Last night I helped my dad clear the table. “Where do we put the trivet?” I asked.

Then I interrupted myself. “What a useless word, ‘trivet.’ In a way it’s nice that there’s such a precise word for this specific thing, but it’s sort of a waste of mental space to have to know a word that almost never gets used.”

To which my dad said, “Oh, I don’t know. I try to use it three to four times a day.”

And then, over the course of the rest of the evening, he did. Of course, not always in its original meaning, as a noun describing a portable flat surface upon which one sets hot dishes. Sometimes he used it as a verb or an adjective. Which necessarily involved adding some new meanings to its definition, as the context it was used in would dictate.

At first its meaning fluctuated somewhat randomly, but over the course of the evening it did seem to take on a consistent usage. As an adjective it sort of described a state of flummoxed confusion. In fact, in a way it described that particular condition better than any other actual English word did. So much so that I think the word “trivet” (or, in this case, “triveted”) should be adopted for common parlance.

I suspect it could be done so successfully, because at one point my sister had wandered into the room and overheard my dad inserting the word into conversation. It was perfectly clear to me what he was saying when he used it, but not so my sister who had never come across this word before (despite her rather expansive vocabulary). Completely trusting that it was an actual word in an actual dictionary, she asked my dad what it meant so she could add it to her repertoire. I think she genuinely expected that it would have some lengthy etymology, dating back perhaps all the way to Ancient Greece. As opposed to the backyard, an hour earlier.

Later this week it will be World Intellectual Property Day, the day that the World Intellectual Property Organization has selected for us to appreciate all that intellectual property has to offer us.

Might that include the welcome, and potentially expensive, come-uppance of those who have sought to unjustly abuse its laws for their own enrichment? We are speaking in this instance, of course, of Prenda Law and the latest news of its self-induced misadventures in the San Francisco federal court.

When we last left our heroes Paul Duffy had managed to appear in open court and yet somehow seemingly not directly inculpate himself in Prenda Law’s affairs, at least no more than he had done so previously. He was there because Prenda Law is now running for the exits, seeking to dismiss AF Holdings’ case against defendant Joe Navasca “without prejudice” — meaning, with the option to re-file. In this particular case it needed the court’s permission to do so. As Judge Chen noted in his devasting-to-Prenda ruling today:

Under [Federal Rule of Civil Procedure] Rule 41, a plaintiff may voluntarily dismiss without a court order by filing a notice of dismissal before the defendant serves an answer or a motion for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A). Here, because Mr. Navasca has filed an answer, see Docket No. 20 (answer), AF may dismiss only by an order of this Court and on terms that the Court considers proper. See Fed. R. Civ. P. 41(a)(2).

Prenda did get the order it sought to drop the case — but not on terms it asked for, and certainly not on terms it’s going to like.

The judge is always Wright

The ruling began with a summary of the case thus far, a calm, methodical, and accurate recounting that serves to buttress Judge Chen’s ultimate decision. Lest there be any doubt, he knew what had happened in Los Angeles. After first discussing how Prenda Law had apparently tried to stay discovery to prevent the (ultimately disastrous deposition of AF Holdings’ representative), the court continued:

It is possible that AF was motivated to seek a stay of discovery not only to deprive Mr. Navasca of evidence to oppose AF’s anticipated motion to reconsider but also to prevent adverse information from being brought to light which could be used against it in a proceeding before Judge Wright of the Central District of California. Notably, on February 7 – i.e., the same day that AF filed its motion to stay – Judge Wright issued an order to show cause as to why sanctions should not be issued against AF’s counsel based on, inter alia, the Alan Cooper problem. (emphasis added, more on that later)

[As a wag on Twitter said, "the Alan Cooper Problem" would be an excellent name for a band. -- Ken]

The Judge Chen even noted in a footnote that Prenda Law asked for the stay that very evening. He then went on to note that “the day after Judge Wright’s order to show cause – or in the immediate days thereafter, AF and/or a related entity (Ingenuity 13) initiated voluntary dismissal of numerous copyright infringement cases that they had initiated in federal courts in California.” For those cases Prenda Law was able to get out of them “without court intervention and without risk of liability for costs as the defendant had not answered or filed a motion for summary judgment.

But such a smooth escape was not an option here:

In the instant case, the Court finds that, if it were to dismiss AF’s action without prejudice, then Mr. Navasca would in fact suffer legal prejudice in that he would be deprived, at the very least, of the benefit of rulings favorable to him. In other words, the Court finds that AF is seeking to dismiss the case in order to avoid an adverse determination on the merits as well as the effect of other unfavorable, though not necessarily, dispositive rulings of this Court.

Judge Chen listed three examples of very real adverse rulings Prenda Law was facing, which I’ll touch on in reverse order. One was that it was trying to avoid the consequences of the ruling requiring the undertaking (in other words, the ruling requiring them to post a bond to cover costs if it lost), like it had to face in the Trinh case. In that case Prenda Law’s failure to make the undertaking allowed the defendant to move for an involuntary dismissal, thereby making it eligible for a fee award as a prevailing party. Given that Prenda Law really didn’t want to pay for the undertaking in this, the Navasca case. Yet, as Judge Chen noted, Prenda was also unwilling to appeal the order requiring it to post the undertaking despite being given ample opportunity to. This case was therefore inevitably heading towards the same end as the Trinh one, a fate Prenda Law was now trying to dismiss itself out of in order to avoid.

Then there was the second example:

AF also risks an adverse determination on the merits as a result of the investigation that Judge Wright has been conducting in the cases before him in the Central District of California. As Mr. Navasca points out, it is telling that, the day after Judge Wright issued his order to show cause, AF and/or Ingenuity began to initiate voluntary dismissal of a number of cases that it had filed in California. If these cases had validity or if AF had a good chance of prevailing on the merits, then it is hard to imagine that it would give up all these cases.

And then there was the first example.

