Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones [legal] defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry.

Unfortunately, this is not news to a lot of us. But what makes it newsworthy—even to those of us who've known about it all along—is that the man behind the curtain, the Phantom of the Opera, the [insert masqued villain of your choice] has finally been revealed, and in dramatic fashion. But what did they do that was so bad? The short answer is this: Attorneys John Steele, Paul Hansmeier, Angela Van Den Hemel, and Paul Duffy developed a business plan that centered on them planting pornographic movies in places where they were likely to be downloaded using peer-to-peer file sharing protocol. Then they monitored those servers for download activity, and filed suit against the IP addresses associated with the "illegal" downloading. Since attorneys can't really file suit on their own behalves, they created several fake people to stand in the place of the plaintiffs, by stealing the identities of various individuals, one of whom just happened to be John Steele's gardener. 

Okay, so that wasn't exactly short, let me summarize my summary: Prenda Law Inc. used our federal courts to more or less blackmail or extort money out of defendants who were essentially hauled into court only because of situations that the plaintiffs themselves created. I liken it to a civil version of entrapment. Judge Wright likened it to racketeering.

In total, the judge only ordered Prenda Law to pay a little over $80,000 in sanctions, but that's not the significance of the order, or the case. Judge Wright has asked that a copy of the order be forwarded to every court in which Prenda Law or one of its affiliates has a case pending. Further, Judge Wright has asked that a copy of the order be forwarded to attorney disciplinary body of each state in which the Prenda Law attorneys are admitted to practice. That could potentially bring an end to the entire porno-trolling litigation industry.

If the issues in this case and this latest decision weren't an ongoing focus of my practice, I probably wouldn't have taken the time to look up the case and download the opinion, which is what I did, and much to my surprise, the decision was anything but a windfall for plaintiff Malibu Media LLC, a California distributor of pornographic films. Indeed, the court went through a seemingly reasoned analysis of the legal questions involved when deciding a motion to quash a subpoena, in accordance with FRCP 45(c)(3). The primary issues the court addressed were whether joinder was proper, whether the information sought by the subpoena was relevant, and whether the plaintiff is entitled to pursue its claims for relief as stated in the lawsuit.

The court dealt with the first two issues methodically, and resolved them in favor of denying the motion to quash. When arriving at the third factor, however, the court did not engage in much, if any analysis. The court quoted a case cited in the motion to quash, and then proceeds to its conclusion:

To be clear, the Court certainly does not condone the use of this litigation, and any attendant threat of embarrassment, to coerce any defendant to settle. As noted above, the [court's prior order] requires plaintiff to ensure it has an adequate factual basis before seeking to file an Amended Complaint naming any proper defendant, and that the Court, by granting plaintiff’s request for expedited discovery, has not authorized plaintiff to rely solely on the subscriber’s association with the IP address to supply that basis.

It seemed like the court didn't give much thought to the final argument raised in the motion to quash, and so I went back to re-read from the beginning of the opinion, which is when it occurred to me that the motion had been filed pro se (i.e. by the John Doe defendant himself, rather than by an attorney). A bad idea.

Most attorneys (myself included) take cases like these on a fixed fee basis, usually for less than what the copyright trolls are offering to settle for. The attorneys on the plaintiffs' side know what they're doing. They're familiar with the process, having done it numerous times before, and they have their arguments, briefs, and motions already prepared and ready to file. On top of that, the statutory penalties for copyright infringement are obscene (no pun intended), up to $150,000 for willful infringement, plus attorney's fees. All of that adds up to a less than desirable situation for someone to attempt to represent themselves in court.

But I digress. Regardless of the fact that it's a bad idea to try to defend yourself in a copyright infringement lawsuit, I wonder whether the outcome would have been the same if the motion had been properly drafted and filed by an Internet law or copyright attorney. The bigger problem is this, however: This most recent decision appears to be one of the few that sides with the plaintiff–copyright trolls; it therefore could have a negative precedential effect on future motions to quash filed against copyright trolls. Fortunately, the court's decision is marked "not for publication," but seeing as how the New Jersey Law Journal wrote about it, and I found the decision at the U.S. Court's website in less than 60 seconds, I'm not confident that the decision won't have any lingering effect.

11917746183 Hammer Opinion Denying Mtq_malibu Media

I've been writing about this seemingly epic story since Ravi was indicted not because it's directly related to my sports or entertainment law practice, but because of how close the case is to my everday life—I have two degrees from Rutgers University, and all of the events unfolded within a few miles of where I live and work, not to mention that the trial took place one block from my office. In addition, the underlying issues in the case are of national importance because of their likely effect on constitutional law, criminal procedure, and the law as it pertains to social media; moreover, the principal crime with which Dharun was charged—invasion of privacy—is a typical scenario not only in my own law practice, but for all entertainment lawyers.

So why am I writing about it again? Because the state of New Jersey (i.e. prosecutor's office) is appealing the alleged leniency of Dharun's sentence. After the jury convicted Dharun of the majority of the charges, the prosecutor asked the court to sentence him to 5–7 years in prison (remember, the maximum sentence was 10 years) (read the state's sentencing memo here). But Judge Glenn Berman sentenced Dharun to just 30 days in county lockup, of which he only had to serve 20 days. Dharun's attorneys are also appealing, but they are appealing the entire conviction, based among other things, on the prosecutor's failure to disclose key defense evidence.

