The latest in the long and growing list of wacky moves by the Prenda Law copyright trolling team once again hints at the same thing: these guys think that they've outwitted the law and will use every loophole they can possibly think of to do one thing: get the identities of people associated with IP addresses in order to send them "settlement" letters and phone calls
. From all of Prenda / John Steele's actions to date, that appears to be all they care about. Get identities and then pressure into settling in any way possible. The company has tried all sorts of tricks -- and many of them are exactly that: tricks. As you go down the list of stories
associated with Steele, you see more and more cases of really questionable behavior, with courts across the country calling him or Prenda out on the behavior.
The latest "trick" is really incredibly brazen, and involves a variety of different tricks all mixed into one. As the federal
courts have gotten better at recognizing "copyright trolling" and properly finding the behavior reprehensible, Steele has tried a few tricks to get cases into state courts, such as using an ancient part of Florida's state law known as a "pure bill of discovery."
The latest move, however, started out in a Cook County court
in Illinois, where Prenda filed cases "Guava v. Skyler" and "Arte De Oaxaca v. Stacey Mullen" in which they sought to get discovery on a bunch of IP addresses using a couple of tricks to make it easier.
First, Guava doesn't actually hold the copyrights in question, so it can't file a copyright case (also, they can't file a copyright claim in a non-federal court since copyright is mostly covered by federal law) -- which is the situation that eventually got Righthaven in so much trouble. So, they filed under the CFAA -- the Computer Fraud and Abuse Act. You may recall this law as one we've written about frequently, mainly for the ways that it's been abused
to go after people doing something someone didn't like on a computer, when no other laws could be made to stick.
In these cases, the plaintiff would allege that a single defendant (Skyler or Mullen) along with "co-conspirators" had "breached plaintiff's security systems." This is trick number two. Rather than name everyone they're going after in a single lawsuit and face problems of misjoinder as in copyright trolling cases, they just claim that there are co-conspirators, who they hope to learn about during discovery
. In other words, the "trick" here is not actually naming the people as defendants initially (which would make it easier for them to defend themselves), but arguing that they need to go through the process of having ISPs cough up their identifying info as part of the basic "discovery" process to even figure out if they're co-conspirators.
But how are they claiming this is a CFAA issue? That's trick number three. According to Steele:
Guava owns protected computers, but the files stored in that computers contain copyrighted stuff, and the copyrights belong to a third company. Guava goes after people because of hacking, but that third company, which also happens to be our client, may say: look, this IP address infringed our copyright, so we may decide to go after the same IP for copyright infringement.
In other words, this is a copyright case in disguise, and they're arguing that accessing copyrighted materials on a computer is a form of hacking.
I'm not ready to call the next part a "trick" but the judge in the Guava case certainly appears to suspect that there's a third trick, which is that the lawyer defending the defendants
, Adam Urbanczyk, agrees to allow the process of discovery to move forward. The judge found this to be odd and, according to FightCopyrightTrolls, specifically asked John Steele and Urbanczyk if they "were in bed together"
in allowing the discovery to move forward. That's because another lawyer entered the picture, Erin Russell, who had filed motions to quash on behalf of some of the supposed "co-conspirators," arguing that the whole thing was a sham and the "true purpose" of the whole thing was "to leverage settlements from identified subscribers, without ever naming them as defendants." In response, the judge wisely put the kibosh on the discovery process -- stopping existing subpoenas, forbidding new subpoenas and asking for more info.
Steele, in response, pulls out the next trick, arguing (in part) that Russell's motion should be ignored because the people she's representing aren't actually defendants
. Remember how they're just named as "co-conspirators" rather than actual defendants? The idea is to use that to pretend that they can't even defend themselves until after their info has been revealed!
Then we move on to the next trick. After that hearing and before the ensuing hearing where the judge was to delve into more details, Steele / Prenda withdrew the subpoenas for all of the co-conspirators
who were being represented by Russell. Because of this, her motion to quash the subpoenas was correctly ruled moot.
But, of course, that's not the end. So we move on to the next
trick, which is that Guava / Prenda then sued all of the same people
in ten different federal district courts
. Yes, they basically filed identical lawsuits in ten different courts, all asking for discovery on the same exact list of 34 IP addresses. Fight Copyright Trolls lists out all of the cases (and the lawyers representing Prenda in each case):
- Alabama: Curtis Hussey (Guava LLC v. John Doe, ALSD 12-cv-00678).
- California: Brett Gibbs (Guava LLC v. Doe, CAED 12-cv-02514).
- District of Columbia: Paul Duffy (GUAVA, LLC v. JOHN DOE, DCD 12-cv-01661).
- Illinois: Paul Duffy (Guava, LLC v. Does 1-5, ILND 12-cv-08000).
- Michigan: Jonathan Tappan (Guava, LLC v. Doe, MIED 12-cv-14441).
- Georgia: Jacques Nzaire (GUAVA LLC v. DOE, GAMD 12-cv-00398).
- Arizona: Steven Goodhue (Guava LLC v. Unknown Party, AZD 12-cv-02158).
- Ohio: Rod Mastandrea (GUAVA LLC v. Doe, OHND 12-cv-02512).
- Massachusetts: Daniel Ruggiero (Guava, LLC v. Doe, MAD 12-cv-11880).
