Welcome to the century of the copyright troll: Prenda Law was just the beginning

As the saga of the porno copyright trolls Prenda Law moves into its end-game (likely to involve disbarments and jail time for the fraudsters behind the multimillion-dollar scheme that relied on bogus legal threats and sloppy accusations of copyright infringement), it's worth asking, how, exactly, this scam was able to go on for so long, and what can be done to prevent it in the future.

A pair of articles -- one by the Electronic Frontier Foundation's Mitch Stoltz, the other by Ars Technica's Nate Anderson -- delve into this in depth.

First, Anderson explains how Prenda hit on a cunning legal strategy that allowed it to try out variations on its scam, looking for the right combination of tactics to extract maximum revenue from its victims, without risking its own finances. This strategy cost the public a fortune in court costs and cost the victims another fortune in their legal costs, but Prenda didn't bear any of that. In effect, the public subsidized its brute-force attack on the American legal system:

How could the scheme go on for so long even as federal judges complained about fraud, as "John Doe" defendants complained repeatedly that they had no idea what the cases were about, and as critics complained about the injustice of the entire business model? The answer is that federal judges aren't generally investigators. Prenda had gone to great lengths to obscure what was really going on, who was doing what, and where the money went. Judges want to clear cases off their dockets and in rare cases will entertain sanctions motions, but to unravel something as complex as Prenda's behavior required a real investigation. Yet without more details, actual criminal investigators had very little to go on; most of the judicial complaints dealt with behavior in court, not public crimes.

So Prenda could essentially turn the entire US judiciary into a laboratory for incrementally refining its porn trolling techniques, testing venues, judges, corporate structures, collection procedures, and legal arguments, looking for perfection. And what it arrived at in the end had a certain devious logic to it. Even Otis Wright, the federal judge in Los Angeles who brought down Prenda's principals and referred them all for criminal and tax prosecution this week, had to concede the conceptual beauty of the system.

But as EFF's Stoltz explains, this isn't a bug in the system, it's a feature. Modern copyright law has been bought, paid for, and designed by the entertainment industry, and they demanded as system with as few safeguards and checks and balances as possible. Every element of copyright law that might enable an innocent person to easily defend herself meant added expense and burden for the entertainment industry's lawsuits against its customers and against technological innovators:

Consider this: U.S. copyright law provides statutory damages of up to $150,000 per work - without the copyright owner having to show actual harm. Individuals have been hit with damages in the six figures, and companies with bankrupting judgments in the tens of millions. Threats of damages like this are one of the main ways that copyright trolls convince their victims to pay $2,000 to $4,000 in "settlements." But statutory damages are also wielded as a club by entertainment, media, software, and technology companies. They can destroy competitors and dry up investment with mere threats of litigation, giving them veto power over new technologies and emerging artists.

And consider "secondary liability," the judge-made rules for when one person can be held responsible for copyright infringement by another. The rules are vague and their application often uncertain. Copyright trolls use this uncertainty to make plausible-sounding threats against Internet subscribers. You may not have been the one who downloaded our movie, say the trolls, but your name is on the cable bill and the law will hold you responsible. It's not always true - in many cases, an ISP subscriber is protected from liability for others' downloading - but the rules are vague and complex enough to make the threat sound real.

Looking beyond trolls, the same vague legal principles create legal nightmares - and sometimes financial ruin - for people that try to play by the rules. Companies like ReplayTV and Veoh went bankrupt trying to convince courts that they shouldn't be held responsible when customers copy TV and movies. Dish Networks/ReplayTV, YouTube, and many less prominent technology companies face lawsuits where the toolmaker must answer for the tool user. Only lawyers benefit, as vagueness means long fights and lots of legal fees.

As Stoltz writes, Prenda is just the beginning. The US copyright system is an attractive nuisance, a moral hazard on steroids, and the entertainment industry's own much-publicized efforts are the tip of the iceberg. Prenda's masterminds weren't all that clever -- there are smarter con artists out there who've learned a lot from Prenda's efforts, and they're licking their chops and getting ready to prey on you and your neighbors. And as with Prenda, we'll all foot the bill for their cons, thanks to Big Content's depraved indifference to the fallout from its legal projects.


  1. The problem is that the laws are made by lawyers.  That’s a glaringly obvious conflict of interest.  It sure would be nice if we could just automatically disbar anyone whose name is on a DMCA notice that turns out to be false, but that’s not going to happen as long as the rules governing lawyers are made by, wait for it, lawyers. 

