While I largely agree with Eugene Volokh (UCLA law professor and renowned First Amendment scholar) that revenge porn is not likely protected by the First Amendment (and I take great pride in shaming revenge pornographers), any legislative attempt to provide legal remedies for revenge porn victims must be narrowly drawn in order to be effective.  If a bill is drafted in a manner that reaches too much protected speech, a revenge porn defendant might successfully escape prosecution by challenging the statute on overbredth grounds.

While the bill is in its earliest stages and can hopefully be amended, SB255 as drafted goes too far, criminalizing even linking to a revenge porn post.

The pertinent part of SB255 as introduced reads:

Every person who, with the intent to cause substantial emotional distress or humiliation, by means of an electronic communication device, and without consent of the other person, electronically distributes, publishes, emails, hyperlinks, or makes available for downloading nude images of the other person along with personal identifying information of the other person, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

As written, SB255 would mean that when I publish this link to revenge pornographer Craig Brittain’s nude images on his own site, with the intent of humiliating him by pointing out that he’s as ugly on the outside as he is on his sociopathic inside,  I would be guilty of a misdemeanor.

Similarly, the bill would run into significant problems with Section 230 of the Communications Decency Act, which generally exempts online publishers from liability for content submitted by users.  Although CDA 230 is generally understood to exempt publishers from civil liability, it also applies in the context of state criminal laws.  (Congress made sure to exempt Federal criminal laws from the protection offered to publishers by CDA 230, but did not do so with regard to state criminal laws.)

That means that any prosecution of a revenge porn site operator under SB255 would have to meet the rigors of CDA 230 first.  While I believe that most revenge porn sites shouldn’t qualify for CDA 230 protection, civil cases against site operators are still in their infancy, and there’s little clarity as to how CDA 230 applies to revenge porn sites.

SB255 is classified as “urgent,” a designation which means that its impact on the health or safety of the public is immediate.  The “urgent” designation allows the bill to become effective immediately after being signed by Gov. Brown, whereas non-urgent bills become effective on the January 1 following the bill’s enactment.  However, the “urgent” designation also requires a two-thirds vote from each legislative chamber.

For those who support the criminalization of revenge porn, SB255 is a good start.  But in order to be successfully applied, the bill needs clarification.

Notably, this is the first lawsuit targeting a revenge porn site that focuses on copyright.  I think intellectual property claims present the best chance victims of revenge porn sites have in prevailing in civil cases against site owners.

While sites even as despicable as YouGotPosted might have a CDA Section 230 defense against tort claims (although I think that’s debatable), CDA 230 expressly exempts intellectual property rights claims (like copyright) from its protection against liability.  That is, although under CDA 230 many sites have immunity from liability for tortuous content submitted by users, they don’t have immunity when it comes to copyright and trademark claims.  Rather, they can attempt to argue that they are exempt from copyright liability by way of the DMCA’s safe harbor, but they’re screwed on this front, having not registered an agent to receive DMCA takedown notices (among other failings).

While this will be a case to watch, I doubt that the main operators of the site (Eric Chanson and Kevin Bollaert) will respond.  They failed to respond (at least in court) to the trademark lawsuit filed against them by Bullyville/ViaView, and a default judgment in excess of $300,000 was issued against them.  Chanson’s parents, however, are now asking the court in the Bullyville case to set aside the judgment, claiming they weren’t properly served and had no idea about the lawsuit until recently.  (They also claim that they had no idea about their son’s revenge porn site until Bullyville offered to pay Eric and Kevin to shut down their site).

Though  Chanson and Bollaert’s scumbaggery is well-established by virtue of their running a revenge porn site, I’m surprised this lawsuit made no mention of the extortionate “ChangeYourReputation” scam.  The only way their site makes a profit (its advertising affiliate jumped ship following a tip from yours-truly — oops!) is by charging victims to have their pictures removed.  That idea was ripped off of the “Takedown Hammer” scheme operated by Craig Brittain (and probably Chance Trahan) of “ObamaNudes.”

And this suit is probably a preview of what’s to come for Craig Brittain and Chance Trahan — who are more likely to fight any claims against them.  (I’m not saying they’ll fight well — but they’ll fight.)

On Twitter, Adam Savader brags that he was “Formerly @PRyan’s sole intern on @MittRomney’s campaign and a @newtgingrich campaign staffer” and notes that his website is savader.com.  The whois registration for the site lists his abode as being the same Great Neck, NY address as the address affiliated with the IP address used to register many of the online accounts allegedly used in the sextortion plot.

