Prenda is essentially done

Reblogged from Fight Copyright Trolls:

We have been waiting for this moment for a long time. Congratulations to everyone involved, especially Morgan and Nick.

Media coverage

• TechDirt: Judge Wright Tells Team Prenda To Pay $80k, Refers Their Activity To State Bars, Feds & IRS by Mike Masnick


• Wired: Judge Asks IRS, Feds to Investigate Copyright-Trolling Attorneys by David Kravetz.

Read more… 116 more words

Sometimes there are no words other than silence to best express the thoughts I have about Judge Wright's order essentially referring John Steele and the Prenda Law Inc. gang to the IRS' Criminal Investigation Division (CID) for all the settlements on which no taxes were paid. There is one police agency that a criminal organization does not want to be contacted by, and that is the CID. The $81K in sanctions essentially funds the lead attorneys who spent time on this case. And, the referral to the bar associations means that the principals at Prenda Law Inc. may no longer have their law licenses shortly. In sum, there is not much for me to comment here, except to be silent, because the judge's order itself says all it needs to. Copyright trolling may seem profitable for the attorneys filing the lawsuits, but no money can compensate for the loss of freedom that one experiences when what was once a multi-million dollar law practice lands the principles in prison for tax evasion. This should be a lesson to all other copyright trolls out there. Judge yourselves accordingly.

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“UNDER THE RADAR” – 122 MALIBU MEDIA, LLC FILED CASES

Malibu Media, LLC has been one of the worst offenders in these copyright trolling cases. Instead of waiting for a full download to be complete, it has been reported to me that IMMEDIATELY UPON CLICKING ON THE BITTORRENT LINK (or in other words, as soon as an internet user “joins” the bittorrent swarm, EVEN IF NOT A BYTE OF DATA HAS BEEN DOWNLOADED), ***WHAM!*** Downloaders are tagged and are sued for copyright infringement.

To make matters worse, Malbu Media, LLC is known to sue based on what is called a “Siterip” (essentially meaning that someone ripped a large set of videos from their http://www.x-art.com paid website, and posted a huge number of them into one bittorrent file). We won’t ask 1) if they’ve known about the Siterips, why they have not filed DMCA takedown notices for those Siterips, and 2) whether they were involved in the “leaking” of the various siterips (in my opinion, it is too convenient to have “Siterip #1… Siterip #2… Sitrip #12…”). In sum, clicking on the wrong torrent file link with Malibu Media, LLC as your plaintiff production company can get you sued for 25+ titles, or “hits” as they like to call them.

Now what makes these cases particularly offensive is that unlike the traditional copyright trolls who will only ask for $3,400 and settle for whatever they can get, Malibu Media, LLC believes that they will get at least a $10,000 settlement from each defendant. You see this by looking at the case names below that there appears to be only ONE defendant in each case. The reason for this is that their attorneys will tell the defendant that he’s the only one in the case, and that they’ll amend the complaint, “name” him as a defendant, and serve him with process if he doesn’t settle.

While I am against the concept of suing downloaders for the piracy of a film, I want to note that filing ONE LAWSUIT FOR ONE DEFENDANT is the proper way to do these lawsuits. In sum, a defendant has the simple question of 1) can I fight this (the answer is likely yes considering the “snapshot” methods in which they track the IP addresses relating to the downloads), and 2) how would “I” like to proceed based on the evidence against me? X-art films have a very specific style and theme to them, and they attract a very specific genre. On top of this, the Keith Lipscomb IP enforcement company representing Malibu Media, LLC as their client does research on most defendants. For these reasons, it is often a simple question of EVIDENCE in determining whether to move forward with what is usually a very good defense, or whether to use that evidence in your favor while attempting to negotiate a deeply discounted settlement.

Up front, the local counsel you will read about below — Mary Schultz, Paul Nicoletti, Jon Hoppe, Leemore Kushner, Jason Kotzker, and Patrick Cerillo — are merely paid to file and fight these cases. They are merely cogs in Lipscomb’s IP enforcement machine, and in my opinion, there is no reason for anyone to be talking to them since they likely do not have authority to do anything but argue the cases and move them forward.