The Alan Cooper Problem

AF is likely to face an adverse determination on the merits because of its apparent inability to prove standing to assert its claim of copyright infringement. Throughout the proceedings before the Court, AF has never offered a declaration from its representative “Alan Cooper” showing that he was a signatory to the assignment document that purportedly transferred ownership of the copyrighted material at issue to AF.

The Alan Cooper problem is at the heart of Prenda Law’s current troubles. Supposedly at some point, an actual copyright holder transferred its copyright to the purported AF Holdings. Had this all worked the way Prenda Law claimed, AF Holdings would now be in the position to fully enforce any rights that copyright entitled to it, just as the predecessor owner would have been. Prenda Law “has staked its position on the argument that the Copyright Act only requires proper authorization for assignment by the copyright transferror, not the transferee,” Judge Chen summarized. And proper authorization by the transferor is, indeed, important; we saw what happened in the Righthaven cases when the transfer was improperly done (they ended up getting dismissed). But transferring the copyright is only the first step: it shows that someone has a copyright. It doesn’t show that someone has standing to come into court to enforce it. Given that Prenda Law has been unable to substantiate who that someone is, all of these cases have become suspect on that basis. Judge Chen noted:

[I]t is telling that AF moved for a voluntary dismissal only two days after its 30(b)(6) deposition was taken, [that's referring to the ridiculous deposition of Paul Hansmeier as the representative of AF Holdings] during which problems related to its standing were explored and exposed by Mr. Navasca.

And the band of tiny violins played on

As to Prenda Law’s arguments for why dismissal was not improper, the court was unimpressed. The complaints of spoliation (that is, destruction of evidence) were not compelling, and, indeed, Judge Chen noted the magistrate’s earlier caution to Prenda Law that “allegations of spoliation are extremely serious” and that it should “review the facts very carefully before pursuing this avenue based solely on an eHow.com article. In particular, [AF] should review the expert declaration that Navasca filed with his letter brief, to fully understand the purpose and effect of CCleaner.” (emphasis added)

However, there is no evidence to suggest that AF did that or any other investigation into whether CCleaner would in fact irrevocably destroy electronic files. Furthermore, as the Court noted at the hearing, even if CCleaner did irrevocably destroy electronic files, that might actually work in AF’s favor; in other words, the stronger the evidence of improper spoliation, the better the chance AF stood of obtaining, e.g., an evidentiary sanction or adverse inference in its favor based on the spoliation.

As to the complaint that the undertaking made the case too expensive, the court was also unmoved. First, Prenda Law could have appealed the order but chose not to. It also could have tried to demonstrate its claimed poverty, but it didn’t do that either. Instead it claimed the expense made the case not worth pursuing, to which Judge Chen declined to cry them the river they sought.

[T]o the extent AF suggests that it may be financially able to pay, but the bond is simply more than the value of the case, see Mot. at 2 (arguing that Plaintiff cannot “afford to tie up nearly $50,000 in capital simply in order to proceed with its claims against a single infringer”), it ignores the fact that a bond may be required in any given case in California (based on California specific law). As the plaintiff which initiated the action, AF knew at the outset that a bond might be required. A plaintiff cannot invoke the benefits of the judicial system without being prepared to satisfy its obligations as a litigant.

The court then noted that Prenda Law had tried the same move in the Magsumbol case, trying to withdraw the case before it could get hit with an undertaking requirement, an effort that was denied there too.

Alan Cooper’s ghost

For all the aforementioned reasons, Prenda Law was granted its motion to dismiss, but with prejudice, thereby making the defendant, Mr. Navasca, a prevailing party able to pursue an award under the copyright statute for the fees he expended in having to defend himself in this case. However, although the ruling was issued today, April 23, it won’t be entered (or put into effect) until April 29. That’s because Prenda Law needs to do something first.

If you are just now tuning into coverage of this mess, Prenda Law’s problem is that it sued ostensibly on behalf of an entity “AF Holdings,” the entity that purportedly now owns the relevant copyright. But when called to account for who AF Holdings is, Prenda Law can’t or won’t do it, leading to the conclusion that it is none other than Prenda Law itself, which would at minimum violate court rules in bringing this litigation and may suggest even more wrongfulness given how it has obfuscated the ownership question. The Alan Cooper problem described above stems from certain paperwork allegedly “signed” by a Mr. Cooper that doesn’t seem to exist, thereby creating a fundamental standing issue for all these cases, an which Judge Wright has diligently been exploring.

Ah, but Prenda Law has a workaround. See, AF Holdings is really owned by this trust, one apparently called “Salt Marsh.” We learned from an angry, angry filing last week that “Salt Marsh” is arranged for the benefit of the as-of-yet hypothetical and unborn children of Mark Lutz, a former paralegal for Steele and Hansmeier. Who controls and speaks for Salt Marsh? That’s not clear. But that didn’t prevent Salt Marsh from having “signed” the ADR document earlier in this case. It was a pro forma filing, basically an attestation that each of the undersigned had read the court’s rules about alternative dispute resolution (an option parties can often choose to pursue instead of full-on litigation). And it was signed by a “Salt Marsh,” although one wonders how a non-human entity could possibly attest to reading anything. [Cathy is not a true geek and therefore doesn't know SHODAN. Forgive her. --Ken] There had to have been a human being behind that attestation. But whom?

That’s what the court wants to know: Who actually signed?