Savader is charged with internet extortion in violation of 18 USC 875(d) and cyberstalking in violation of 18 USC 2261A(2).  While no money was apparently demanded of the victims, at least one court of Appeals has held (PDF) that demanding even intangibles can constitute a “thing of value” for purposes of the internet extortion statute.

It should go without saying that, if true, this kind of behavior is contemptuous, regardless of partisan affiliation.  There are creeps on every side of the aisle.

(h/t Mandy Nagy)

The case arose out of Carreon’s threats to sue the blogger (among others) over the use of the Charles-Carreon.com domain, which Carreon contended infringed upon the trademark in his own name.  The blogger sued for declaratory relief that his use was protected by the First Amendment.  After some ridiculous attempts to dodge service, Carreon offered to settle and stipulate to the declaratory relief, conceding that the use was protected speech.  In doing so, Carreon failed to include any terms as to potential attorneys fees, which Satirical Chas’ lawyers — Public Citizen’s Paul Alan Levy and local counsel Cathy Gellis — promptly sought.

While the blogger’s attorneys sought a sum total of over $77,000, the court awarded a sizable portion of the fees.  The court determined that Carreon’s failure to include a provision for attorneys fees in his offer of judgment left him vulnerable to a motion seeking such fees — a particularly inept oversight given that the motion for fees was made before Carreon filed his offer of judgment.  The court then goes on to dismantle the balance of Carreon’s arguments.  They’re too pitiful to merit discussion here.

The crucial part of the motion for attorneys fees, however, was whether the case was “exceptional” under the Lanham Act.  The court found that, at the outset, it wasn’t an exceptional case, and Carreon could have made colorable arguments to defend himself.

But Carreon stayed true to his threat to make the litigation difficult.  In addition to the ridiculous attempts to evade service, Carreon attempted to seek extensive discovery into the blogger’s background in an attempt to discredit his site as contributing little First Amendment value (or something), and that this attorneys were engaging in a pattern of trademark trolling by seeking declaratory relief against trademark holders issuing censorious, unmerited threats against critics.  The court, in a tersely-worded order, had permitted some discovery, but warned Carreon that a “mini trial” on the case was insufficient to merit further discovery.

Carreon, taking this warning to heart, proceeded to subpoena the blogger’s attorneys (including Ken White at Popehat, who had helped to arrange legal counsel), sent written interrogatories to the blogger, and in his deposition of the blogger sought information about his political affiliations.

The court’s salient discussion:

While defendant’s threatened claims were not “exceptional” at the outset of this case, defendant’s actions throughout the litigation certainly transformed this case into an “exceptional” matter, deserving of an award of attorney fees. The Ninth Circuit has stated that “bad faith or other malicious conduct satisfies the exceptional circumstances requirement.” Boney, 127 F.3d at 827. Evidence supports a finding of malicious conduct during the course of this case. Defendant first went to great lengths, imposing unnecessary costs on plaintiff, to avoid service. Then, in response to this motion for attorney fees under the Lanham Act, defendant engaged in unnecessary, vexatious, and costly tactics in preparation of his opposition to the motion. [...] Defendant’s serving of interrogatories and taking of plaintiff’s deposition amounted to a mini-trial on plaintiff’s motion for fees. Indeed, plaintiff incurred an additional $37,650.25 in fees and costs after his motion was filed. Despite this additional discovery, defendant has presented no evidence to support his initial contention that plaintiff’s attorney is on a mission to “turn Internet gripe sites into profit centers for him and Public Citizen Law Group.” [...] Defendant has failed to show that his additional discovery efforts led to anything other than additional frustration for plaintiff and his attorneys. Accordingly, plaintiff’s efforts to respond to defendant’s litigation tactics merit the imposition of a fees award.

Lastly, the court declines to award the entire $70,000 sought, determining that only a (significant) portion of the fees were created when the case became “exceptional” by Carreon’s vexatious litigation tactics.  In doing so, the court rejected Carreon’s claim that the attorneys are only entitled to $200:

Defendant insists that, if fees are to be awarded, they must be modest. He contends the only important document is the First Amended Complaint, and that document could not have required more than three hours for an experienced lawyer to complete. Thus, he concludes, at
most an attorney fee of $200 is warranted. Defendant nowhere explains how he arrived at this figure or why such an award would be appropriate and reasonable under the circumstances. Indeed, such an award would contemplate an hourly rate of less than $70, and would ignore all work related to the planning of the case, the drafting of any motions, or responding to defendant’s discovery requests. As there is no basis for defendant’s proposed award, it must be rejected.