MARCH 2013 – 19 NEW CASES

Illinois Central District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01096)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01099)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01100)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01101)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01102)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-02058)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-02059)

Wisconsin Eastern District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00226)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00236)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00238)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00239)

Indiana Northern District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. Joe Doe (Case No. 2:13-cv-00085)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00162)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00163)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00164)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00165)

District Of Columbia District Court

Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00268)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00269)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00270)

FEBRUARY 2013 – 103 NEW CASES

New Jersey District Court

Patrick J. Cerillo – Attorney at Law

Malibu Media LLC v. John Doe (Case No. 2:13-cv-01179)

Malibu Media, LLC v. John Doe subscriber assigned IP address 68.32.191.163 (Case No. 2:13-cv-01176)

Malibu Media, LLC v. John Doe subscriber assigned IP address 69.142.2.132 (Case No. 2:13-cv-01178)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01180)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00214)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-01159)

Malibu Media, LLC v. John Doe subscriber assigned IP address 108.35.11.132 (Case No. 2:13-cv-01104)

Malibu Media, LLC v. John Doe subscriber assigned IP address 173.70.130.138 ( 2:13-cv-01106)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01105)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00971)

Malibu Media, LLC v. John Doe subscriber assigned IP address 173.54.255.28 (Case No. 2:13-cv-00972)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00973)

Wisconsin Eastern District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00217)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00213)

California Southern District Court

Leemore L Kushner of Kushner Law Group

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00433)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00434)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00435)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00436)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00437)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00438)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00440)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00442)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00443)

Florida Middle District Court

M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00467)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00468)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00469)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00470)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00471)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00472)

Florida Southern District Court

M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 9:13-cv-80178)

Colorado District Court

Jason Aaron Kotzker of Kotzker Law Group

Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)

Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)

Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)

Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)

Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)

Malibu Media, LLC v. John Doe subscriber assigned IP address 63.225.246.31 (Case No. 1:13-cv-00423)

Malibu Media, LLC v. John Doe subscriber assigned IP address 71.212.197.251 (Case No. 1:13-cv-00425)

Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)

Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Maryland District Court

Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00352)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00353)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00354)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00356)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00357)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00358)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00359)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00363)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00366)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00350)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00351)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00355)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00360)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00361)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00362)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00364)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00365)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00506)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00507)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00508)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00509)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00510)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00511)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00517)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00518)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00512)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00513)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00514)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00515)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00516)

Illinois Central District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01072)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01073)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-02043)

Illinois Northern District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00863)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00878)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00880)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00883)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00884)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00885)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00888)

Malibu Media, LLC v. Dr John Doe (Case No. 1:13-cv-00891)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00913)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00915)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00934)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00935)

Michigan Western District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00158)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00162)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00163)

Indiana Southern District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00201)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00203)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00204)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00206)

Indiana Northern District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00055)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00071)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00072)

Colorado District Court

Jason A. Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.234.104 (Case No. 1:13-cv-00307)

Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.250.8 (Case No. 1:13-cv-00308)

Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.161.234 (Case No. 1:13-cv-00309)

Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.34.85 (Case No. 1:13-cv-00310)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00311)

Malibu Media, LLC v. John Doe subscriber assigned IP address 67.176.40.151 (Case No. 1:13-cv-00316)

Malibu Media, LLC v. John Doe subscriber assigned IP address 75.71.30.155 (Case No. 1:13-cv-00317)

Malibu Media, LLC v. John Doe subscriber assigned IP address 98.245.154.142(Case No. 1:13-cv-00318)

P.S. – Did you notice that there was no mention of Chris Fiore in this long list of cases? Perhaps he still has his hands full with the bellwether case.

Filed under: California (CA), Chris Fiore, Colorado (CO), District of Columbia (DC), Federal Criminal Law, Florida (FL), Illinois (IL), Indiana (IN), Jason Kotzker, Jon Hoppe, Keith Lipscomb, Leemore Kushner, Malibu Media LLC, Mary Katherine Schulz, Maryland (MD), Michigan (MI), New Jersey (NJ), P2P, Patrick Cerillo, Paul Nicoletti, Peer-to-peer, Torrent, Wisconsin (WI) Tagged: and Patrick Cerillo, individual lawsuits, Jason Kotzker, Jon Hoppe, Keith Lipscomb, Leemore Kushner, Malibu Media, Malibu Media LLC, Mary Schultz, Paul Nicoletti



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New unbelievably brazen fraud: Internet Copyright Law Enforcement Agency

Reblogged from Fight Copyright Trolls:

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2/22/2013 Update: this fraud is seemingly grounded shortly after it took off (scroll to the bottom of the post).