Finally, the Court addresses Mr. Navasca’s request that it order AF to produce the original of an ADR certification that was e-filed by AF as Docket No. 8. The ADR certification that was e-filed does not contain any actual signature from an AF representative; rather, there is simply the following e-signature: “/s/ Salt Marsh, AF Holdings Owner.” Docket No. 8 (ADR certification). As Mr. Navasca points out, under the Civil Local Rules, AF’s counsel should have maintained a copy of the ADR certification containing the original signature as a part of its files. See Civ. L.R. 5-1(i)(3) (providing that, in the case of a Signatory who is not an ECF user, the actual filer of the document “shall maintain records . . . for subsequent production for the Court, if so ordered, or for inspection upon request by a party, until one year after the final resolution of the action (including appeal, if any)”). Because Mr. Navasca has asked the Court for relief encompassed by the Civil Local Rules, the Court grants the request. AF’s counsel is hereby ordered to produce the original of the ADR certification, containing the original signature of “Salt Marsh” by April 29, 2013. If AF’s current counsel does not have the original document, then it must contact former counsel to obtain the document. On April 29, AF’s current counsel shall also file a declaration with the Court, stating whether it was able to provide a copy of the original document and, if not, why not.

(emphasis added)

Like a con artist who’s taken a few too many marks with his shell game, Prenda Law is being compelled by the court to reveal how its magic has worked. We’ll see in a few days what it will say.

On the original post at Popehat Ken added the following postscript:

This order is a body blow to Prenda Law. Judge Chen … is openly suggesting that Prenda’s conduct suggests malfeasance and evasion of potential negative rulings. He invited Navasca to file a separate motion for fees, and this order strongly suggests that he will grant such a motion. Judge Chen’s dismissal of Prenda’s “it doesn’t matter if Cooper’s signature is forged” argument suggests that he suspects that Prenda’s entire litigation strategy is premised on fraud — that Prenda has manufactured the dispute, and that AF Holdings is merely a front for Prenda Law lawyers. Finally, Judge Chen’s order that Paul Duffy produce the original “Salt Marsh” signature presents a conundrum for Duffy. Brett Gibbs was Prenda’s counsel in this case at the time when Prenda Law filed this case, and probably is the one with direct knowledge of the document purportedly electronically signed by Salt Marsh. Gibbs and Duffy are not currently on very friendly terms. If asked, what will Gibbs say? What can Duffy say under oath, in a declaration, about the Salt Marsh signature without digging himself deeper into this situation? It’s bad, very bad, for Prenda — and like the transcript of the hearing before Judge Wright at which Prenda took the Fifth, you can expect attorneys across the country to file this order in Prenda Law’s surviving cases.

Since this post was originally written, we’ve gotten to see how Paul Duffy might be inclined to respond. First, he asked for an extension to respond, which was granted. He also invoked his Fifth Amendment rights against self-incrimination, and we’ll find out sometime later what the effect of him doing so will be on this and other Prenda Law cases.

While most of the recent news involving Prenda Law has come from the case in front of Judge Wright in Los Angeles, it’s far from their only case. Apart from the Godfread/Cooper defamation cases and the Computer Fraud and Abuse Act cases the LA matter is just one of the hundreds of copyright cases the Prenda operation had deluged the courts with. But the LA case appears to be the case that has caused the entire Prenda Law house of cards to finally come crashing down. Like a high rise that has just been dynamited for demolition, the concussive force of its spectacular collapse is undermining the foundations of all its other cases as well.

Including this particular one in federal court in San Francisco.

The case so far

It began as a Prenda Law case usually begins: using questionable “forensics” to identify someone to target, first with threatening letters and then a lawsuit if they didn’t pay up. In this case, when Joe Navasca’s father didn’t capitulate, Prenda Law targeted the son instead. (Note: I’m including his name because it is now in the public record. And also to commend Mr. Navasca for standing up to these bullies.) Unfortunately for Prenda Law, the wheels of justice grind slowly, and some of its previous cases were starting to catch up with it just as this one began to lurch forward.

The default rule in American litigation is that everyone pays for their own lawyers. But some laws, the Copyright Act being one of them, have provisions so that the loser pays for both sides’ lawyers. Fully denying all of Prenda Law’s allegations of infringement, and now aware of the allegations of malfeasance directed at the Prenda Law enterprise, Mr. Navasca reasonably expected Prenda Law to eventually lose the case it had brought against him and need to reimburse him for his attorney fees. But just because a judge may grant an award of attorney fees doesn’t mean the money will ever be recovered; enforcing a judgment often presents its own expensive challenges, meaning a wronged defendant can still be saddled with the costs of his own defense. However the California Code of Civil Procedure has a provision, § 1030, to help mitigate that financial risk by allowing defendants in similar positions as Mr. Navasca to require plaintiffs to make an “undertaking;” that is, to post a bond that would guarantee, when the defendant inevitably wins his fees, that he would actually get the money. Citing that provision Mr. Navasca moved the court to require Prenda Law to make this undertaking. Naturally Prenda Law opposed this requirement in a filing I will leave to others to snark about that in order to continue the story.

Meanwhile, as the question of the undertaking was pending, the discovery stage of the case had begun. At first Prenda Law tried to hurry up and expedite the discovery over a very specious evidence spoliation concern, an attempt which got nowhere. (But note this topic for later.)

The day after rejecting the attempt to expedite discovery the court granted Mr. Navasca’s motion requiring Prenda Law to provide the undertaking, but agreed to stay the ruling (meaning, postpone whether it should be put into effect) in order to give Prenda Law a chance to move for the court to reconsider it, which it does not appear to have ever done. At this point Prenda Law decided that discovery was actually all happening way too fast and so moved to stay it (basically, to put it on pause) while the undertaking issue continued to pend. Mr. Navasca’s response to this motion basically boiled down to, “While we don’t necessarily have a problem with staying discovery generally, we do find it suspicious that you want to stay it right before we get to do our 30(b)(6) deposition of AF Holdings.” The court denied Prenda Law’s motion to stay the discovery and the 30(b)(6) deposition of Paul Hansemeier went forward.

And what a deposition that turned out to be. (At today’s hearing Judge Chen asked, “There was a 30(b)(6) depo. What happened?” but it seems clear he already knows.)