Fail.

Carreon had pledged (in his initial threats) to litigate the case up and down the appellate courts.  With a judgment of this size, I suspect he’ll appeal — and potentially risk higher fees if the appeal fails.

YouGotPosted’s ride, however, is about to come to a crashing halt, as the result of a lawsuit filed by ViaView (parent company of Bullyville).  The site’s remaining operators – Eric Chanson, Kevin Bollaert, Chanson’s parents (Roy and Amy Chanson), and “Blue Mist Media LLC“ – have been held in contempt by a Federal court in Nevada.  Additionally, the court determined that their violations of court orders merit terminating the case in Bullyville’s favor and requiring payment of Bullyville’s legal fees.

More on the case after the jump.

The complaint (PDF) alleged, among other things, that YouGotPosted was infringing on the “Is Anyone Up?” trademark, which ViaView acquired from Hunter Moore in an effort to end Moore’s revenge porn site.  The operators of YouGotPosted registered several domain names relating to “Is Anyone Up?” and offered to sell them to ViaView at a profit, establishing likely liability for cybersquatting.  ViaView agreed to purchase the domains at a price, but YouGotPosted allegedly reneged on the agreement, allegedly at the behest of owner Eric Chanson’s parents.

In due course, ViaView sought and received a preliminary injunction (PDF) requiring YouGotPosted to cease using the “Is Anyone Up?” trademark, which order YouGotPosted ignored.  This is generally a bad idea.  It’s an even worse idea when one of the defendants starts cooperating with the plaintiff, offering chat transcripts demonstrating that Eric Chanson and Kevin Bollaert were aware of the lawsuit and attempting to establish trademarks of their own.

Having failed to respond to the lawsuit at all (except to eventually and recently stop using the “Is Anyone Up?” trademarks), the Federal court held Chanson, his parents, Bollaert, and their ‘company’ (Blue Mist Media, LLC — which is not a registered corporation, as far as I can tell) in contempt (PDF).  The court determined that the defendants’ knowledge of the injunction coupled with their total failure to respond or abide by the order merited significant sanctions.

The sanctions ordered against YouGotPosted and its proprietors include paying Bullyville’s attorneys fees associated with the contempt order and terminating sanctions.  That means that even if Chanson and friends were to show up to court tomorrow to argue that they have a case (as they very well may have had), they’ll be stuck at the courthouse door.  Accordingly, the clerk has entered a default (PDF) against the remaining defendants.

What does this mean for YouGotPosted and its proprietors?  Under FRCP 55, a clerk first enters a default.  Once the judge signs off on it, it becomes a default judgment.  Per FRCP 55(a)(1), YouGotPosted may be subject to the full extent of damages requested in the Complaint.  Here, ViaView requested $100,000 in damages per infringing domain name — that is, $300,000 – plus other damages.  The cybersquatting claims alone risk statutory damages from $3,000 to $300,000.  If the judge agrees that these damages are in order — which isn’t guaranteed) — Chanson and friends will owe a hefty sum to Bullyville (who is also owed a hefty sum from Hunter Moore).  And when you’re represented by well-known First Amendment attorney Marc Randazza, that’s a pretty penny. 

It’ll be tough for Chanson and friends to pay that sum and the attorneys’ fees.  Earlier this week, I contacted the only advertiser on YouGotPosted.  The advertiser quickly terminated their relationship with the site.  And I have a suspicion that their extortionate “ChangeMyReputation” scheme may also face impending doom.  Oops.

The website, Is Anybody Down, will completely end.

— Craig R.S. Brittain (@CraigRSBrittain) April 4, 2013

A number of reasons contributed to my decision to end Is Anybody Down. Mostly my personal feelings.

— Craig R.S. Brittain (@CraigRSBrittain) April 4, 2013

It isn’t so much that I had a change of heart. I’m not like Hunter Moore who struggles with guilt or regret. I’m just lonely

— Craig R.S. Brittain (@CraigRSBrittain) April 4, 2013

The realization that my life is empty without love and friendship is really the biggest motivating factor behind the change.

