SAN FRANCISCO – Federal judges are becoming more and more aware of the potential dangers that tactics known as “copyright trolling” pose to the public, according to a senior lawyer for the Electronic Frontier Foundation, a nonprofit focused on digital rights.
In June, the 9th Circuit Court of Appeals upheld sanctions imposed by a U.S. District Court judge against a group of lawyers known as Prenda Law who were accused of misconduct while suing individuals for copyright infringement. The methods Prenda used fell under the umbrella term of copyright trolling, Mitch Stoltz, senior staff attorney at the EFF, said.
Mitch Stoltz, senior staff attorney for the Electronic Frontier Foundation | Photo by Erich Valo Photography
“Copyright trolling is a vague term,” Stoltz told the Northern California Record. “It's a more spectrum of abusive behavior, a spectrum ranging from aggressive litigation campaigns against masses of people to things that are really illegal abuses of the court system. The group of lawyers known as Prenda – they've gone by a number of names – was, as it turns out, really on the illegal end of that spectrum.”
In such cases, lawyers representing copyright owners, often owners of copyrights to pornographic films, file lawsuits against large numbers of individuals for illegally downloading those films and then use subpoenas to get an internet service provider to turn over their identities. They then offer to settle for a lump sum, with the threat of a lawsuit if the person didn’t pay. Prenda was a bit different, however, Stoltz said.
“The people known as Prenda, one of their twists on this was that they were only filing lawsuits on about five adult films, and as it turned out, they themselves – the lawyers – owned the copyright to those films,” he said. “They simply hid that ownership by putting them in the name of various trusts and shell companies, many of the incorporated on Caribbean islands. There's nothing illegal about that, except they were trying to deceive the courts and the people who they were suing into believe that there was some other owner involved.
“And in the process of doing that, they did a number of things. They forged signatures on documents to conceal their own interest. They disobeyed certain court orders about how and when they could contact the defendants. And (U.S. District Court) Judge Otis Wright in Los Angeles accused them of likely not paying taxes on the income they were deriving from this.”
Wright imposed sanctions on John Steele, Paul Hansmeier and Paul Duffy, saying Prenda’s actions amounted to a “legal shakedown.” In its decision upholding the sanctions, the 9th District noted that Prenda never litigated any of the copyright cases to completion.
Stoltz said that Alan Cooper, an employee of Steele, discovered that Steele had apparently signed Cooper’s name on legal documents without Cooper’s knowledge.
“Cooper testified in court in Los Angeles about this, and Judge Wright asked Steele and his colleague Paul Hansmeier to account for themselves, and they took the Fifth Amendment,” Stoltz said. “Which was really a pretty unusual and dramatic thing when you're talking about a civil case.”
Prenda is no longer litigating copyright cases, Stoltz said, but plenty of others still are, and while they might not be following the exact same procedures as Prenda, there are plenty of similarities. That has been a concern for judges.
“A number of courts have said that this sort of litigation campaign, even where these plaintiffs’ lawyers are following all of the rules, these cases ‘give off an air of extortion,’” Stoltz said, quoting from the ruling of another judge in a similar case. “That suggests to me that courts are looking very carefully at these cases, increasingly. They are looking it as something that they need to protect the public from. The 9th Circuit's decision will help that. It will be one more sort of sign to federal judges that they need to look at this.”