Over the last couple of days, I started receiving disturbing reports about a new copyright extortion outfit, “Internet Copyright Law Enforcement Agency.” The con artists behind this “company” have been mass-sending demand letters threatening that those who won’t pay $495 by a certain date, …

Read more… 1,782 more words

I am horrified by reading Sophisticated Jane Doe (SJD)'s story about the Copyright Law Enforcement Agency. Quite frankly, I was already of the opinion that some of the copyright trolls needed to be disbarred and some needed some jail time for the fraudulent activities they appear to have taken part in, and this was when they were filing CIVIL COPYRIGHT INFRINGEMENT lawsuits in federal court. Reading this story, I am offended by the activities of this group, and no doubt the FBI and other law enforcement agencies will take note of their actions. In my opinion, this kind of activity raises to the levels of Ransomware and other flat-out illegal activities, and I have no doubt they will be shut down by law enforcement agencies just as fast as I am typing this comment. For these reasons, I am not writing my own separate article on this topic, but I am merely re-posting SJD's article below.

via WordPress http://torrentlawyer.wordpress.com/2013/02/22/2588/

New Law in California District Courts as to what constitutes “Copyright Infringement.”

Many things just happened in the Central District of California which no doubt will affect many (if not all of the Ingenuity 13 LLC cases, along with all of the Guava cases, and the AF Holdings LLC) cases. In short, California is no longer a troll-friendly place to sue defendants for copyright infringement.

Looking at Judge Otis Wright’s order yesterday in the Ingenuity 13 LLC v. John Doe (Case No. 2:12-cv-08333) case in the U.S. District Court for the Central District of California, we learn many new things about “the law of bittorrent use.” I’ll go over these in separate headers.

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

I’ve always dumbed copyright infringement down into two elements: 1) “Access” to the copyrighted file, and 2) “SUBSTANTIAL SIMILARITY” to the copyrighted work.

Here according to the judge, a plaintiff catching a downloader in the act of downloading a file is no evidence that the file was actually downloaded. According to yesterday’s ruling, even a downloader downloading a viewable portion (e.g., a few second snippet of a copyrighted video) is still not guilty of copyright infringement until the amount of the file downloaded rises to a “substantial similarity” to the original copyrighted work. In traditional copyright law, this means an exact or substantially-exact replica.

Us lawyers have been bouncing around what we think a judge might rule, and so we have been playing with the possibility of maybe having a viewable portion of the file downloaded, but NO. Substantial similarity applies in copyright law to downloads as well (at least now in California federal courts), and according to this ruling, it needs to be proving that the entire copyrighted video (not a fragment, a snippet, or a snapshot) was downloaded. This would absolve roughly 99% of accused downloaders across the U.S. who started to download a file, decided not to complete the download, and who got sued anyway.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

Here, all the evidence a copyright troll plaintiff has on a suspected defendant is that at a particular date and time (a “timestamp”), that particular IP address was engaged in the downloading of a particular copyrighted file.

Here, a “snapshot” of an IP address correlated with evidence from the subscriber’s internet service provider (“ISP”) that it was the subscriber who was loaned that IP address during that date and time the alleged activity took place is insufficient proof that the download actually took place. The defendant could have just entered the swarm and could be in queue to download his first byte of data. The defendant could be 10% done with the download and could have merely an unviewable fragment of the copyrighted video — hardly enough to rise to the level of “SUBSTANTIAL SIMILARITY” that is required in order to find a defendant guilty of copyright infringement. And, yet at the same time, that same snapshot could prove that the defendant is 99% complete in downloading the file.

The analogy the judge gives is taking a “snapshot” of a child reaching for a candy bar. In order to find someone guilty of copyright infringement, a plaintiff needs to prove that it is “more likely than not” that activity rising to the level of copyright infringement occurred. A snapshot places the defendant at the “scene of the crime.” It does not convict him for the criminal act itself, and usually this is all the evidence a plaintiff copyright troll can put together.

