Lawyer in Porn Copyright Cases Under Scrutiny

     (CN) – The lawyer for a series of pornography copyright infringement cases that are possibly defrauding the court may face sanctions, a federal judge ruled.
     Brett Gibbs of Prenda Law represents Ingenuity 13 LLC and AF Holdings in various pornographic copyright infringement lawsuits. In a ruling on one of those cases last week, U.S. District Judge Otis Wright faulted Gibbs for misconduct and violations of civil procedure, and said the same findings apply in four similar Los Angeles cases.
     At the root of the opinion, Wright took issue with how Gibbs “recklessly” substituted two young men for John Doe plaintiffs originally named in two Ingenuity suits.
     Ingenuity said it identified that pair as the infringers after studying their IP addresses and, in one case, a snapshot of a partial Bittorent download.
     But Wright found that Ingenuity’s “haphazard and incomplete investigation” is not enough to support copyright claims.
     “A reasonable investigation should include evidence showing that defendants downloaded the entire copyrighted work – or at least a usable portion of a copyrighted work,” he wrote. “Plaintiff has none of this – no evidence that defendants completed their download, and no evidence that what they downloaded is a substantially similar copy of the copyrighted work. Thus, plaintiff’s attorney violated Rule 11(b)(3) for filing a pleading that lacks factual foundation.”
     Without a showing that the download from the snapshot had been completed, “plaintiff’s lawsuit may be deemed frivolous,” according to the ruling.
     Wright also balked at the other factors Ingenuity cited to identify its infringers.
     “The disconnect is how plaintiff arrived at this conclusion – that the actual infringer is a member of the subscriber’s household (and not the subscriber himself or anyone else) – when all it had was an IP address, the name of the Bittorrent client used, the alleged time of download, and an unresponsive subscriber,” he wrote.
     In a discovery status report, Ingenuity noted the statistical unlikelihood that an Internet subscriber who is 75 years old or female would infringe pornographic material. But Wright faulted the company for identifying its defendants based on their status as the youngest males in their households.
     “The court interprets this to mean: if the subscriber is 75 years old or female, then plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant,” he wrote. “Plaintiff’s ‘factual analysis’ cannot be characterized as anything more than a hunch.”
     With mere “undocumented statistics” on its side, Ingenuity’s “deduction falls short of the reasonableness standard required by Rule 11,” according to the ruling.
     Wright noted that it could be just as likely that the infringement was committed by the young men’s fathers, who are the actual Internet subscribers; “other members of the household; family guests; or, the next door neighbor who may be leeching from the Wagars’ Internet access.”
     Compounding the need for actual facts is the possibility that copyrightholders are trying to extort settlements by filing half-baked infringement lawsuits, Wright added.
     “The court has previously expressed concern that in pornographic copyright infringement lawsuits like these, the economics of the situation makes it highly likely for the accused to immediately pay a settlement demand,” he wrote. “Even for the innocent, a four-digit settlement makes economic sense over fighting the lawsuit in court-not to mention the benefits of preventing public disclosure (by being named in a lawsuit) of allegedly downloading pornographic videos.” (Parentheses in original.)
     Wright also noted new evidence that Ingenuity and AF Holdings may have misappropriated the identity of a man named Alan Cooper to file lawsuits based on an invalid copyright assignment. Apparently Cooper, a Minnesota man, has claimed that AF Holdings and Ingenuity are shell companies using his name as a front.
     “If it is true that Alan Cooper’s identity was misappropriated and the underlying copyright assignments were improperly executed using his identity, then plaintiff faces a few problems,” he wrote. “First, with an invalid assignment, plaintiff has no standing in these cases. Second, by bringing these cases, plaintiff’s conduct can be considered vexatious, as these cases were filed for a facially improper purpose. And third, the court will not idle while plaintiff defrauds this institution.”
     Wright said he would welcome Cooper’s appearance in court to confirm or refute the fraud allegations at a hearing set for March 11.
     Gibbs faces a fine or prison time if Wright determines sanctions are appropriate.

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