6 Jul 12 Update
Well on 20 Jun 12, Hard Drive Productions (HDP)/Brett Gibbs (Prenda) finally answered Mr. Abrahams first amended complaint (FAC). HD_Answer_01006(CA) Docket. A blindly simple response of basically denying the core issues. Oh, yeah Brett, I believe you need amend/correct your answer to the FAC. On page 12, section 45., you incorrectly state your response is for section 39 – needs to be for section 45.
The thing I found more interesting on this case is the JOINT CASE MANAGEMENT STATEMENT; AND [PROPOSED] ORDER, 7 Jun 12. CaseMan_statement_01006(CA)
The Case Management statement covers multiple topic area such as Facts, Legal Issues, Motions, Amended Pleadings, Discovery, etc. It summarizes what each side is stating and/or doing in regards to the topics. I will highlight some interesting parts, but the whole thing is worth a read to better understand how these cases run.
Under Motions, It appears Mr. Abrahams plans of filing a second amended complaint in the future. This will need to be done no later that 27 Jul 12 (see scheduling section below).
He anticipates bringing a motion for leave to file a second amended complaint alleging two new causes of action for breach of implied license/contract and/or for promissory estoppel, and a cause of action for cancellation of Hard Drive’s copyright registration (distinct from the copyright itself), and/or to hold that such registration is invalid and for permanent injunctive relief thereto, including an order to Hard Drive to cancel its registration. Mr. Abrahams met and conferred with Hard Drive to determine if it would stipulate to him filing a second amended complaint. Hard Drive would not stipulate.
Mr. Abrahams has also requested HDP stipulate to a protective order concerning his video-taped deposition on 1 May 12. Note: This was agreed upon on 19 Jun 12. Protect_Ord_lit_01006(CA) This make sense, as if they didn’t, Prenda would be in the same situation once their “Technical” personnel (I will not call them ‘Expert’), AKA: 6881 Forensics LLC, Peter Hansmeier, gets deposed. This will only help Prenda in so far as the results will not be in then be available to the public. The information obtained from the depositions will be circulated among legal circles and obvious weaknesses will be exploited in future cases.
Mr. Abrahams: His deposition in this case, and in case number C 11-05634 PJH was taken and concluded on May 1, 2012. He plans to take the depositions of Hard Drive’s persons most knowledgeable on the categories of: (1) the specifics of the work, including the creation, the hiring, etc.; and (2) the IP tracking software used in the case, and the operators of it, including but not limited to all communications and instructions transmitted to or received from Hard Drive. He also plans to propound written discovery to support his forthcoming dispositive motion.
Hard Drive: Abrahams’ deposition in this case was taken on May 1, 2012. Defendant anticipates the use of written interrogatories and depositions of third parties, including those suspected of sharing Defendant’s copyrighted video through BitTorrent, to investigate and support its defense in this case.
Under the Settlement section, it shows that Mr. Abrahams has made two settlement offers to HDP. HDP/Prenda whines to the court that Mr. Abrahams is not being fair. 😦 I bet the settlements offers are way more than $3,400.00!
Hard Drive: Abrahams has in fact served two Fed. R. Civ. P. 68 offers to Defendant. First, such an offer made by a plaintiff shows how unfamiliar Abrahams’ attorney is with the federal rules, and how he is simply wasting everyone’s time and money in this case. Second, and relatedly, those offers to Defendant emphasized attorney’s fees above all else, and, in turn, divulging Abrahams’ attorney’s motives in this case (something that was admitted at his deposition). Clearly, Abrahams’ attorney is trying to run up a large bill on his client through pointless efforts in the hope that, somehow, he will be able to recover such from Defendant. Either way, Abrahams’ attorney’s law firm gets paid, and very likely Abrahams will be footing the entirety of the outrageous bill.
Under the Narrowing of Issues section, Mr.Abrahams states he is only agreeable to HDP stipulating that HDP’s work isn’t copyrightable and that he is not liable for infringement. HDP would not agree to this stipulation.
Under Scheduling, the next date will be 27 Jul 12, which is the last day to join parties/amend complaint. After that the next cut-off date is for non-expert discovery, 28 Jun 13. The trial date is tentatively set for 16 Dec 13, lasting no more than 2-3 days. So you can see this could play out even longer.
Under the Disclosure of Non-party Interested Entities or Persons section, Mr. Abrahams states HDP has not compiled with disclosing other interested parties. This is in reference to Paul Pilcher having more than a 20% interest in HDP. Link to the AZ corporation listing for HDP. HDP denied this claim.
What is likely to occur?
Based on how the Wong case went (Judgement in favor of Mrs. Wong) and the fact that HDP/Prenda doesn’t want to go to trial, a settlement will be reached. I believe it will be a confidential settlement, with the judgement in favor of Mr. Abrahams. This will occur most likely before the cut-off for Expert Depositions, 28 Aug 13. This is because Prenda does not want to have to disclose the details of their technical monitoring of BitTorrent, it’s software, agents, etc. This information is the corner-stone of their cases. Their ability to get expedited discovery from the courts for ISP subscriber information is directly related to the work by 6881 Forensics LLC. Any errors, problems, or discrepancies disclosed will be used to attack this key part of these law suits.
I don’t believe the deposition of Mr. Abrahams produced any ‘smoking guns’ of evidence. The best they probably obtained is Mr. Abrahams does look at Internet-based pornography and possibly he has or does use BitTorrent. Unless Mr. Abrahams admitted to downloading/sharing the movie in question, all they have as usual is the public IP address and possibly the knowledge that he has (or does) look at Internet porn. Mr. Abrahams has his computer hard drives and is prepared to have them examined by forensic experts. If the forensic analysis doesn’t find clear and direct evidence that he downloaded/shared the movie, HDP/Prenda is footing the bill for the analysis – this isn’t cheap! Couple this with the fact that the alleged infringement happened before copyright registration was issued and there was more than a three-month gap between first publication and registration (“Samantha Saint” (Amateur Allure/HDP)). This will limit HDP to only actual damages and no attorney fees – and only if a judgement goes against Mr. Abrahams.
I believe the Wong case gave Yuen/Abrahams great insight into Gibbs/Prenda tactics. The fact that Prenda then move onto trying to claim ‘Negligence’ against Joshua Hatfield, show how weak they think this case truly is. This case may take more time to finish, but the final chapters are being written.
“Some ships are designed to sink…others require our assistance”