— Craig R.S. Brittain (@CraigRSBrittain) April 4, 2013

Alas, it appears that Brittain was being disingenuous: he’s merely renamed the site to ObamaNudes.com — and wants more money.

Brittain registered the domains ObamaNudes.com and ObamaNudes.net the same day he said he was shutting down IsAnybodyDown.com.  The reason for the new name? Your guess is as good as mine, but Brittain blames Obama for his need to run a revenge porn site.  So there’s that.

Brittain has also updated the advertisement for the “independent” takedown service, TakedownHammer.com., raising  the fee for removing photos from $250 to $300.  You may recall that the “Takedown Hammer” isn’t independent at all: it’s an extortionate front operated by Brittain, who claims that the service is that of an “independent third party team.”

To that end, the advertisement has now been updated to say:

“We have had over 110 posts successfully removed from ObamaNudes.com and over 600 total unwanted pieces of content removed from other websites such as YouGotPosted, Offendex, Pinkmeth, 1upem and more.”

I reached out to the “other” websites listed to find out exactly how many photos they’ve removed in conjunction with the “Takedown Hammer”.  Each of the sites that responded — Offendex, Pinkmeth, and 1upem — said they’ve never removed any material due to the “Takedown Hammer.”  Only YouGotPosted didn’t respond, likely because they’re busy running a similar scam.

That leaves Craig Brittain’s website as the only website that the “Takedown Hammer” ‘team’ removes content from for money.  That’s a poor business model — no wonder they Craig Brittain had to increase the protection money fee.

And, of course, you can always trust Craig Brittain to keep the photos offline once you pay him, right? He did keep his word when he said he would “shut down” IsAnybodyDown, right?

We’ll see whether the site will shut down today or whether Brittain will again prove himself a liar.  My money’s on the latter.

Carreon, if you’ll recall, didn’t like the satirical website hosted at Charles-Carreon.com.  Asserting that the site infringed on the trademark in his name, Carreon convinced Register.com to blow the anonymous satirist’s cover, and sent a menacing email to Satirical Chas’ lawyer threatening extensive and wide-ranging litigation at a time and place of Carreon’s choosing.  Opting not to live under a constant shadow of vexatious litigation, Satirical Chas sought declaratory relief — a determination that his use of the website was protected by the First Amendment.  Despite his initial, furious bluster, Carreon conceded as much and offered to settle the case.  In proffering a judgment, Carreon didn’t mention attorneys’ fees, which Satirical Chas’ lawyers — Public Citizen’s Paul Alan Levy and local counsel Catherine Gellis — moved for.

To avoid having to pay attorneys’ fees, Carreon has to argue that the case isn’t “exceptional.”  To do so, he essentially argues that the website and its author’s free speech rights are worthless.  Satirical Chas is not a journalist, Carreon says, and he’s no web designer, so there’s not much worth protecting and the case isn’t exceptional.

Having argued that his critic’s speech isn’t valuable enough to make the case exceptional, Carreon turns and ominously warns that speech worthy of protection might be threatened if the case is exceptional: speech like his.  Carreon argues that if cases like this are exceptional, and those making promises of litigation are held to those promises, that would threaten his free speech rights to send those threats.  That is, threats to subject critics to vengeful litigation over speech that they later concede is protected by the First Amendment.

That’s the point.  If you lord your knowledge of the legal system over those without the benefit of a legal education, you should be worried that you may wind up paying for their legal fees.

Carreon then goes on to argue that his speech is further protected by California’s litigation privilege.  The litigation privilege is intended to provide lawyers with latitude in asserting the claims of their clients, and to allow litigants to speak freely before a court without worrying that they’ll be hit with lawsuits for tort claims.  (This case is not a tort case.)  Carreon argues that letters asserting legal claims are protected by the litigation privilege because they’re part of litigation.  His argument would mean that lawyers sending threats on their own behalf would make them immune from any lawsuit — even those seeking declaratory relief — no matter how meritless the underlying threats are.

I interpret Carreon’s arguments to be that (1) the site is protected by the First Amendment, but the case is not exceptional because the speech isn’t all that valuable; (2) sending legal threats is protected speech which is worth protecting; and (3) even if it were not protected speech, threatening letters are part of litigation and therefore are protected by the litigation privilege.  Taken to their logical conclusion, Carreon essentially asserts that he has a First Amendment right to threaten and bring vexatious litigation.

I suspect that argument won’t fly.