The deposition took place on February 19. On February 20, Paul Duffy moved to substitute for Brett Gibbs in the Navasca case, which the court granted on the 26th. Also on the 26th Prenda Law moved to “voluntarily dismiss” the case, whining about the judge’s ruling on the undertaking, clearly hoping that would be the end of it and it could scurry off into the shadows.

Not so fast, responded Navasca’s attorneys, Nick Ranallo and Morgan Pietz, in a brief whose table of contents alone is eviscerating. You can’t just dump an expensive, unmeritorious lawsuit on an innocent defendant, certainly not by committing fraud on the court, and then simply walk away from it. You are at least going to need to pay us the fees we had to expend defending against it.

Paul Duffy’s rocks and hard places

Paul Duffy has a problem. He’s counsel of record for AF Holdings, to the extent that AF Holdings even is a client separate and distinct from Prenda Law. But in between the time he filed the motion for voluntary dismissal and now, the April 2 hearing in Los Angeles happened where he (among other Prenda Law people) plead the Fifth Amendment in refusing to answer questions about AF Holdings. This act put him in a bind: if he opened up his mouth in San Francisco to talk about AF Holdings it could inculpate him in its affairs. You can’t assert the Fifth Amendment in some contexts and waive it in others, that’s not the way it works. Anything he says about AF Holdings in some proceedings can and will be used against him in others.

On the other hand, as counsel to a purportedly separate and distinct client, he can’t just blow off the hearing, even if that might be the best option for saving his own skin. AF Holdings, whoever it is, is staring down the barrel of a judgment on the order of tens of thousands of dollars against it. If it were truly a separate client it should be able to count on him to try to prevent such a judgment. Note: this doesn’t mean the client could expect him to prevail, but it could expect him to at least give it the ol’ college try. That meant that he couldn’t just not show up (which apparently was what he did — or, er, didn’t do — at a hearing yesterday in Illinois). He couldn’t just withdraw as counsel, either, because that generally requires the court’s permission once a lawsuit is underway in order to make sure a client isn’t being left high and dry (see, for example, the earlier motion to substitute Duffy for Gibbs, which they needed the court to approve). Nor could he choose to just not argue, or purposefully argue badly, without abrogating his ethical duties to the client. But it was unclear what he could argue that wouldn’t further implicate him in the misdealings of the Prenda Law enterprise.

The ol’ college try

The above sets the stage for today’s hearing, which was the third matter on Judge Chen’s afternoon calendar. I’ve never appeared before Judge Chen, but I’ve now observed quite a few of his hearings (not just today, but also when I waited to serve Charles Carreon…). His demeanor is not terrifying; for the well-behaved attorneys appearing before him he seems to play a role almost like a mediator, efficiently absorbing facts, managing case logistics, and isolating areas of contention. For the less well-behaved his countenance appears to remain much the same, as he allows both sides ample time and opportunity to present all facts and arguments for his consideration. But should his calm patience ever delude counsel into taking him for a fool, a stinging pointed question, albeit very calmly made, will serve as notification of their error.

Duffy did, in fact, appear in person, despite his absence yesterday. Unfortunately he mumbled so much that even though I was in the front row of the gallery I didn’t catch everything he said. The court reporter was much closer and presumably caught all of his equivocation, but there did seem to be an awful lot he didn’t know. Which was particularly notable when confronted with questions about AF Holdings. “I have no personal knowledge,” Duffy said in response to one such question, prompting Judge Chen to ask, “Well, what do you know?” and Mr. Ranallo to observe that, “There’s been a pattern of no one knowing anything when the time comes” for them to give answers.

Duffy did, however, continue the pretense of being separate, disinterested counsel for this mysterious AF Holdings entity, despite all evidence of it, and him, being rolled up in the Prenda Law enterprise. And for what it’s worth, his personal behavior was never really at issue today. The issue, as Judge Chen announced at the top of the proceeding, was whether the dismissal should be granted, and if so, whether it should be with prejudice (meaning AF Holdings would have essentially surrendered on the merits and could never refile this lawsuit ever again), and whether any attorney fees should be awarded to compensate the defendant for having been put through it.

(Actually, even before that Judge Chen began the proceeding with the more ominous, “I asked you to come here today in light of all the things that have happened.”)

Why are you asking for this case to be dismissed, he first asked Duffy. There’s two reasons, Duffy responded, one being that the $50,000 undertaking was too expensive. He argued the same in his reply to the opposition to dismiss the Navasca case, which basically whined that Prenda Law should not have to be burdened with needing to round up $50,000 in order to pursue a copyright case against a single infringer. Never mind that the court had previously been unimpressed by Prenda Law’s earlier pleas of poverty, the reality is that litigation is expensive. It’s expensive even for truly-wronged plaintiffs, who often can’t afford to sue to vindicate legitimate injuries, and it’s certainly expensive for innocent defendants. In the “Joys of Yiddish” Leo Rosten illustrated “chutzpah” as someone who has killed his parents asking the court for mercy because he’s an orphan. Were Mr. Rosten alive today I think he might update his book with Prenda Law’s brief.

The other reason, he said, was that there was a problem of evidence spoliation, which I referred to briefly above. The defendant had been running a piece of software called CCleaner on his computer, and Duffy complained that it destroyed the evidence it needed to be able to prosecute the infringement claim.

At first blush, these complaints may sound quite reasonable (although, as Mr. Ranallo noted, neither had been raised in Prenda Law’s initial motion to dismiss). But they are worth further scrutiny. For one thing, CCleaner had been running on the defendant’s machine for more than a year before the lawsuit had been filed, a fact that alone deflects claims of spoliation. Secondly, its operation has no effect on the sorts of evidence Prenda Law might want to collect. Although the question of spoliation hadn’t been fully adjudicated earlier because Prenda Law’s complaints had been couched in a premature motion to compel, the magistrate ruling on the motion had looked into the issue and indicated the concerns appeared unfounded (note the exhibits to the filings linked above). In any case, as Judge Chen honed in on later in the hearing, usually a plaintiff is happy for there to be spoliation problems. “Normally if you argue spoliation, you win the case!” It seemed very strange, he observed, to give up because you are claiming spoliation (and, he asked later, if it really were such a problem, why did you wait to withdraw the case and not do so as soon as you learned of it?). In response Duffy fell back on the, “well, at $50,000 it was too expensive to continue the case” argument. But bear in mind, it’s just a $50,000 undertaking, not a $50,000 forfeit. You get it back if you win.

