12 March 2012 Update – On 7 Mar 12, Gibbs filed a Motion to dismiss this case. Same general argument as the one to dismiss the Wong case. Here some BS from it –
In the Complaint, Hard Drive identified Plaintiff, Seth Abrahams, as the account holder associated with the IP address, but neither alleged that he infringed the copyright nor that he was the Defendant. See id. Hard Drive alleged claims for copyright infringement and civil conspiracy against the John Doe Defendant.
Did he really just tell the court that they didn’t think Mr. Abrahams was the defendant??? Funny, I think the settlement letter Prenda sends to all John Doe public IP address owners (Doe defendants) states otherwise. Classic Troll BS. Hope the court doesn’t but it. Have a read and a laugh – HDP_Motion_01006(CA)
I hope you all have had a chance to read over the complaint (Seth Abrahams v. Hard Drive Productions Inc., and Does 1-50, Case # 3:12-cv-01006 – Abrahams_v_HDP_01006) and digest it. There may be a quiz later, so pay attention. Sorry if this is a bit long, but I promise the read is a good one unless you are on the Troll side.
- Seth Abrahams, represented by Aaron McClellan and Steven Yuen, MURPHY, PEARSON, BRADLEY & FEENEY, San Francisco, CA.
- Hard Drive Productions (HDP) Inc., represented by Brett Gibbs, Prenda Law (Formerly Steele|Hansmeier PLLC).
- Does 1-50 – This is the unusual bit in the complaint, as they are listed as defendants. Hopefully we will hear from some of our attorney friends on this aspect of the complaint.
McClellan and Yuen (M&Y) start off with stating that jurisdiction in the Northern District of CA is valid because HDP/Prenda voluntarily submitted itself to this court when it filed cases 4:11-cv-01567 (HDP v. Does 1-118) and 3:11-cv-05634 (HDP v. John Doe/Seth Abraham). Archive of 4:11-cv-01567 Archive of 3:11-cv05634
Due to Hard Drive’s filing of prior action number C 11-01567 LB and its present action number C 11-05634 PJH, its threats and notices of lawsuits and settlement demands to plaintiff and its conduct within this district, it has created an actual and continuing controversy within the court’s jurisdiction such that the court needs to declare the rights and other legal relations of plaintiff who is seeking such declarations from the court.
Failure to Disclose Another Party has Financial Interest
M&Y inform the court when HDP/Prenda filed the initial case on 31 March 2011, they violated Civil L.R. 3.16(b) by purposely not telling the court that another party had a significant financial interest in the filed case. M&Y inform the court that as of 28 Jan 2011, Paul Pilcher “owns more than 20% of any class of shares issued by Hard Drive, or having more than a 20% beneficial interest in Hard Drive,..” – http://starpas.azcc.gov/scripts/cgiip.exe/WService=wsbroker1/corp-detail.p
Improper Joinder to Defraud the Court
M&Y claim that HDP/Prenda improperly joined the initial 118 Doe defendants to avoid paying the $350 filing fee for 118 separate cases. HDP\Prenda has essentially defrauded the court (and US tax payer) by getting benefits and services without paying for them.
No Statutory Damages
Here is a good one. HDP published the movie “Amateur Allure – Samantha Saint” on 4 March 2011. The alleged copyright infringement of this movie occurred on 21 March 2011. The movie was not registered until 18 November 2011. The movie was registered over Eight months after first publication. According to 17 U.S.C. section 504(c), statutory damages (That wonderful $150K figure they love to threaten Does with) and attorney fees are NOT entitled if the copyright registration occurs more than three months after first publication.
Unlicensed Private Investigator
Now here is my favorite section of the complaint.
Plaintiff is informed and believes, and thereon alleges that Hard Drive had entered into an agreement with a third party private investigator, who is unlicensed under California law but yet is required to be licensed, to log IP addresses that were allegedly transmitting Hard Drive’s work via BitTorrent.
Both complaints do not mention the exact Steele|Hansmeier/Prenda “agent,” but I will bet it is our friend Peter Hansmeier. In the other Steele|Hansmeier/Prenda cases, he is the technician for 6881 Forensics LLC (Formerly Media Copyright Group LLC). This is the “agent” Prenda uses for its BitTorrent monitoring. Many States have requirements that private investigator be registered in the State. This appears to be a violation of California Business and Professions Code sections 7520 and 7521. The work this agent did falls under PI work – specifically a computer forensic PI. I wouldn’t doubt Peter Hansmeier has some type of computer training (or degree), but I highly doubt he has any investigative/evidence handling/computer forensics degree or certifications. Not to mention I doubt 6881 Forensics (or what name they are using now/then) was registered to do any work in the State. If we find out that 6881 Forensics ISN’T a LLC, then we have multiple false statements (other Prenda cases) and it opens up Peter Hansmeier (and other “agents”) to be personally sued.
No Infringement Because the Private Investigator Seeded the Movie
M&Y make the allegation the “private investigator” with the consent of HDP seeded the movie so he could track the public IP addresses downloading/sharing the movie.
M&Y state HDP wanted the downloading/sharing of the movie to continue so they could record public IP addresses and eventually collect settlement fees by threatening a defendant with a federal law suit. Supporting this view, M&Y claim that HDP never sent DMCA “takedown” notices to the systems downloading/sharing the movie. If HDP did this, it would decrease the number of defendants and the possible settlement fees they would share with Prenda.
