Recently, we had a liveblog event concerning a Prenda hearing in Arizona. That case, AF Holdings v David Harris, is one of the many on-going where the judge is starting to ask some ‘pointed’ questions.
In particular, Friday’s hearing was to ask a certain list of questions, which are listed to the side. In a filing made Friday morning by Steven Goodhue – the lawyer representing AF Holdings in this case – some of the questions were answered, but some weren’t, and those that were often started more questions than they answered. So there’s only one way to deal with that, and that’s to analyse it.
The Bench Memorandum (BM) is a sprightly 12 pages, and seems to be mostly free of the junk-law, and persecution-complexes that seem to be Prenda staples. Indeed there is significant on-topic discussion, rather than pointless speculation and random musings. Of course, it’s still pretty fact-light, and large on fantasy and attempts to have perform judicial slight-of-hand.
Of course, Bench Memorandum are also supposed to be neutral, and this one is anything but.
What’s a Swarm?
The BM starts by trying to define a swarm. It decides to do so based on the ‘universe of BitTorrent users’ (whatever that means)
As a threshold matter, Plaintiff briefs the Court on the definition of “swarm”—a technical term that appears frequently in the Court’s June 11, 2013, Order. The term “swarm” has been defined with great variance by district courts nationwide. Plaintiff submits that the proper way to approach defining a swarm is to start with the universe of BitTorrent users and determine from there what factors define a swarm.
The universe of BitTorrent users consists of hundreds of millions of individuals across the world that, over time, have stolen files consisting of virtually every modern-era song, book, software or video ever produced for commercial distribution.
Er oops. Did I say it was free of junk law? I meant that sarcastically. Just in case Mr Goodhue is unaware, copyright infringement and theft are two very different things. If you go through the US Criminal code (that’s 18 USC) there’s not much about theft. Copyright infringement is 17 USC 501 (17 USC is ALL about copyright, just as 18 USC is all about crimes) The reason 18USC is light on theft is because it’s one of those things left to the states under the 10th Amendment. So we’d have to look at Arizona law. Of course, the problem there is that Arizona law is dealt with in Arizona state courts, not US Federal courts, so if he thinks it’s theft… he’s in the wrong court system.
Of course, he’s not going to get far there either, because under Arizona Revised Statutes – Title 13 Criminal Code – Section 13-1802 (Theft; classification; definitions) what copyright infringement is, isn’t defined as theft.
And everything ever produced for commercial distribution? I doubt it. See, that’s the problem with long copyright terms, they tend to make anything that’s not super-popular, or brand new lost, because the rights holders don’t care to keep distributing, but no-one else can because of copyright – it’s the point behind the massive orphan works problem.
So this third paragraph is a complete lie, misrepresenting both the law, and the current state of copyright. For a lawyer to misconstrue law like this is just inexcusable. But it’s about par for the course. The word steal pops up a number of times and each one is used contrary to the law, as some sort of emotional argument, rather than a legal one. That’s not good in a court document. I won’t even bother highlighting it any more, it’s so common.
One way to define a swarm is by the content that is being distributed. Thus, for example, the group of individuals that used BitTorrent to steal copies of the movie, “The Godfather,” would be considered to be in a different swarm than the group of individuals that stolen copies of its critically-acclaimed sequel, “The Godfather Part II.”
Well, it’s *A* way. Is it a good way? No. Is it in any way related to how bittorrent works, how a swarm works, or in any way even CLOSE to that? No. It would be like calling all bumblebees everywhere in the world a swarm, because they are all one type of bee. It’s rubbish.
A second way to distinguish a swarm is by hash value. A hash value is simply a string of characters that corresponds to an exact version of media content, just as a social security number corresponds to an exact individual. By way of example, a copy of the movie, “The Godfather” that is optimized for viewing on an iPad would have a different hash value than a copy of the movie that is optimized for DVD. A hash value also has technical significance in that BitTorrent distribution among users can only occur with respect to files with identical hash values. In other words, a user attempting to steal a copy of the iPad-optimized version of “The Godfather” cannot, as a technical matter, exchange pieces of the file with a user who is attempting to steal the DVD version of the same movie.
This is closer to the mark, although it fails technically on a few points. The string of numbers corresponds to a cryptographic function of the data (with some twists), just not ‘assigned randomly’ as is implied. And while the hash values are, in practice, unique, collisions, where the same value represents different data is possible, although not significantly possible yet.
