Settlements Affect Statutory Damages – Court Order – AF Holdings/Prenda, 2:12-cv-02144 (AZ) – HARRIS

The order from Judge Snow came out yesterday (20 Aug 13) and I see it as being light on the “order” portion.  I think it is better titled as a “Memo/Order.”   Order_Doc92_02144(AZ)   The best thing about the order is that is clearly states that for jointly and severally liable cases, ANY settlements received are relevant to an award of damages by a court.

The order does make it clear that Judge Snow did have concerns that Plaintiff/Prenda wasn’t an honest litigant in these matters (my opinion).  Of course Prenda declined to renew the motion for early discovery against the 71 Cox Communications customers.  They are trying to cut and run as fast as they can and have even dissolved Prenda as a LLC.  Call it whatever you want, but the Prenda (and its personnel) are still around.  Paul Hansmeier has even started a new company Class Justice PLLC and used it in a recent filing.

NeatB1Judge Snow mentions that Mr. Harris informed the court that Prenda was granted early discovery for 1140 defendants in DC case 1:11−cv−01274−RBW, from which they obtained his subscriber information and opened this case in his name in AZ.  Goodhue was forced to admit that Prenda had received settlements from an undisclosed number of the DC case defendants.  NOTE: Torpedo #10 states this fact as well as others.

The judge made it clear that as the Harris case (and others) were based on the same swarm (BT SHA-1 Hash file) as the DC case, all of the defendants were part of the same overall action (Jointly and Severally Liable).  This was important because if they were all joined, the statutory damages Plaintiff/Prenda sought would have to be adjusted (reduced) based on the settlements they received from any of the 1140 defendants.  Prenda declined to provide any information on the settlements received.  Shocking!

  • Here are some good passages from the order.

Further, there is a risk that Plaintiff will misrepresent to alleged infringers the potential range of damages based on a statutory award for copyright infringement in this case.

If an owner elects statutory damages, one award applies to “all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” Id.  “Stated another way, a plaintiff may receive a single statutory award for all infringements of any one copyrighted work from either (1) any one defendant, where that defendant is separately liable or (2) multiple defendants, where those defendants are jointly and severally liable.” Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 947 (9th Cir. 2011)

…There is a risk, however, that Plaintiff will not disclose that potential outcome to the alleged infringers when engaging in settlement negotiations with them after obtaining the requested discovery. It is in light of these concerns that the Court was not favorable to Plaintiff’s request to issue subpoenas.

I see this order as having a benefit to Doe defenders involved in the newer mass-Doe cases that have sprung up for movies such a The Company You Keep, The Thompson, Bad Kids Go To Hell, etc.  The judge makes it clear that for cases where a Plaintiff claims all defendant are jointly and severally liable for the infringement (same swarm – same Hash file), the settlements they receive are relevant to adjusting (reducing) the damages awarded by the court.  Note: TCYK has at least 70 cases with over 2800 defendants.  Even Malibu Media/X-Art single defendant cases could be impacted by this.  They may be single defendants cases, but they had to download/share with at least one other to get the movie(s).  This could be the next can of worms for Plaintiff/Trolls.

I believe a majority of the Plaintiff/Trolls are not going to want to expose the amount of settlements they obtain in open court.  Even if allowed to provide this information under seal, the amount the judge sets as damages will be a direct result of the settlements and will be inferred.  The information will get out if they disclose it. 

So what does all this mean?  For Harris, the case is still open and will likely be closed by the court after no action is taken by Prenda.  That is unless….. Mr. Harris asks for a declaratory judgment based on the facts (lack of them).  More to come on this I bet.

DieTrollDie 🙂

Bad joke I recently heard – There are certain organizations like diecopyrighttroll.com, dietrolldie.com, techzer.com. What they do is they harass attorneys who represent copyright plaintiffs…

Here is another bad joke.

ComcastFax_Sharkmp4

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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10 Responses to Settlements Affect Statutory Damages – Court Order – AF Holdings/Prenda, 2:12-cv-02144 (AZ) – HARRIS

  1. Pingback: Key Ruling out of Arizona on One Satisfaction Rule in BitTorrent Cases

  2. DieTrollDie says:

    OK after looking at this again, I will revise what I said in the first part of the post. I think the “order” portion as it pertains to the Show Cause Hearing (19 Jul 13) is light. I think Prenda/Goodhue got off easy.

    The part of the order where it discusses the effect prior settlements have on damage awards in joint and severally liable cases is good.

    DTD 🙂

    • Anon. E.Mous says:

      I am kind of surprised that Judge Snow who knew therei was a rather large stench of BS coming from this case has let Prenda off the hook so lightly. While I find that a tad troubling that lawyers who seem to mislead the court in their filings. There was enough here in my opinion that Judge Snow could have went toward sanctioning the Prenda gang as other courts have.

      While I am sure Prenda is going to hope this all goes away, I don’t think Mr. Harris is going to let them walk scot free. Mr. Harris I believe is still a little more than miffed at being dragged into this and I don’t think he is going to go away without Prenda coughing up some cash and an apology.

      Prenda may be content to let this go as might Judge Snow, but I don’t think Mr Harris is done here quite yet. I wouldn’t be at all suprised to see Mr. Harris filing a complaint with the state bar over this, and I would think he might complain to the state AG as well.

      Should be interesting to see what happens, either way Prenda will be paying out some cash to make this go away I would bet.

  3. Silver_Doe says:

    Wow! I can’t thank you enough for putting up this information. I called my Attorney and asked if we could put together a motion asking the judge to require the plaintiff to divulge the amount of settlement money they collect from all the defendants. I forwarded a copy of the order from Judge Snow to them also. I’m not sure if this will work, but its probably worth a try.

  4. DonaldB says:

    The key point here is that torrent-based copyright trolling is a single violation.

    This is nearly fatal to torrent-based copyright trolling.

    Every settlement received reduces the $150K maximum statutory damages that can be collected from an infringement. And the number of letters, and the number of settlements, is a front-and-center discovery question. Is sending a few hundred letters for a $3K settlement each reasonable? (Especially when we have it on record that previous trolls picked that number to be low enough that it was cheaper to settle, regardless of guilt.) If someone does litigate, isn’t $3K (perhaps plus costs and fees) now the established damages?

    From this perspective, it seems that each torrent IP address should be independently litigated for the purposes of guilt, but joined for the purposes of liability. That could mean 100 mini-trials, each of which must be decided before an overall judgement.

    As a final note, I think Prenda has done far more damage to copyright holders than anyone in “Hollywood” realizes. By seeding their own torrent, they may have just provided a “presumed authorized” defense. Combined with movie studios ‘astroturfing’ by uploading promo clips under fake account names, a not-too-unreasonable person could claim that they thought the content was authorized by the rights holder..

  5. Guest says:

    “harass attorneys who represent copyright plaintiffs”

    It’s not harassment if the judges agree with it.

    Expect more harassment to come.

  6. Pingback: Ticen Reply To Prenda (Response To Attorney Fees) – AF Holdings/Prenda, 2:12-cv-02144 (AZ) – HARRIS | DieTrollDie

  7. Pingback: Lipscomb & X-Art have a lot to hide. And a lot to fear | Fight Copyright Trolls

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