Court Refuses To Allow Defendant In Copyright Trolling Case To Proceed, But Hints At Reform

from the losing-but-winning dept

Over the course of the last year or so, coverage of copyright trolling stories turned up a common movie multiple times. That film was The Hitman's Bodyguard, and the outfits contracted to push for fees via settlement letters were both prolific and devious in trying to manipulate the settlement offer amounts to achieve the highest conversion rates. Whatever the level of intelligence that goes into these operations, however, there will almost always be a misfire, with a wrong target picked in the wrong court in such a way that makes the troll look like, well, a troll.

Such appears to be the case when Bodyguard Productions went after Ernesto Mendoza in court, claiming that he downloaded the film via bittorrent. The problem with the case is that Mendoza is both very, very insistent on his innocence and also manages to cast about as sympathetic a figure as one might be able to find. Mendoza is in his 70s and has end-stage cancer. When Bodyguard Productions attempted to voluntarily dismiss the case when it became clear that Mendoza wasn't going to settle, he tried to push the court to force the case to go forward so that he could recover his legal expenses. Sadly, the court refused.

After hearing both sides, Illinois District Court Judge Robert Dow decided to dismiss the case, ordering both parties to pay their own fees. This was a huge disappointment for the alleged file-sharer, who now has to bear the costs for a case that he isn't allowed to fight. According to his attorney Lisa Clay, the Court should ensure that plaintiffs are ready and willing to prove their case.

“Unfortunately, the Court’s recent order does not,” Clay tells TorrentFreak. “Granting the Plaintiff’s disingenuous motion to dismiss without penalty has the real consequence of strengthening the troll business model."

That's exactly correct. The fact that copyright trolls can simply back out of a case they aren't going to have settled -- the entire point of the troll's business model -- acts as an insurance policy against its efforts. By not forcing trolls to face the potential penalty of paying legal fees, there is essentially no consequence to firing off lawsuits with no regard to the facts. That's a truck-sized loophole in the legal system that clearly does an injustice to the accused party in copyright lawsuits.

It seems that even the court in this case recognizes the problem.

On a broader scale, there’s a positive note for future defendants. In the order, Judge Dow notes that the Court should re-evaluate how it handles these cases. In addition, the potential for abuse may also deserve the attention of the Rules Committee.

“[T]he points advanced by Defendant about the potential for abuse across the universe of peer-to-peer copyright infringement cases convince the Court that it should re-evaluate its own overall treatment of these cases and consider whether to suggest that the Rules Committee in this district look into the matter as well,” Judge Dow writes.

Which is great, except we still have a 70-year-old cancer patient out legal fees after a copyright troll cut and run from its own lawsuit simply because the troll was careless in filing its lawsuits. It's quite obvious that whatever that is, it sure isn't justice.

Filed Under: copyright, copyright trolling, ernesto mendoza, illinois, the bodyguard
Companies: bodyguard productions


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  1. This comment has been flagged by the community. Click here to show it
    identicon
    Howie Much, 27 Feb 2019 @ 7:47pm

    How much does it cost to write: "False. See you in court."

    Because that IS all Defendant needed to do here.

    Now, the usual fanboys are going to say "NO even defending if totally innocent is not so simple, you arrogant, heartless copyright maximalist demon, you."

    Well. To begin with, you are simply assuming that this person isn't a particularly aggressive pirate who thought to turn table on what you deem -- it's even stated so by Geigner -- a "copyright troll". But we don't know the truth here. -- "We" includes you. -- You're simply going on your bias.

    Now, the real criminals, as you must at least half agree are LAWYERS. I include any lawyer that Defendant hired, because a letter with the above 5 words is about all that's even possible with an innocent defendant. There's less to "investigate" when innocent than with a speeding ticket! -- Oh, sure, lawyer might have to go to court a couple times, but only to increase fee: otherwise just state will contest, get a court date for jury trial, then wait for it to be dropped.

    So where EXACTLY do huge lawyer fees for Defendant arise here?

    Of course ANY fee for lawyer when innocent will SEEM outrageous, but any innocent people being forced to spend is due to you pirates who flout The Law, NOT any "copyright troll" no matter how evil you believe that practice is, nor me.

