“Prenda Sloppy Seconds” – The Phantom Doe Part 2, Case 3:12-cv-02049, AF Holdings LLC. v. John Doe and Josh Hatfield

Truth Be Told

You know, some of what John Steele states isn’t all BS. Don’t get me wrong, I know that a vast majority of it is. But based on his silence on a variety of recent events, I decided to see what I could find out concerning Doe defendants who were possibly being served summons for Prenda cases. John made reference to this activity, but I think many of us were under the impression these summons were regarding the Lightspeed hacking/password case out of St Clair County, IL. As the timing didn’t look right, I figured he might be talking about their Federal copyright infringement cases. What I did come up with was a case out of the Northern District of CA, 3:12-cv-02049, AF Holdings LLC. v. John Doe and Josh Hatfield, filed 24 Apr 12 (Troll Brett Gibbs). Note: knowing Prenda’s propensity to use template based cases, I assume there are other similar Prenda cases out there right now. Please post them if you come across one.  Complaint_02049(CA)   CopyRight_02049(CA)   CopyRight_Trans_02049(CA)  

The case is in standard Prenda format, but there have been some changes made. There are two defendants. 

  • “John Doe” who faces the copyright infringement charges – AKA Phantom Doe
  • “Josh Hatfield” who faces a negligence charge.

Gibbs does have a nice little caveat in the complaint that states it is possible Hatfield is also the John Doe and they reserve the right to amend the complaint as needed. I guess this is their way of trying to avoid a counterclaim of harassment by Mr. Hatfield for trying to settle a copyright infringement claim. I don’t see the point, as they are still trying to scare and harass defendants into paying a settlement. I think Prenda believes they can tell the judge with a straight face that “they don’t think Mr. Hatfield is the infringer,” but it is a possibility, and even if he isn’t, his negligence at a minimum allowed it to happen.  Not that Prenda really cares about possible defendant guilt or innocence. They only want to generate settlements and the possibility of innocent parties only messes up their business model.  In their eyes, all the defendants are guilty.

Summons

On 3 May 12, Prenda actually had the court issue a summons for Mr. Hatfield. Seeing that entry was a bit of a shock. OK John, it appears you have started to try to serve some of the Does.  As of this posting, I didn’t see a return of service in PACER.  summons_02049(CA)

 Now I don’t want any of the Does to do the Chicken Little act, “the sky is falling!” The number of Does to be served is going to be small and most likely only in those jurisdictions where they have their attorneys in place (CA, IL, DC, TX, etc – sorry if I miss any locations). I still believe it is primarily a scare tactic to force a settlement. OH no, Prenda is serious and I had better pay them the money!” (Heavy on the sarcasm). Don’t believe it. We have seen how hard Gibbs tried to weasel his way out from Wong and Abrahams counterclaim suits. As this business model continues to take a beating from all sides, the Trolls are exploring new angles. The additional cost isn’t going to bother Prenda, as they will just add the cost to the settlement demand.

Problem For Prenda

The problem for Prenda is that if a Doe fights, they still only have the public IP address as their “great” piece of evidence. Weak evidence and a baseless claim of negligence isn’t going to win a trial. The best they can hope for is a default judgment against Mr. Hatfield. If they could get a judge to buy off on the negligence charge, Prenda would say since John Doe and Mr. Hatfield are “jointly & severally” liable, the statutory damages portion and legal fees associated to the copyright infringement by John Doe should be assessed to Mr. Hatfield. Prenda will say it is now Mr. Hatfield’s responsibility to go after the John Doe for his portion of the judgment. As there is no “John Doe” and this is just a poorly veiled Troll tactic, Mr. Hatfield (and future served defendants) would be screwed.

So Why Go After Mr. Hatfield?

Well I could assume Prenda has something on him to begin with. Why else risk another counterclaim suit like Wong (recently settled) or Abrahams for a $3400 settlement (will probably be more for this case) or a default judgment. It is possible that Mr. Hatfield made some admission to Prenda agents in the previous case. As this Doe/Hatfield complaint doesn’t list Hatfield singularly, I doubted what they have is very strong. Possibly he sounded scared or stated he wanted to avoid public embarrassment for fear of losing his job.  This could also be in response to the fact that Prenda had to previously admit that for all the copyright infringement cases they have run since 2010, NO defendants were ever served a summons (see the document link in the next paragraph).  Maybe this is part of a weak effort to refute the following statement from our good friend: 

a little bird has told me that the first 100 individual cases against NAMED defendants will be filed and placed on wefightpiracy.com. If it is not, you will all know the Master Troll is full of ^*(%(&#. {“The Pirate Hunter” posting on 13 Apr 12, www.fightcopyrighttrolls.com  

Previous Case

So what is the previous case associated with Mr. Hatfield? With a little bit of digging I came up with case 5:11-cv-03336, filed 7 Jul 11, Northern District of CA, which contains Mr. Hatfield’s public IP address. The judge that presided over this case was District Judge Lucy Koh. The case stayed open 265 days (27 Mar 12), when Judge Koh ordered it dismissed without prejudice. The dismissal order is a good read if you want to see how Prenda/Gibbs generally operates in CA.   Dismiss_Order_03336(CA)   The judge found that there was no good cause for Plaintiff failing to serve any of the defendants. The judge also had Prenda provide the court with a declaration showing what information the ISPs have provided, date it was requested, date provided, and the that wonderful piece that shows PRENDA LAW/STEELE HANSMEIER HAS SERVED NO DEFENDANTS in any of the listed case (as of the declaration date – 24 Feb 12).  Piehl1_03336(CA)   Piehl2_03336(CA)

Joke

The negligence claim is a joke meant only to scare Mr. Hatfield into settling.