Finally, Carreon’s filing is notable for a few miscellaneous reasons.

First, it reveals that he subpoenaed Ken White of Popehat, seeking emails between Ken, Satirical Chas, and Satirical Chas’ lawyers, as Satirical Chas had sought Ken’s help in responding to Carreon’s legal threats.  White told Carreon to buzz off, responding instead with thorough objections to protect attorney-client communications.  Carreon, not mentioning the objections, complains in his opposition that Ken White “derides” attorneys as “censorious asshats” and just plum doesn’t like Carreon.

Second, Carreon says that the entire action might have been subject to California’s anti-SLAPP statute, if it applied to Federal claims.  But that, hypothetically, would require arguing that Satirical Chas’ case wasn’t likely to succeed.  Even Carreon acknowledges that the Satirical Chas site is protected speech, meaning Satirical Chas could easily have shown a likelihood of success.

Lastly, Carreon makes some worrying arguments about copyright, which was not part of the case or the proffered settlement.  Carreon complains that Satirical Chas used a photo of Carreon without permission, thereby infringing upon his copyright.  Carreon, showing mercy, explains that he opted not to pursue litigation on that front.  This is worrying in that Carreon suggests that he still can still exercise the option of pursuing a copyright infringement claim.  It’s also somewhat hypocritical — Carreon’s “Rapeutation” site still uses my photo (and, for that matter, Satirical Chas’ photo).

But at least I look good in it.

Nor was “David Blade” Brittain’s only only online impersonation.  I theorized that Brittain’s efforts went a step further: pretend to be a Craigslist user arranging a sexual encounter, then take the photos and post them to IsAnybodyDown.  That theory proved true when CBS Denver turned up emails bearing Brittain’s IP address, showing that he pretended to be a “Jess Davis” to solicit nude photos, using the photos of one of his victims.

Brittain maintains that “David Blade” is real (or, at least, was created by somebody else) and that all of the photos on IsAnybodyDown come from users of the site — not him.  According to Brittain, the allegations are a “fabrication” by attorney Marc Randazza (and other Brittain critics) to make money off of his site.  Or something.  Brittain says that “[t]here is no truth to it at all.  These women are told to lie by their attorneys.”

But allegations in a 2005 harassment charge and restraining order naming Brittain are unsurprisingly predictive of his future behavior: impersonating people on the internet in an effort to harm women online and offline.

According to records provided by a Colorado court, Brittain’s ex-girlfriend (who I am not naming) alleged that after she broke up with him online, Brittain took control of one of her Yahoo accounts and began posting her phone number and address in a chat room, suggesting sexual acts.  At about 7 in the morning, a man Brittain’s ex did not know, identifying himself as “Nate,” showed up at her door.  ”Nate” explained that he had talked with someone he thought was Brittain’s ex-girlfriend an hour earlier.  Presumably, “Nate” was not there to have breakfast.

Craig Brittain was arrested and charged with Third Degree Harassment, and a restraining order was entered prohibiting him from contacting his ex-girlfriend for the duration of the case.  The charge also resulted in Brittain facing other legal trouble, as he was on probation for injuring an officer while evading police in 2003.

Craig Brittain was not convicted of the harassment charge. The charges were later dropped, along with the restraining order and probation violation, because of lack of evidence or because his ex-girlfriend wasn’t interested in testifying.  Additionally, any case against him would likely run into trouble over whether his acts were protected by the First Amendment.  Posting someone’s address and phone number online is likely protected speech, but credibly impersonating a person with the intent of having him show up at the impersonated person’s house is probably not.

The victim’s statement to the police reads:

About 3am I broke up with Craig and shortly after he had booted me from a Yahoo screen name I was using ———- and I had made another screen name so he had found the screen name and started harassing me in the chat room giving out my phone number + address. It went on til about 6:30am.  I had copied + pasted alot of the conversation we had, but because it was repetitive I eventually just stopped and told him to leave me alone.  Then I layed in bed.  Between 7am and 7:15am someone I did not know showed up at my door.  He asked if I was [name] (which is my nickname) and I was like yeah.  Then he told me his name was Nate + that I had talk to him about 1 hr ago, and I was obviously not under the sn that talk to him.  I didnt know who he was.  After he left I got really scared because I wondered who else was going to come to my door [illegible] I was even [illegible] at my house.  After that I went up to my mom scared.

