Introduction to the Podcast and Guests

Morgan Pietz 0:06

So it's it's coming up with a creative way to say, I think that's BS, but how could we prove it? Sometimes that's what it takes.

Announcer 0:15

Welcome to the California Appellate Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Tim Kowal 0:30

Welcome everyone. I am Jeff Lewis. And I'm Tim Cowell. Both Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience a trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast useful, please recommend it to a colleague.

Jeff Lewis 0:46

Yeah, if you find it unhelpful, send an email to Fran. She's responsible for all the content.

Tim Kowal 0:51

So today we welcome Morgan Peets to the show. Morgan is a fellow First Amendment litigator along with Jeff. He is a former opposing counsel of mine, but we're we're both equally glad to bring him onto the podcast. Morgan is the managing partner of the Los Angeles Office of Merchant and Gould, where he handles intellectual property, defamation, First Amendment, and anti-slap cases at both the trial and appellate level. Jeff tells me he's best known as the copyright troll slayer, TM, maybe, who helped bring down Prenda Law, the copyright trolling operation that the I guess I don't have to say alleged. That is fully adjudicated by now, that the ABA journal called Part of Legal Folklore and for pioneering writ practice around anonymous speech in the California Court of Appeal, including the published decision John Doe II versus Los Angeles Superior Court. Morgan is also the author of a legislative proposal to reform California's anti-slap statute that passed the Conference of California Bar Associations. Welcome to the podcast, Morgan.

Morgan Pietz 1:54

Hey, uh, thank you, gentlemen, for having me. Pleased to be here.

Jeff Lewis 1:57

Yeah, and let me let me add to that bio. And Morgan's my go-to guy. He's him and Matthew Strugar are the two lawyers I want to be when I grow up. So any case involving Doe's, fictitious defendants, and that kind of thing, he's my man.

Morgan Pietz 2:10

Appreciate that. You know, John Doe is a frequent client of mine. I seem to get uh hired repeatedly by uh John Doe. Yeah, yeah, it's always good to have repeat work. Uh huh.

Tim Kowal 2:20

Well, Morgan, before we uh we wanted to get into a little bit of the backstory and you know how it started and where we are now with uh Prenda, you know, with the Prenda law case. If any of our listeners uh are not already initiated, uh we'll get to that in a moment, and maybe in the meantime you can look that up on Wikipedia and bring yourself up to speed. Uh but maybe uh but that was back in 16-ish,

The Prenda Law Case: Background and Impact

Tim Kowal 2:39

and that might have been I'm not sure where the where the federal prosecution ended. I think the perpetrator, at least one of the perpetrators, I think his name's Paul Hansmeyer, is still in prison, maybe. At any rate, uh there is there are some updates with him because he's been trying to get uh a repeat act of his patrolling operation back in the court. And he's been filing deck relief actions from prison to try to get those started. But uh, before we get into that, Morgan, would you uh lead us in with uh where you are now? What kind of uh work are you doing today? Is it uh is has the the Prenda law uh been prologue to where you are now still doing uh IP and copyright uh litigation and protecting uh the little guy against IP bullies?

Morgan Pietz 3:22

So so yes and no. Uh so I still primarily do intellectual property, although now many of my clients are no longer the little guy, but also often uh big companies, uh although, you know, I I have both. So I am I represent both plaintiffs and defendants in uh primarily IP matters, also First Amendment issues as well. Anything anti-slap is always uh near and dear to my heart. Uh but I, you know, when I when I did the Prendelaw case, it was it was actually even longer than 10 years ago. It was more like I think 2012 and 2013 that all of that was sort of really going crazy, although it dragged on uh for a number of years. I think maybe it might have been the criminal case that was in 2016. But in any event, since then I I've had a few stops along the way. You know, I joined a medium-sized firm for a while and just did a ton of trials and was then returned to a smaller firm where together with a partner, I continued to primarily focus on IP. And then about six months ago, I got invited by Merchant to revamp their LA office. So, you know, I'm managing an LA office for a firm with offices around the country, but it's a smaller team here in LA for now. But I'm one of the soft IP lawyers at a firm that's very well known in the patent field. So my practice remains primarily copyright, trademark, trade secret.

Tim Kowal 4:42

You mentioned that you're uh you're revamping the LA office. Is the uh is is the managerial task of running that office taking away from your trial work? And how are you uh managing the the administrative versus the actual practice of law?