    So until you can state why a HUGE fee in this, all that you're doing is defending piracy -- perhaps not a pirate here -- but piracy, as usual.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 27 Feb 2019 @ 8:56pm

    Re:

    John Steele's sentencing is coming soon.

    Congratulations on yet another copyright victory, blue boy.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 27 Feb 2019 @ 9:03pm

    Re:if you don’t like my opinion just send a note to the judge

    You’re defending extorting a terminal cancer patient bro. Not even because you give a shit about the issue at hand. You just can’t stand that Mike won’t force people to listen to you spam your conspiracy theory horseshit. Usually your stupidity is about as welcome as a burst anal polyp, but this is a new low for even for a infected smega stain such as yourself.

    Hey I hear Mike is really really against people playing in traffic.

    reply to this | link to this | view in thread ]

  4. icon
    Gary (profile), 27 Feb 2019 @ 9:18pm

    Re: How much does it cost to write: "False. See you in court."

    Hey Blue - your ignorance of the actual legal system is painful. The gold frills in the flag may absolve you and the SodCits of any legal judgements, but the rest of The People have to work with the system as it is.

    reply to this | link to this | view in thread ]

  5. icon
    That Anonymous Coward (profile), 27 Feb 2019 @ 9:23pm

    Re: How much does it cost to write: "False. See you in court."

    Well the attorney fee's double, you then have to deal with "experts" going through your entire digital life, your neighbors being deposed, & levels of stress.

    See if the "experts" actually get around to looking at the forensically sound images (why yes there are cases where drives were returned with out ever being looked at & then a motion demanding they be sent back for review), then if you forgot someone plugged a usb device in in the past 3 years that's 'proof' you are hiding things, your passwords to various online accounts are in the hands of 'professionals' who have a history of 'accidentally' violating court orders to protect your identity, and somewhere down the line they flat out will claim that a lack of evidence is evidence of guilt.

    For the low low cost of a $400 filing fee, they impose costs on the accused into the thousands (because being innocent is awesome, but going forward without a lawyer is crazy), the costs of depositions and imaging, and even then... they can still cut and run to avoid being on the hook for costs.

    The lawyer only has to go to court a couple times... I guess you don't understand hourly fees & all of the work that happens outside of the courtroom.

    A 70 yr old (cancer not withstanding) is not exactly a prime candidate to be an evil evil 'pirate' who cost them kajillions of dollars because their shit film was downloaded. But bonus points for trying to pretend the accused is the aggressive scumbag and not the lawyers who have raked in millions based on a millisecond of 'evidence' that they never actually manage to produce for review.

    This isn't like contesting a speeding ticket you ignorant hack.
    Perhaps you are unaware of how much damage can be done to the accused before the trial date & how motions for depositions & evidence collections and the like work. You can't say not it & make everything wait until the trial, thats.not.how.this.works.thats.not.how.any.of.this.works.gif .

    Once again I suggest you seek professional help & spend half as much time learning how the law works as you do screaming how we're all pirates & piracy is evil.

    In closing...
    Fuck right off, the grownups are talking.

    reply to this | link to this | view in thread ]

  6. icon
    Mike Masnick (profile), 27 Feb 2019 @ 10:25pm

    Re: How much does it cost to write: "False. See you in court."

    Because that IS all Defendant needed to do here.

    I see you have never been involved in any actual legal case, ever.

    Now, the real criminals, as you must at least half agree are LAWYERS. I include any lawyer that Defendant hired, because a letter with the above 5 words is about all that's even possible with an innocent defendant.

    Not how it works. At all.

    reply to this | link to this | view in thread ]

  7. identicon
    cpt kangarooski, 27 Feb 2019 @ 10:46pm

    Re: Re: How much does it cost to write: "False. See you in court

    Not how it works. At all.

    I’ll say. I am a copyright lawyer, and if all a defendant did was claim not to be liable, I have no doubt in my mind that they’d lose completely. There is a tremendous amount of work involved, even in a case like this which appears to be very clear-cut and favorable to the defendant. But then, this is the sort of fatally bad advice that I’d expect from that poster.

    reply to this | link to this | view in thread ]

  8. icon
    Stephen T. Stone (profile), 28 Feb 2019 @ 12:01am

    How much does it cost to write: "False. See you in court." Because that IS all Defendant needed to do here.

