by Timothy B. Lee – Jan 2 2013, 4:40pm EST
Prenda Law, a copyright litigation firm that has sued thousands of anonymous Internet users for sharing pornographic videos, has sought the dismissal of a California judge after the judge ordered the firm to answer charges that it engaged in identity theft. Prenda charges that the judge, Otis Wright, is biased against pornographic copyright holders seeking to enforce their rights.
When we last covered the Prenda Law saga, defense attorney Morgan Pietz had alerted a California federal court to allegations by a Minnesota man that Prenda had named him as the CEO of two of its shell companies without his knowledge or permission. One of those shell companies had sued Pietz’s client for sharing a pornographic video on BitTorrent. So Pietz asked Judge Wright to order Prenda to answer questions about these allegations. Specifically, is the Alan Cooper named as the CEO of two litigious shell companies the same Alan Cooper who has told a Minnesota court he fears his identity has been used without his permission?
So far, Prenda attorney Brett Gibbs has played coy. In a phone conversation with Pietz last month, Gibbs averred that “I am sure there are hundreds of Alan Coopers in this world.” The day after Christmas, Judge Wright ordered Prenda to finally give the court a straight answer about the identity of its client.
But rather than answering the question, the firm launched an attack on Judge Wright himself. Prenda says that Wright is too biased against pornographic copyright litigators to provide Prenda with a fair hearing. “Honorable Judge Otis D. Wright, II simply abhors plaintiffs who attempt to assert their rights with respect to online infringement of pornography copyrights,” Prenda wrote in a brief filed on Monday.
There’s little doubt that Judge Wright is skeptical of mass pornographic copyright lawsuits. Last summer, Judge Wright rejected an attempt by pornography publisher Malibu Media to sue multiple defendants with a single lawsuit, a tactic that allows plaintiffs to minimize the filing fees they have to pay. Judge Wright’s ruling was scathing:
The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement—making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.
Wright has shown a similar degree of skepticism in Prenda’s own cases. Prenda represents the shell companies “AF Holdings” and “Ingenuity 13,” both of which name Alan Cooper as their CEO. When those lawsuits were transferred to Judge Wright’s courtroom from another judge, he issued an order blocking pending subpoenas until the plaintiffs convinced him that they were justified. Then, with that issue still pending, he ordered the plaintiffs to explain why the lawsuit shouldn’t be dismissed for failure to serve notice on the defendants.
Prenda says the reason it hasn’t served notice on the plaintiffs is that Judge Wright has blocked them from subpoenaing ISPs to obtain their contact information. And Prenda says the short turn-around time Wright gave Prenda to respond to the order—the order was issued on December 20 with a response due on December 27—suggests that Judge Wright isn’t interested in giving Prenda a fair shot.
Judge Wright is somewhat unusual in the vitriolic language he has used to describe porn trolls’ business model. But he is hardly the first judge to express concerns about their litigation tactics. In November, a Florida judge accused Prenda of “attempted fraud on the court.” In May, a New York judge decried the “blizzard” of trolling lawsuits. Other judges in Florida and Illinois have issued rulings that used less inflammatory language but showed a similar skepticism of the basic porn-trolling business model.
Meanwhile, a month after the Minnesotan Alan Cooper raised concerns about his identity being stolen, Prenda has yet to respond to those charges. A skeptic might wonder if the effort to remove Judge Wright from the case might be a stalling tactic to avoid answering the questions about Alan Cooper’s identity.