by Mike Masnick
Fri, May 24th 2013 1:45pm
by Mike Masnick
Fri, May 24th 2013 9:37am
from the like-the-folks-you-shook-down? dept
While Judge Wright's most recent order told Gibbs to officially withdraw from the cases, it doesn't mean that Gibbs has been let off the hook for payment. In response, it appears that Gibbs is basically begging Judge Wright for mercy, highlighting that he's completely broke and has expensive medical bills due to his brain cancer. It is a sob story, and you do feel bad for the guy... but then you remember some of his actions during the course of all of these cases, including more than a few absolutely ridiculous claims and tactics in this case and in how he dealt with opposing counsel. And, of course, there's the fact that he was involved in an operation that is being widely accused (by a federal court judge, among others) of perpetrating a massive shakedown scheme, threatening people with a lawsuit for gay porn if they don't pay up.
Yes, it's sad that Gibbs got brain cancer. I don't wish that on anyone. And it's sad that he's got less than $500 in his bank account and over $50,000 in debts. But, perhaps he should have thought of all of that before getting involved in a scheme that threatens thousands of people with highly questionable lawsuits if they don't pay up. Still, the main targets of Judge Wright's focus are clearly Steele, Hansmeier, and Duffy, so it'll be interesting to see if he agrees to let Gibbs off the hook in some manner.
by Mike Masnick
Thu, May 23rd 2013 11:05am
from the great-moments-in-lawyering dept
Well, it appears that Nazaire seems to believe that if he just keeps telling the court crazier and crazier things, perhaps it will ignore Judge Wright's ruling. The latest filing tries, once again, to give the judge in Georgia a reason to ignore Judge Wright's ruling, but again it doesn't make much sense. The filing is rambling and somewhat wacky, seemingly trying to argue that, even though Prenda and AF Holdings are implicated in both cases, they're completely and totally unrelated. He also seems to argue that these filings are just designed to rack up higher billing fees. Note, for example, the slightly paranoid use of capital letters:
That motion was NOT written by the undersigned; nevertheless the defense has filed it in THIS docket apparently for two reasons. 1) to bill for the same and 2) to give THIS Court the impression that either the undersigned or a friend of his drafted and filed the same.But where it gets really wacky is when Nazaire just starts tossing in totally random claims about hackers:
Why would the defendant in this case file a copy of a motion (ECF No. 31, Defendant’s Exhibit B) from the California case and into THIS docket when that motion has nothing to do with this case?What is Exhibit A, you ask? Why it's a random story about hackers claiming to be a part of Anonymous hacking into Paypal. What does that have to do with anything? The answer is nothing.
The undersigned does not know the answer to that question. However, it must be noted that defendants (not the one herein) in these types of cases, typically employ various crafty and intimidating schemes against prosecutors and plaintiff’s attorneys. A newspaper article mentioning other types of intimidation is attached hereto as Plaintiff’s Exhibit A.
Here's what I find most incredible about Nazaire's line of reasoning. It is basically "please ignore this other case where the same companies that I'm working for have been called out for fraud on the court, because that's totally unrelated, even though they're the same companies" while at the same time saying "we can't trust anything the defense says because, hackers! And, as proof, here's a random totally unrelated story about hackers."
He goes on to suggest that these hackers are after him, because some moron sent him a stupid email.
Furthermore the undersigned has been personally harassed by these types of defendants (not the defendant in this instant case nor the individuals listed in Exhibit A) because of THIS case alone. (Please see Plaintiff’s Exhibit B attached hereto).Exhibit B is a silly email from someone using the email address "email@example.com" saying:
You are about it get justifiably screwed by the justice system.Of course, this is a stupid email by whoever sent it, but it's hard to see how that's necessarily "harassment," nor does it show that the person who sent that email is one of "these types of defendants." It's just a stupid email from someone mocking Nazaire (the email address should have been a giveaway on that front).
It's nice to see.
You aren't very smart, are you?
Either way, if I'm the judge in this case, each of these filings only makes me more interested in whatever must be in Judge Wright's order...
Wed, May 22nd 2013 7:50am
from the a-bit-of-confusion dept
I am not an attorney. I attended today's hearing out of curiosity and convenience. I happened to have an appointment across the street from the Hennepin County Government Center today and decided that it would be interesting to see the wheels of justice in motion first hand. As such, it is important to note that these are the observations of a layperson.
As the session started, Judge Alton announced that there was no live court reporter and that there was an audio recording being made instead.
Two other cases were called first, and then the Judge called Cooper vs. Prenda. She began by saying, "This one gives me a lot of pause." Then the attorneys introduced themselves.
