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Piracy The Courts

Appeals Court Upholds Sanction Against BitTorrent Download Attorney 90

Posted by samzenpus
from the pay-up dept.
NewYorkCountryLawyer writes "The United States Court of Appeals for the Fifth Circuit has upheld sanctions awarded by a District Court against one of the lawyers bringing copyright infringement cases against individuals for BitTorrent movie downloads, in Mick Haig Productions v. Does 1-670. The Court's opinion (PDF) described the lawyer's 'strategy' as 'suing anonymous internet users for allegedly downloading pornography illegally using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars — a tactic that he has employed all across the state and that has been replicated by others across the country.'"
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Appeals Court Upholds Sanction Against BitTorrent Download Attorney

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  • by Anonymous Coward on Thursday July 12, 2012 @10:13PM (#40634869)

    He numbered his Does 1-670 instead for 0-669. For shame.

  • by Anonymous Coward

    It's Simple.

    Don't be intimidated.

    You can actually win by simple statement in front of the judge.
    "How did you come about this libelous material?"

    Because it directly violates civil liberties, I personally am not to worried about crusader lawyers. Because they are easily ignored by "COUNTER Suit threat."

    • by multiben (1916126)
      See you in prison.
    • by TheRealMindChild (743925) on Thursday July 12, 2012 @10:29PM (#40634973) Homepage Journal
      You can also blunder like an idiot, like most people under pressure, and get circles ran around you by a legal circus act of a well paid attorney.
      • Re: (Score:3, Informative)

        by Alien Being (18488)

        Just wait outside the courthouse for the asshole lawyer and smash his/her skull with a baseball bat. Works every time and its good for mind, body, soul and society.

        • by Aighearach (97333)

          Well, it does "work" the first time, but it is hard to reach the lawyer from the prison cell the second time.

        • Just wait outside the courthouse for the asshole lawyer and smash his/her skull with a baseball bat. Works every time and its good for mind, body, soul and society.

          Gives new meaning to jumping the shark.

      • by TapeCutter (624760) on Friday July 13, 2012 @01:28AM (#40635979) Journal
        That's why you instruct a good lawyer to write them a " So sue me, motherfucker!" letter for $100 tops, then do nothing unless they actually proceed with their bluff (which in the US is a small but non-zero risk)*. Enaging them by responding to subsequent threats allows you (or your lawyer) to say something silly and them to get a foot in the door of the negotiating room. There's and excellent TED talk on precisely this subject that I'm too lazy to look for but it doesn't just apply to copyright. I had personal experience of a roof tiling company who attempted to take advantage of a freind's elderly mother by charging her $9K for what was a $6K job on the open market. They were at the point of harrasing her with heavy handed debt collectors. A properly worded letter from my lawyer which he kindly did for FREE and a cheque for the $6K she and the family had originally agreed to was sent to the roof company by registered mail, we never heard another word about it.

        *In most western countries outside of the US, this sort of behaviour is called "extortion".
        • *In most western countries outside of the US, this sort of behaviour is called "extortion".

          Even in the US it's called that, and should be considered illegal. Especially if you'd originally agreed, in writing, to pay $6000 for the job and had never signed anything agreeing to increase the estimate.

          • in writing

            And there's the catch, it was a verbal agreement (we will write up a proper quote later). At the end of the job the (easily confused) mother was presented with a bill that had $3K of extra's she had supposedly agreed to while the daughter was overseas, the "extra's" were bullshit things like super-duper sealant and paint. Another catch was if it did go to court we had to be sure it really was only worth $6K on the open market but that could be done by a building assesor for maybe $50-100 since all they did

            • Ah. Well, hindsight is 20/20, but the lesson to take away from it is never agree to give anybody money for anything unless you receive the product immediately upon payment (retail), or you have a written contract they can't renege on.

              Sadly, far too many people don't learn that lesson until it's too late. I'm glad you were able to scare the bullies enough that they weren't able to get the extra money.