59.  Defendant Hatfield had a duty to secure his Internet connection. Defendant Defendant Hatfield breached that duty by failing to secure his Internet connection.

As previously posted, there is no duty to the Plaintiff or society for a person to secure their Wireless Internet connection or to monitor it to ensure illegal activity does not occur.  Go ahead, Mr. Gibbs, copy Mark Randazza and try to use the 1932 Tug Boat case (T. J. Hooper) as support – it will fail.  Even the T.J. Hooper case shows there was a duty (i.e. contract/agreement between the two parties) for the defendant to take certain preventive/protective actions.  There is no contract/agreement between Plaintiff and Josh Hatfield.  Now if Prenda can show that Mr. Hatfield positively knew his Internet/network was being used to illegally download/share the copyright protected movie (and did nothing to stop it), then they have something to work with (but it isn’t negligence). As stated in his article, Why Copyright Negligence Won’t Fly, Nicholas Ranallo raises the point that the copyright law is going to preempt any other charges, as this is clearly a copyright matter.

So What Is The Best Tactic If A Troll Serves You With A Summons?

IMO you need to hire a good IP lawyer and make counterclaims for harassment. You have previously been harassed by the Troll in the initial mass case and this is just an extension of it (Sloppy Seconds). Prenda knows it is going to cost you money to fight and they hope that will get you to settle. By making counterclaims, it locks Prenda into the case and prevents them from voluntarily dismissing it when things get tough. If the Troll only has the public IP address as evidence against you and the phantom “John Doe,” they are hurting. Don’t forget the ridiculous negligence claim that will never fly either. The Troll will eventually press to settle the issue and move on.

I hope that Mr. Hatfield hires a good IP attorney, files a response to the complaint, and makes counterclaims against Plaintiff. Prenda will try to weasel out as usual and after being denied, the initial deposition will take place. Unless they get Mr. Hatfield to admit to being an active knowing participant in copyright infringement, Prenda will likely settle this as quietly as possible. Risking exposure of Peter Hansmeier, 6881 Forensics LLC, and their “proprietary forensic software” is not worth it for this case.

Nice Try Boys! 😉

DieTrollDie 🙂

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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9 Responses to “Prenda Sloppy Seconds” – The Phantom Doe Part 2, Case 3:12-cv-02049, AF Holdings LLC. v. John Doe and Josh Hatfield

  1. Anonymous2 says:

    This could be a case where the ISP account holder contacted the trolls saying “I’m not the one who downloaded”. The account holder may want an infraction, that they have nothing to do with, to stop. The troll harassing agent could have said, “If not you, then who ?” The ISP account holder might say,”it might be one of my roommates” or “It’s probably someone in my apartment building.”

    That’s why it’s dangerous to speak to trolls even to declare innocence. Trolls may use statements to entrap two or more people even if they are all innocent.

    Probably DTD is right that the named person said more. The named person has already made a shaky move responding to Gibbs & Prenda. Since the troll demands aim higher after a Doe is named, the filing fee is a small bet.

  2. that anonymous coward says:

    DTD on a semi related note to this… the Tenenbaum case is now moving for SCOTUS review, and this time the filing is actually relevant to the case he is trying to argue.
    A portion of it is spent challenging the constitutionality of the $150,000 bludgeon, and how that is being used to terrify people into paying off trolls.
    http://www.techdirt.com/articles/20120515/16200618931/tenenbaum-to-supreme-court-lets-get-this-constitutional-debate-statutory-rates-copyright-infringement-rolling.shtml

    As I have said before, if the amount they could get was the current retail value for 1 “lost sale” these cases would vanish. Even the idea of a lost sale has been proven to be a joke, as people who might see your content without paying for it might hate your stuff, or might like it and want to get more. It will be interesting to see if SCOTUS actually takes up the case and actually does something to benefit the people rather than corporations.

    • Raul says:

      Some have suggested that the 1 “lost sale” should only be a fractional part; the retail cost divided by the number of Does to arrive at a per Doe measure of damages.
      And, yes, sometimes I do think of you as a sweet little cherub shooting arrows at Trolls.

      • that anonymous coward says:

        Even if the court was willing to award them the retail cost of the content in question from each Doe, these cases would cease. It isn’t worth the effort to get at max $50-$60 a Doe. The $150,000 was meant for cases where people were making fakes and selling them actually depriving them of income and enriching themselves. P2P despite all of the claims to the contrary is all free.
        Heh of course if your making them pay full retail you should then give them a retail copy 🙂
        Those aren’t arrows so much as poison tipped darts…

  3. LeftThinking says:

    Yes. Comparing corporation who steal copyright to make millions off patents and intellectual property to indiviuals who might or might not have illegally downloaded something is absurd at best and making criminals out of a generation.
    If someone downloads and make a business out of it to make tens of thousand dollar, sue him for the150K after you have your case. But to go afters citizens with the same penalty without proper investigation is wrong and a shakedown. This is akin to using a SWAT team to stop a 5 yrs kid stealing a candy at checkout.
    Trust lawyers to take law and distort it to their gain and FUD. A close friend of mine who is very very well versed swears that if you take lawyers out of the Medical world, half the healthcare costs would come down.

  4. Pingback: Phantom Doe #6, AF Holdings LLC, v. Josh Hatfield, 4:12-cv-02049 (CA) | DieTrollDie

  5. Pingback: End of the Prenda Phantom Doe (#7), AF Holdings LLC, v. Josh Hatfield, 4:12-cv-02049 (CA) | DieTrollDie

  6. Pingback: Night Of The Living Prenda (Phantom Doe #8), AF Holdings LLC, v. John Doe (Josh Hatfield), 4:12-cv-02049 (CA) | DieTrollDie

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