Analysis of “Seth Abrahams v. Hard Drive Productions Inc., and Does 1-50, Case # 3:12-cv-01006”

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)

DTD 🙂

————————————————————————————–

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.

Players

  • 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.

Jurisdiction

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

ZERO - You Are My Hero!

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

On 19 January 2012, HDP/Prenda closed case 4:11-cv-01567 (HDP v. Does 1-118).  On 21 November 2011, HDP/Prenda files case number 3:11-cv-05634 (HDP v. John Doe/Seth Abraham).

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.

Defamation

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.

{4 March 2012, Screenshot.  Last on the list is Seth Abraham}

Improper/Unethical Tactics

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.

Two Faced

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.

Well that was long.  More to come on this – no doubt.  I bet John Steel is hitting the bottle pretty hard.  Enjoy !

DieTrollDie 🙂

“Some ships are designed to sink…other require our assistance.”

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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45 Responses to Analysis of “Seth Abrahams v. Hard Drive Productions Inc., and Does 1-50, Case # 3:12-cv-01006”

  1. Raul says:

    It’s 2:30 am EST having just returned from a trip to BC and want to be the first one to thank you for the analysis. I hope to look into this matter this upcoming week and post a few brain farts in this regard. My initial observation is that bringing a declaratory judgement lawsuit is fairly common in the area of threatened patent troll lawsuits and it is nice to see that it is logically being extended into the area of threatened copyright troll lawsuits as a means to turn the table on the harasser.

  2. William Lockyer says:

    Trevor Law Group news article:

    http://www.metnews.com/articles/lock022703.htm

    Attorney General lawsuit against TLG:

    http://ag.ca.gov/newsalerts/cms03/03-021.pdf

    Deja vu forum postings:

    http://forums.yellowworld.org/showthread.php?t=3670

  3. glenn says:

    I’ve been following a few of these cases myself (i’m a DOE in another case). this was the first time I’ve seen anyone mention that the “Investigator” was seeding the file while luring in IP addresses. I’ve been wondering about that for a few weeks now because to me if as an investigator he was given permission to seed the file in order to grab IP addresses then not only is it entrapment, but it is also not copyright infringement. The owner would have given him permission to share with everyone.

    • anonymous says:

      Many of the trolls seed the initial file. Ira Siegel, DGW, Steele, Base Protect, etc…

      It is a revenue stream for the studios, they call it “monetization.”

  4. Raul says:

    You are largely correct about the ramifications. A copyright holder has both legal and equitable remedies and Seth’s complaint attacks both. His attorney is arguing that because HDP’s agent distributed the porn that HDP has effectively waived its legal remedies as a copyright holder (money damages) and this same conduct in creating a honeypot precludes HDP from pursuing it’s equitable remedies (an injunction) due to the doctrine of “unclean hands”.

    DTD-Per paragraph 7 of the complaint the John Does 1-50 are the alter egos, agents and/employees of HDP. In other words, Prenda and 6881.

  5. Raul says:

    Maybe 6881 should change it’s name to “Swarm”.

  6. Doe X says:

    You notice that Steele never talks shit in these threads about the sinking ship in California captained by Gibbs. I think even Steele knows that it is game over in California. Luckily, because they were countersued it won’t be so easy to escape.

  7. Raul says:

    M&Y’s influence can now be seen in Arizona where a defendant has countersued K-Beech along the same lines as Seth’s complaint http://ia700806.us.archive.org/22/items/gov.uscourts.azd.635399/gov.uscourts.azd.635399.12.0.pdf

  8. Raul says:

    DTD-the above answer and counterclaim, although not a motion, might be a good addition (as a template) to your site now that some trolls are starting to sue individuals.

  9. Raul says:

    I also left a message with the defendant’s attorney to the effect that the work in question, “Virgins 4”, which is still awaiting copyright registration looks a lot like (judging from screenshots and actors/actresses involved) a DVD entitled “Virgins of the Screen: 4” which was copyrighted by Combat Zone in 2008. Some may think I am overly fixated on this angle but I think it could be the kind of fraudulent overreaching that will ultimately lead to criminal prosecutions.

  10. Raul says:

    Actually I am so fixated that I just ordered 2 DVDs so I could compare and contrast the content of “Gang. Bang Virgins” with a 2006 DVD entitled ” Grand Slam”. I will be sure to let you know and the Feds about the outcome.s

  11. The price is Wong says:

    lol. Have fun with the Grand Slam Gang Bang Virgins.