Paul Godfread was present representing Alan Cooper (who was not in attendance) and Paul Hansmeier was present representing Prenda, et al. He sat alone at the table and I don't believe any other Prenda principals were in attendance.
Judge Alton then started off by addressing Hansmeier saying that it would appear he had a bit of a conflict relating to some findings of law, "[an] order from a US District Court Judge sanctioning you for fraud, among other things." She went on to say, "I'm not sure I should hear you at all." She asked Hansmeier if Morgan Pietz had filed the list of Bar Associations to which the Prenda principals were admitted as well as whether Pietz had sent copies of Judge Wright's order to all of the other Judges presiding over Prenda cases. Hansmeier replied, "I believe he did, your honor."
Judge Alton was clearly agitated going into this. In reference to the Prenda business model she said, "This is fraud, clear and simple." She also said, "I will be reporting this to the Lawyers Board." In fact, she would make a similar comment at least one more time at the end of the hearing. Still addressing Hansmeier, she went on, "Your involvement in this case is a TRAVESTY!" She added impact (both figuratively and literally) to that point by slapping her hand on the bench.
If I closed my eyes, I could have very easily assumed I was watching an episode of Judge Judy at this point. Judge Alton's passion and inflection as she admonished Prenda's behavior was, quite frankly, a tremendous surprise to me as a non-attorney. My discussions with actual attorneys after the hearing confirmed the abnormality of the scene.
In an attempt to defend their activities, Hansmeier referenced the the actions of the RIAA and MPAA. Judge Alton was unimpressed. She told him, "That doesn't mean you become your own zealot!" Further berating Prenda's pattern of mailing threatening settlement letters to alleged copyright violators, Judge Alton said, "You are guilty of fraud every time you send one of these letters." Hansmeier then began to reference the Jammie Thomas-Rasset case. Again, the Judge wasn't interested, interrupting with a curt, "So what?"
Now things got a little bit confusing. The Judge called Paul Hansmeier a fraud. Then she said that Alan Cooper is a fraud and that Paul Godfread may be a fraud as well. I looked to the person sitting next to me and the look on his face showed the same confusion. Quite humbly, Godfread told Judge Alton that he took exception to being labeled a fraud. He tried to clarify the situation but his message didn't seem to get through. In fact, for much of the hearing, Judge Alton was under the impression that Judge Wright's order actually implicated Alan Cooper as a Prenda Principal. Luckily this comes up again later.
As Godfread was explaining Cooper's actual position in reference to Judge Wright's findings, Hansmeier objected. He complained that there was no evidence to support the findings and said that they weren't given the opportunity to cross examine Cooper during the sanctions hearing in Los Angeles.
Throughout the hearing, Judge Alton would frequently refer back to Judge Wright's sanctions order, reading portions of it both to herself and out loud to clarify various points including asking where "Nevis" is. Godfread said it was an island in the Caribbean, most commonly known as an offshore tax haven. While he was saying this, Hansmeier was shaking his head.
The Judge continued to review the various exhibits filed with the case and Paul Hansmeier again raised the issue of not having been given the opportunity to cross examine Alan Cooper in L.A. Judge Alton glared at him saying, "That, right now, does not concern me."
She then turned her attention to Godfread saying, "You're not going to get any damages out of me. I don't give damages when everyone is a fraud." Again, she appeared to be under the impression that Alan Cooper was complicit in Prenda's actions. Godfread repeated his earlier assertions that Cooper was merely a caretaker for John Steele's property in Minnesota. The Judge then said, "Mr. Steele worked for Prenda Law which is running these phony lawsuits."
After reading further into Judge Wright's findings, Judge Alton finally identified the portion that clearly separated Alan Cooper from Prenda's actions and identified him as a victim of their fraud rather than a willing participant.
Unfortunately, this new realization didn't seem to alter Judge Alton's stance on refusing to grant any damages. Godfread decided to approach it from a different angle, though. In lieu of damages, he suggested that Judge Alton order Prenda to return all of the settlement money it had received over the course of its campaign. Judge Alton rejected that suggestion saying that it wouldn't be possible unless, via discovery or other means, they are able to determine how much money that actually is.
The Judge then took a moment to reiterate that Prenda's methods of threatening people are not allowed before moving on to the topic of service. This is, after all, a Default Hearing. Hansmeier repeated the assertion that Prenda never received service of the complaint. The judge looked through the folder in front of her and suggested that Godfread may not have properly served Prenda. She asked Godfread if he served them through publication. He said that he didn't, but told her that, as shown in his Affidavit of Service, he sent the complaint and the interrogatories via certified mail and provided a receipt from the US Postal Service showing that it was received by Prenda on March 18th. He also refers to the fact that Prenda DID respond to the interrogatories, so how can they claim they never received service of the rest of it? Judge Alton then said, "That will satisfy me."