Also, he’s mistaken the significance. The TORRENT hash value is mainly of use in peer-identification. It’s the ID for the swarm. The pieces described in the torrent file each have their own hashes, and this is what’s swapped and checked.
Finally, the differences in hashes, can also mean that swarms are a lot more fragmentary than Mr Goodhue implies. If you were to use (as he does) an ipad-optomised version, I could create a dozen swarms from the same identical files. I can do that by having a different file order, or a different piece size. I could double it by marking the torrent with the private flag…. And then I could create infinitely more swarms by adding a small text file, or any other file in too, and double that number again, with the private flag.
What’s that got to do with anything? Well, despite having the EXACT SAME movie file, each of these swarms are separate, and can’t change pieces with one another. Put that way, it narrows down the definition he intends still further.
What follows then is a lengthy and not altogether accurate comparison to trading. As we’ve just seen, such a simplistic comparison bears little relevance to the realities. (It’s also notable that these traders have significant rules, and penalties for insider-trading, something that is perhaps more relevant to this case than the tortured metaphor).
A third way to distinguish a swarm is by time. Returning to the commodities exchange metaphor, one might define a swarm as the group of traders that is in the pit at any instant in time. Under this method, the swarm would be redefined every time a person entered or exited the trading pit. Alternatively, one might select an arbitrary time window—a week, for example—and define the swarm as the traders that were in the pit during the week. Finally, one might decline to use time as a distinguishing factor. Courts nationwide have taken different approaches in this respect.
Yeah, some have said it’s stupid and some have said it’s REALLY stupid. Because it is – I’ve never heard of anyone define a swarm about time, and I doubt I ever will again. Idiotic doesn’t even begin to describe it.
In Plaintiff’s view, a swarm is a group of users who trade a file with a given hash tag. Plaintiff does not support the use of an arbitrary time window to distinguish a swarm. There are several reasons why an arbitrary time window is problematic. First, the contribution of a user to a swarm on a given day contributes to the health of the swarm on a later date, even if the user has left it. Second, for a variety of technical reasons, defining a swarm by a given date and time creates unsolvable forensic monitoring problems. Finally, the concerns that are raised by the absence of an arbitrary time window—the joinder of hundreds of thousands of users in a single suit, to use an extreme example—are better addressed by the many tools available to district courts to ensure that the cases before them are manageable.
Yes, we got it, you kinda like option 2 (the only one with any sort of factual basis) but to ignore time constraints is odd. To give my own tortured metaphor, I have driven along the I75/I85 connector through downtown Atlanta in the past. The cars on that road could be considered a ‘swarm’. Now, absent time controls, am I still part of that swarm now? Mr Goodhue would like to think so. Indeed, I was last in California in 2001. I was on some pretty busy roads, which have had continued traffic since then. Am I still part of that same ‘swarm’ of cars now? Apparently so.
Further, there’s that claim of “unsolvable forensic monitoring” problems. That’s funny, because to me, I don’t see a problem. But then again, that might be because I’m an expert in this field, and Mr Goodhue isn’t. Nor for that matter is his client, or their ‘evidence collecting’ company(s). They can’t be, if he’s making statements like that. Meanwhile, to say ‘we’re just going to sue everyone, and see how many the judge will let us get away with’ shows a staggering contempt for the courts, for the law, and highlights the core ethos of this kind of litigation – it’s not about what’s right, it’s not about quality of litigation, it’s about quantity, because there’s no real desire to litigate to completion, only use it as a threatened cudgel, to bludgeon defendants with.
The answers to the questions follow, and I’m going to restrict myself to commentary, else this will reach novella length quickly.
(1) TO THE EXTENT THAT PLAINTIFF PREVIOUSLY SOUGHT AND RECEIVED DUPLICATIVE DISCOVERY, WHY SHOULD THE COURT RE-AUTHORIZE IT HERE?
The question by the court, asks why discovery should be granted, when the previous case in this chain (the john doe IP address part) already granted it. As Goodhue explains, they got their 1140 names and addresses from the DC court (probably via Judge Howell’s court) and used that to hound for settlements (while dismissed the DC case in order to do so, as well as the fact it would have been dismissed for improper jurisdiction)
Now they’re refilling for discovery, not to find out Mr Harris’ address again, but to find the names and addresses of other people, not in the 1140 IP addresses previously mentioned. Of course, what relevance this has to this case is non-existant. Mr Harris didn’t assist, conspire, aid, help, work with, or do anything to in any way influence or contribute to the infringing of that work by those IPs. Nor did he have any knowledge of these peers (less so than the average web user has of the IP address of google) especially as Mr Goodhue points out, the swarm keeps going, long after any case started, let alone when he allegedly infringed.