RULE 3. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST DO A “REASONABLE INVESTIGATION” TO DETERMINE THAT IT WAS THE NAMED DEFENDANT WHO DID THE DOWNLOAD, AND NOT SOMEONE ELSE WITH ACCESS TO HIS INTERNET CONNECTION.

We have known for a while that the Prenda Law Inc. model of naming defendants is 1) find out who lives in the household, 2) name the prepubescent male member of the family as the defendant. I am very happy to see a judge object to this tactic.

Similarly, EVERY LAWSUIT ACROSS THE U.S. where the copyright troll (plaintiff) has named the ISP subscriber as the defendant with no further investigation suffers from this same flaw. We have been saying for months that being an ISP subscriber (and coincidentally the one implicated as the defendant in these cases) does not mean that you were the one who did the download (nor were you responsible for all activities that took place on your internet connection).

The judge described steps a plaintiff could take to rule out the possibility that it was not someone other than the defendant who did the download. For example, they could drive up to the house and see if there is wireless access (to eliminate the defense that it was a neighbor); they could track multiple instances of downloading and correlate it with times and dates the defendant was home; etc. etc. etc.

There is so much more on this topic that I could discuss that in my opinion could kill every copyright troll lawsuit out there. In sum, merely citing that the IP address of the alleged infringer was engaged in an unlawful act does not mean that the ISP subscriber was the one who was engaged in that act. Failing to make that extra step of “putting the ISP subscriber at the keyboard at the time of the download” (or offering evidence to prove that it was the ISP subscriber who did the download and not anyone else) would be fatal to any lawsuit.

IN SUM, this was a great decision, and I look forward to it being adopted by federal courts across the country. But, before everyone starts calling and assuming that this is “the law,” I want to point out that in 99% of the states across the U.S., what exactly constitutes copyright infringement is still largely undefined.

As of yesterday, this order is now considered “the law” or more accurately “case law” which is binding in the California federal courts. However, as to the federal courts of other states, this ruling is merely “persuasive” (which effectively means “suggestive”). A judge of any other state can read this ruling and agree, or disagree. Obviously my hope is that judges in other states will read this opinion and adopt the rulings in their own states, but it is not “the law” until 1) Congress adopts a statute making this the law, or 2) judges in each state rule in accordance with this opinion, making “case law” one state at a time.

For more on this topic, Sophisticated Jane Doe wrote a great write-up on this case in her “Judge Otis Wright is fed up with Brett Gibbs’ and Prenda’s frauds, hints at incarceration” article. Anyone associated with the AF Holdings, LLC cases (or any of the others filed by Prenda Law Inc. [or their new "Anti-Piracy Law Group" entity]) should take notice of this ruling, and should file in your own case what is known as a “JUDICIAL NOTICE” informing your own judge of this order.

Lastly, no doubt Brett Gibbs might be in some serious legal trouble, and he might even face jail time for his actions in these cases for fraud upon the court. But, I hope the court recognizes that Brett Gibbs (as destructive as he has been to thousands of families over the past 2+ years) is merely local counsel to the larger “Prenda Law Inc.” entity who is run by players such as John Steele and his partners in his former Steele|Hansmeier PLLC firm.

Filed under: "Named" Defendant, AF Holdings LLC, Anti-Piracy Law Group, Brett Gibbs, California (CA), Copyright Trolls, Federal Criminal Law, Guava LLC, Ingenuity 13 LLC, IP Address /= Defendant, John Steele, Judge Otis Wright II (CA), P2P, Paul Duffy, Peer-to-peer, Prenda Law Inc., Sanctions, Steele Hansmeier PLLC, Torrent Tagged: AF Holdings, Anti-Piracy Law Group, Antipiracy Law Group, Brett Gibbs, copyright infringement, definition, Ingenuity 13, Prenda Law Inc.



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Ethics question regarding using a domain name other than my law practice name.

I had a few questions regarding my http://www.patentprophet.com web site regarding the New York ethics rules as to whether you can use a name other than your law firm name as your domain name, and whether you are able to advertise using the domain name in addition to your law firm name. The reason I was asking was because the name "Patent Prophet" is a trade name of sorts, and I was reading the ethics rules which discussed the prohibitions of using trade names, and thus I was wondering whether the prohibition applied also to domain names. I found the answer below (which I believe is current), and I am pasting it here so that any of you who also have this question can easily find the answer.