  12. Raul says:

    The very definition of hands on research.

  13. Raul says:

    Judging by a tweet on SJD’s site someone else is perturbed by this possibility of recycled porn?

  14. anonymous says:

    At some point a defendant’s Attorney is going to seek 2257 records, and find something not so nice.

  15. anonymous fighter says:

    The cast of virgins 4 have all but a few, faded away. HOW can a porn company recycle porn, apply for and get it registered? I would love to see someone want to take on one of these cases and blow Lipcum, Eisenjerkoff (lawyers for k-beech out of Miami) out of the water. I cant wait to have my day in front of a judge and let him blast these assholes a new one. If I were these guys I would be looking over my shoulder because they are going to fuck with someone that will take this into there own hands and fuck them up.

  16. Raul says:

    But the big assholes appear to have their records in order http://business.avn.com/articles/video/FBI-Visits-K-Beech-29271.html

    • Anonymous says:

      I’ve heard a couple of other commenters predict 2257 records will be the downfall of these companies, but IMO that is unlikely. The stakes are extremely high and the government has made it clear they are serious about this, there’s no getting a little bit in trouble for messing around with minors, your life is over. There is plenty of legal but young and younger-looking talent so these guys have nothing to win and everything to lose cutting corners there. Unlike say, the Girls Gone Wild stuff, the vast majority of porn is intentionally planned and produced, leaving plenty of opportunity to control who performs and for due-diligence. With the rare exceptions of underage performers that forge documents to appear to be of legal age (which, while still very bad, at least lets the porn producers off the hook for willful behavior), I suspect this is the one area where you will find they have been very careful.

  17. Raul says:

    Do you actually have something?

  18. anonymous fighter says:

    Raul, thats old news about the FBI, they were checking for underage and crap like that. My point is about re-registering copyrighted movies and claiming people are infringing it. Any copyright lawyer want to add to this?

  19. Raul says:

    I think to legitimately register a DVD for a copyright it has to contain original content or be a compilation of non-original content that is compiled in an original way. Here it looks like an older porn DVD was simply renamed/repackaged (maybe a scene was added from yet another older porno?) so it makes you question the legitimacy of the copyright application.. If the copyright has not been legitimately obtained then the lawsuit for its alleged infringement is potentiially fraudulent. My research materials are supposed to be delivered tomorrow so I will let everyone know what the comparison reveals.

  20. Raul says:

    Yep, K-Beech’s 2010 “Gang Bang Virgins” contains the exact same content as Combat Zone’s 2006 “Grand Slam”. The only differences is that the newer title has switched scene 1 with scene 3 and has added a “Bonus Scene” that is not part of the main DVD. I do not know if this “Bonus Scene” was included with the uploaded internet version (honeypot).

  21. JohnD says:

    Damn, you should get paid to watch that crap 🙂

    Nice investigative work, as always

    • Raul says:

      You only have to watch the first minute or less of each scene to verify that they are identical. Now the question is what to do with the information. I am vacillating between reporting it to the Judge or keeping my powder dry for the time being to see how certain motions are determined.

      • PAJohnDoe says:

        These are separate dvd’s than “Virgins 4” right?
        According to a Copyright Office websearch for Virgins 4:
        Registration #PA0001764337
        Publication date 09Feb2011
        Registration date 01Dec2011

  22. Raul says:

    Yes but it is rumored (not verified, yet) that “Virgins4” is a renamed/repackaged identicle copy of Combat Zone’s 2008 “Virgins of the Screen:4”

  23. Raul says:

    Gibbs filed a motion to dismiss the complaint on March 7 and makes the same arguments he made in his motion to dismiss the Wong complaint. http://ia700805.us.archive.org/7/items/gov.uscourts.cand.251860/gov.uscourts.cand.251860.8.0.pdf

  24. DieTrollDie says:

    What a load of crap. The following quote from the Background section is total BS. They do “allege” the registered IP owner is guilty of copyright infringement. Read the settlement letters and it is clear. Just because they don’t have the balls to say it in court doesn’t their actions don’t speak for them. How do you file that and not be worried the judge is going to say, “WTF?”

    From the Backgound section –
    “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.”