Hansmeier then claims that Duffy received only the interrogatories and not the complaint, and that Godfread's receipt doesn't prove that the complaint was sent in that envelope. The Judge responded with, "Mr. Duffy's credibility is not good and he's not here."
Judge Alton then asked Godfread about other facts such as whether they have proof that Prenda was keeping the settlement money. Godfread said that Hansmeier himself admitted as much. Hansmeier responded saying, "That is categorically false."
The Judge then asked if Cooper had actually testified to the fact that he did not authorize the use of his name in the AF Holdings cases. Godfread confirmed that Cooper did testify to that. Then, talking to Godfread, Judge Alton said, "I can't find a conspiracy to harm him. I believe you but I can't find it."
She then made her order. She ordered that Prenda and its principals immediately cease using Alan Cooper's name, "and that's all. That's as far as I'll go."
In parting, she addressed Paul Hansmeier, once again saying, "I believe you to be in violation of a whole lot of rules." She then repeated her earlier statement that she was forwarding the case folder to the Lawyers Board.
And that was the end. Judge Alton then called a recess before the next case.
After leaving the courtroom, I sat down with another observer for a cup of coffee as we discussed how strange the hearing was. A few minutes later, Paul Godfread walked up and we chatted for a while about how the hearing had unfolded in such an unexpected way. He understandably lamented the lack of a damage award. When I told him that following all of this over the last several months has been educational, he expressed a fear of it being a poor source of education given how atypical these proceedings have been.
Still, I'm glad that I was able to attend today and I would encourage other members of the laity like myself to make an effort to observe these kinds of proceedings themselves. It was a truly fascinating experience.
by Mike Masnick
Tue, May 21st 2013 11:19pm
from the walking-the-tight-rope dept
Perhaps the legal experts here can fill in the specifics about this one. I believe that the judge could continue to seek sanctions from Team Prenda if she feels it's appropriate, or if something improper happened, but it seems a lot less likely that this will happen now that Nguyen/Syfert have effectively bowed out of the case. Considering how deeply interested in the specifics the judge in this case had been, this is unfortunate. Yes, we already have Judge Wright's ruling on a similar matter in California, but having other courts come to the same conclusion seems like it would be useful.
Then we have the other Prenda case in Northern California, where the judge had become curious as to who exactly had signed a form on behalf of "Salt Marsh," ordering the original document to be produced. Last week, Paul Duffy claimed ignorance and tried to throw Brett Gibbs under the bus (again). Meanwhile, former Prenda paralegal/claimed boss of AF Holdings/Ingenuity 13, Mark Lutz, suggested that he had signed "on behalf of Salt Marsh" but no longer had the original. The judge could have dug deeper on that, but apparently has decided to let it go, saying that the question about Salt Marsh was "substantially complied with" and is ending the case.
Because AF's counsel has now substantially complied with the Court's order, the Court sees no basis to continue deferring a final judgment.That means that particular case will also be closed. So, assuming the Florida case is similarly closed, that will leave the Judge Wright ruling in Central California as the only main battleground concerning the overall nature of Prenda's antics over the past few years.
by Mike Masnick
Tue, May 21st 2013 4:02pm
from the couldn't-happen-to-a-nicer-bunch-of-people dept
Judge Wright made quick work of this, noting the filing irregularity, and the pattern of seeking "eleventh-hour pleas for relief," and then rejected the request, and added a $1,000 per day penalty for every day that they fail to put up a bond in the amount owed. Oh yeah, also he asks them to explain to the court why they didn't pay up as ordered. Might as well include the full text here:
Prenda Law, Inc., through its attorneys at Klinedinst PC, filed a notice of appeal to the Ninth Circuit. (ECF No. 157.) Oddly, to this notice of appeal, Prenda attached an ex parte application seeking a stay of enforcement of the Court’s May 6, 2013 Order Issuing Sanctions. (ECF No. 157-1.) Not only was this application improperly filed; but once again, Prenda resorted to an eleventh-hour plea for relief.And so it is. Perhaps, rather than spending so much time talking to the press, John Steele should have been counting his pennies to pay up.
Even assuming this application was properly filed, the Court finds no basis to grant Prenda’s request. Under the Court’s order, Prenda, along with John Steele, Paul Hansmeier, Paul Duffy, Brett Gibbs, AF Holdings LLC, and Ingenuity 13 LLC, were required to pay by May 20, 2013, an attorney’s-fee award of $81,319.72. By filing this application, it appears no such payment was made.