But Prenda Law may have realized it wasn’t going to win, and Judge Chen pointedly asked about that. “Why is this attempt to dismiss not simply an attempt to avoid adverse rulings?”

And that was the crux of the hearing as it in some ways went around and around in circles, with Duffy either arguing “it was too expensive to continue!” or “spoliation!” whenever he was losing ground on one or the other, trying to make it seem perfectly innocent to be dropping the case now and avoid all consequences for having pursued it. But Judge Chen did also seem curious about the ownership issues. Who is Salt Marsh, he asked at one point. Mr. Ranallo responded with a reference to the April 2 hearing when Mr. Duffy and others took the Fifth. “That tells us a lot about why this case is ending now.” (To which Duffy protested, “This is a civil matter, that was a criminal one. You can’t make inferences.”) [At the Popehat blog Ken noted that Ars Technica heard some comments about Salt Marsh as well.]

Judge Chen’s questions then turned to fees. Citing a case whose name I didn’t fully catch but I think is this, he asked Mr. Ranallo about what portion of his claimed fees applied solely to defending this case and what could be leveraged in other cases. “There will be no subsequent suits,” he answered. “Standing is blown.” (“That’s pure speculation as to the intent of the plaintiff,” countered Duffy.)

Mr. Ranallo continued. Nearly all AF Holdings case have been dismissed in the same two weeks, even cases that had no undertaking requirement, and even a case where it had already won a default judgment. (Totally innocent, Duffy explained. It’s simply because Gibbs had decided to quit.) The few cases that remain active are the Magsumbol case, where a voluntary dismissal had been denied, and the Trinh case, also in San Francisco, where a $40,000 undertaking had been required, but because Prenda Law hadn’t posted it, the case got dismissed with prejudice, thereby making it the losing party and vulnerable to a fee order under the Copyright Act. The nightmare, and potentially very expensive, situation for Prenda Law is that either outcome happens here.

Ultimately, Judge Chen took the matter under submission — meaning that he could rule at any time.

Final thoughts

In one sense it was somewhat disappointing that there was no Perry Mason moment, but as Ken has noted those moments rarely happen. The devil is in the little details and their implications as they are slowly revealed. The wheels of justice grind slowly, it’s true, but as we continue to see, they do grind forward.

Edit 5/1/13: I’ve posted an update.

In my previous career as an Internet professional I became more and more concerned that when it came to speech taking place over the Internet, free speech values were too easily being compromised. I went to law school in order to put myself in a position to do something about it. So when I saw the Popehat Signal seeking a lawyer’s assistance to defend someone’s speech, I knew I had to answer the call.

Charles Carreon, an attorney, had raised the ire of many on the Internet through his unfounded litigation, both threatened and actual, against the web cartoonist Matt Inman. One of his many critics began a blog, at Charles-Carreon.com, where a “Satirical Charles” blogged about his exploits in an exaggerated manner as a method of commenting on Carreon’s quixotic legal endeavors. He began it anonymously, using the anonymous domain name registration service provided by Register.com. Unfortunately Carreon, incensed at the mocking commentary, used the threat of a trademark infringement lawsuit to pressure Register.com into revealing the blogger’s identity. Once armed with that information he then threatened to sue the blogger via a 10-point letter that essentially said, maybe not today, and maybe not tomorrow, but someday, when it would be most expensive, inconvenient, and difficult to defend, Carreon was going to sue the blogger for violating Carreon’s trademark rights in his name.

Carreon does indeed have a trademark in his name, but that fact is irrelevant. Trademark law does not preclude others from invoking an otherwise trademarked term in commenting on the subject. Were it to do so the law would run afoul of the First Amendment’s guarantees of free speech. Thus the threats to sue the blogger for such commentary also ran afoul of those First Amendment free speech guarantees.

But First Amendment rights don’t defend themselves. Left on his own, the blogger would either have had to run a huge risk of fighting and potentially even losing an expensive lawsuit, or he would have had his speech chilled if he took the safer path to yield to the threats and stop blogging about Carreon’s belligerent behavior. Fortunately he was able to obtain counsel in the form of Paul Levy from Public Citizen, but as a DC-based lawyer Paul needed local counsel to help get access to the California courts, and that’s where I came in. Carreon’s threats to sue made it necessary to head him off at the pass and sue first, and so we did, asking a court to declare that the blogger in no way violated any of Carreon’s rights in using the domain name for his commentary. My job was to help achieve that result.

Which was surprisingly difficult. Filing the lawsuit itself was fairly straight forward (apart from some atypical delay caused by transient problems in the electronic court filing system that day), but filing isn’t enough: in most jurisdictions a lawsuit doesn’t really get going until the defendant has been served a copy of it, officially putting him on notice of the lawsuit and starting the clock on requiring a response. Normally service is very straight forward, but in this case it was anything but as Carreon meticulously avoided it, first by not accepting service via email (which was his prerogative but would leave him having to pay for the costs incurred in serving him otherwise), then by refusing to accept a copy of the lawsuit by mail (indeed, instead of accepting it he put it in an envelope and mailed it back!), and then by refusing to answer the door for the process server we had to dispatch on multiple occasions. All of this became very expensive in terms of cost and delay and was extremely inappropriate, particularly for a member of the bar with duties to the profession and the courts he practiced in. Eventually I had to personally serve him by locating him outside a one of these courts where he had just appeared for a hearing on behalf of a client.

