“Prenda Law … was a ‘porno-trolling collective'”

From today’s D.C. Circuit decision, AF Holdings, LLC v. Does 1 – 1058 (D.C. Cir. May 27, 2014):

A full understanding of this case requires knowing some things about the lawyer and “law firm” that initiated it. AF Holdings is represented by attorney Paul A. Duffy. Until very recently, Duffy was associated with “Prenda Law,” an organization that, since representing AF Holdings in the district court, appears to have disbanded and then reconstituted itself in a similar form.

Prenda Law, as Judge Otis Wright II put it in a case similar to this, was a “porno-trolling collective.” According to Judge Wright, Duffy and the other principals of Prenda Law were “attorneys with shattered law practices” who, “[s]eeking easy money, … formed … AF Holdings,” acquired “several copyrights to pornographic movies,” then initiated massive “John Doe” copyright infringement lawsuits. These suits took advantage of judicial discovery procedures in order to identify persons who might possibly have downloaded certain pornographic films.

Such individuals, although generally able to use the Internet anonymously, are, like all Internet users, linked to particular Internet Protocol (IP) addresses, a series of numbers assigned to each Internet service subscriber. Internet service providers like Appellants can use IP addresses to identify these underlying subscribers, but not necessarily the individuals actually accessing the Internet through the subscribers’ connections at any given time.

Confronted with these realities, Prenda Law’s general approach was to identify certain unknown persons whose IP addresses were used to download pornographic films, sue them in gigantic multi-defendant suits that minimized filing fees, discover the identities of the persons to whom these IP address were assigned by serving subpoenas on the Internet service providers to which the addresses pertained, then negotiate settlements with the underlying subscribers—a “strategy [that] was highly successful because of statutory- copyright damages, the pornographic subject matter, and the high cost of litigation.” If an identified defendant sought to actually litigate, Prenda Law would simply dismiss the case. As Duffy acknowledged at oral argument, of the more than one hundred cases that AF Holdings has initiated, none has proceeded to trial or resulted in any judgment in its favor other than by default. Nevertheless, according to one article, Prenda Law made around $15 million in a little less than three years.

The present lawsuit is a quintessential example of Prenda Law’s modus operandi. Represented by Prenda Law, AF Holdings brought suit in the United States District Court for the District of Columbia against 1,058 unnamed Does who it alleged had illegally downloaded and shared the pornographic film Popular Demand using a file-sharing service known as BitTorrent. As an attachment to its complaint, AF Holdings listed the 1,058 IP addresses assigned to those subscribers whose Internet connections had been used to share Popular Demand, along with the specific date and time at which it, using what it described as “sophisticated and proprietary peer-to-peer network forensic software,” had observed each defendant’s allegedly infringing activity.

AF Holdings also attached the purported assignment agreement through which it claims to have acquired the copyright to Popular Demand. Although it has no effect on our resolution of this appeal, other courts have since concluded that at least one of the signatures on this document was forged. See also Lightspeed Media Corp. v. Smith, No. 12-889, 2013 U.S. Dist. LEXIS 168615, at *16 (S.D. Ill. Nov. 27, 2013) (“The[ principals of Prenda] have shown a relentless willingness to lie to the Court on paper and in person, despite being on notice that they were facing sanctions in this Court, being sanctioned by other courts, and being referred to state and federal bars, the United States Attorney in at least two districts, one state Attorney General, and the Internal Revenue Service.” (internal citations omitted))….

The careful reader will be unsurprised to learn that the opinion ruled against Prenda Law’s heirs (the precise legal issues here had to do with venue and the proper scope of discovery). It also closed with, “We leave it to the district court to determine what sanctions, if any, are warranted for AF Holdings’s use of a possible forgery in support of its claim.”

Thanks to How Appealing for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

opinions

volokh-conspiracy

Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Comments
Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read National

opinions

volokh-conspiracy

Success! Check your inbox for details.

See all newsletters

Next Story
Will Baude · May 27, 2014