April 2, 2013 | By Parker Higgins and Jim Tyre

Copyright Trolls Offer No Defense to Frustrated Federal Judge

A federal judge in Los Angeles today showed little restraint in expressing his frustration with the "attorney misconduct" he's identified by the prominent copyright trolls behind Prenda Law. All of the named representatives of the firm appeared at today's session, after Judge Otis D. Wright II complained about their failure to do so at a similarly dramatic March 11 hearing.

Judge Otis Wright II

Until today, nobody was sure of who would actually appear. Prenda lawyers Paul Hansmeier, Paul Duffy, and John Steele were present, as well as Peter Hansmeier (Paul's brother and the technical expert in Prenda cases), Mark Lutz (a non-lawyer who worked with Steele Hansmeier and who is the CEO of various Prenda clients), former counsel Brett Gibbs, and Prenda paralegal Angela Van Den Hemel — a full house except for “Alan Cooper of AF Holdings, LLC.”  (Alan Cooper of Isle, Minnesota, who testified at the March 11 hearing, made it clear that he had no connection to AF Holdings.)  Judge Wright said he was "pleasantly surprised" that everybody was able to make it to the hearing, as otherwise he would be forced to "draw reasonable inferences" from the facts presented to him.

But after that short introduction, Judge Wright discovered he would be forced to draw those inferences anyway. First lawyers for John Steele and for Paul Hansmeier, and then Heather Rosing, the lawyer for Duffy, Prenda Law and Van Den Hemel, claimed that their clients would be exercising their Fifth Amendment rights not to testify. "If you say his testimony will incriminate him, I'll take you at your word," Judge Wright responded. The Fifth Amendment provides the right for people not to testify against themselves; it prevents an adverse inference in criminal matters, but courts may allow adverse inferences in civil actions when someone refuses to testify in response to evidence offered against them. Judge Wright, clearly frustrated, said he was simply seeking to uncover the facts of the case: "Let's cut to the chase: I want to know if some of my conjecture is accurate." Given that Paul Hansmeier, Duffy, Steele, and Van Den Hemel would not testify, he was left with little clarification.

(Peter Hansmeier and Mark Lutz were present but not represented by counsel. Judge Wright didn't ask them directly whether they would testify or take the Fifth.)

Judge Wright asked why Prenda Law concealed its attorneys' financial interest in the underlying cases. Rosing, the attorney for Duffy, Prenda Law and Van Den Hemel, responsed that there was "no evidence that they have an interest." Judge Wright was incredulous: "Have you read Paul Hansmeier's deposition?" Rosing asked for the chance to offer a legal argument, but Judge Wright wasn't going to allow it at the hearing. She then offered to submit the argument as a brief, which Wright agreed to before adjourning the hearing after about 12 minutes. "We're done."

We're waiting to hear more from Judge Wright. Although he said in the hearing that "The court's interest has shifted from protecting intellectual property interests to attorney misconduct," there are still some unresolved issues. For one, EFF represents two anonymous bloggers that Duffy and Prenda have sued for defamation after their reporting on Prenda's cases. Ken White at Popehat has a detailed report.


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