Which is what officially began the case, but no sooner had it begun when it ended. In an attempt to avoid having to pay the extra costs associated with the service, he offered a complete settlement on the merits and a small sum of money for “costs.” This represented a good deal (for us!) because it left our client’s free speech rights vindicated yet didn’t preclude recovery of the fees for the time we had expended in the case so far.

Generally speaking, in the United States each party in litigation pays its own lawyers’ fees. But there are certain laws like the Lanham Act, which governs trademarks, that allow for attorney fees to be recovered by the prevailing party. Under the Lanham Act this recovery is reserved for “exceptional” cases, and we argued that this case most definitely qualified as one.

Unfortunately the court only partially agreed: we had argued that the 10-point threat of litigation against the blogger was so egregious as to have rendered the case exceptional from the outset, but the court felt otherwise and denied recovery of fees from that portion of the case. The court did, however, award the fees involved with the difficulty in effecting service at the beginning, and it also awarded fees incurred for responding to his “unnecessary, vexatious, and costly tactics” once we had begun the process of asking the court for our fees. Instead of making cogent arguments against such recovery – arguments it appears the court would have been amenable to – Carreon instead had tried to pursue an ever-rotating set of fantastic theories of malfeasance by our client’s counsel. Carreon’s efforts in this regard included demanding discovery (and, particularly onerously, of privileged communications between client and counsel and attorney work product), which is something that normally happens near the beginning of a lawsuit, not after the merits have already been decided, and caused us to spend more time, energy, and money to address. As a result, the court decided, Carreon snatched defeat from the jaws of victory and turned this lawsuit into an “exceptional” case warranting our recovery of the fees accrued for the time we spent having had to respond to this conduct.

Ultimately Friday’s ruling represents a solid victory for us, our client, and the free speech ideals that had been threatened. Recovering the fees (note: we still need to collect, but the ruling awarding them is a crucial first step) is a nice reward for our efforts and good for the cause of defending free speech in the future. It’s important that people like our client can get legal help when faced with groundless threats against their speech, and there will be many more sources of help when those lawyers can somehow get paid for providing it. Also, dunning aggressive litigants for the expense incurred by their unfounded legal bullying has the effect of dissuading others from pursuing the same tack, thereby leaving more speech to thrive.

It has been a privilege to help fight for this outcome, and I’m glad that when the call for help came, I was able to step up and do so. As I said above, this is exactly the type of work I became a lawyer to do, and I am proud to have gotten the chance to.

In his post Gideon make a compelling case for the due process issues at stake here. What’s especially notable about this situation is that the investigation isn’t just an investigation into some general wrongdoing; it’s wrongdoing by police that threatens to compromise the accused’s right to a fair trial. However you might feel about him and the crimes for which he’s charged, the very fact that you might have such strong feelings is exactly why the court was motivated to impose a gag order preventing the disclosure of such sensitive information: to attempt to preserve an unbiased jury who could judge him fairly, a right he is entitled to by the Constitution, irrespective of his ultimate innocence or guilt, which the police have no business trying to undermine.

Ken goes even further, noting the incredible danger to everyone when police and journalists become too chummy, as perhaps happened in the case here. Police power is power, and left unchecked it can often become tyrannically abusive. Journalists are supposed to help be that check, and when they are not, when they become little but the PR arm for the police, we are all less safe from the inherent danger that police power poses.

But that is why, as Ken and Gideon wrestle with the values of the First Amendment versus the values of the Fifth and Sixth the answer MUST resolve in favor of the First. There is no way to split the baby such that we can vindicate the latter interests here while not inadvertently jeopardizing these and other important interests further in the future. 

Ken began with a personal anecdote that shaped his view, so I will include mine. On my watch as editor of the high school newspaper, we accepted, under condition of anonymity, a letter confessing to an act of politically-motivated criminal mischief. (More specifically, the source of the letter claimed to have ripped up the “no parking” signs and painted very real-looking parking spaces on the pavement in order to protest a much-loathed-by-students policy forbidding students from parking on the streets neighboring the high school.) Neither the underlying defiant act, nor the letter, sat well with school officials. Enraged with embarrassment that this crime had happened under their noses, together with the town police they went on the warpath to find the culprits. The miscreant(s) had woken the bear, and he was hungry for fresh meat, even if it was that of journalists. I was called into the principal’s office and (erroneously) threatened with charges of perjury if I did not divulge the source of the letter. (Important note: as powerful as public officials may be, their power does not necessarily correlate with their correctness.) I refused and got a lawyer instead.

Would the world have ended if I’d divulged the source? Maybe not. Maybe no one would have even gone to jail. But here was an issue relevant to the community that only with the help of the source we were able to fully report on. (Indeed, many students wanted to know what had transpired, because seeing the spaces and no signs, they’d parked in them and then gotten tickets.) If as a journalist I couldn’t get that sort of assistance because my promises of anonymity were meaningless, there would be a lot less that I could report on – no matter how much the community really needed to know it. Which brings us back to the situation in Aurora.

Ken and Gideon are likely right that in this instance the divulging of the diary’s contents by the police was a craven abuse of its power and position – and in a way that potentially represents real harm to the due process rights of the defendant. But I don’t think there is a way we could except this particular situation from the shield law (“shield law” being the term for the law generally permitting journalists to protect the identity of their sources, also sometimes referred to as “newsman’s privilege” or something similar) without doing some violence to the shield law’s durability and utility in other ways.

Since the 1970s we have seen the journalist’s privilege to protect a source as a qualified one that can be balanced against other compelling state interests. Even the Colorado shield law statute makes clear the privilege is not absolute. But great care must be made to not back away from it too easily – and subsequent jurisprudence supports this view – for the very reasons Ken and Gideon contemplate for why they may be tempted to do so here: because police power can so easily be abused.