Morgan Pietz 4:54

Compared to running a two-person law firm, actually maybe it's less management. So in any event, I'm doing okay with it now. It's still relatively small, and I'm actually grateful to have plugged back into the resources of a slightly bigger operation um than what I'd been doing. So, you know, it's great to have a department for that. I'll put it that way.

Tim Kowal 5:14

Well, one of the things that struck me about and uh I'm not gonna steal Jeff uh was telling me, I really want to ask about

Current Work and Challenges in IP Law

Tim Kowal 5:20

this the Prend a law case, so I don't want to steer too much into that. But one thing that did strike me is that I mean there there is an interesting, you know, doctrinal aspect to to trolling law, but uh it seems like it your the your piece of it was really outing all of the deception and manipulations that went on that went on around it. And usually you when it comes to uncovering uh all the shells of a deception like that, you usually think of needing a big team to try to hunt down and do all that investigation. Uh, did you have a team? Uh I think this was after you had left Big Law that you had started. And so I wonder what the if uh the resources that you have now at Merchant and Gould are allowing you to uh to do more investigation without having to risk, you know, uh turning away all other business. You know, it's interesting.

Morgan Pietz 6:09

Resources help a lot when it comes to like, you know, unraveling the thread, right? But also they don't guarantee anything. So it's happened, prend a law is not the only time. There have been a few times in my career where I got a case and something just kind of seemed off. And, you know, the more you dig, the more you dig, eventually you figure out, you know, that's something unusual at best, or you know, maybe potentially fraudulent has gone on. And uh what I've found is actually it it takes sort of determination more than anything to unwind a fraudulent scheme. So, you know, it's like you got to be willing to basically just say, well, that doesn't sound right. How could I figure out that that's a lie that they just told me? Right. And actually sometimes that's half the battle is just coming up with like a creative way to figure out that somebody's

The Legal Folklore of Prenda Law

Morgan Pietz 7:02

lying, which I don't know. They don't that's not something they teach in law school, I don't think. But it served me well throughout my career.

Tim Kowal 7:09

Yeah, and having the dog of determination or being unwilling to just accept the lie and move on.

Morgan Pietz 7:14

Right. Yeah. Uh so it's it's coming up with a creative way to say, I think that's BS, but how could we prove it? Sometimes that's what it takes.

Tim Kowal 7:23

And then you get into, you know, trying to track down you know subpoenaeing, you know, internet providers. And then we get into the question of anonymity and when you should be able to get the investigation that you need to uncover the lie. But but we'll get into all that later. Tell us, Morgan, what kind of cases are you uh working on these days?

Morgan Pietz 7:40

A recently finished up big footwear infringement case here in the Central District of California. I have handled a bunch of photo copyright infringement cases, not just sort of there's there's what I would call run-of-the-mill ones where repeat photo plaintiffs or photo agencies will sue big companies. I've handled a lot of those over the years. I've also handled some sort of more complicated ones that involve lots and lots of photographs against bigger defendants that have some more interesting or what I would say unusual issues about standing and who really owns the photographs. Like I've handled a number of those. And, you know, generally speaking, I have a pretty varied soft IP defense practice. There's some big clients who, you know, have hired me and my team to, you know, defend all different manner of soft IP claims. But like I said, we also represent uh plaintiffs. Depending on, you know, the case, the industry, the issue. We also, you know, like to represent the little guy when they have been unfairly treated by whomever it may be. A lot of times it's some former business partner or maybe business acquaintance. Uh you know, there's there's a lot that I do. Mostly though, IP is still my first love. Substantively, you know, I find myself keeping I keep returning to that area.

Tim Kowal 8:54

Okay. Well, with that, let's let's turn to your contribution to the legal folklore of the Prenda Law case. And Jeff, I'm going to turn it over to you for that.

Jeff Lewis 9:02

Yeah. Tim, before 2013, I had never heard of Morgan. No idea who he was. And then I came across, I think it was a news article mentioning a sanctions order by Judge Otis Wright. The order began this way. If you indulge me and let me read a little, might be a little triggering for any uh trolls out there who are listening. Plaintiffs have outmaneuvered the legal system, discovered the nexus of antiquity antiquated copyright laws, paralyzing social stigma and unaffordable defense costs, and they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle for a sum calculated to be just below the cost of a bare bones defense. For these individuals, resistance is futile, most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws, originally designed to compensate starving artists, allow starving attorneys in this electronic media era to plunder the citizenry. Plaintiffs do have a right to assert their intellectual property rights so long as they do it right. But plaintiffs' filing of cases using

Courtroom Dynamics and Experiences

Jeff Lewis 10:06

the same boilerplate complaint against dozens of defendants raised the court's alert. It was when the it was when the court realized plaintiffs engaged their cloak of shell companies in fraud that the court went to battle stations. I think Judge Wright likes Star Trek. I'm not sure. Yeah. Boy, what a what a what a legendary discovery sanctions order or a monetary sanctions order. Then it goes on. For listeners who weren't following the federal litigation, do you want to give a quick rundown of uh Prendal Law, who they were, what they did, and how you pulled the thread?