Instead, an emergency motion was filed with the Ninth Circuit to stay enforcement of the order. That motion was promptly denied. (ECF No. 150.) Prenda now seeks to remedy a problem of their own making. By refusing to pay, or at least refusing to post a supersedeas bond, Prenda (and the other parties) cannot establish that it “is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Mission Power Eng’g Co. v. Cont’l Casualty Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). Prenda’s application is therefore DENIED.
Further, Steele, Hansmeier, Duffy, Gibbs, AF Holdings, Ingenuity 13, and Prenda are hereby ORDERED TO SHOW CAUSE why they have contravened the Court’s order to pay the attorney’s-fee award. The Court hereby imposes a penalty of $1,000 per day, per person or entity,1 until this attorney’s-fee award is paid or a bond for the same amount is posted. This penalty shall be paid to the Clerk of Court on the same day the attorney’s-fee award is paid or the bond is posted. This penalty must be paid unless it is evident that the award was paid or the bond was posted on or before May 20, 2013. Failure to comply will result in additional sanctions.
Upon motion and posting of a supersedeas bond, the Court will stay execution of the attorney’s-fee award. Fed. R. Civ. P. 62(d).
Finally, as a housekeeping matter, the Court requests Brett Gibbs to file requests for withdrawal of attorney in this and the related cases. Brett Gibbs appears to have withdrawn from these cases. (OSC Hr’g Tr. 87:1–8, Mar. 11, 2013 (“I am no longer employed by Prenda or any other corporation or LLC that is involved in these cases.”).) Given the circumstances and the relationship between Gibbs and his clients, the Court will approve his requests for withdrawal.
IT IS SO ORDERED.
by Mike Masnick
Tue, May 21st 2013 3:01pm
from the another-failure dept
Another person in the courtroom, Matthew Sparby noted that the judge was a bit confused at the beginning, apparently misreading Judge Otis Wright's infamous order to also implicate Cooper as well, and while that was eventually cleared up by Cooper's lawyer, Paul Godfread, Sparby thinks that may be why no damages were awarded.
She apparently also closed by telling Hansmeier to "never EVER send" fraudulent letters "EVER again" and noted that she was "offended this case is here" before abruptly ending the whole thing. Seems like another bad day for Prenda.
by Mike Masnick
Mon, May 20th 2013 2:15pm
from the another-failure dept
Morgan Pietz, the lawyer who has been opposing Prenda in this matter (and, obviously, who would receive the bulk of the attorney's fees ordered), filed a very short and to the point brief saying he was actually fine with a stay on the payment, pending appeal, of course, but he wanted Hansmeier to first post a bond to show that the payment could be made. He also noted that he would have been happy to make this concession to Hansmeier if Hansmeier had just contacted him to let him know he was filing the brief requesting the stay. That's actually kind of a key point. Judges generally want the various lawyers to talk to each other about what's happening before surprise briefs are filed like this -- and so pointing out that Hansmeier filed a 30 page brief asking for the stay without even letting Pietz know about it probably won't be looked at too kindly by the court. As Pietz points out, there is very real concern about whether or not Prenda will ever actually pay up if they don't put up a bond.
The need for a substantial bond to secure payment of costs and fees from Prenda is not an idle request. Prenda Law, Inc. and its associated lawyers are an organization that is rapidly falling apart. They have dismissed the vast majority of their pending court cases across the country—cases which are their sole source of revenue. Meanwhile, as the days go by, they are increasingly being hit with new motions and orders to show cause for sanctions in various courts where they have tried, with mixed success, to escape from the consequences of their actions. Further, the lawyers and the entities involved here are likely the subject of potential criminal investigations, including an IRS investigation, flowing from the court’s formal referrals in the sanctions order below. In short, there may not be any solvent persons around to collect from for much longer. Further, as will be detailed in briefing on the merits, the lawyers’ interests in these cases (as well as their assets, one presumes) are hidden behind a web of Nevis LLC’s and mysterious offshore trusts. These are all complicated factual issues, with which the district court is already familiar, which is why the district court should set the amount and terms of the bondPietz also points out that the "reputational harm" argument is silly, because everyone already knows about it.
Either way, the Appeals Court wasted little time in saying "no," mainly because Paul Hansmeier, who presents himself as an accomplished lawyer, appears not to know the first thing about filing a stay pending appeal.