    1.  “If the present Congress errs in too much talking, how can it be
      otherwise in a body to which the people send one hundred and fifty
      lawyers, whose trade it is to question everything, yield nothing, and
      talk by the hour? That one hundred and fifty lawyers should do business
      together ought not to be expected.” ~thomas jefferson

    2. Yeah, it would be much better if our laws were written by people untrained in law. And our building codes shouldn’t be written by engineers, and our furniture shouldn’t be built by carpenters. Don’t even get me started on dentists — why would 80% of them recommend sugarless gum if it were good for your teeth, when they have a vested interest in your teeth needing as much work as possible?

      1. There is a distinction: dentists learn about medicine and dentistry, and engineers about science, both of which have externally verifiable criteria of truth and success. Law is a discipline that eats its own tail to a much greater degree. In part, it’s about writing and speaking precisely. In part, its about knowing the history of the field to be sure exactly what the words the other lawyers are using.

        We can’t quite right laws in plain everyday language – there needs to be a standard vocabulary consistent over time –  but the *ideas* that go into the laws should mostly come from relevant people who need not be lawyers.

  2. And THAT, my friends, is why we are F@*&d.  Prenda or no.  Hopefully, they’ll get disbarred, but they’re only one roach in a $#!t smeared kitchen.

    1. There are those of us who shine forth a beacon on these things, illuminating the dark things trolls want hidden.
      We ring the bell, we raise the alarm and somehow a blind eye is turned.
      I might not be the best poster child, but you don’t send nice people to war.

      Without the work done by Sophisticated Jane Doe, DieTrollDie, and so many others… Prenda would still be in business.  The threads of their unmaking might have started to show, but without all of the pulling done by the Anti-Copyright Troll Community they would have taken yet another name to whitewash the history and started again.

      Some of us are trying to clean the kitchen, but we need to overcome the people who want to shift the focus to if our hands are clean.

  3. The other big problem here is that the legal system’s procedures assume that lawyers are honest. (I know, I know…) This results in serious attention being paid to blatantly bogus claims and motions.

    I followed the ten year saga of SCO Group v IBM etc. on groklaw and a few boards. It really startled me how little attention judges pay to common sense, instead plowing forward for years on legal claims that could be disproven in a few hours. 

    1. Not just the system, but average people seem to think lawyers would never lie.  That if they send me this letter there must be some real claim and problems.
      Picture those people who show up in threads where you have video of a cop beating someone who did nothing to deserve it… and they will give you all of the possible reasons the target deserved it even if you can see from beginning to end they did nothing wrong.  People want to assume cops are here to protect and serve, anything they do is to keep all of us safe and bad people deserve bad things.

      On paper the claims were technically correct, it is what happened when the courts gave them leave and stopped looking over the shoulder that things went sideways.

  4. “It’s not always true – in many cases, an ISP subscriber is protected from liability for others’ downloading”

    Unless you belong to the big ISPs who all signed up for 6 Strikes. 
    Who needs to use copyright law when corporate law can supersede it?

  5. I’ve always wondered why we keep feeding the monkeys.  Most entertainment is now so non-entertaining that I really don’t contribute much at all to the entertainment economy, although I’m plenty entertained.

    It is, though, an issue to be taken care of.  As society develops and changes, the law needs to respond (or, be prepared in advance haha).  Right now we’re in a period of sociological upheaval, and need to revisit the old assumptions.

    1. Or, possibly, the old assumptions don’t need to be revisited because none of it is relevant –  the assumption, what it’s about and who made it, none of it will matter in a post-monolithic-entertainment-monopoly world. 

      That’s my hope.

      I just started reading Pirate Cinema last night (so I’m about a quarter of the way through it already because… compulsive) and it’s a sensationalistic account of what’ll never be, extrapolated from what already is. Right now the money is all coming from the corporate side of things but cash is a crude tool.

      Mickey Mouse will never go out of copyright – I was listening to the WTF podcast with Rob Schneider recently in which he, of all people, was gleefully anticipating the copyright on Steamboat Willy reverting to the public domain, but it’ll never happen and it doesn’t matter.

      The social nature of humans and the leverage that technology provides means that you can buy all the laws in the world but at some point either everyone becomes a criminal or you just have to give up because it’s costing you more to enforce than you’re ever going to get back. You can’t criminalize the instinct to share culture. Or you can, but it won’t take.

      Who is going to support an entertainment industry that regards people who want to be entertained as crooks who have to be wrangled like animals, when there are so many alternatives available for free, or better yet which you WANT to pay for or contribute towards?

  6.  The plan was to sell sex toys through the mail with inflated claims of sexual efficacy from a discreetly named toy shoppe. Then when the users returned the obviously crappy toys, send them a refund check with an effusively vulgar company name so that they’d be afraid to cash it. I agree that it’s pretty much the definition of what the porn trolls are doing. They may have even gotten the idea from that movie. Because, as Bacon puts it, “Who wants their bank manager to know that they tickle arse when they’re not paying checks.”

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