        • I've done this. It works. And the lawyer that wrote the letter for me was so offended by what the company in question was trying to do he wrote the letter for free.
          • Yes, the guy I call "my lawyer" has been doing comon legal stuff (such as conveyancing, etc) for our family for the last 30yrs, I've never seen him so outraged and it's also the first time I've seen him write a letter for free. ;)
            • by Trogre (513942)

              Damn, that's a good song - now I can't get it out of my head. I believe you just pink-rolled me.

  • Plea bargains? (Score:5, Insightful)

    by DoofusOfDeath (636671) on Thursday July 12, 2012 @10:19PM (#40634913)

    But if capitalizing on the accused's inability to weather the risks and costs of trial are an unacceptable tactic, doesn't that mean plea deals by prosecutors are also unacceptable?

    • by macraig (621737)

      I wondered this same thing when reading about one of the earlier smackdowns. And what of arbitration? Is a courtroom a place of justice for all, or merely the "Hell" used to terrify and coerce disadvantaged people into some desired behavior?

      • Re:Plea bargains? (Score:5, Interesting)

        by Archangel Michael (180766) on Thursday July 12, 2012 @11:21PM (#40635283) Journal

        I always thought, that the fairest court of all, would be the one where the "prosecutor" (for lack of better term) would be searching for the "truth", not necessarily going for "conviction". This would remove the adversarial nature of the whole court process, it would be about discovering the "truth, the whole truth and nothing but the truth".

        The flip side is, that if you "did the crime" you'd be offered two choices. Plead or trial, with much stiffer penalties for trial than for pleading. How many trials are for people so obviously guilty that everyone in the court already knows they did it (film, witnesses, caught in the act etc) that get trials because they want the charade of a trial.

        To Temper the Prosecution's zeal, they would be held accountable for all the prosecutions they have, and if they get a "conviction" of someone who is later proved innocent (i.e. DNA proof), that they are tossed in Jail for the remainder of the plaintiffs sentence.

        All Lawyers would be "public" lawyers, and would be assigned randomly to one side or the other side of the case. Lawyers with extensive experience and a proven record would be eligible for Judgeships.

        I'm sure it isn't a perfect system, but I suspect that it would function better than the crapshoot and Lawyer Wars we have now.

        • Re:Plea bargains? (Score:4, Interesting)

          by Tanktalus (794810) on Friday July 13, 2012 @12:09AM (#40635585) Journal

          I always thought, that the fairest court of all, would be the one where the "prosecutor" (for lack of better term) would be searching for the "truth", not necessarily going for "conviction". This would remove the adversarial nature of the whole court process, it would be about discovering the "truth, the whole truth and nothing but the truth".

          This makes some sense. The state has significantly more resource available than your average accused and should always be interested in truth and justice, not convictions. Unfortunately, management gets in the way, and they want to measure something. Measuring convictions is way too easy to measure, nevermind that it measures the Wrong Thing.

          The flip side is, that if you "did the crime" you'd be offered two choices. Plead or trial, with much stiffer penalties for trial than for pleading. How many trials are for people so obviously guilty that everyone in the court already knows they did it (film, witnesses, caught in the act etc) that get trials because they want the charade of a trial.

          Again, fairly reasonable. Playing poker for time instead of money, makes sense.

          To Temper the Prosecution's zeal, they would be held accountable for all the prosecutions they have, and if they get a "conviction" of someone who is later proved innocent (i.e. DNA proof), that they are tossed in Jail for the remainder of the plaintiffs sentence.

          Woah, Nelly. That's almost like penalising me the cost of fixing a bug for having written one. A bit extreme. Yes, if there is evidence of malicious prosecution, I don't think prosecutorial immunity should apply. However, mistakes are made, and you don't throw someone in jail for mistakes. Even today, police officers and prosecutors will decline charges over mistakes (at least if they're in a good mood). Don't make them more snarky, please.