The police report lists Brittain’s screenname — “hardcore_chat_thug” — and provides a statement from the responding officer, reading in part:

[Victim] said on this date at approximately 0300 hours she broke up with a male whom she identified as Craig Brittain 11/9/84 via a chat room on the Internet.  Brittain logged off his screen name and hacked into [victim]‘s Yahoo account and logged on as “Craigs Wifey”.

Between the time of 0400 hours and 0615 hours Brittain repeatedly placed [victim]‘s residential number and address on the chat room, suggesting sexual acts by [victim].

At approximately 0641 hours, Brittain called [victim] via the telephone.  [Victim] advised Brittain to leave her alone.

At approximately 0715 hours, an unknown male came to the [victim] residence introducing himself as Nate and stated that they had talked about an hour ago.  [Victim] stated she did not know this male and believed he was there in reference to the sexual advertisements Brittain posted in the chat room.  [Victim] explained she was “scared and freaked out.”

Further, Brittain’s ex-girlfriend alleged in the police report that Brittain had a history of posting girls’ phone numbers online.

It’s worth noting (again) that Brittain was never convicted and that there is no way to know whether the allegations are accurate.  But the allegation itself is notable because it shows that more people than Randazza and myself have alleged that Craig has impersonated people (real or imagined) online in order to harm women.  That he’s been arrested for it demonstrates that Brittain is well aware of the potential illegality of his acts.  All the more reason to continue denying it to the point of absurdity.

Especially now that a Federal agency is weighing an investigation into Brittain and “Is Anybody Down?”.

The first involves Storage Wars celebrity Brandi Passante, who sued Moore for posting a video that Moore asserted was a sex tape of Passante.  Her complaint (PDF), filed in the Federal District Court in Los Angeles, asserted causes of action for trademark infringement, privacy torts, defamation, and consumer fraud, alleging that Moore’s video was false and designed to trade upon her commercial likeness.  Passante also sought and received a preliminary injunction requiring Moore to remove the video.

Moore’s response to the suit and injunction was to send Passante’s lawyer a picture of his penis (NSFW, obviously) in lieu of hiring a lawyer to defend his considerable ‘ass’ets.  This well-considered legal strategy went predictably: Passante convinced the judge to hold Moore in contempt for disobeying the injunction.  Moore, faced with the prospect of being haled into California accompanied by U.S. Marshals armed with a bench warrant, quietly removed the video from his website.

Moore has since remained quiet publicly about the suit.  While a clerk’s entry of default has been entered against him in the case, Passante’s lawyer has informed the court that settlement negotiations are ongoing.  Negotiating with a plaintiff while you’re in default is an ideal bargaining position.  Bravo, Mr. Moore.

The second case is more interesting.

Gawker has a thorough rundown of the case, but the long and short of it is that afterJames McGibney and his Bullyville organization bought out Hunter’s revenge porn site, Hunter Moore lashed out on Twitter.  Among Moore’s ravings (the more offensive of which included a threat to ‘rape’ McGibney’s wife), he accused McGibney of being a “pedophile” because he thought that McGibney had bought the images from Moore’s site (he hadn’t).  How, exactly, that would make McGibney a pedophile while absolving Moore of that association is beyond me.

McGibney sued Moore for defamation in a Nevada state court.  Moore, despite his millions, ignored the lawsuit.

What’s funny is that this lawsuit wasn’t a sure shot.  Moore could have put up a fight.  He could have argued that nobody would have believed his ravings to be truthful statements of fact and that, rather, they were hyperbolic statements in an internet dispute.  Maybe the insinuation that McGibney goes to China to “rent children” wouldn’t qualify, but most were at least arguably hyperbolic.  And, of course, “but, your honor, nobody believes me, but you should” isn’t a fun argument to make.

But Moore didn’t make any argument.  This strategy also panned out predictably: he lost, to the tune of $263,169.50.

Moore may not have many assets.  Either he can’t afford a lawyer or just doesn’t care.  But he does have a significant web presence, including web sites and a Twitter account with over 150,000 followers.  Those aren’t worthless.  What matters most to Moore — attention from adoring fans — may soon be usurped from him.  And that is worth more than any judgment.

I reached out to Moore for comment on this post and received no response, which means I’m the equivalent of a judge now.

If you haven’t been following along, Ken at Popehat has a good rundown of why Prenda Law is in a precarious state.