In short, the answer I found was that YES, you can use a name other than your law firm name as long as the name is not misleading or doesn't hold you out as being an expert in something you are not an expert in, and as long as you do not use the domain name in lieu of your law firm name when referring to your law practice.

In my case, I registered http://www.patentprophet.com to provide non-legal services to inventors. I believe that the service I am setting up can be very valuable to companies with regard to streamlining their research and development efforts, and the company and trade name will be Patent Prophet. However, my law practice, Cashman IP Law will provide services for Patent Prophet, and is currently featured on the Patent Prophet web site for contingency fee patent litigation services. Once I have completed the preparations to launch Patent Prophet as a non-legal business entity of its own, I plan to either move the Cashman IP law pages off the domain and possibly purchase its own domain, or simply move the pages to another location on the Patent Prophet web site.

Pasted below is the ethics opinion I am referring to:

Source: http://www.abcny.org/Publications/reports/show_html.php?rid=123

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 2003-01

LAWYERS’ AND LAW FIRMS’ SELECTION AND ADVERTISING OF INTERNET DOMAIN NAMES

TOPIC: Lawyers’ and law firms’ selection and advertising of internet domain names.

DIGEST: A lawyer or law firm may use a domain name that does not include or embody the firm’s name or that of any individual lawyer, under certain conditions: the web site bearing the domain name must clearly and conspicuously identify the actual law firm name; the domain name must not be false, deceptive or misleading; the name must not imply any special expertise or competence, or suggest a particular result; and, it must not be used in advertising as a substitute identifier of the firm.
CODE: DR 2-102(B); DR 2-101

QUESTIONS: In choosing a domain name, is a lawyer obligated to follow the rules applicable to the selection of law firm names, thus requiring the domain name to comprise some variation of the law firm’s name? If a domain name may under certain circumstances not include the law firm name, may the law firm ethically advertise its services by reference to its domain name rather than its firm name?

OPINION: The Committee has received an inquiry regarding the selection of Internet domain names for lawyers and law firms, and the corresponding use of such domain names in advertising the services offered by such lawyers and firms. This inquiry raises two questions of general significance to the bar: First, in choosing a domain name, is a lawyer obligated to follow the rules applicable to the selection of law firm names, thus requiring the domain name to comprise some variation of the law firm’s name? Second, if a domain name may under certain circumstances not include the law firm name, may the law firm ethically advertise its services by reference to its domain name rather than its firm name?

The Committee addresses these areas in the following factual context: A law firm primarily engages in the representation of personal injury plaintiffs. The law firm’s name consists of the names of three of its partners and complies with the requirements of DR 2-102(B) relating to law firm names. However, in considering its advertising and marketing activities, the firm believes that it can achieve better results if it is able to establish a web site using as its domain name a generic name or phrase that contains the word ‘attorney’ or ‘lawyer.’ (Examples of such an identifier might include phrases such as ‘Dial-a-lawyer’ or ‘New York Lawyer’). The firm has, accordingly, set up a web site that does not include its lawyers’ names as part of the domain name, but instead includes the generic name or phrase followed by ‘.com.’ The firm also wishes to advertise on television and radio using the domain name as its primary identifier and to include client testimonials alluding to the domain name rather than the name of the firm or any of its lawyers.

1. Law Firm or Attorney Domain Names
New York forbids a law firm or legal clinic from practicing under a trade name or other name that does not convey the identity of one or more of the lawyers practicing. DR 2-102(B) states in pertinent part:

‘A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one of more of the lawyers in the firm ...’ 1

Similarly, EC 2-11 states that "The name under which a lawyer practices may be a factor in the [lawyer] selection process. The use of a trade name or an assumed name could mislead non-lawyers concerning the identity, responsibility, and status of those practicing thereunder.’