          And if prosecutorial misconduct is proven, "remainder of the plaintiff's sentence" is only going to make them stall and/or obstruct. It's a new criminal charge, it gets its own time. But I could go for a karmic "the greater of 2 years and the time served by the maliciously prosecuted".

          All Lawyers would be "public" lawyers, and would be assigned randomly to one side or the other side of the case. Lawyers with extensive experience and a proven record would be eligible for Judgeships.

          I'm sure it isn't a perfect system, but I suspect that it would function better than the crapshoot and Lawyer Wars we have now.

          Unfortunately, at least in the US, "free speech" would prevent this aspect.

          • Again, fairly reasonable. Playing poker for time instead of money, makes sense.

            It's a terrible idea, and I, personally think that the US thing for plea bargaining is a bad abuse of the justice system.

            A fundemental principle is innocence until being proven guilty. Such a scheme gives a large disincentive to actually fight for your innocence. It is also too easily abused withthe police and prosecutors happy to keep stacking up the charges to make the bargain look like a better option.

            You claim it's like poker

            • A fundemental principle is innocence until being proven guilty. Such a scheme gives a large disincentive to actually fight for your innocence. It is also too easily abused withthe police and prosecutors happy to keep stacking up the charges to make the bargain look like a better option.

              And if you actually are innocent, a good lawyer will tell you to refuse the deal and take it to court.

              • by Rich0 (548339)

                And if you actually are innocent, a good lawyer will tell you to refuse the deal and take it to court.

                And what if the deal is for time served? All you have to do is lie under oath and say you committed a crime you didn't commit. Your integrity, or your freedom, which will it be?

                And yes, this has happened. [truthinjustice.org]

        • I always thought, that the fairest court of all, would be the one where the "prosecutor" (for lack of better term) would be searching for the "truth", not necessarily going for "conviction". This would remove the adversarial nature of the whole court process, it would be about discovering the "truth, the whole truth and nothing but the truth".

          Problem is, the most efficient way we know of getting to the "truth" based on reason and physical evidence is inherently adversarial, ie: create a model of the truth and attack/defend it untli it matches reality beyond reasonable doubt. Prosecuters (particularly in the US where the role is more politicized) should not be thrown in jail for being over-zealous but technically within the law, the political system needs to change it's notion of what a "sucessful prosecution" actual means to redirect the priorit

          • The problem with our adversarial position is that those with the $ to buy legal counsel can manipulate the system and twist it beyond "the truth".

        • by Kjella (173770)

          I always thought, that the fairest court of all, would be the one where the "prosecutor" (for lack of better term) would be searching for the "truth", not necessarily going for "conviction". This would remove the adversarial nature of the whole court process, it would be about discovering the "truth, the whole truth and nothing but the truth".

          The problem with this is that the "prosecutor" is now the one deciding what the truth is, so when it comes to trial it would be even more biased towards "the defendant wouldn't be here unless he was guilty", except you didn't get any say in this little pre-trial. Of course they shouldn't press charges where the evidence clearly doesn't hold but they should "overprosecute" a little and let judges and juries decide. I'd be far more concerned about a court system where nobody is acquitted at trial than the opp

          • Of course they shouldn't press charges where the evidence clearly doesn't hold but they should "overprosecute" a little and let judges and juries decide. I'd be far more concerned about a court system where nobody is acquitted at trial than the opposite.

            So you think it's better to subject some innocent people to the economic and emotional hardship of a trial, as well as the non-zero chance of faulty conviction, than let some criminals go unprosecuted? Me, I tend to the opposite philosophy. Especially
        • by ultranova (717540)

          The flip side is, that if you "did the crime" you'd be offered two choices. Plead or trial, with much stiffer penalties for trial than for pleading.

          What purpose would basing sentences on intimidation, rather than actual trials, serve? If anything, it's plea bargaining and settling out of court that should be made illegal, since it's those aspects of current system that get most consistently abused. Why do you want to penalize people for defending themselves? Is this some kind of authoritarian bullshit wher

        • Re:Plea bargains? (Score:4, Informative)

          by mutube (981006) on Friday July 13, 2012 @06:41AM (#40637161) Homepage

          I always thought, that the fairest court of all, would be the one where the "prosecutor" (for lack of better term) would be searching for the "truth", not necessarily going for "conviction".