It wasn’t just abused today, in this instance, but may also be tomorrow in many others, and we need to be able to know about it. But we are much less likely to when sources are chilled from coming forward and informing journalists about the things the public needs them to report on. Today, yes, it seems the anonymous police source has sought the shield of anonymity simply to protect himself from the consequences for having done something both highly illegal and gravely wrong. But what if tomorrow an anonymous police source seeks the shield of anonymity to protect it for when he does something that might similarly be illegal but, on balance, nonetheless right? Like, for instance, whistleblowing on other police abuse?

Whenever the shield law is asserted it’s never really about that particular situation; it’s always about being able to assert it in future situations, and that ability is undermined when the assertion can so easily be countermanded with post hoc judicial review. Both sources and reporters need a way to anticipate whether the promise of anonymity will either real or illusory, and the more frequently and more easily the promise is punctured the more illusory it will become. True, the Colorado shield law statute does contemplate situations under which the shield might be made to yield, but for the shield to retain any meaning these situations must be defined as narrowly as possible, practically to the point of never and even in the face of extremely compelling countervailing reasons. It cannot be denied based on merit of the reporter’s story, for no one is fit to arbitrate that worth.  It cannot be denied based on the specific crime revealed by the information the source divulged, nor can it be denied based on crime potentially committed when the source divulged it, for no amount of journalist testimony will ever provide a cure for those crimes, and it’s sometimes only that promise of anonymity that let us know such a crime had even occurred.  And it cannot be denied based on the interest, no matter how valid or important, that might potentially be jeopardized by the privilege’s assertion, for that is never the only interest in play.

First Amendment-enabled protections like shield laws provide an escape valve from the tyranny abusive police actions present. If, as Ken and Gideon ably argue, we need to ensure we have some defense against this power, then we need to sure that important safety measures such as newsman’s privilege remain in place, as potent as ever, to protect us.

BoingBoing has a post about an author of a book on parasites, which explains, among other things, that there is a parasite in cat feces that can affect humans – making women more friendly and men into jerks.

Perhaps that’s why my August 2000 turned out the way it did. I had been living, catlessly, with my boyfriend for 13 months. He really wanted to get a cat, but I resisted. It’s not that I object to the concept of a cat, but I am not comfortable with their logistical realities: smelly input and output, and the long-term commitment any house pet requires. How could we go places? How could we travel? Having a cat would seem to instill a burdensome complexity in our lives that I thought we were better off without.

Still, I wasn’t anti-cat, per se. Just like everyone else I thought the stray kitten we found frolicking at the bottom of the stairs of our garden apartment was incredibly cute and charming. To the point that I tossed and turned all night worrying about what would happen to it. It was not an idle concern: we discovered later that the cat had been living across the street — a four-lane street, which was hardly conducive to safe cat crossing! But she and her two brothers were all strays that a neighbor had been leaving some food out for. And that was about to end as her husband insisted that they be taken to the humane society. Word had it though that if they ended up there, after three days they’d all be put down. But this little calico seemed way too sweet and friendly to allow that to happen to.

So we brought her home — temporarily. Some friends of mine at my job worked with a cat rescue organization, and as a favor to me agreed to take her and get her adopted out. But they couldn’t do that right away so we took her in for a couple of days.

We named her Bovina because her calico spots made her look like a cow. She wasn’t too young — my boyfriend thought she was the equivalent of a teenager — but lots of things were new to her and she seemed to enjoy exploring our apartment. For this brief period I didn’t mind having a pet. She was very affectionate and nice to pet and I genuinely cared about what happened to her. But I knew I couldn’t commit to taking care of her, so instead I did what I could to find her a nice home elsewhere.

Soon my friends came to take the cat away and get her ready for adoption. Shortly thereafter, my boyfriend also moved out. We’d been having issues, but the move-out came as a surprise to me: I came home from work one day to find half the furniture gone! I was not thrilled with him, to say the least. But now I understand – perhaps this assholishness was caused by the parasite! He obviously couldn’t help himself — the cat made him do it!

It did seem bitterly ironic that within less than a month, I’d managed to lose both a cat and a partner. The apartment had rapidly gone from very crowded to very empty. But I do think it was all for the best. Look at my life now: I travel the world hither and yon, having all sorts of adventures. How could I do all that if I were tied down by a long-term commitment?

And what would I have done with the cat?

It was certainly time: I hadn’t set foot in France in 10 years, which was particularly odd given that I had twice lived there, once for a month in Provence and once for a better part of a year in Paris. That’s when I got the gift of French language skills. Unfortunately, being away from France for so long those skills had necessarily gotten really dusty, and for various reasons, now was the right time to find them again.

So I just spent a little over a week in Paris. I wasn’t a tourist. I didn’t see a single museum or historic site (at least not purposefully; in Paris you kind of can’t avoid seeing them accidentally). Instead I sublet an apartment and settled into my old home.

In many ways it felt like only yesterday since I’d been there, but the truth is that I left it nearly 15 years ago, and over and over I was reminded by how much has changed since. Back when I lived there they had JUST converted to the Euro, but still used French Francs. They had JUST built the 14th line of the Metro, but not the next several RER lines or tramways. The Internet had only just become popular back then, during that Christmas when everyone got “Internet in a box” (the hot item back then was a box containing a 14.4 modem, CD with Netscape, and a subscription to Wanadoo), but otherwise it was a country still attached to Minitel.

Back then I knew the rare places where you could find sushi (mostly in the 5th and a few spots in the 6th), but now it’s on every block, while bistros and other local cuisine has become much harder to come by. And now when people “take a coffee” it may well be from a Starbucks or McDonald’s “McCafe.”

It’s also much harder now to practice one’s French – English is everywhere. The Internet is everywhere, even in the Metro. What I noted about Germany seems true for France too: pan-Europeanism has replaced a lot of local cultural identity.