Morgan Pietz 10:38

Sure. Well, you know, I can explain it the way that many people first encountered Prendle Law. So the way it worked, so put yourselves in the in the shoes, if you would, of somebody who pays for internet service. Okay. And what would happen is you would get a letter from your internet service provider, and the letter would say something to the effect of we, the internet service provider, have received a federal court subpoena from insert the name of primarily it was adult content companies that would that were behind this, although there were also some movies, sort of you know, independent movies that you might have heard of that with plaintiffs. But the ISP says to its customer, we've received a subpoena, and according to the plaintiff's allegations, there was a particular IP address that was used to participate in a BitTorrent file sharing swarm that downloaded insert name of pornographic movie or whatever it was. And according to the ISP's records, you subscriber, it was your IP address that was used that was assigned to you at the time that this download happened. Okay. Now, the question is, well, okay, is that something that I, the subscriber, downloaded? Do I have maybe a, you know, 17-year-old son down the hall who's using the internet connection, right?

Tim Kowal 11:53

So someone parked outside my house using my Wi-Fi.

Morgan Pietz 11:56

Right.

Tim Kowal 11:56

Uh, which, and by the way, less people had passwords back then.

Morgan Pietz 11:59

I'll put it this way. Like in other words, it was more of a hassle to it was a little bit less common, I think, to and now it's like everybody's home Wi-Fi. Everybody knows you need to, you know, put a password on your home Wi-Fi. It was certainly I had a quite a number of clients who would call me and explain that they never had a password on their internet to begin with. Typically, the way the letter would go on to explain that unless some form of relief is granted before the court, you can file a motion to quash. But basically, unless you do something, we are going to turn over to this adult content provider the information explaining that it was your IP address that was used to download insert name of porn movie, at which point you you may be named in a federal lawsuit accusing you of copyright infringement for downloading this movie. You know, and then this is what was another interesting fight is that oftentimes the letter that would be sent, which the ISPs would pass along, would go on to say, if you would prefer to resolve this matter now without needing to, you know, have a case filed against you, feel free to click on this link and we'd be happy to settle this claim with you for two, three thousand dollars. And the letter would go on to continue to say that. So that's what these cases looked like from the perspective

The Mechanics of Copyright Trolling

Morgan Pietz 13:16

of people who would receive the subpoenas or receive notice of the subpoenas from their internet service provider. And, you know, some of them would say, uh-oh, you know, I do recognize that. And, you know, you know, geez, I didn't know. You got me. Right. You either you got me, and a lot of people just paid. Like, in other words, like there were there was a good, it was a numbers game where if you, the plaintiff, could basically get a court to sign off on allowing this, right? And you could convince the internet service provider to include the little payment link along with the notification, right? If you sent out, you know, a thousand of those notices, right, and only 20% of the people paid the two or three thousand dollars, right? That was a profitable lawsuit for you, the uh plaintiff, right? So in any event, but you know, lots of other times people would hire me, they'd be like, look, you know, I didn't have a password, uh, you know, it might have been my son, or you know, the oftentimes it was like, there were all kinds of things. Like sometimes it was gay porn, and it was like people were concerned about being outed. Like it was like there were a lot of different concerns that I that I would hear about uh in terms of people as to why they were either it wasn't me, or I don't want to throw the 17-year-old down the hall who's my son under the bus. There were all kinds of different, you know, scenarios under which this appeared. Sorry, I I was gonna just add, Prenda Law was a law firm that was one of the pioneers of basically this kind of litigation.

Jeff Lewis 14:43

Aaron Powell Am I remembering correctly that somewhere down the line, maybe towards the end of the case, it was discovered that these folks didn't have actual clients, that they themselves, these lawyers or their companies, were seeding the clouds or the internet with the porn movies with interesting names.