Numerous opinions from New York have prohibited a law firm from identifying itself by a trade name because of the likelihood of confusion as to the identity and composition of the firm. See N.Y. City 95-8 (prohibiting trade name based on firm’s location; ‘the Code on its face prohibits all forms of trade names, and opinions construing the Code have applied that prohibition to locational trade names as well as other types of trade names.’); N.Y. City 82-44 (improper to engage in a law practice under the name "The 777 Lawyers Group"); N.Y. State Bar Op. 709 (operating proposed law practice under trade name ‘The Trademark Store’ is impermissible); In re Shephard, 459 N.Y.S.2d 632, 633 (3rd Dep’t1983) (finding ‘The Peoples Law Firm’ was a prohibited trade name); In re Shapiro, 455 N.Y.S. 2d 604, 605 (1st Dep’t 1982) (finding ‘Peoples Legal Clinic, Inc.’ was a prohibited trade name).

The threshold issue presented here is whether a law firm otherwise compliant with the rules of DR 2-102(B) can establish a domain name that does not include the names of one or more lawyers, but instead uses a ‘trade name’ or other terminology. There are no reported New York ethics opinions on this subject.

Two states, Arizona and Ohio, have issued opinions stating that domain names are not subject to the same regulation or scrutiny as a firm name and are permissible unless they are false or misleading. See Ohio 99-4; Arizona 97-04. In the Ohio opinion, the ethics panel concluded that domain names were governed by the general rules for lawyer advertising and, while it was preferable to use the firm name as a domain name, it is ‘not improper for an attorney to use letters, words or numbers provided that the domain name is not a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement.’ Nor can the domain name be permitted to ‘imply special competence or experience.’ The Arizona State Bar opinion agreed that domain names were subject to the general advertising rules against false or misleading communications, and concluded that: (1) a law firm’s use of ‘countybar.com’ was misleading because it falsely implied an affiliation with the county bar association; and (2) the designation ‘arizonalawyer.org’ was misleading because the top level domain name ‘.org’ falsely indicated that the firm was a non-profit organization.

The Committee notes that many New York lawyers and law firms have established domain names that closely track the firm name. We also note the risk that permitting domain names that do not include any reference to the name under which the firm practices might in some cases cause some initial confusion among visitors to a web site.

However, the Committee believes that the mere designation of a domain name does not mean that the firm or lawyer is ‘practicing’ law under that name; accordingly, DR 2-102(B)’s strictures on law firm names should not apply and, instead, the selection of a domain name is more appropriately governed by the ethical rules and considerations affecting legal advertising and publicity. See DR 2-101. In so concluding, we specifically do not address the First Amendment and other legal issues that may affect attorney advertising, solicitation of business and professional designations because these issues are beyond the scope of this Committee’s jurisdiction.

As a matter of legal ethics, we conclude that a lawyer or firm may employ a domain name that does not include the names of lawyers under the following conditions:

(1) The web site clearly and conspicuously includes the actual name of the law firm and the law firm in no way attempts to engage in the practice of law using the domain name. At a minimum, the web site must clearly present information including the law firm’s name, office address and the telephone number of the attorney or law firm (DR 2-101(K));

(2) The domain name complies with DR 2-101(A), which forbids ‘any public communication or communication to a prospective client containing statements or claims that are false, deceptive or misleading.’

(3) The domain name does not imply any special expertise or competence, or suggest a particular result. In this regard, we note the abundance of existing law firm domain names accessible on the Internet that would appear to violate this requirement, e.g., ‘bigverdict.com’ and ‘bigjudgment.com.’ In addition, although New York’s Code includes no specific prohibition on puffery or statements that cannot be objectively verified, we believe names that seek to promote the lawyer’s skill or talent may be considered misleading, e.g., ‘bestlawyer.com,’ ‘greatattorney.com,’ and ‘personalinjuryexpert.com.’

2. Use of Domain Names in Advertising
Having concluded that it is permissible under certain circumstances for a law firm or lawyer to employ a domain name that does not embody the name of the firm or its lawyers, we believe this domain name may be publicized in advertising so long as the domain name is used to identify a web site rather than as a substitute identifier for the firm. Thus, assuming the law firm was authorized to use the ‘NewYorklawyer.com’ domain name, it would be permissible to refer to that domain name for the purpose of directing readers or listeners to the firm’s web site, but it would not be permissible to refer to the services offered by ‘NewYork lawyer’ or otherwise to replace the law firm’s name with its domain name in describing itself, its services or its personnel.

Similarly, a lawyer or law firm may use bonafide, non-misleading client testimonials in advertising provided the clients do not use the domain name as a sobriquet or substitute for the firm’s name. It would presumably be ethical for the client to identify the domain name as a means to learn more about the firm.

