Another judge has “serious question” about Prenda porn trolls
Talking signatures, spoliation—and possibly sanctions—in an SF Prenda case.
San Francisco's federal building, site of recent Prenda-related hearings.
But Wright's court is far from the only venue where Prenda filed its mass-copyright lawsuits, and now that Prenda's cases are winding down, other judges are showing their displeasure with Prenda. Yesterday in San Francisco, US District Judge Edward Chen took Prenda lawyer Paul Duffy to task in a case called AF Holdings v. Navasca. The case featured a shoddy investigation into Navasca's alleged infringement and produced unsupported claims that Navasca had deleted evidence, Chen asserted.
Chen isn't Judge Wright—his style is extremely low-key—but he might be just as upset about the whole situation. It was clear yesterday that he's inclined to award legal fees, and he is considering a motion for sanctions against Prenda as well.
A second San Francisco hearing about Prenda paying legal fees was scheduled for this morning in front of US District Judge Samuel Conti. But Conti scuttled the hearing a few days ago, indicating he's ready to decide the issue based on the papers alone.
“A serious question... about the whole business model”
Navasca is a San Jose-based Prenda defendant represented by Nicholas Ranallo, a defense lawyer who has already won a modest award of attorneys' fees from Prenda and seen that case through appeal.The Prenda motion was the last one considered on Chen's civil calendar Thursday. In the gallery, Ranallo waited from the front row; a few rows behind sat observers from the Electronic Frontier Foundation (EFF), which has been watching Prenda cases.
Eventually, AF Holdings v. Navasca was called, and Judge Chen's clerk dialed Paul Duffy on a speakerphone. Duffy answered and was immediately apologetic. His garbled voice was broadcast through the speakerphone into Chen's cavernous courtroom on the 17th floor of the San Francisco federal building.
"I thought today's hearing was canceled," Duffy said, after stating his name for the record. "I sincerely apologize."
Chen got straight to the point.
"Frankly I don't see why fees should not be awarded here, given the findings obtained in this court as well as other courts, including Judge Wright's," he said. "This case proceeded without proof of standing. There were also questions about identifying Mr. Navasca as an infringer without sufficient investigation. Other assertions, like improper spoliation, were never proven or supported. Then there's the whole question of motivation. There's a serious question raised about the whole business model here... [about whether] this is a business model to generate income through coerced settlements. If there's a case that warrants fee shifting, this certainly seems to be one of them."
Then Chen invited Duffy to say something that might change his mind.
"Counsel admitted that he [Navasca] engaged in spoliation of evidence," said Duffy. "Including evidence of infringing activity."
This was Duffy's first attempt at ameliorating the damage that had been done over the months. It was repetitive, and it went precisely nowhere. Duffy was talking about the defendant's use of CCleaner, a hard-drive maintenance program that Duffy tried to suggest was used to delete important evidence. It's an argument he's been bringing up for months, and it didn't stop him from losing an SF case earlier this year. Chen wasn't hearing it again.
"That software program was in place before this lawsuit was filed," Chen said, sounding tired already.
"The defendant did not remove the software!" said Duffy. He spoke quickly, his words running over each other, blaring through the speakerphone. "And in terms of the business model—that Central District case [in Judge Wright's court], it's under appeal. We dispute, obviously, a large number of the claims that the court made."
There's nothing wrong with getting defendants to settle before a trial, Duffy added.
"It would be discriminatory to prevent plaintiffs in infringement cases from seeking settlement," said Duffy. "In another US district court the judge specifically acknowledged, it's an appropriate business model to seek settlement in copyright infringement cases—digital piracy cases—with John Doe defendants."
"Here AF [Holdings] didn't even prove standing," said Chen. The judge was referring to the disputed copyright assignment at the root of the case. It was signed by Alan Cooper, a former property caretaker for John Steele, the man pointed to as a key Prenda player. Cooper later denied having signed the papers.
"That's very much in dispute," said Duffy. "It's a 'he said, he said' about the individual who signed AF Holdings' [assignment]. The individual did not challenge the signature until Mr. Steele ejected him from his property, then all of a sudden repudiated his signature. There is a factual issue about whether the person who signed it actually signed it. We believe he did."
"I've not seen a case yet where AF Holdings has been able to prove to any court's satisfaction that this was not a case of either identity theft or forgery or something of that nature," said Chen. "I know you dispute this on behalf of your client. Is there a case where you have prevailed on this issue?"