But, as a French friend reassured me, that is what the French want. Tastes have changed, he said. What you now see in Paris is what they have changed into. And to be sure, plenty of profoundly French hallmarks remain. There are still boulangerie-patisseries and boucheries on every block. Even supermarket food is French in style and reflects the local demand for quality and French ingredients. The Metro runs well, except when it doesn’t, just as it always has. The streets are still French, the buildings still French, and the people still French. But French life now includes a kind of global cosmopolitan openness it didn’t so much have before.

As well as far more bagels, donuts, cupcakes and burritos than there used to be.

For some context, I did a semester of my 3L year in Hamburg at Bucerius Law School. The first private law school in Germany, it funded itself in part through the sponsorship of large law firms.

The Clifford Chance Napping Room

The other day some German students were discussing how Bucerius really needs to build a “napping room,” perhaps with an LCD screen that should easily show new nappers which beds were available. In case of high demand, they could also be put on a timing mechanism, kind of like the showers in train stations. (I used one once in Copenhagen: you get 30 minutes for your shower, and when the time’s up, the door is going to open whether you’re ready or not…)

One student then suggested that perhaps Clifford Chance could sponsor the “napping room.” After all, other rooms in the school had been sponsored by leading law firms, like Linklaters and White and Case. But Clifford Chance does not (yet) have a room of its own, and the students thought this might provide the perfect sponsorship opportunity.

“Do you have napping rooms at your schools in the US?” the students asked me.

“Yeah, but we call them libraries.”

Anyway, the upshot is, apparently Bucerius does indeed now have a napping room. I’m not sure if Clifford Chance sponsored it, but if it would like the opportunity to, every law school everywhere could certainly use their own…

I recently read a cute blog post written by a law student whose toddler son just uttered his first sentence.

“I am struck, as I march wearily through Evidence, at how effortlessly Nathaniel learns. We adults, we must choose to learn something new. We dedicate ourselves to learning consciously. If we didn’t want to learn anything new for the rest of our lives, we could. Plenty of people drift unresisting along that route through life.”

Certainly there is something marvelous, as she goes on to describe, about how children are so inexorably drawn to learning new things, and how they do it so easily. But for grown-ups, maybe it’s not that we’re any less adept at learning but that what’s left for us to learn is things like Evidence. Something that’s learned in a much more mechanical, deliberate, and less-rewarding fashion than the really cool, substantive stuff like walking and talking.

The other day I went back to the bike shop I’ve visited several times since I’ve been in Germany, including in the first few weeks when I had almost no German skills whatsoever. Back then I had to make the staff speak to me in English, since there was no way anything would get communicated otherwise. But on this day I strode in confidently. I asked my German friend for just one word, the particular one for the part I needed. “Why don’t you just ask them for it in English?” he asked. But I couldn’t do that. Not here, anyway. I needed to do this in German. It was a matter of pride.

So armed with my word I went up to the counter and asked for what I needed. The whole conversation only consisted of a few sentences back and forth, but it was indeed back and forth. I asked for what I wanted, the clerk responded with a question, I answered it, and then he provided the information I needed. By the end of it we both understood each other perfectly.

Outside my friend marveled at how quickly I’d learned to speak that well. Now, let’s not kid anyone: I’m only barely functional in German, and my conversational ability is strongly limited by my tiny vocabulary. And what I can say I may not always say quite right, or quite smoothly. But I can communicate in this language, that is clear. And maybe my friend is right to be impressed.

The thing is, it was easy to learn. Surprisingly easy. And much easier than learning things like Evidence. Because unlike rote, mechanical things like Evidence, learning a language is a dynamic process full of reinforcing affirmations. It wasn’t something I learned abstractly and then took a test for, after which I needed to wait days or even weeks for feedback on whether I’d learned anything at all. Learning German in Germany meant that I got feedback immediately, on the spot, with every word I uttered. That dawning look of understanding on the other person’s face, it helped to immediately cement in my brain everything new I’d absorbed.

It does matter, of course, tremendously, that I learned German in a German-speaking place. Learning a language in a rote form, far removed from anyone you could connect to with it, is much like learning Evidence. I gave up Latin in high school for that very reason — it always felt like learning algebra, something with memorizable formulas but no spark of life. But I switched to Spanish in an environment where, although it is a living language, I was so detached from anyone who lived in that language that the educational experience was just like learning Evidence too: a discrete set of material to be learned and memorized, but nothing more than that. And so while I can truthfully say I’ve learned Spanish – I studied it quite a bit over several years – it’s still not a language I can (so far) in any way say I truly know how to speak.

But in the right environment, somewhere where you can explore and decode language with each breath you take and be rewarded for your discovery almost immediately, language is amazingly easy to learn, no matter how old you are – whether you’re toddler in your parents’ arms or a grown-up in a new neighborhood.

Or at the very least, it’s much easier than Evidence.

I don’t describe all this as a complaint, per se, but it did prompt a “kids these days” sort of reaction as I recalled my own first serious backpacking trips traversing Europe. Back then (1995 and 1996) Europe had already just changed rather drastically in that the Iron Curtain had just fallen, which opened up areas and cultures that had previously been walled off (often literally) from the rest of the continent. But even in western Europe passports still needed to be shown at country borders, money changed in each one, and separate phrase books consulted. Each country seemed very far away from every other one, and each retained a very different language, culture, food, coinage, telephony, and general aesthetic from its neighbors. Half the point of a European travel adventure then was to have to get to and cope with each one throughout the journey.

Which, as one must now imagine, was often difficult. Pan-European travel is undeniably much easier today, and certainly MUCH easier than it has been for so much of history. And in many ways the new status quo is definitely a good thing. The more separate and distinct each European nation was, the more likely it was to war with its neighbors. Having a common sense of European community is tremendously important to the overall success and stability of the entire region.

But how much needed to be overcome in order to reach this point is an important lesson of history, and one that can so easily be forgotten as the challenges, and with them even some of the charms, of a more localized Europe fade so quickly into the past.