          You're describing the Inquisitorial system of justice as practised in such exotic locations as France (and most of the world using civil as opposed to common law).

        • Re: (Score:3, Insightful)

          by dnwheeler (443747)

          This is one of the biggest problems with our current legal system, which in my opinion makes the system "broken."

          Right now, we have two sides arguing the extremes, but no one arguing for the truth. We already have a group who is supposed to be determining the truth - the jury. Unfortunately, this group is explicitly forbidden from doing their own research, collecting their own evidence, or making a determination that the truth is anything but either of the two extremes presented by the prosecution and the d

          • by P-niiice (1703362)
            I have similar concerns about evidence. If a piece of evidence is improperly obtained, it is thrown out. The problem is that it is _still evidence_ of the truth. We should be trying to determine the truth, and any and all evidence, no matter how it was obtained, should be considered. Having said that, I think that the act of improperly obtaining evidence should be tried as a crime itself. If evidence is obtained by police illegally, that evidence is still _real_ and should used, but the police involved shou
        • I always thought, that the fairest court of all, would be the one where the "prosecutor" (for lack of better term) would be searching for the "truth", not necessarily going for "conviction". This would remove the adversarial nature of the whole court process, it would be about discovering the "truth, the whole truth and nothing but the truth". Define Truth. That is the question. Your truth isn't my truth nor is it God's Truth. This is why our justice system does not concern itself with the "Truth" as everyo

          • by Aighearach (97333)

            You have to be crazy to think that currency is a lie. Take some down to the grocery store and find out if it has value, or not.

      • by jamiesan (715069)

        The American Hell of Being sued into Bankruptcy.

        Americans have a lot of hells.

      • by medcalf (68293)
        It's called a trial for a reason.
    • by Sqr(twg) (2126054)

      But if capitalizing on the accused's inability to weather the risks and costs of trial are an unacceptable tactic, doesn't that mean plea deals by prosecutors are also unacceptable?

      Yes.

    • by Baloroth (2370816)

      But if capitalizing on the accused's inability to weather the risks and costs of trial are an unacceptable tactic, doesn't that mean plea deals by prosecutors are also unacceptable?

      Not really. Plea deals save both sides money, which when the cost of prosecution falls on the state (read: taxpayers), as does the cost of imprisonment, is not insignificant. Add to that the fact that admission of guilt should reduce the punishment, and they really are nothing alike (not to mention the possibility that the individual will reveal details of other criminals under the bargain, which is also quite common).

      • Yes negotiating justice saves time and money, OTOH it's probably a major contributing factor to the following statistics...
        The US has a population of 300M of which 500K prisoners are being held for drug offences.
        The 27 nations of the EU have a population of 500M of which 600K prisoners are held in TOTAL for ALL crimes.

        Having said that a guilty person should be shown some leniency for assisting authorties and admitting guilt. But not as part of any formal bargain, it would be considered by the judge
    • by shentino (1139071)

      They are, but both cases are also impossible to fight due to a gross imbalance of power.

    • by hairyfeet (841228)

      Frankly they should be, just look up what the conviction rate for "public pretenders' are in your state, last i looked in mine it was something like 94%, hell you'd be better off doing it yourself because then at least there would be ONE person on your side.

      Sadly I have sat in the courtroom down the street just to observe and it sickens me, you'll see some rich guy on his ninth DUI and fourth hit and run given a slap on the wrist while some poor guy gets caught with a $30 bag of weed or a couple of DUIs o

    • But if capitalizing on the accused's inability to weather the risks and costs of trial are an unacceptable tactic, doesn't that mean plea deals by prosecutors are also unacceptable?