    DTD 🙂

  25. trolltrash says:

    Typical 2 faced troll. Tells you one set of “facts” and tells the judge a different set of “facts”. This is how attorneys get a bad reputation. He is 100% an ass.

  26. What the H@LL says:

    This guy called me and accused me of watching porn. I have never watched it and I am a 54 year old female the porn was called HeShe. What the H@LL. I told his a@@ off and hung up on him. Told him he had lost his D@m* mind. He said he was serious and he wanted his $3 thousand something money. It occured during August when I company from out of the country. He hasnt called me back should I expect more from this so called attorney?

    • DieTrollDie says:

      Yes. These guys are only interested in collecting money from people. I doesn’t matter if you did it or not (to them). Just keep a log of the calls and document everyhting. Name, telephone number, date, time, case #, title of case, what he alleges, etc. Don’t discuss ANY details on why you didn’t do it. They don’t care and it only gives them more information than they already have. Give him the Richard Pryor Response (RPR) if you happen to pick up the phone. Otherwise don’t answer any unknown phone calls. I take it this is the first you have heard of it? No paperwork from your ISP stating they were going to release your personal information to the Troll? Lots of good information here to educate yourself on this legal scam.

      DTD 🙂

  27. John Doe says:

    Looks like Yuen and company has another Opposition/Response to Motion . Anybody have any PACER funds to view these and post em. It’s fun reading Yuen and company tear down Gibbs.

  28. Raul says:

    Running out the door but it should be up on RECAP minus the exhibits. In fact all it is is Yuen listing the exhibits starting with the complaint and other exhibits which support the allegations in the complaint?! Anyway that’s my initial impression. Maybe DTD has some insight?

    • DieTrollDie says:

      Your spot on Raul. I will post all the document up on SCRIBD later. Here is the notice of the 25 May 12, hearing on HDP’s Motion to Dismiss:

      “TO ALL PARTIES AND COUNSEL OF RECORD:
      YOU ARE NOTIFIED THAT the hearing on the Motion to Dismiss previously noticed for April 13, 2012, at 9:30 a.m., has been rescheduled to May 25, 2012, at 1:30 p.m., before Magistrate Judge Spero, Courtroom G, 15th Floor, 450 Golden Gate Avenue, San Francisco, California Regardless of whether the Court reschedules the hearing date, all opposition and reply papers shall be timely filed pursuant to Civil L.R. 7-7 (d). Any party requesting a continuance shall submit a stipulation and proposed order.” [dated 20 Mar 12]

      https://dietrolldie.files.wordpress.com/2012/03/notice_25may12_hearing_01006ca.pdf

      DTD 🙂

  29. Anon says:

    What I can get on the Archive is actually the first exhibit, which is Yuen’s declaration and listing of exhibits (http://ia600805.us.archive.org/7/items/gov.uscourts.cand.251860/gov.uscourts.cand.251860.13.1.pdf). But what is really needed would be document 13.0 – the actual response. And that isn’t available (at least to me).

  30. Raul says:

    Took a quick look and there is a lot to like which I will defer to those who are more gifted in writing about such things. There is one argument that I especially liked which Yuen makes in opposition to Gibb’s argument that venue is improper in the NDCA because HDP has insufficient contacts with that venue (yeah right; like suing Does in the NDCA is somehow insufficient contact-another argument Yuen makes in opposition). Nonetheless, the argument (and I am paraphrasing here) in opposition that I thought was GREAT was that HDP’s “agent” (meaning Gibbs) operates, resides and does trolling business on behalf of HDP in the NDCA thus making the NDCA a proper venue. The reason I like this argument so much is that I knew from the onset of these cases that the apparent conflict of interest of having Gibbs represent a defendant (HDP) who is essentially being sued for Gibb’s alleged improper conduct in representing the client in a two previous matters was going to come back and bite both Gibbs and HDP in the ass. I just did not know how this ass bite would manifest itself and now we know (expect more ass bites due to this apparent conflict of interest to arise in due course during this and the Wong litigation). Now pass the popcorn please… .

  31. Raul says:

    Come to think of it what a great title for one of HDP’s upcoming Works” from their gonzo lineup: “Ass Bitten Trolls”

  32. Pingback: 31 Jul 12 Update – Seth Abrahams v. Hard Drive Productions, Case # 3:12-cv-01006 | DieTrollDie

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