A Blow for Copyright Trolls | Hacker News Reader

A Blow for Copyright Trolls

eff.org

69 pointspanarky15 comments

If this is the same AF Holdings/Prenda Law that we've been reading about on Popehat for a year, it might be tough to extrapolate this ruling into any kind of "crushing blow" against the concept of trolling; it would be understating it significantly to say that Prenda was already "on the ropes".

http://www.popehat.com/tag/prenda-law/

(Popehat's coverage of Prenda is golden; a highly recommended and amusing read.)

Later

Having read the opinion, it's a little of both. (I'm not a lawyer and expect to be corrected here).

First, the Appeals court ruled that Prenda/AF's attempt to compel service providers to cough up records created an undue burden on the providers. That burden was undue because in attempting to do that, Prenda/AF needed to demonstrate a good-faith belief that the records they were speaking were discoverable.

The DC circuit points out that it would have been possible to file such a suit and make such a demonstration, but, of course, Prenda/AF did not do that.

Second, the court ruled that Prenda/AF's attempt at joining all their 1000+ suits into a single case was invalid, because Prenda/AF didn't demonstrate in a meaningful way that the cases were related. Again, the court explained that there was a reasonable way Prenda/AF could have legitimately filed such a case (albeit with fewer defendants), but the slapdash way they actually filed the case made it easy to reject their joinder request.

To the extent that the details of this ruling pertain to the specifics of the Prenda/AF case, they are less useful, because you'd have to imagine after reading more about Prenda/AF that any copyright troll in the world would have to be smarter than them.

Sure, but this precedent against Prenda will make it much harder for other trolls to adopt the same strategy.

Its possible (perhaps wishful thinking) that in the Venn diagram of smart lawyers and lawyers willing to be copyright trolls there is very little common area.

I agree with you on the popehat coverage. It was simultaneously horrifying, entertaining and thrilling. I don't regret for a moment the hours I spent reading the reports.

People probably don't want to hear this, but I think the anti-trolls are winning on technicalities. In many cases a reverse DNS lookup can determine the proper jurisdiction. Improper joinder can be solved by just not joining defendants. Prenda may be making simple mistakes but Malibu appears to be learning from them.

It seems to me that courts, especially District Courts, want to rule on what you and I would call technicalities. But I think it's a really good thing to have the legal system follow their own damn rules - ignorance of the law is no excuse, as we, the commoners are often informed, and who is in a better position to determine The Law than a District Court Judge?

This does gloss over the issue of courts not wanting to rule on the real issues. In the case of AF Holdings and Prenda Law, their may be no real issues. Those folks seem to be flat out scammers, rather than creators ensuring their scared creations are treated with the respect, consideration and honorariums they deserve.

It would of course be really nice to have courts rule on issues, especially copyright, trademark and patent issues, not to say 4th Amendment issues like warrantless GPS tracking and warrantless wiretapping.

> Improper joinder can be solved by just not joining defendants

Isn't joining defendants part of the economy of scale in being a copyright troll?

(Not a rhetorical/argumentative question; I'm genuinely curious.)

IIRC each case costs ~$300 in filing fees and each settlement provides ~$7,000 in revenue.

Filing fees are far from there only cost and 7k assums a 100% win rate at say 50% thats only 3.5k per win and they might not hit 50%.

Isn't a use of the word "technicality" in a legal context an indicator of bias? Are you saying that the precedent set is weak?

What I'm saying is that trolls can easily work around these "crushing blows" and continue their trolling. What happens when Malibu has perfected their trolling technique? Will they actually start winning lawsuits?

That's exactly what it means. Most courts tend to make the narrowest possible ruling rather than setting broad precedent: if they can throw out a case on a technicality, they'll do that rather than rule on the merits of the case itself. When that doesn't happen, people start throwing around phrases like "activist judges".

So, in the areas of copyright and patent trolls, it's nice to see victories, but it's nicer to see victories on the merits of the case rather than on the details a particular troll got wrong.

But in this case, the procedural stuff is what makes AF is a troll, isn't it? What useful precedent would come out of getting to the merits?

> But in this case, the procedural stuff is what makes AF is a troll, isn't it?

Only in part. Sure, procedural stuff like hostile choices of venue and settlement-seeking behavior seems common to trolls, but there's also the more general environment that makes trolling possible: the general expectation that going to court is an expensive gamble and you might not even get your costs back.

That's leaving aside the fundamental IP issues supporting patent trolling to begin with, but I don't expect to see a precedent on those anytime soon.

> What useful precedent would come out of getting to the merits?

Precdents that would completely change the expected outcome of taking a troll to court: universal expectation of covering attorney fees, criminal penalties for broad-scale carpet-bombing with just-less-than-court-cost settlements ( http://en.wikipedia.org/wiki/Barratry_%28common_law%29 ), and piercing the corporate veil on troll shell companies to stop them at the source.

Shouldn't they take them to court first? At what point does "give me money or else..." become extortion? Does it matter if they phrase it "I'm going to... but you can prevent that by paying me now."

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