In a deposition (again, h/t Popehat) of Prenda lawyer Paul Hansmeier, he is grilled about who owns and controls AF Holdings, the corporate plaintiff represented by Prenda lawyers in a sprawling array of copyright cases.  Hansmeier, speaking on behalf of AF Holdings deflects most of the questions, but concedes that the corporation is owned in its entirety by a trust.  But he doesn’t know who owns that trust, except that former Prenda paralegal Mark Lutz started the trust.

Questions as to who, exactly, owns the trust will likely prevail in today’s hearing in Los Angeles, assuming the jurisdictional issues are resolved.

But who ultimately owns the trust that owns AF Holdings might almost be an afterthought.  From the testimony that has so far been revealed, I believe that Prenda and its client(s?) erred by not disclosing the existence of the trust itself.  

Federal Rule of Civil Procedure (FRCP) 7.1 requires that, at a party’s first appearance in a case — or whenever the information changes – the party must file a disclosure statement that:

(1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or

(2) states that there is no such corporation.

Rule 7.1 is important: it allows judges to, at the outset of a case, determine whether they should recuse themselves right away because of a conflict of interest involving one of the parties before the court.  Indeed, the prospect that Prenda or its clients have run afoul of Rule 7.1 is one of the concerns highlighted in Morgan Pietz’s Notice of Related Cases (hat-tip: Popehat).

But the language here arguably might not apply to Prenda’s client, AF Holdings.  After all, its parent owner is a trust of some form — not a “corporation.” (Sidenote: a “trust” is the holding of legal title to property for the benefit of another, meaning the trustee — whoever runs the trust — ‘owns’ property, but manages it for someone else.  The trust which owns AF Holdings is apparently a “[title of trust]” and has no ascertainable beneficiaries.  In the U.S., that would in most cases mean it’s not a trust at all.  How this works in Saint Kitts and Nevis is beyond me. But it’s curious.)

Whether FRCP 7.1 applies, however, is largely irrelevant.  Federal District Courts have adopted their own Local Rules in addition to the Federal Rules of Civil Procedure, and most (if not all) of the Local Rules contain a variation on FRCP 7.1 — and most are more expansive than what Rule 7.1 requires.

For example, in the Central District of California — where Prenda and its revolving door of counsel and clients(?) will soon face Judge Wright — Local Rule 7.1-1 requires a listing of

all persons, associations of persons, firms, partnerships, and corporations (including parent corporations, clearly identified as such) that may have a pecuniary interest in the outcome of the case…

That’s pretty expansive.  Unlike FRCP 7.1, it’s not limited to a showing that a party or entity does have a financial interest in the outcome, just that it’s possible.  To be sure, this iteration doesn’t explicitly require a “trust” to be disclosed, but a trust is by its very nature an association of persons. It requires (usually) two or more people, or it’s just someone holding property for himself.  (And even that guy has to be disclosed.)  Local Rule 7.1-1 would likely require disclosure of not only the trust itself, but the beneficiaries (if any) to that trust.

But, in cases filed in the Central District of California — or anywhere – I can’t find a disclosure statement naming the trust.  Nor is it disclosed in the very case Judge Wright is presiding over.  Perhaps ominously, a brief review of RCFExpress.com‘s history of the dockets of the most recent AF Holdings cases suggests that Prenda and its clients stopped filing any type of disclosure statements (e.g., in this Tennessee case).

Ruh Roh, Rhaggy.

Rule 7.1 appears to put the burden on a party to make the disclosure.  While lawyers have a duty of candor to the court, I’m not sure the Federal rules explicitly require the attorney to investigate a client’s corporate disclosure statement.  However, if Prenda lawyers are themselves interested parties, or they were aware of the fact that there were other interested parties (perhaps their former paralegal, Mark Lutz, for example), that would most assuredly be some type of fraud on the court.

And that’s why today’s hearing is important.  It’s the classic Nixon question: what did Prenda and its lawyers know, and when did they know it?

Not only is this landmine avoidable, it was foreseeable.  A lawyer pursuing BitTorrent claims and keeping abreast of developments in that area of litigation should have known that defendants could and would hammer plaintiffs over Rule 7.1 disclosures.  Righthaven was hammered on this in  widely-covered proceedings in Nevada, where AF Holdings and Prenda have also filed cases.

For now, I’m en route to the courthouse.  I’ll probably tweet about it.  For now, I need to go file a Statement of Interested Parties, as corn futures have a serious stake in today’s hearing.