    Your long-professed hatred for due process certainly accounts for your misunderstanding of actual process here. You also miss the fact that he did exactly that and still lost the right to have the case heard in court.

    even defending if totally innocent is not so simple

    Because it isn’t. To wit:

    you are simply assuming that this person isn't a particularly aggressive pirate who thought to turn table on … a "copyright troll"

    Your claim is the kind of bullshit that Mendoza would have needed to fight in court if Bodyguard Productions had decided to pursue the case to its end rather than duck out after Mendoza said “see you in court”. He would have needed to pay his lawyer a likely exorbitant amount of money to find evidence that he is not an “aggressive pirate” in general, and that is on top of whatever he needed to pay for evidence that he was not a “pirate” in this particular case. And none of that might even matter if a judge or jury somehow believes the evidence presented by Bodyguard Productions more than the evidence presented by Mendoza.

    But we don't know the truth here. -- "We" includes you. -- You're simply going on your bias.

    So are you. Your bias, however, seems to shift in favor of Bodyguard Productions being 100% in the right only because it is a copyright holder that took an alleged filesharer to court.

    the real criminals, as you must at least half agree are LAWYERS

    The real criminals are the lawyers who came up with and ran the copyright extortion scheme. Any lawyer working against that scheme is doing a public service.

    There's less to "investigate" when innocent than with a speeding ticket!

    Saying “I am innocent” and proving that innocence are two different actions, and one is clearly more complicated than the other.

    So where EXACTLY do huge lawyer fees for Defendant arise here?

    Mendoza may not have to pay “huge” fees, but having to pay a lawyer because a company claims someone illicitly downloaded a film would be a strain on anyone’s finances, let alone a 70-year-old undergoing treatment for cancer.

    Of course ANY fee for lawyer when innocent will SEEM outrageous, but any innocent people being forced to spend is due to you pirates who flout The Law, NOT any "copyright troll"

    Filesharers did not take Ernesto Mendoza to court over a case of infringement; Bodyguard Productions did. “Pirates” did not attempt to extort a settlement out of Ernesto Mendoza; Bodyguard Productions did. People who share movies and music and TV shows as an involuntary reflex did not force Ernesto Mendoza to hire a lawyer and fight a lawsuit that was inevitably going to be dismissed so the plaintiff would never have to pay any of the defendant’s legal fees; Bodyguard Productions did.

    Put the blame where it belongs — with the people/the company that pulled this scheme for the sake of a quick buck — instead of where it does not. Blaming piracy for the greed of the people behind Bodyguard Productions does nothing for your credibility (such as it is).

    no matter how evil you believe that practice is

    And herein lies another problem for you: You show no willingness to discredit or disparage the practice for what it clearly is (a extortionist scheme predicated on people being too scared of a full-fledged lawsuit). That you both refuse to denounce the scheme for the bullshit that it is and show a clear bias in favor of the company that perpetrated it says a lot about you.

    all that you're doing is defending piracy

    Show me a single line in this article that either defends or justifies the act of illicit filesharing in particular or the act of copyright infringement in general. The line must be a clear, explicit defense/justification that cannot be misinterpreted as anything else. Until you can do that, all you’re doing is defending an extortion scheme — as usual.

    reply to this | link to this | view in thread ]

  9. icon
    Peter (profile), 28 Feb 2019 @ 1:35am

    $150.000 for downloading an .mp3-file worth a few cents

    0$ for extorting terminal cancer victims. Plus a hypocrit judge who kicks you in the face and smiles while siding with the extortionists.

    Saying "the court should re-evaluate" while doing the exact opposite is the same as a mafia bully saying kicking you the face hurts them more than it hurts you, but sadly is necessary to make you see the light.

    reply to this | link to this | view in thread ]

  10. icon
    PaulT (profile), 28 Feb 2019 @ 1:39am

    Re: How much does it cost to write: "False. See you in court."

    "To begin with, you are simply assuming that this person isn't a particularly aggressive pirate"

    Has he been found guilty in a court of law? No? Then he's innocent until you prove that.

