Is this, legally, blackmail? [Prenda-related]

Coming to you from Prenda Law, where the attorneys take the fifth, is something that just smells bad. Paul Duffy is sending out letters informing people that they’re being accused of illegally downloading pornography, said letters containing this verbiage:

“Pay up or I’ll tell everyone we’re accusing you of illegally downloading fetish pornography.” Is this normal behavior, or is it something you’d get dumped in a Salt Marsh over?

No, it’s not normal behavior. It’s especially unethical to refer to potential defendants in a civil action as “possible suspects”.

I don’t know, doesn’t sound very bright to tell a person you’re threatening to sue “it could be you or a dozen other people… here’s a list” and give them a means to construct an alibi at the same time (“Quick, delete the wifi password!”).

But basically these guys have pretty much proven they’re not the brightest turds in the toilet…

Hence the thread. Were this another person related to another firm, I’d have thought “Oh, well, I guess that stuff is allowed” because, really, they’re lawyers and can be presumed to know the law better than I do. But this is Paul Duffy of [del]Pretenda[/del] Prenda Law, so my first thought was “Maybe he’s really that stupid. Worth a question, anyway.”

I don’t know whether this this the same case, but last week there was an opinion in which a federal judge came down hard on these kinds of tactics.

Let me put it this way. If I got a letter like that, I’d reply, on my office letterhead, with a copy of my state’s Litigation Accountability Act, and a map showing the location of the local courthouse.

nm

The purpose isn’t to win a lawsuit. They have no actual evidence. What they’re doing is saying they’re going to go around and tell people who know you that you’re the subject of an illegal porn lawsuit in hopes that you’ll offer to make some kind of deal to stop them.

I checked. It indeed was Prenda. Ingenuity 13 LLC v. Doe, No. 2:12-cv-08333-ODW-JC (C.D. Cal. May 6, 2013)

The court issued sanctions of $81,000 against counsel for their litigation tactics and noted that they were singularly uncoöperative in the process. They referred the matter to the state bar association and to federal authorities to look into whether what they were doing constitutes racketeering under the federal RICO law.

I’d tell them to put their money where their mouth is. Tell everyone. No one will care. No one will believe you. Try me.

If they haven’t actually filed a lawsuit (and are merely threatening to) this is the sort of thing that ‘declaratory judgement’ was made for. Basically you tell the court “so-and-so is threatening to sue me. I’d like the issue decided now” (rather than letting the issue hang over the defendants head for an indefinite period of time).

That’s why infringement letters USUALLY (when trolls aren’t involved) are carefully written to avoid threatening or employing a lawsuit, typically using phrases like “may be in violation of patent/copyright/trademark”, and “invite you to discuss licensing arrangements”.

The problem is that getting a declaratory judgment isn’t free. Neither is it secret.

This isn’t an effective tactic. If you claim some kind of intellectual property right and then suggest that someone is infringing on that right and demand some kind of change in behavior, a court is going to infer that you meant to threaten some kind of action to enforce that right.

They got smacked down pretty hard in the ruling:

The ruling is quick to recognize that Prenda’s tactics are to accuse their victims of illegally downloading porn, but offering to settle for “a sum calculated to be below the sum of a barebones defense”.

The line in the ruling where it denotes the $81,000 sanction has a footnote that indicates that the sum “is calculated to be just below the cost of an effective appeal”.

:smiley:

Yes, but they’ve pretty much told you “here is how you could win if there is a lawsuit.” Now all you have to do is go to your neighbours and say “Hey, it looks like someone has been hijacking my wifi to download porn. I hope it wasn’t you, but if these jerk-offs contact you, tell them to take a hike. They have no leg to stand on.” (Best defense is a good offense).

Of course, if they even hint to your neighbours it was you downloading porn, that’s slander? (Unles it’s true).

Their model is based on fear and mainly not having to file individual lawsuits, so ignoring them or threatening a countersuit is probably the best tactic. they just want the ones who pay up quietly.

techdirt.com has an article about Duffy’s wife’s Facebook page where she comments (since deleted)

Pay to not have their name released?
The author makes this point:

Fred Phelps got started on his bankroll by telling his neighbors that he tripped and hurt himself on the snow on their unshoveled sidewalk and he was going to sue them for medical, pain and suffering, and punitive damages for $35K or so, but he’d be willing to settle out of court for $5K or so. Until the judges in Hillsboro got tired of seeing him in their courts.

In a similar vein, a CA attorney is under fire for a letter that sounds very much like attempted extortion:
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](http://www.abajournal.com/news/article/was_well-known_lawyers_demand_letter_extortion_appeals_court_to_hear_argume/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email)