"There's not a case where we have not prevailed," insisted Duffy, referencing a Prenda case in Arizona. Cooper—or "the individual," as Duffy called him throughout the hearing—took a year and a half to make his claims of identity theft before essentially becoming a stooge of the Electronic Frontier Foundation. "When he was evicted from the property, he became a cause célèbre! Then he was flown to various proceedings around the country to dispute his signature... The only time that Mr. Cooper testified, in the Central District of California, there was not an opportunity to cross-examine him."
A review of the March 11 hearing in Wright's court shows that Cooper actually was cross-examined, by a lawyer representing former Prenda associate Brett Gibbs. The opportunity for another Prenda representative to do a cross-examination was lost because neither Duffy nor other Prenda-linked lawyers showed up to that hearing.
As for Cooper, he didn't make any complaints about his identity being stolen because for a year and a half, he had no idea it was going on, said Ranallo. "There's not any dispute that as soon as he found out about it, he began disputing his signature," he said.
Prenda said to plant its own porn
Chen then moved on to the Neville declaration. That document, filed in another case, accused Prenda of actually seeding porn on The Pirate Bay so that it could be downloaded—and Prenda could go after the downloaders."Does AF [Holdings] dispute that allegedly infringed-upon material was uploaded?" Chen asked.
"AF absolutely disputes that," said Duffy. "The software it uses to monitor... does not allow it to upload or download any type of material. The software that it used does not allow it to do the things that Mr. Neville says occurred."
"Mr. Neville's declaration says it's the link to the particular swarm that was posted by this sharkmp4 user," said Ranallo. "I don't think this particular tool is 100 percent of the issue. People are being directed to the swarm that contains that file."
Then Duffy changed tack and began attacking Neville and Cooper themselves.
"His affidavit is very shaky as far as whether he has the qualifications to make the statements he does," said Duffy. Then he started going back to Cooper. "He waited until he was being evicted by Mr. Steele from his property, where he was contacted by an attorney from the EFF about being represented."
Duffy's voice was coming through garbled, and he was hard to understand to begin with. On top of that, he spoke quickly and began repeating himself. He started to launch into another attack on Cooper that began with the phrase "substance abuse" when Chen cut him off.
"Before you go there, I didn't hear your response to the Neville declaration and the use of this mechanism to direct users to the file in question. Are you denying that? I haven't seen evidence in contravention of that."
"The plaintiff disputes that because the software does not allow us to upload or download," Duffy repeated. "Mr. Neville is not an expert. I believe he's a graduate student somewhere. There has been no attempt to qualify him as an expert."
"Has there been a declaration filed denying the gist [of Neville's declaration]?" asked Chen.
"Mr. Neville is not qualified as an expert, even remotely!" said Duffy.
Chen then asked why Duffy didn't state in writing, under oath, that Neville was wrong.
"I have your opposition brief here and I'm looking about it," Chen said. "You take on his declaration—you argue about it. You say his opinions are worthless, purely conjectural, that they don't make logical or economic sense. [But] I don't see any factual matter submitted. You had a full two weeks to respond." He turned to Ranallo. "Has Prenda ever filed a substantive response to Mr. Neville?"
"Not to my knowledge," said Ranallo.
"That is simply false!" Duffy barked through the speakerphone. "Prenda Law is not representing AF Holdings in the Florida case where [the declaration] was submitted, nor the Georgia case."
But Duffy was "splitting hairs" on that point, said Ranallo. The case where the Neville declaration came in was listed on Prenda Law's own website.
"We don't list the affidavit in question on our website," said Duffy. "I didn't have any notice of that. Or the attachments."
This line of "know nothing" argument tired Chen again. "Well, in any event this affidavit was filed in this case and was quite detailed. You didn't seek to submit any substantive declaration in opposition. I'm going to take the record as it is."
"Thank you judge, and thank you for your indulgence," said Duffy.
The argument Thursday was solely about whether Ranallo should be awarded legal fees, which seems likely to happen. Fee shifting is more common in copyright cases than in other types of litigation. In this case, Ranallo has requested $23,554.05 in fees. He has also filed a motion for sanctions, which will be considered separately.
If he wins any of that sum, it will be his second fees win against Prenda, which has already been ordered to pay $9,425 in another SF-based case that it failed to appeal. Ranallo hasn't seen any of the money yet, though.
"Definitely, it's a good start to a hearing when the judge says he's inclined to grant the motion," said Ranallo, reflecting briefly on the proceeding out in the hall. "But I think even if fees are awarded, collection will be an issue. Sanctions might be more important as far as putting responsibility on people who should bear it. I think it's pretty clear, that's Mr. Steele and Mr. [Paul] Hansmeier."
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