    "all that you're doing is defending piracy"

    No, we're defending the innocent man that the people you support tried to extort, along with the many other innocent people who paid up rather than face the cost and stress of battling a protection racket.

    reply to this | link to this | view in thread ]

  11. icon
    wereisjessicahyde (profile), 28 Feb 2019 @ 2:51am

    Re: How much does it cost to write: "False. See you in court."

    You really should find yourself a hobby or something.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 28 Feb 2019 @ 2:55am

    seems to me to be yet another judge in the pockets of the entertainment industries. let's face it, the same thing is happening worldwide, ie governments, security services, legal services, courts and judges are all going down the same road, the one that aides the industries as much as possible, while kicking the people in the crutch! the industries want and will soon be given the right to say yes or no to who can do what, when, how, and why on the internet while it's very purpose is all but destroyed. the aim being to ensure that the rich, famous and powerful can find out whatever they want about everyone, while their own lives and certainly their indiscretions are kept hidden!

    reply to this | link to this | view in thread ]

  13. icon
    That Anonymous Coward (profile), 28 Feb 2019 @ 3:43am

    Re:

    No the problem is the law is screwed up.
    No one in washington will dare even THINK about touching the law to deal with just this issue because that cow is much to sacred to be touched.
    The law is screwed up & while we can see all that is going on in every district, they don't get to until someone find a legal way to add that information to the record.

    If they said the $150K was only available to commercial infringement (like it should be & probably higher) and set a penalty of 2x retail (or 3 or 4) as the top limit prize... these trolls would have no interest in these shakedowns.

    They scare people with the $150K (that they would NEVER be awarded even in a month of sundays, and that would screw them b/c they would have the max award allowed for the title & can seek no more.) well the cost of defending this would be at least $5K... pay me $3.5K and we'll call that a day. And these do this hundreds of thousands of times for each film, raking in well above the limit described in the law.

    But OMG if we touch copyright the mouse might die!!!!!!!!!
    So what if several hundred thousand people have been shaken down... a cartoon mouse matters more than you.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 28 Feb 2019 @ 7:38am

    Most of the people in Washington are lawyers.

    They aren't going to derail their own gravy train; the purpose of the legal profession isn't to deliver justice, it's to keep the legal fees flowing. If the job of reigning in lawyers only falls to other lawyers, the abuses will continue forever. It's just too profitable to stop.

    reply to this | link to this | view in thread ]

  15. icon
    That One Guy (profile), 28 Feb 2019 @ 9:08am

    That's the thing, infesting this site is their hobby, and they are very dedicated/obsessed with it.

    reply to this | link to this | view in thread ]

  16. icon
    That Anonymous Coward (profile), 28 Feb 2019 @ 9:15am

    Re: Most of the people in Washington are lawyers.

    "It's just too profitable to stop."

    I suggest you ask Messers Steele, Hansmeier, & Duffy about that...

    reply to this | link to this | view in thread ]

  17. icon
    That One Guy (profile), 28 Feb 2019 @ 9:38am

    Ah legalized extortion rackets...

    Where your target is screwed from the get-go, because at the first sign of the target being willing and able to fight back the extortionist can simply cut and run, leaving the target to deal with all their legal fees they incurred simply from fighting back, and the extortionists don't have to pay squat.

    As it stands the legal system in the US is practically tailor-made for being abused like this, and parasites will continue to use it as such so long as it provides a no-risk/all-reward system.

    reply to this | link to this | view in thread ]

  18. icon
    TheResidentSkeptic (profile), 28 Feb 2019 @ 9:39am

    Re: Re: Most of the people in Washington are lawyers.

    Unfortunately, they just show how FAR off the rails a lawyer has to go to get into real trouble.

    reply to this | link to this | view in thread ]

  19. identicon
    Qwertygiy, 28 Feb 2019 @ 9:46am

    Re: Most of the people in Washington are lawyers.

    I'm both less and more cynical than you at the same time.

    It's not the legal profession that exists to serve the interests of the legal profession.

    It's all professions. Politicians, lawyers, doctors, plumbers, policemen, telecoms, record labels, farmers, any job.