Conclusion
As set forth above, we conclude that it is ethical under certain circumstances for a lawyer or law firm to employ a domain name that does not include or embody the firm’s name or that of any individual lawyer. However, we caution that domain names may not be used as a substitute identifier for the law firm and must comply with the strictures of DR 2-101 as applied to legal advertisements generally.
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A Powerful Lesson on the Merits of Settling a Patent Litigation Case and the Dangers of Ego and Greed

[Originally published by Robert Z. Cashman, Patent Litigation Attorney on the Patent Prophet web site.]

There is a short and simple lesson in today's article from law.com, "Federal Judge Tosses Out $388 Million Patent Verdict Against Microsoft" written today by Alison Frankel from the American Lawyer.

Last April, Paul Hayes of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo representing Uniloc in a patent infringement lawsuit won a $388 million dollar patent infringement verdict against Microsoft. Today, Judge William Smith from the Rhode Island federal district court vacated the $388 million jury verdict and ruled as a matter of law that Microsoft did not infringe Uniloc's patent, stating that the jury did not understand the issues when they gave their ruling in Uniloc's favor.

The lesson here is that while every patent litigator has his or her day in court, so to speak, "going all the way" [to trial] in a patent litigation suit is not always the most responsible course of action. In trial, many twists and turns can occur where within the dance between the patent litigation attorneys, results may surface with a motion, a hearing, or a ruling which can destroy an otherwise valid case of patent infringement. On top of that, the Federal Rules of Civil Procedure (FRCP) are set up to reward the party that offers to settle and penalize the party who pushes their case to trial after a settlement where their case is found not to have merit. For example, if a defendant in a patent lawsuit offers to settle and the plaintiff refuses the offer, even if the case ends up in the favor of the plaintiff, if the judgment is for an amount that is equal or less than the amount that was offered in the offer to settle, the defendant can ask for sanctions and attorney fees for the time and money spent fighting the case after they offered to settle. (This was actually the source for a defense tactic that I suggested to my peers when interning at Scully, Scott, Murphy and Presser PC, a subject to be discussed in another article.) Returning to the content of this article, the point is that going to trial has its benefits and its risks.

An alternative strategy to consider is settling the claims out of court. Too often in patent litigation (both with regard to plaintiffs who are suing because a company stole their patented idea and the companies being sued for patent infringement), ego takes a more prominent role than a sincere analysis of damages which hinders discussions of settling the claims before they go to trial. Too often a company accused of infringing a patent refuses to discuss licensing the technology from the often-seen-as "little" inventor and delegates any legal matters to their patent litigation attorneys who are instructed to fight this little guy with everything they can both regarding the merits, and via procedural tactics to boost the cost of litigation to a point in which the inventor simply cannot afford to move forward with the litigation and s/he just "goes away." If the companies ethically sit down with the inventor and review the patents involved and try to resolve the case and to determine damages without involving a billable-by-the-hour patent litigation attorney, they can save often hundreds of thousands of dollars and often millions of dollars in attorney fees and costs.

Case in point, Paul Hayes, a skilled patent litigation attorney went through the whole trial process and won a $388 million dollar patent infringement verdict against Microsoft. As of today he lost the whole case and both his firm and his client still need to account for all the likely thousands of hours of costs and fees spent litigating Uniloc's case. In some cases, the law firm can "eat" the loss of the billable hours, but depending on the jurisdiction, in some places the client is still on the hook for out-of-pocket expenses which can be expensive when the case goes all the way to trial. Had the two sides agreed to a reasonable settlement which compensated Uniloc for Microsoft's use of their patented technology, everybody would have been happy. However, I can't help but to think that somewhere along the line, greed, ego, or both stepped in and forced their case into trial.

If both sides came to an agreeable settlement early on, imagine how much money could have been saved in attorney fees on both sides. ...and Unicom would have some money in the bank whereas now they have nothing except for a gaping hole in their pockets.

-- Robert Z. Cashman, owner of Patent Prophet is a contingency fee patent litigation attorney in Houston, TX. He works for a law firm that specializes in contingency fee patent litigation, and in the past, he worked in house for a patent company as both a patent attorney and a patent acquisition specialist, where he interacted daily with inventors looking to sell their patents.

