Porn Troll Wars: The Umpire Strikes Back!

[Blogmeister’s Note: We haven’t heard much about porn copyright trolls in a couple of years, but a recent decision by a federal judge in California caught our eye. The judge slammed a troll operation, and he did it with flair – his opinion opens with a quote from a Star Trek movie (“The Wrath of Khan”) and proceeds to riff off the Star Trek theme throughout its 11 pages. Our colleague Tony Lee volunteered to report on the decision because – or so we thought – he had been involved with porn copyright trolls in the past (defending against them, he assures us). What he didn’t tell us is that he is a major league Star Trek fan. The result: the following homage to both Star Trek and the federal judge who mind-melded with the Trekker universe. Tony has graciously prepared a separate, annotated version of his post – accessible here – for anyone who might be interested. And yes, we know that the title of this piece conjures Star Wars, not Star Trek – it’s the best the headline-writing department here at CommLawBlog.com could come up with.]

In Star Trek-infused opinion, a federal judge beams copyright trolls to Planet Loser.

In a decision chock-full of Star Trek references, U.S. District Judge Otis D. Wright, II has levied planet-wasting (or at a minimum, career-ruining) sanctions against a collective of porn copyright trolls looking to assimilate the pocketbooks of alleged porn downloaders. 

The trolls incurred the Wrath of Wright by weaving a complicated Tholian web of deceit using the court as an unwitting but crucial element of their nefarious scheme. As the Judge put it: “[W]hen the Court realized [the trolls had] engaged their cloak of shell companies and fraud, . . . the Court went to battlestations.”

Before delving into the hull-breaching sanctions resulting from the Judge’s full volley of photon torpedoes, a little background. 

The case began as porn troll cases generally do.

A company (in this case, “Ingenuity 13 LLC”) had gotten its hands on the copyrights for a number of adult movies. The Ingenuity folks then monitored BitTorrent download activity and, when they noted “their” movies being downloaded, they sprang their trap: they filed a lawsuit against “John Doe” defendants, used discovery subpoenas to obtain users’ IDs from the ISPs through which the downloads occurred, and then shook down their victims for about $4K a pop. As Judge Wright observed, the $4,000 price to get the case to go away quietly was “calculated to be just below the cost of a bare-bones defense.” (For more on the wily ways of the copyright troll, check out our previous posts on the subject.)

But wouldn’t you know, one of the John Does decided to fight back with the ferocity of a Klingon wielding a bloody bat’leth. 

He alleged that the Ingenuity crew was engaging in fraud on the court. Among other things, it appears that Ingenuity hadn’t come by its copyrights entirely legally (some identity theft was apparently involved), so their copyright claims were, um, bogus. And it turned out that the lawyers repping Ingenuity owned a piece of Ingenuity (as well as other similar trolling operations), so they presumably knew that everything wasn’t on the up and up. 

With his tricorder reading beyond “suspicious” and well into the “totally guilty” range, Judge Wright engaged tractor beams to drag the lawyers up onto the witness stand so he could probe behind their cloaking devices to get the inside scoop on their operations, relationships, and financial interests behind their cloaking shields.

In response, the lawyers deployed the only shields they had left: they all took the Fifth.

(Litigation tip: When an angry judge asks you questions, your best play is usually to answer honestly and completely. Taking the Fifth is generally not the way to go.) 

Judge Wright responded to the lawyers’ reticence as you might expect: he reset his phasers from “stun” to “kill.”   Drawing every possible adverse interest from Ingenuity’s (and its lawyers’) refusal to testify – which he could do, since this was a civil, not a criminal, case – he found that they had: engaged in identity theft (using a fraudulent signature); attempted to deceive the court in order to engage in early-discovery requests; lied to the Court; and generally used (actually, abused) the Court’s authority to improperly pressure defendants to settle .

As punishment for the Ferengi-like ways of Ingenuity and its counsel, Judge Wright cranked up his doomsday machine. He awarded Ingenuity’s target-turned-nemesis $40+K in attorney’s fees, and then doubled it to north of $80K as a punitive measure.  (Direct hit on forward shields!) He thoughtfully pointed out that the “punitive portion [was] calculated to be just below the cost of an effective appeal.” Ouch! 

But wait, there’s more!

The Judge announced plans to refer all the lawyers to their respective state and federal bars to let those bars know that the lawyers suffer “from a form of moral turpitude unbecoming of an officer of the court” (Shields are failing!). And because their operations resembled RICO-like activities, Ingenuity and its counsel are also going to be referred BOTH to the U.S. Attorney’s office for investigation (Hull breach on deck four! We can’t take another hit!) AND to the Criminal Investigation Division of the IRS for failure to pay taxes on their ill-gotten gains. (Abandon ship! Abandon ship!)

Ingenuity’s lawyers thought that they had boarded the ship bound for Risa at warp speed, but instead they found themselves on the Kobayashi Maru.

For us earth-bound practitioners, Judge Wright’s decision is a breath of fresh air: knowing a scam when he saw one, he was not reluctant to take effective action to get to the bottom of things and then issue stiff sanctions. Those sanctions, ideally, will send a message through the copyright troll universe that fol-de-rol with the courts is a bad idea. We shall see.

And to Judge Wright: Live long and prosper!

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