Presentation? Chapter SCR 20

Elizabeth T Russell 6/28/2006

Ethics and the Filesharing Lawsuits

June 28, 2016

Presented by Elizabeth T Russell

An abridged history of filesharing

1 Elizabeth T Russell 6/28/2006

1984

• Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)

• Manufacturer of technology (home video tape recorders) not liable for contributory copyright infringement

• Betamax capable of substantial noninfringing use

2 Elizabeth T Russell 6/28/2006

1991

MPEG‐1 Audio Layer 3 (MP3) ISO/IEC Standard

What?

Songs on CDs could be converted to small computer files

1998

Digital Millennium Copyright Act (DMCA)

17 USC §512

3 Elizabeth T Russell 6/28/2006

1999

• June: Napster is created

• December: Napster gets sued

Napster

• Users could search other users’ music files • Napster provided centralized server that indexed the files, and carried out searches • But individual files remained on hosts’ computers and were transferred from peer to peer

4 Elizabeth T Russell 6/28/2006

Napster litigation

• Napster users violated at least two of the exclusive rights: – #1 Reproduction (when downloading) – #3 Distribution (when uploading)

• So, if Napster’s users were committing copyright infringement, was Napster liable for contributory copyright infringement?

5 Elizabeth T Russell 6/28/2006

Yes. But…

• Settled the lawsuit • Declared bankruptcy • Definitive guidance not until 2005: Grokster inducement rule; re‐evaluates Sony

• MGM Studios, Inc. v. Grokster, Ltd., 545 US 913 (2005)

In the meantime… • 2003: the Recording Industry Association of America (RIAA) starts suing individuals

• Not the services, or the manufacturers of technology that the individuals use to share files; but the individuals themselves

• Over the course of a six year campaign: RIAA “sued” approximately 40,000 people

6 Elizabeth T Russell 6/28/2006

Guess how many went to trial?

Jammie Thomas

Made 24 songs available to the public on KAZAA file sharing service

7 Elizabeth T Russell 6/28/2006

Event Date Finding Award

1st civil jury trial, U.S. District Court (MN) October 4, 2007 Liable Statutory damages of $222,000 ($9,250/song).

2nd civil jury trial, U.S. District Court (MN) June 15–18, 2009 Liable Statutory damages of $1,920,000 ($80,000/song).

Statutory damages reduced to $54,000 ($2,250/song). Remittitur by Chief Judge Michael J. Davis January 22, 2010 n/a The plaintiffs rejected this adjustment.

3rd civil jury trial (damages only), U.S. November 2–4, 2010 n/a Statutory damages of $1,500,000 ($62,500/song). District Court (MN)

Damages reduced to "constitutional July 22, 2011 n/a Statutory damages reduced to $54,000 ($2,250/song). maximum"

Statutory damages reinstated to first judgment, $222,000 Appeal, U.S. Circuit Court (8th) September 11, 2012 n/a ($9,250/song).

n/a—The case will not be reviewed; the 2012 award is Denial of certiorari, U.S. Supreme Court March 18, 2013 n/a final.

Joel Tennenbaum

“I face up to $4.5 million in fines and the last case like mine that went to trial had a jury verdict of $1.92m.

When I contemplate this, I have to remind myself what I’m being charged with. Investment fraud? Robbing a casino? A cyber‐ attack against the federal government?

No. I shared music. And refused to cave.”

8 Elizabeth T Russell 6/28/2006

Joel Tenenbaum

• Verdict: $675,000 • The award withstood a due process challenge:

“The evidence of Tenenbaum’s copyright infringement easily justifies the conclusion that his conduct was egregious. Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery.”

• Tenenbaum also declared bankruptcy

Ethics

• Ethical issues start to emerge, in Tenenbaum • Court (at a motion hearing):

“Counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers, to fully understand […] that the formalities of this are basically bankrupting people, and it’s terribly critical that you stop it.”

9 Elizabeth T Russell 6/28/2006

On one hand On the other hand

• The law provides for • Constitutional purpose of statutory damages copyright law

• They did it • Questions; not answers

• Isn’t this just zealous • Comments (not rules) in representation? Chapter SCR 20

10 Elizabeth T Russell 6/28/2006

11 Elizabeth T Russell 6/28/2006

12 Elizabeth T Russell 6/28/2006

The Strategy

• IP address • Subpoena to ISP (“Does 1‐249”) – User has opportunity to quash – Rarely happens • Settlement demand follows • Actual lawsuit? Rare.

Ethics: Doe Subpoenas

• Some, attached to the IP address, will be completely innocent

• If no attorney, unaware of “the rest of”17 USC §504(c)(2)

• Misleading users to believe they have already been sued

13 Elizabeth T Russell 6/28/2006

PRENDA LAW • John Steele • Paul Duffy • Paul Hansmeier

14 Elizabeth T Russell 6/28/2006

• 176 lawsuits around the country; thousands of Does; most settled for the $4000 demand – Less than hiring a lawyer; make it go away

• Plaintiffs Prenda represented (copyright owners of porn films) were “offshore”

15 Elizabeth T Russell 6/28/2006

16 Elizabeth T Russell 6/28/2006

17 Elizabeth T Russell 6/28/2006

One California lawyer took a closer look

18 Elizabeth T Russell 6/28/2006

PRENDA LAW Owners of Plaintiffs • John Steele • John Steele • Paul Duffy • Paul Duffy • Paul Hansmeier • Paul Hansmeier

Alan Who?

• Alan Cooper!

• You know…

• …the caretaker at John Steele’s vacation home

19 Elizabeth T Russell 6/28/2006

Judge ordered Steele, Duffy, Hansmeier and an associate to pay $81,319.72 worth of defense attorney fees

Judge found that Prenda stole Alan Cooper’s identity and that its lawyers were the de facto owners of the entities that owned the porn copyrights at issue.

20 Elizabeth T Russell 6/28/2006

• Duffy died

• Steele (IL; August 2015) http://www.iardc.org/15PR0068CM.html

• Dishonest Conduct and Fraud on the Court in Ingenuity 13 LLC v. John Doe • Entry of Default Judgment in Alan Cooper v. John Lawrence Steele and Prenda Law • Bad Faith Litigation and Improper Use of the Judicial System in Guava v. Spencer Merkel • Bad Faith Litigation and Dishonest Conduct in Lightspeed Media Corp. v. Anthony Smith • Obstructing Discovery and Dishonest Conduct in Lightspeed Media Corp. v. Anthony Smith • Bad Faith Litigation, Dishonest Conduct and Fraud on the Court in Guava v. Comcast Cable Communication, LLC • Bad Faith Litigation, Dishonest Conduct and Misrepresentations to the Court in Prenda Law, Inc., v. Paul Godfread, Alan Cooper, and John Does 1‐ 10

21 Elizabeth T Russell 6/28/2006

• Hansmeier (MN; October 2015) https://assets.documentcloud.org/documents/2514 498/petition‐for‐disciplinary‐action‐against‐ hansmeier.pdf

ABA, 2014: Stop Doing This

http://www.americanbar.org/content/dam/aba/administrativ e/intellectual_property_law/advocacy/ABASectionWhitePa perACallForActionCompositetosize.authcheckdam.pdf

22 Elizabeth T Russell 6/28/2006

Defending Does

23 Elizabeth T Russell 6/28/2006

Thank you

6907 University Ave., #227 Middleton, WI 53562

Voice: 608‐826‐5007 Email: [email protected] Website: www.erklaw.com

This presentation is not legal advice. And I am not your lawyer.