      Not really... in theory, plea bargains are offered as a way to save money for all involved. Prosecution *usually* has a very strong case against the person being offered a plea bargain, and the chances of a "not guilty" verdict is usually slim. A good lawyer would tell a person being offered a deal to reject it otherwise. It's also usually not offered for major crime or for people considered at risk to repeat offend, at least not around here. It's a way of saying "look, we got you but we don't think you're

    • by alen (225700)

      in a criminal case there is usually some evidence that points to the accused. even if it's an eyewitness statement.

      in this case it was just IP's

  • "Back to the drawing board."

  • by hamjudo (64140) on Thursday July 12, 2012 @10:28PM (#40634969) Homepage Journal
    The District Court is unhappy, because the lawyer issued the subpoenas without the permission of the District Court. In fact, it was after the District Court told the lawyer to stop doing that. The Appellate Court agreed.

    So the Appellate Court is upholding the rights of the lower court.

    Don't expect the courts to start ruling against media companies that follow the laws that they paid the legislatures to write. Don't even expect significant sanctions when they break the law, as long as they stop when they're told. It looks kind of like this is a media ruling, but its more a "respect the judges" ruling.

    • The District Court is unhappy, because the lawyer issued the subpoenas without the permission of the District Court. In fact, it was after the District Court told the lawyer to stop doing that. The Appellate Court agreed.

      So the Appellate Court is upholding the rights of the lower court.

      Don't expect the courts to start ruling against media companies that follow the laws that they paid the legislatures to write. Don't even expect significant sanctions when they break the law, as long as they stop when they're told. It looks kind of like this is a media ruling, but its more a "respect the judges" ruling.

      Exactly right. This is a "wtf were you doing sending subpoenas to the ISPs, and then wtf were you doing not responding to the show cause order?!" At most, it's dicta indicating that the judges (properly) aren't going to accept these "sue 50 Does, get discovery, demand settlements, and then drop the case if anyone argues" suits. This will have no effect on the more legally legitimate, if morally questionable, RIAA/MPAA suits, which do proceed.

      • by Anonymous Coward

        Porn is the reason, not legal procedure. The same tactics are excused when its the RIAA/MPAA as mistakes or bad-apple attorneys or 'aggressive' enforcement of IP rights.

    • by Baloroth (2370816) on Thursday July 12, 2012 @11:34PM (#40635367)

      That is the specific grounds for the sanctions, but if you read the actual court order they make it pretty clear they despise his tactics overall, which is a good sign (not sure if it sets any kind of precedent, but it might). The judge seemed pretty pissed over the idea of what he was doing, not just the fact that he was breaking the rules. I may be reading slightly too much into it, but I don't think so.

    • Not quite (Score:4, Informative)

      by Oxford_Comma_Lover (1679530) on Friday July 13, 2012 @01:24AM (#40635953)

      Actually, the appellate court didn't agree--they just said that the attorney suing the does had waived his right to make the arguments he made on appeal, because he hadn't made them below and on-time.

      In other words, he lost the appeal on a technicality. He might well have lost it on the merits as well, but it never got that far.

      The only especially notable thing about this is a circuit court on record talking about the pattern of abusive litigation in mass-porn lawsuits.

  • by Anonymous Coward on Thursday July 12, 2012 @10:39PM (#40635039)

    The Gentleman's Guide To Forum Spies (spooks, feds, etc.)
    http://cryptome.org/2012/07/gent-forum-spies.htm [cryptome.org]
    http://pastebin.com/irj4Fyd5 [pastebin.com]

  • by whoever57 (658626) on Thursday July 12, 2012 @10:41PM (#40635047) Journal

    a tactic that he has employed all across the state and that has been replicated by others across the country"

    Should have got a patent on the process!

  • by Drishmung (458368) on Thursday July 12, 2012 @11:04PM (#40635169)
    Drawn and quartered?

    I don't think we do that any more.

    "For the term of his natural life"?
    I'm betting not.

    Some time in prison?
    After all, as an officer of the court, he's undermined the institution. Surely this should be treated seriously?