    Humans are inherently greedy, as are most forms of life. The more you have, for yourself or for your kin, the more likely your genes are to survive. Selflessness, giving up something beneficial to you or your clan without getting anything in return, is a behavior we learn through empathy.

    There are people out there who have enough empathy and value of the greater scheme of things to moderate their own behavior, and take only what they need. But someone who values themselves above others will take anything that they value more than they value whatever they would lose by taking it. If nobody is there to stop them, the greedy soon become much stronger than the reasonable.

    This is why we have police to watch communities, and lawyers to watch police, and judges to watch lawyers. But to mix a couple of old phrases... who watches the watchmen when it's turtles all the way down?

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 28 Feb 2019 @ 10:27am

    Re: Re:if you don’t like my opinion just send a note to th

    You’re defending extorting a terminal cancer patient

    Someone's old age and medical status should have nothing to do with how the court treats them. That's the principle that "justice is blind". We need to stop the trolls from extorting everybody, not just those who can get public sympathy.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 28 Feb 2019 @ 10:47am

    Re: Re: Re:if you don’t like my opinion just send a note t

    It’s not how the court treats them. It’s how blue is defending extorting a terminal cancer patient. Because that’s what this was. It’s not a real court case in the classic sense. It’s a shithead defending even worse shitheads using the legal system the way the mob uses baseball bats.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 28 Feb 2019 @ 10:50am

    Re: coward

    Hey blue balls why you run away bro? I just defamed the shut out of you. Where’s the lawsuit? After all it should be just as easy as saying I’m guilty.

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, 28 Feb 2019 @ 12:56pm

    Re: Re: Most of the people in Washington are lawyers.

    Duffy's dead and Steele and Hansmeier profited quite nicelybefore they started getting slapped for besmirching the reputation of lawyers in general.

    I'd say Duffy got away with it, and Steele and Hansmeier got away with it for a significant portion of their lives.

    Nobody's removing their gravy train; they're just fishing some of the lumps out of it.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 28 Feb 2019 @ 3:42pm

    Re: Re: Re: Re:if you don’t like my opinion just send

    It’s how blue is defending extorting a terminal cancer patient. Because that’s what this was.

    Defending extortion is a problem. Doesn't matter whether the victims have cancer.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 28 Feb 2019 @ 3:52pm

    Re: Re: Re: Re: Re:if you don’t like my opinion just s

    It does matter. It makes it worse.

    reply to this | link to this | view in thread ]

  26. icon
    PaulT (profile), 1 Mar 2019 @ 1:15am

    Re: Re: Re:if you don’t like my opinion just send a note t

    "We need to stop the trolls from extorting everybody, not just those who can get public sympathy."

    True, but this is the way you get change. Right or not, you're going to get different results pointing out how bad these guys act against innocent sick old men than you will by highlighting some young healthy student.

    reply to this | link to this | view in thread ]

  27. icon
    That Anonymous Coward (profile), 1 Mar 2019 @ 3:03am

    Re: Re: Re: Most of the people in Washington are lawyers.

    Yep they profited nicely, pity their commissary accounts won't reflect that.

    Duffy escaped justice, but he had been punishing himself for a very long time. Its a draw there.

    As it appears restitution is on the table, they might have to disgorge a lot of hidden cash if they want to keep their deals. I mean it isn't like they were so stupid to allow their financials to go public by not moving to seal them on that docket... er wait.

    I'm still amazed that Steels's sister mentioned his first computer business, which if you look for you can find a whole bunch of defrauded students who got screwed by the 2 of them, as how he was always trying to help people.

    reply to this | link to this | view in thread ]

  28. icon
    That Anonymous Coward (profile), 1 Mar 2019 @ 3:03am

    Re: Re: Most of the people in Washington are lawyers.

    I LIKE TURTLES!

    reply to this | link to this | view in thread ]

  29. icon
    That Anonymous Coward (profile), 1 Mar 2019 @ 3:05am

    Re: Re: Re: Most of the people in Washington are lawyers.

    They wouldn't have made it this far without a powerful father pulling strings on behalf of his sons... and now that it is amazingly clear how much deeper the corruption was we'll have to wait and see if there is backlash against the father for interceding on his sons behalf multiple times.

    reply to this | link to this | view in thread ]


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