It’s a case of ‘hey judge, sign this, yeah, it’s related, because, you know, swarm and stuff’.
(2) TO THE EXTENT THAT PLAINTIFF HAS NOW REASSERTED THE SAME CLAIMS RESULTING FROM THE SAME SWARM IN A DIFFERENT COURT, WOULD THOSE PREVIOUS SETTLEMENTS HAVE CAUSED PLAINTIFF TO FORFEIT, OR OTHERWISE AFFECT PLAINTIFF’S CLAIMS IN THIS CASE?
Now the argument is that, yeah, it’s the same swarm, but no, it’s not the same people so it doesn’t matter. We might well have filed against a thousand john does, and got their info, but now we want more. And by using this case, we avoid having to pay the filing fee, and maybe we can drive up Harris’ costs, and make him settle, or something. Never know your luck….
But oh look, some LAW references, and he manages to remember that copyright infringement isn’t theft, by referencing 17 USC rather than 18 USC/Az code. So he was just trolling/lying to the court earlier.
But basically, he wants to get lots of money in damages by taking the Harris case, and then expanding it, and hoping to force a settlement, or a default judgement.
(3) WHY WOULD IT NOT BE AN ABUSE OF CONGRESS’S PURPOSES AND ON THE FEDERAL COURT SYSTEM TO ALLOW PLAINTIFF TO FILE SUITS AGAINST THE SAME DEFENDANTS IN MULTIPLE DISTRICTS FOR PARTICIPATION IN THE SAME BITTORRENT SWARM, CONDUCT SETTLEMENT OF SUCH CLAIMS IN SOME DISTRICTS, AND THEN CONTINUE TO PROSECUTE SUCH CLAIMS IN OTHER DISTRICTS WITHOUT ACKNOWLEDGING THAT THEY HAVE INDEPENDENTLY SETTLED SOME OF THE CLAIMS AGAINST SOME OF DEFENDANT’S ALLEGED CO-CONSPIRATORS?
Question 3’s response is perhaps the only truly honest and accurate bit so far. It notes that this case comes about because they realised Harris wasn’t in DC. Well, I’m not a rocket scientist, but I’m guessing it MAY have been possible to tell that beforehand. However, since I don’t have a copy of the IP to hand, I’ll give him the benefit of the doubt here.
(4) QUESTIONS RELATED TO PRIOR SETTLEMENTS, SEPARATE LAWSUITS AND DISCOVERY
Here they seem to be hinding behind prescident and rulings elsewhere. They’ve been asked about other suits, other discoveries, and other settlements relating to this work. It’s a quite valid question seeking to determine the scale of operations and the potential focus of the litigation. Goodhue’s response? This case from New York 2 years ago about a totally different kind of P2P system gives a reasoning we quite like. As such we see this as an exception to the ‘cases from other district courts are not relevant at all, ever, even if its over the same things because OTHER DISTRICTS/STATES RIGHTS HUH HUH’ (right, Mr Nazaire?). Of course, by referencing the not-very relevant Arista V limewire case, he’s undermined any reason for objecting to Judge Wright’s order, no matter HOW liberal they are.
Specific to the questions though
a) Why Shouldn’t the Court Take Into Account the Amount of Settlements Already Achieved by Plaintiff With Respect to the Other Participants in the Same BitTorrent Swarm?
He thinks they should take into account by ‘action’, not by ‘swarm’. And not the previous action, with the 1120 IP addresses, but this sole one now, because, you know, that’s this case now. It’s why they play the jurisdiction game mentioned in question 3.
Put as simply as possible, “they’re all acting together, except when it comes to damages, in which case everyone acts separately, because that way we get lots of money. Litigate grouped, payment individually, ok judge?”
b) Further, why Should the Court not Require Plaintiff to File Separate Lawsuits as Against Each Separate Defendant Against Which it Asserts a Claim?
We get the same argument again.
It’s only one person your Honor, see, it’s not AF Holdings V Does 1-1120 anymore, it’s AF Holdings V Harris (and unnamed, future conspirators, see question 2) and so a single person now. So we’ve done it, and just don’t think about the whole swarm thing, or mass discovery of IP addresses, because w.