    A large fine?
    ???

    ...and of course, disbarment.

    I really don't know, but I'm guessing none of the above.
    So, what are the consequences of his actions?

    • by Ravensfire (209905) on Thursday July 12, 2012 @11:22PM (#40635293) Homepage

      From the ruling,
      "the court imposed $10,000 in sanctions on Stone and also required the following:
      1) Stone shall serve a copy of this Order on each ISP implicated and
      to every person or entity with whom he communicated for any purpose
      in these proceedings.
      2) Stone shall file a copy of this Order in every currently-ongoing
      proceeding in which he represents a party, pending in any court in
      the United States, federal or state.
      3) Stone shall disclose to the Court whether he received funds,
      either personally or on behalf of Mick Haig, and whether Mick Haig
      received funds for any reason from any person or entity associated
      with these proceedings, regardless of that person’s status as a Doe
      Defendant or not, (excepting any fees or expenses paid by Mick Haig
      to Stone).
      4) Stone shall pay the Ad Litems’ attorneys’ fees and expenses reasonably
      incurred in bringing the motion for sanctions. The Ad
      Litems shall file an affidavit or other proof of such fees and expenses
      with the Court within thirty (30) days of the date of this Order.
      Stone may contest such proof within seven (7) days of its filing.
      Stone shall comply with these directives and supply the Court with
      written confirmation of his compliance no later than forty-five (45)
      days after the date of this Order."

      -- Ravensfire

      • by Drishmung (458368)
        Thanks.

        So, at $112,760 per year (median) [bls.gov] that's 9% of the median salary. The Ad Litems’ attorneys’ fees and expenses could be rather more painful I suppose.

        • by Ravensfire (209905) on Thursday July 12, 2012 @11:46PM (#40635465) Homepage

          The appeal court decision mentioned that the original request was for some 26k. Personally, I think the fine is intended as a "wake up" slap. The nice part of the sanction is #2. He's been bad and now potentially lots of other courts will know about it and be able to check if he's pulling the same stunt again. And usually subsequent sanctions get harsher.

          -- Ravensfire

          • by jamstar7 (694492)
            Problem is, lawyers stick together. And judges are lawyers. Ever hear of a lawyer taking a suit against another lawyer? Yeah, it's happened, but I can't for the life of me think of when or where, except that idiot in Florida a few years ago who was painting video games as the Most Evil Thing On The Planet to drum up some business.
            • Legal malpractice claims happen, although less often than makes sense. Kind of like how doctors stick together, but you can still find doctors who testify against serious malpractice.

            • Ever hear of a lawyer taking a suit against another lawyer?
              All the time. Defendants and plaintiffs are both allowed lawyers, after all, and somebody defendants/plaintiff's *are* lawyers

              lawyers stick together

              So do geeks.
              How many people defended Hans Reiser as a near-saint purely on the basis of his geek-credentials?
              How often do we see convoluted-to-the-point-of-insanity arguments for geeks (or again "the man") in tech/geek related articles?

              However, it seems to me that a judge is more likely to defend the ins

        • The ad litem attorneys were two public interest groups--Public Citizen and the EFF. Most of the attorneys there work there for well below what they would command on the private market.

      • by Anonymous Coward

        You missed the 2nd Sanction...
        $500 a day until he complied with the original sanctions or put up a bond...
        http://newsandinsight.thomsonreuters.com/uploadedFiles/Reuters_Content/2012/01_-_January/haigvdoes--sanctionsorder(1).pdf

        one wonders if that ticker kept counting this whole time as he filed his appeals after the deadlines to do so each time.

    • A job as Senator for the great state of _______________ and future President?

  • Correct me if I'm wrong: In order for the attorney to acuse people of downloading child pornography, wouldn't he first have to download the torrent to ensure it actually contained that type of material? If this step wasn't performed, his cases would have no merrit. So, doesn't that also make him or his firm just as guilty as the people he is accusing? Somebody should shake him down for 1000s.

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