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Judge Wright issues Prenda Law order

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Re: Judge Wright issues Prenda Law order

#81

Post by kolodny »

silentmars wrote: post #75
kolodny wrote: post #66

Earlier quoted context omitted.

I think this video explains the how and why of the fifth amendment (it's also something every American should watch): http://www.youtube.com/watch?v=6wXkI4t7nuc Video description: [A] law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. Although lawers mid-trial taking the fifth may be different.

That's a little different. The message of that video: never talk to the police. The two cases being, 1. you are not under arrest, or 2. you are under arrest. If you are not under arrest you should just walk away or refuse any kind of engagement (except in a traffic stop which is a special case), and if you are under arrest then you have two explicit rights which you should always use - refuse to talk, and demand a la…

Part of that video stressed the point that the fifth amendment's purpose is to protect the individual. Going "after" someone because they invoked that right is equivalent to opening an investigation because someone said something unpopular or controversial (first amendment). While by itself the fifth is a right of a person, taken into account the other legal maneuvers and stonewalling which the Prenda did, does imply foul play (putting it mildly).

Re: Judge Wright issues Prenda Law order

#82

Post by scott_s »

SEMW wrote: post #61
cstross wrote: post #58

Earlier quoted context omitted.

I suspect the turning point was the Prenda Law people turning up in court and taking the fifth. By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime. At which point, the judge can see the smoke, and though he may not be allowed to investigate the ignition source he can certainly point the DOJ in the general direction…

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Ca…

Everyone below has offered good explanations, but I'd like to make one further point. Typically, people take the fifth when they are on trial. The lawyers were not on trial; they were there as part of the court, and were supposed to not be involved in the matter. By taking the fifth, they are admitting "I am involved in the matter."

Re: Judge Wright issues Prenda Law order

#83

Post by SEMW »

jweese wrote: post #68
SEMW wrote: post #61

Earlier quoted context omitted.

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Ca…

I'm not a lawyer, but I am from the US. The Judge's order includes the following footnote: "Even if their refusal was based on the Fifth Amendment privilege against self-incrimination, the Court still may draw adverse inferences against them in this civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)" The way I read it (again, not a lawyer) is that you can't convict someone based on their refusal to test…

Aah, missed that footnote. Thanks!

Re: Judge Wright issues Prenda Law order

#84

Post by protomyth »

TylerE wrote: post #74
Sanddancer wrote: post #34

Earlier quoted context omitted.

They have to pay attorney fees of about 40 grand, and another 40 grand of punitive damages. At this point, that's about it, but with a ruling like this, there's no doubt that there are going to be many more problems for the Prenda gang in the future. Don't worry though, given the gravity of the recommendations Wright's sending to the DA and to the IRS, you can be certain there will be much more popcorn to be had from…

Actually, the biggest bit in the judgement might be the "referral" (and not the _good_ kind of referral) to their state bar(s).

I would say the worst referral is actually the IRS one. The IRS does not play "innocent until proven guilty" it is "pay up first, then prove you are innocent if you can". The referral for a possible RICO case isn't very nice either.

Informing all other courts about this is going to kill their other lawsuits and bring some interesting new lawsuits / appeals.

Re: Judge Wright issues Prenda Law order

#85

Post by downandout »

justinlink wrote: post #67
downandout wrote: post #21

While I sympathize with the disdain everyone has for these guys, this judgement is the result of some lawyers that took several possibly illegal shortcuts. This case sets no precedents about the viability of copyright trolling going forward, and in fact the judge's obvious bias may serve as grounds for a successful appeal in this case. So, while this makes for amusing reading, at the end of the day it won't mean much…

FYI, Prenda already argued that the Judge was biased in this case. The issue went before another judge, and was denied. Source: http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.54...

I have a feeling that the language in this order will give rise to a renewed effort in this regard. This order and its breathtaking vitriol didn't exist at the time of that hearing.

Re: Judge Wright issues Prenda Law order

#86

Post by smackfu »

jopof wrote: post #17

Confused -- Why all the rigamarole, instead of going RIAA-style after the thousands-to-millions of actual porn copyright-infringers?

I think they had some trouble keeping their real porn-producer clients. Since the real clients were real parties to the suit, they could be countersued directly, which happened a couple of times. I think they ended up settling and paying out, rather than risking it.

http://fightcopyrighttrolls.com/2012/01/31/defendant-strikes...

Re: Judge Wright issues Prenda Law order

#87

Post by smackfu »

rdl wrote: post #27

What confuses me is that the only stuff they got smacked for was deficiency in how they operated, not anything fundamental to the business of copyright trolling. Another group of lawyers could easily do exactly this, while maintaining more arms-length relationships with the copyright owners, and not taking shortcuts on the cases, and be completely within the law.

This part is relevant to that:

But Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video. Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access.

The first part, proving that they downloaded a complete copy, seems to be a bit more difficult than just grabbing a snapshot of all the IPs at a point-in-time as they had been doing.

Re: Judge Wright issues Prenda Law order

#88

Post by comrade_ogilvy »

jweese wrote: post #68
SEMW wrote: post #61

Earlier quoted context omitted.

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Ca…

I'm not a lawyer, but I am from the US. The Judge's order includes the following footnote: "Even if their refusal was based on the Fifth Amendment privilege against self-incrimination, the Court still may draw adverse inferences against them in this civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)" The way I read it (again, not a lawyer) is that you can't convict someone based on their refusal to test…

Ah. Interesting.

So the fact that the lawyers are taking the Fifth can reasonably be used as evidence that some of the specific claims and assertions already made are materially fraudulent.

Taking the Fifth in your own lawsuit must be quite startling for a judge to behold. One can imagine possible sound reasons why a defendant might take the Fifth or the Sixth (right to consult an attorney, i.e. you caught me off guard but I might answer your questions later), but that is not pretty either, in a civil case.

Re: Judge Wright issues Prenda Law order

#89

Post by elehack »

SEMW wrote: post #61
cstross wrote: post #58

Earlier quoted context omitted.

I suspect the turning point was the Prenda Law people turning up in court and taking the fifth. By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime. At which point, the judge can see the smoke, and though he may not be allowed to investigate the ignition source he can certainly point the DOJ in the general direction…

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Ca…

There's the civil vs. criminal issue, as others have already pointed out.

Also, in the order leading to the Prenda attorneys pleading the 5th, the judge basically said "I have drawn these inferences. Tell me why I'm wrong.", and they declined to do so (pleading the 5th). According to Popehat's coverage, that seems to leave him pretty free to stick with the initial inferences.

IANAL and all that.

Re: Judge Wright issues Prenda Law order

#90

Post by mindslight »

Hooray! for an occasion when the system worked. It's of course quite heartwarming to see someone in a position of authority coming to a sane opinion, getting incensed at the ridiculousness, and even going on the offensive.

But what of all the others that have been mired in endless litigation with no such happy ending? And while fitting, is it really desirable for Prenda's punishment to mainly consist of being ground down by the bureaucracy?

Wouldn't we rather an efficient system where ridiculous cases were dismissed outright, unenforceable laws were retired quickly, the lawyer protection racket was unnecessary, and the innocent could be reasonably confident of ultimately prevailing instead of simply settling to avoid years of stress?

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