Appellant's emergency motion for a stay of the district court’s May 6, 2013 sanctions order is denied without prejudice to renewal, if necessary, upon the filing and disposition of such request in the district court. See Fed. R. App. P. 8(a)(1).The rule in question says that if you're going to ask for such a stay, you have to first ask in the district court, rather than going straight to the appeals court. I would imagine that if Hansmeier had talked to Pietz, Pietz might have made that point as well. The deadline to pay up is tomorrow, though now it seems like Hansmeier may need to go ask Judge Wright for a stay in the matter if he wants to avoid having to pay up.
Of course, that's not the only trouble Hansmeier is facing from the 9th Circuit, who now appears rather aware of Hansmeier's reputation. You may recall that Hansmeier has also been involved in the sketchy practice of protesting class action settlements in the hopes of getting paid off to go away (in one letter he directly asked for $30,000 to go away). The appeal of one of those class action settlement battles is happening in this very same 9th Circuit, and Hansmeier had applied to be admitted in the 9th Circuit, where he cannot currently practice. As pointed out by Popehat, the court has taken notice of Judge Wright's order and told Hansmeier that he needs to clear up that before it will admit him. As Ken White noted:
In other words: no, Paul, you can't have admission to the Ninth Circuit until this is cleared up, and we won't let you represent a client before us in the interim.
Actions have consequences.
by Mike Masnick
Fri, May 17th 2013 3:25am
from the quashed dept
As of this date, no responsive memorandum has been filed. LRCiv 7.2(i) provides in part “if the opposing party does not serve and file the required answering memorandum, ...such noncompliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.” Pursuant to this rule, the Court deems Plaintiff's failure to serve and file the required answering memorandum a consent to the granting of Defendant-Movant's Motion to Quash the Subpoena to Wild West Domains Seeking Identity Information.I guess Prenda's a bit busy. Or someone there realized this subpoena had zero chance of actually going forward. Either way, the subpoena is dead.
by Mike Masnick
Thu, May 16th 2013 9:45am
Appeal Over Former RIAA Lobbyist Judge Allowing Prenda To Get Info On Over 1,000 John Does Moves Forward
from the doesn't-that-look-silly-now dept
What you may not remember is that the key case in which Howell did this happens to be a case involving... you guessed it... AF Holdings and its "law firm" Prenda Law. Oh, and the "copyright assignment" that AF Holdings is using for this case was one of those supposedly signed by... Alan Cooper. While Judge Howell may be well served to pay attention to Judge Otis Wright in California and his actual investigation into Prenda/AF Holdings/Alan Cooper, the case is out of her hands for now, as the various ISPs who have the info in this particular case have appealed Howell's ruling and the EFF, ACLU, Public Citizen and Public Knowledge have stepped in as well with additional arguments in an amicus brief.
Both briefs are well worth reading, though you might be surprised that the amicus brief is probably the more reserved of the two. The ISPs who took part include: Bright House, Cox, Verizon, AT&T and Comcast -- with most of them (Verizon and Comcast being the exceptions) not even providing service in the jurisdiction of the district court: Washington DC. Comcast joining in is interesting, given that they own NBC, but we'll leave that aside for now. To put it mildly, the ISPs think the appeals court should put an end to these kinds of cases, noting that a majority of other courts have refused to allow joinder on so many defendants, and have blocked the discovery process. It points out, of course, that these cases are almost never taken to court, but are usually just used to reveal names and then offer settlement demands. Specifically, they feel that Howell made a pretty big legal mistake, in that a showing of "good cause" is required for discovery, and Howell ignored that.
The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.The ISPs also, quite reasonably, point out that if mass joinder and discovery is allowed in this case, the trolls will descend on the DC Circuit courts in a mass forum shopping situation:
The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.
The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.The ISPs also go through, in detail, the accusations against Team Prenda, and the claims of Alan Cooper. As it notes:
The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...
The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.
AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.The EFF/ACLU/PK/PC filing is more focused on the specific errors in Howell's ruling, concerning the "good faith" standard for discovery and the mass joinder of over 1,000 people. They also point out the jurisdiction problems of the defendants who are clearly outside the jurisdiction of a DC court -- and the fact that these cases rarely end up in actual lawsuits means that the question of proper venue will not be "cured" later. Finally, the brief argues that Howell ignored key First Amendment issues concerning revealing anonymous internet users, and the higher standard for them to be revealed. This argument wasn't made by the ISPs, so we'll focus on that one here. It points to the key Dendrite standard we've discussed many times before concerning the revealing of anonymous users. This does not mean that you cannot identify those accused of copyright infringement, but rather that you can't go on a random fishing expedition to get names, as many copyright trolls have done.
Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).It will be interesting not only to see how the appeals court deals with it... but also Prenda's argument, since they seem to be getting more and more wacky lately.
The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”).
Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.