It’s trying to get the best of both worlds.
c) In Such a Case, on What Basis Should the Court Grant Plaintiff’s Request for Discovery
Again, the same kinds of argument
We had a group, but we’ve exhausted that, and now have this case, and since we’ve filed it separately, it’s no longer a group, see? And we’ve that whole swarm thing, so forget about the group he used to be in, we’ve got this new group he was also in at the same time, but was completely separate from that first group, because, you know, otherwise we’d have lied earlier when answering questions 2 and 3.
It’s a sick sick game of switcheroo.
We’d like to file suit against these purples your honor.
Then it goes to
We’d like to file against this purple person your honor.
We’d like discovery to find out about these lilac’s your honor
But you already has discovery for Purples
Forget the purples, he’s lilac, and besides, this one ruling says action based, so when we filed the new suit it’s a new action, and we now say he’s not purple, he’s lilac, so GIMMIE DISCOVERY NOW cos our money’s running out from losing all these other cases in other districts with the same claims THAT YOU ARE NOT ALLOWED TO CONSIDER BECAUSE WE DON’T LIKE THEM.
(5) INFORMATION REQUESTS REGARDING THE D.D.C. CASE
Plaintiff will address the Court’s information request at the Order to Show Cause hearing.
This is a ‘yeah, we got an answer, but the bullshit it’s wrapped in is only enough to withstand a cursory glance by lawyers. Any experts or research will destroy it, so we’ll keep it a surprise until we really need it.
(6) QUESTIONS RELATED TO DISCOVERY IN THIS LAWSUIT
Starts off with some waffle about misfiling something. They actually admit they just go through the motions, because it’s become so routine for them.
a) How Many Users on That List of IP Addresses has Plaintiff Previously Sued as a Doe Defendant or Otherwise
They comment that they actively cherry pick litigants, just to make things a bit easier. Not because it’d help their case, but because it reduces the amount of scrutiny.
b) With How Many of Those Users, if Any, has Plaintiff Engaged in Settlement Discussions in Relation to This Lawsuit, and What are the Nature and Amount of Those Settlements?
See the answer to 5 above.
(7) OBJECTIONS TO THE COURT’S PROPOSED NOTICE TO SUBSCRIBERS
Basically says ‘let’s up the scary’. “This letter is just a warning, we know who you are and are telling you we can sue you any time (best contact us to settle beforehand)”, and “THIS is why you need to settle, it could bankrupt you, so settle now, we know who you are”.
Typical scare/intimidation tactics. Despicable.
(8) ALAN COOPER INFORMATION
Yeah, the names of the works are what we put in the original complaint, if you want anything else, see question 5.
(9) ALAN COOPER’S FINANCIAL INTEREST IN AF HOLDINGS, LLC AND ALAN COOPER’S AUTHORITY AS A CORPORATE REPRESENTATIVE OF AF HOLDINGS, LLC
Here’s some interesting things. Apparently Alan Cooper didn’t have his identity stolen, as he’s attested to a number of times, in person, under oath. However, we seem to have an attestation that the Alan cooper that is claiming identify theft, and used to Mr Steele’s caretaker is the one behind the AF holdings paperwork. Apparently he was to get a foothold in the adult industry this way (how, unless Steele was involved with producing it, I doubt he wanted to be a paralegal). So the signatures should match Mr Cooper’s
Of course, there’s the inevitable personal attacks, “Plaintiff found Mr. Cooper to be unreliable and declined to work any further with him.” Etc. which seem to be contrary to what has been proved elsewhere.
Ooops, that’s gonna be a problem.
(10) THE REPRESENATIVES AT AF HOLDINGS FROM WHOM PLAINTIFF’S COUNSEL IS RECEIVING DIRECTION AS TO THIS LITIGATION AND THE NATURE OF THEIR INVOLVEMENT
Here he confirms what we already knew. AF Holdings and Prenda Law are intertwined. He got his instructions from Gibbs, and Lutz, and Duffy. The probability of Steele giving direction via one of these three is pretty high.
And there you have it. You’ve got a filing that’s 99% crap, and likes to argue things one way, then another. On first glance it almost seems reasonable, but that’s only on first glance, and these are the things he could get away with on paper. In court, there’s a whole lot more rubbish he could have spouted to obfuscate things.