Patent auctions are where patents go to die.

I was just reading the New York Times article by Steve Lohr about how exciting it is that Zoltar Satellite Alarm Systems will be placing their patents up for auction as if a patent auction were some new and exciting forum where valuable patents can be made available for the public to benefit from them. The funny thing is that in my opinion, patent auctions are where patents go to die.

The article continues to boast Zoltar's patents stating that they have been litigated many times as if that boosts their value. I chuckled when I read this because the fact that the patents have been litigated only indicates that the value of the patents have deflated (like air escaping from a ruptured balloon) because there are no longer valuable prospects to sue. On top of that, I was surprised to see that the article mentioned that even in the lawsuits they initiated, the patents were found NOT to infringe which suggests to me that the value of the patents are even less that I thought they were by the impressive subject matter description of being a personal alarm device that transmitted a person’s location. In other words, it suggested to me that the patent claims were too narrowly drawn or were vague and unenforceable. Otherwise, unless the settlement offer was substantial (and a few million dollars is substantial, but the article suggests that they also spent a few million dollars which means they are only breaking even if they are lucky), there is no reason to settle unless Zoltar just wanted to get out of the lawsuit with the shirts on their backs because they learned at the Markman hearing that their patents had serious flaws and that it was not clear that they would have succeeded at trial.

I also found it interesting (and even funny) that the author gave a plug to venture capital companies like Intellectual Ventures, Acacia Technologies, Altitude Capital Partners, Intertrust, IPotential, Ocean Tomo, Rembrandt IP Management and Thinkfire. The reason I found it funny is that some of these companies (e.g. Acacia) are well known as being patent trolls who purchase patents for the purpose of licensing them to others under threat of suit.

Some of the other names on this list, such as IPotential, are not patent trolls, but are actual patent service companies who take a patent portfolio, wrap it up in a nice package where the value of the patents are clearly visible to buyers, and then find buyers who pay top dollar for the valuable patents they sell (quick plug and regards to Ron Epstein, the founder and CEO of IPotential). I find this service to be valuable because Ron knows the patent market and is not about to broker the patents off to a venture capital company who wants to pay pennies on the dollar for the patents. If I had some good patents to sell, I'd seek out Ron and convince him to take me on as a client before looking to any of these others on the list.

Another name on this list is Ocean Tomo, a patent auction house which holds fancy auctions in foreign countries making the whole process seem beyond five-star; I have written about them in the past. I like the concept of Ocean Tomo -- they'll package your patents in their high quality catalog with glossy pictures and fancy photos (I wouldn't be surprised if each catalog cost them upwards of $15-20 each based on the high quality). However, the chuckle here is that just because their catalog is beautiful doesn't mean the patents have any value. A prospective buyer will need to analyze the patents in depth as they would for any other patent purchase because listing it on Ocean Tomo's auction does not mean that there is any value to the patents. On another note, sadly, I hear that attendance to Ocean Tomo's auctions have been dying down and that only a fraction of patents listed recently have been sold which means that the auction house patent sale model might be losing momentum. That being said, I still like their idea of trading stocks on some kind of stock market forum. I'd succeed there because as a patent attorney and a patent litigation attorney, I'd see the valuable stocks and buy shares in them in an instant and watch the value grow in my patent stock portfolio.

All this being said, it's sad that the NY Times article is describing old players and making them seem new. Intellectual Ventures has been buying up patents forever. Acacia has been a patent troll forever. Ocean Tomo has been around forever. Some of the newer names such as Rational Patent Exchange in my understanding are offshoots of Intellectual Ventures (the same guys are running each patent chop shop), except they run the business like the mafia, stating, "buy into my elite club and you we'll protect you against patent trolls. Decide not to buy into our club, and we'll sue you ourselves with our army of patent litigation attorneys."

I could go on, but in sum, there doesn't seem to be anything new or exciting presented by this article. Just old sheep in new clothing, however the cliche goes.

--
Robert Z. Cashman, owner of Patent Prophet, is a contingency fee patent litigation attorney in Houston, TX. He works for a law firm that specializes in contingency fee patent litigation, and in the past, he worked in house for a patent company as both a patent attorney and a patent acquisition specialist, where he interacted daily with inventors looking to sell their patents.