- Connecticut: Daniel Ruggiero (Guava, LLC v. Doe, CTD 12-cv-01435).
Basically: a total shotgun approach. The attempt to sneak through discovery without even naming the IP addresses as defendants failed in Cook County, so just file repeat federal lawsuits everywhere
they can think of, perhaps hoping / figuring that at least one of the judges would agree to discovery, leading to the identities associated with those 34 IP addresses being passed over. (Also, as an aside, FCT notes that in what appears to be a moment of sloppiness, in at least one of the complaints, Prenda slips up and notes that it's really a copyright case, despite elsewhere pretending that these kinds of cases aren't about copyright at all). Talk about jurisdiction shopping!
Steele, apparently, then bragged
about this particular trick on both Twitter and in blog comments, in which he mocks Russell, suggesting that her clients must be angry because rather than be a mere "co-conspirator" in the original case, they're now defendants in federal cases around the country. He also bragged that some of those account holders were now "begging to settle" and angry at Russell for not letting them know that they could be sued.
Following this, three of the defendants in Massachusetts hit back hard
, alerting the judge to the shenanigans that Prenda was pulling in filing identical cases all over the place, and asking the court to not only put a stop to the proceedings, but also asking for Guava to have to pay their costs and to withdraw the subpoenas it issued in all of the duplicate and related cases.
The Complaint Guava filed in this Court is based on and includes substantially identical
factual and legal claims to those Guava raised in Illinois. To defend the Illinois action, Defendants
retained counsel and filed motions to dismiss and to quash subpoenas issued by Guava. One day after
the Illinois court stayed the subpoenas and scheduled a hearing on the motions, Guava withdrew its
claims against Defendants and opened this action. Guava then duplicated this action in nine other
federal courts, without notifying this Court of the prior or concurrent related cases, and set out to
issue new versions of the subpoenas, seeking the same information about Defendants.
In other words: Prenda is basically filing the same thing against the same people in a ton of different places, hoping one court, somewhere actually lets it go through. The filing from the defendants notes that it's proper to awards costs (including attorney's fees) when refiling a previously dismissed claim.
The filing also notes that Guava / Prenda appear to be engaged in "vexatious litigation tactics":
Guava’s bad faith litigation tactics are precisely the kind of vexatious conduct that Rule 41(d)
was designed to prevent.... Guava admits that it initiated its new claims against only those Does who filed motions to
dismiss and quash in Guava I, precisely because they did so. “[B]ecause the Movants attempted to
act and raise arguments as though they were defendants in this case, Plaintiff granted their wishes
and initiated separate litigation against them in which they will now be actual defendants.” ... “The scattershot litigation strategy of plaintiff’s counsel -- filing identical lawsuits nationwide
and forcing defendants to defend the same action in various jurisdictions -- is certainly questionable.”
Kerner v. Cult Awareness Network.... Sanctions under 18 U.S.C.
§ 1927 may be warranted by evidence of “bad faith in choosing a multiple-district litigation
strategy.” Id. Guava provided sufficient evidence of bad faith by filing multiple duplicative federal
actions in apparent retaliation against Defendants for having defended themselves in the prior action.
Many other aspects of Guava’s litigation strategy can only be described as vexatious. In this
action, Guava claims to be pursuing a single John Doe defendant with three different IP addresses.
Before filing the Complaint in this action, Guava admitted it had “used publicly available reverse-lookup
databases on the Internet to determine what ISP issued the IP addresses and the putative
location of those IP addresses.” ... However, freely available online geolocation tools list
two of Defendants’ IP addresses in different regions of metro Boston (Somerville and Brighton),
while the third is in western Massachusetts (Chicopee). Those same geolocation tools identify the
three Defendants’ IP addresses as having been assigned by two different Internet service providers,
both of which Guava subpoenaed in pursuit of an allegedly single defendant. Because they are
different people, Defendants filed their motions in Guava I on different dates. Thus, Guava had no
reason to believe that the three individuals it calls “Defendant” are the same person, and Guava’s
deceptive pleading has needlessly added to the complexity of Defendants’ responses.
Guava’s bad faith tactics have further complicated Defendants’ defense. Guava chose to file
complaints that sound in copyright without pleading copyright infringement as a cause of action.8
Though the Complaint alleges CFAA violations and various common law claims, it repeatedly
references an implicit copyright claim...
It goes on to highlight where in the various cases they repeatedly refer to copyright-related claims, such as "the exclusive right," and thus (similar to Righthaven), they argue that Guava is using "tactical chicanery in misstating its claims." And, of course, such claims should be pre-empted by federal copyright law, since that's what they're really
suing about while trying to avoid it officially being a copyright case -- probably for the sake of not easily "connecting" it to copyright trolling cases that have received so much bad publicity (and dismissals from judges).
That appears to be the state of things so far. It will be worth watching how the judge responds (and how some of the other courts who have the related cases deal with the same issues). However, all of this smacks of the same old story with John Steele and Prenda: lawyers who think they're so smart that they've outwitted the system through a whole series of loopholes, all intended to avoid the fate of some of the straight copyright trolling cases. Given the details, however, hopefully a court will rightfully smack them down for abusing the courts in this manner.