I've written about the appellate process a few times (see here & here) not only because it's something with which I have a lot of experience, but also, it's one of the most misunderstood aspects of our judicial process. This case presents a unique situation within the appellate process—the state's right to appeal. Typically, the state only appeals criminal cases when the judge throws out key evidence, which results in dismissal of the charges. Prosecutors can't appeal acquittals because of the Double Jeopardy Clause. With regard to sentencing, defendants routinely appeal their sentences as being too harsh, but prosecutors rarely (almost never) appeal sentences for being too lenient, the reason being that appellate courts don't usually overturn sentences, for either side. (NB: a recent exception.) This has to do with the appellate court's limited scope of review. For what it's worth, the scope of review in New Jersey is consistent with the federal standard, and the standards held by most states, as restated recently in State v. Blackmon, 202 N.J. 283 (2010).  

Sentenc[ing] is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done...In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are fully supported by the evidence. Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record.

Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the factfinder has applied correct legal principles in exercising its discretion.

What that means is that in every sentencing order, the judge must give a carefully reasoned analysis of the circumstances of the case, which he or she considered and relied upon in arriving at the sentence ordered. In Dharun's case, Judge Glenn Berman couldn't have been any clearer as to how and why he sentenced him to just 30 days (video clip includes sentencing hearing). Based on the thoroughness and lucidity of the judge's analysis, it seems highly unlikely that the Appellate Division would overturn Dharun's sentence. Anybody who says differently is either making noise, or just bitter.

Add to the equation the fact that Dharun has, now, already served his time, so sending him back to prison would essentially be like punishing him again for the same crime. Although I'm not aware of the Double Jeopardy Clause being asserted in the context of appeals of sentencing orders, I believe it could be used to Dharun's benefit in this case. Dharun had the option of waiting until his own appeal was decided before serving his term of incarceration, but he chose not to wait, and to get it over with now. Dharun said he wanted to go to jail so he could close this chapter in his life, but I wonder if he had help in arriving at his decision to turn himself in early. Given the dire consequences of the Appellate Division overturning Dharun's sentence—no matter how remote of that possibility—did Steven Altman and the rest of Dharun's legal team take the calculated risk of sending their client to jail so they could pull the rug out from under the prosecution's feet?

fraudulent access
to a computer

Walker's attorney is accusing the Oakland County Prosecutor's Office of harassment, and is optimistic that his client will beat the charges. He says that the law, which prohibits the intentional and unauthorized access to computers, computer programs, systems & networks, was not intended to punish actions such as these. And he apparently has support from members of the Michigan state legislature.

State Rep. Tom McMillin told the Oakland Press that if prosecutors continued to pursue the charges against Walker, he would immediately introduce legislation to clarify that spouses and parents who read their children’s e-mails are exempted from the statute. McMillan also called the case harassment and a waste of taxpayers’ money. “After reviewing the state statute and the original bill, it is clear there was never an intention for this law to be used to go after spouses. Since it appears at least one prosecutor in the state can’t see that, I’ll introduce legislation early next year to clarify ... the obvious."

I haven't seen all the evidence, but from what's been reported thus far, I wouldn't expect a conviction. Even if he's acquitted or the charges are dismissed, however, Leon Walker will have still paid a large price for the Oakland County Prosecutor's lack of discretion. Prosecutors have a duty to serve their constituents, by protecting them from criminals. The American criminal justice system places a lot of discretion in prosecutors, because police refer a case to the prosecutor, it is ultimately the prosecutor's decision whether to file charges on behalf of the state. It seems from these facts that the Oakland County Prosecutor's Office abused the discretion, which is a disgrace to his office, and to our system of justice.

The domain name, p2p.com, was estimatedly valued at as much as $200,000 at the time that 23-year-old Daniel Goncalves hacked into the popular domain registrar goaddy.com, and then transferred its registration to his own GoDaddy account. Go Daddy records show that the same IP address was used to transfer the stolen domain as was used to log into Goncalves's Go Daddy account. After waiting 60 days from the date of the transfer, per ICANN (Internet Corporation for Assigned Names and Number) rules, Goncalves transferred the domain to another registrar, and ultimately sold it to Mark Madsen, a forward for the Los Angeles Clippers. Madsen had no idea that the domain was stolen. (Full story from newerseynewsroom.com.)

Although 5 years sounds like a long time to go to prison for stealing a "name," Goncalves's conduct in this case was particularly egregious (not to mention stupid). Before striking the plea deal with prosecutors, Goncalves was potentially facing 10 years in prison. What's even more incredible is the fact that Goncalves not only used (presumably) his own computer to complete the transaction, but that it took investigators 3 years to catch him!

Even though the domain was reportedly returned to its rightful owners (a "who is" search only revealed the current registrar, Moniker Online Services, Inc.), it appears that the domain/site remains dormant as of this date.