Plaintiff is informed and believes, and thereon alleges that Hard Drive knew it could make more money by allowing its work to continue to be distributed instead of shutting down the BitTorrent trackers.
Use of Threats in an Attempt to Induce Settlement
M&Y explain to the court how HDP/Prenda obtained Mr. Abrahams’ personal information from the ISP and sent him a settlement letter for $3400. Attached to the letter was the usual Prenda “FAQ” handout, plus a “Memo of Law” stating essentially how the “Open Wireless” defense will not work. The Memo of law is badly written and doesn’t even correctly cover the true issues surrounding these cases. Based on all the direct and indirect threats Mr. Abrahams received from HDP/Prenda, M&Y state:
Plaintiff is informed and believes, and thereon alleges that Hard Drive’s prior action complaint along with the settlement demand letter and memo of law were designed to threaten, notify, intimidate, and to coerce plaintiff into paying the settlement demand of $3,400, especially when confronted with the statutory damages figure of$150,000.
Supporting this view is the fact that HDP/Prenda (in the complaint & settlement letters), fraudulently claimed they are entitled to statutory damages of up to $150K and attorneys fess. As Prenda is such a knowledgeable IP law firm, it is going to be hard for a judge to believe it was a simple error on their part. M&Y alleged that HDP/Prenda’s action are no different from the Trevor Law Groups (TLG) LLP’c conduct which led to the State of California suing TLG for “abusive improper practices relating to unfounded and baseless Business and Professions Code section 17200 claims.” Please comment on the TLG cases if you have knowledge – Thanks!
Failure to Inform (& Motion) the Court that the New Case was Associated with a Previous One
M&Y allege that HDP/Prenda failed to comply with Civil L.R. 3-3(c) when it filed the new single Doe defendant case (3:11-cv-05634). Civil L.R. requires the refiling party to file a motion so the court can consider if the both cases should be related to Civil L.R. 3-12. If both cases were determined to be related, the same judge in the first case would have also been assigned the newer one. This saves the court time and money, as the judge already knows the background on the cases.
Plaintiff is informed and believes, and thereon alleges that Hard Drive purposefully failed to comply with Civil L.R. 3-3(c), because the previously assigned judge, the Honorable Laurel Beeler was likely to make rulings adverse to Hard Drive given its failure to prosecute the case.
More Settlement Threats
On 19 October 2011, HDP/Prenda sent another settlement letter to Mr. Abrahams, along with a letter advising to preserve all possible evidence or face “spoliation” sanctions. Take a look at the preservation letter. It is a cannibalization of a very old preservation letter, even mentioning preserving tape back-ups. Prenda couldn’t even be bothered to try and find a newer one to copy.
M&Y then inform the court that Prenda defamed Mr. Abraham, when they listed him by name on their Web site as one of their “Top 25 Pirates.”
Plaintiff is informed and believes, and thereon alleges that as late as January 11, 201 , Hard Drive represented to the public that he was one of its agents “Top 25 Pirates.” A true and correct copy of this redacted defamatory statement is attached hereto as Exhibit E at page 1. Plaintiff denies this unfounded and baseless defamatory allegation.
M&Y state the defamation along with threats and notices of lawsuits, memo of law of plaintiff’s alleged absolute liability, and settlement demands, were designed to threaten, notify, intimidate, embarrass, shame, and to coerce plaintiff into paying the settlement demand. On 6 Jan 2012, HDP/Prenda asked the court to grant a limited “ex parte” deposition of Mr. Abraham (Still un-named by Prenda). M&Y alleged this was done just to make it hard for Mr. Abraham to properly defend himself, incur attorney fees, and make the option of settling more financially acceptable to him.
Hard Drive’s tactics were improper as plaintiff had notified it that: (1) he did not download the work, and (2) he did not know who downloaded the work.
Can you say “Richard Pryor Response?” Give it to them Does!
Porn is Not Copyrightable
M&Y then go onto state HDP’s pornographic works are not copyrightable, as they do not promote the progress of science and useful art (Article I, Section 8, Clause 8 of the U.S. Constitution, known as the Copyright Clause). I think M&Y may have a hard time with this one, but it will still require HDP/Prenda to expend time and money to defend against it.
M&Y states that even as HDP/Prenda tells the court that it doesn’t know if Mr. Abraham is the copyright offender, their actual position in “extra-judicial” communication (to Mr. Abrahams) is that he is liable for the alleged copyright infringement.
Prayer for Relief
M&Y make a”Prayer for Relief,” in which they ask the court to grant the following.
- Declare that Mr. Abrahams is not guilty of copyright infringement.
- Declare HDP’s work as not copyrightable OR strike the copyright registration of the movie.
- Issue an order stating HDP has not taken normal mitigation steps to limit damage, such a issuing DMCA take-down notices to public IP addresses illegally downloading/sharing its works.
- HDP is NOT granted statutory damages and attorney fees.
- Declare that NO infringement occurred, as HDP/Prenda allowed a “Non-Californian and unlicensed private investigator” to distribute/seed the movie OR that HDP/Prenda is guilty of the “Unclean Hands” doctrine because of its use of “honeypots” (or 3rd party services as such).
- HDP/Prenda has unlawfully demanded settlements unsupported by law or fact.
- Award Mr. Abrahams his costs and attorney fees.
- Enter a judgement in favor of Mr. Abrahams, against HDP and any other named defendants.
- Any other relief the court deems just and proper.
“Some ships are designed to sink…other require our assistance.”