holdings, to appear in court, as well as an expert witness who Pietz claims is Hansmeier's brother.
Wright wrote in his order that "it appears that these persons, and their related entities, may have defrauded the Court through their acts and representations in these cases."
Gibbs, through attorney Andrew Waxler of Waxler Carney Brodsky in El Segundo, Calif., has declined to comment. But in court documents, he apologized to Wright and denied any knowledge of Cooper. "I am very sorry that the Court is concerned with my conduct. I have strived to be honest and forthright with this Court, and all courts during my legal career," he wrote in a February 19 declaration.
Steele, Hansmeier, Duffy and Van Den Hemel have retained Heather Rosing, a partner and head of the professional liability department at Klinedinst in San Diego, who did not return a call for comment.
But the Prenda Law attorneys haven't remained entirely silent. A number of them have sought sanctions against their opponents or have moved to disqualify the judges in their cases. Last month, Duffy and Prenda Law filed a pair of libel suits in Cook County, Ill., Circuit Court against Cooper and his attorney, Godfread, citing "anonymous, salacious, false and libelous comments" they have made on the Internet. An attorney representing Cooper and Godfread in those suits, Erin Russell of The Russell Firm in Chicago, declined to comment about the allegations.
In the Florida case, Steele, Duffy, Gibbs and Prenda Law have asked the judge to consider Syfert's "degree of personal animosity" against them when deciding on sanctions.
"While ordinarily counsel's personal feelings or outside activities should have no place in matters before the Court, here the actions Defendant's counsel has taken to undermine on a large scale copyright plaintiffs' ability to sue infringers who have engaged in Internet piracy are so extreme as to bear on the credibility of his accusations," Felman, their attorney, wrote.
And in court documents, Gibbs accused Pietz of making the fraud accusations against him to gain clients through publicity on the sites dietrolldie.com and fightcopyrighttrolls.com.
"This isn't personal," Pietz responded. "This is about getting to the bottom of what appears to be some pretty serious allegations of misconduct. So far, none of the answers provided have amounted to satisfactory explanations."
Syfert acknowledged that he has a history of acrimony with the Prenda Law attorneys, having traded bar complaints against them in Florida over the years. But he stood by his allegations.
And he wasn't convinced that sanctions in Los Angeles would stop the lawsuits.
"I'm just waiting to see," he said. "What I expect to have happen is that whatever sanctions get issued, all they do is change their business structure and start doing the exact same thing but underneath a new name. That's basically what they've done throughout the years."
Contact Amanda Bronstad at email@example.com.