Morgan Pietz 14:58

That's actually where they went wrong and got into so much trouble, is you've you've seized on what it is that sort of differentiated Prenda from other so-called trolls. I actually think that that's maybe not a helpful moniker. You know, I because it's hard. You you ask five different lawyers what's the definition of a copyright

The Role of Anonymity in Copyright Cases

Morgan Pietz 15:18

troll, you're probably gonna get five different definitions. Well, the best definition I've ever seen, which was in a scholarly article, talks about trolls as being systemic opportunists.

Tim Kowal 15:28

And I think that's a good thing. And another term for it is uh running a sting operation, you know, you can lawfully run a run a sting operation, or you and you could technically also lawfully operate a trolling operation, but that neither one is it in and of itself unlawful. It's what you pointed out about they were b they were basing the entire theory on the ISP address as being equal to the defendant. And that was not not the case, as you pointed out. There could be a number of people in the household or people free riding on your on your IP address, and also all the fraud and manipulations that went along, as as Jeff had alluded to, that Prenda law didn't actually have clients. Prendle it was actually just the face. So to clarify, I think they did have clients at first, right?

Morgan Pietz 16:12

So in other words, I think when it started out, the pitch, and and I'm not what I'm about to say isn't based on any special knowledge I have. This is me just theorizing here. Okay. But I think that the pitch that Prenda, among other law firms that that you know did this kind of litigation, they would go out to content owners and say, hey, listen, I've got this brilliant procedural idea that I'm gonna do where I'm gonna file these John Doe lawsuits and go seek internet provider ISP records to identify the internet, the IP addresses. And this can be a whole new revenue stream for you. Sign here on the dotted line on my contingent fee representation agreement. We're gonna go file lawsuits in various federal courts around the country, and you, content owner, can just sit back and wait for the settlement checks to roll in. And there were a number of adult entertainment companies in particular, and as well as some you know, sort of independent movie firms that like were interested, signed on the dotted line and let these cases be filed. And in fact, as I pointed out, especially in the early days, when there were a thousand John Doe defendants bundled together into one case, and you could pay one filing fee and put together one motion for expedited discovery, the cases were making money. But what happened was over time, you would get the internet, the ISP customer who didn't do it, and maybe they didn't have a password, and they would hire a lawyer, and that person would point out that you know this seemed wrong, start asking questions. And all of a sudden, if you're filing cases

End User Litigation: Trends and Insights

Morgan Pietz 17:48

against tens or even hundreds of thousands of people in dozens of courts around the country, it's like the court starts ordering settlement conferences at which a representative of the plaintiff needs to attend. The defendants start serving discovery that the plaintiff needs to have somebody who can verify. I think that what happened was some of these porn companies that Prenda had signed up initially, as they started having to actually do things, like, you know, attend a scheduling conference or respond to written discovery and verify interrogatory responses. I think that some of these, you know, adult entertainment companies were like, wait, wait a minute, this isn't what we signed up for. This is becoming a hassle. We're getting all this bad publicity about it. And I'm not sure that we want to continue being in the middle of all of these, you know, dozens of federal court litigations around the country. So I think that became a problem after these cases had gone on for a year or two. And I think my own personal theory is that what made Prenda different is that they chose to solve that problem through fraud. And that's where they went wrong, right? Something that's really interesting that I've thought about over the years is that if the two guys behind Prenda, it was these two characters, uh, John Steele was the one guy's name, and Paul and his brother Peter Hansmeyer, he was the tech guy, the Hansmeyer brothers were the others. One was a lawyer, one was sort of like good on the internet. And what I've often thought about is if they'd have just been transparent about the fact that, you know, say John Steele had become the the figurehead of an IP holding company, and he had gone around taking assignment of the copyrights or even an exclusive license of the copyrights that they had been suing on. And they'd created a holding company, and John Steele had owned the IP, and Paul Hansmeyer, who says lawyer, had then basically been filing all the cases, right? I don't that there's nothing unlawful about that, right? In other words, that's not that different than what you see with repeat plaintiffs in all different kinds of litigation, including, you know, NPEs and the patent space, right? Like it's a business that's set up to monetize intellectual property through the courts, right? Or with a licensing scheme that's supported by the threat of litigation. But as Judge Wright alluded to in an order that you read from earlier, he he goes on to talk about the fact that if the courts had known that the plaintiff's lawyers had essentially become their own clients by acquiring the IP, I think that the courts would have given everything a closer look. And in other words, it would, since it didn't look right, I think they would have expected probably

The Future of Copyright Enforcement

Morgan Pietz 20:24

some more pushback on things like going into court and moving for expedited discovery to uncover these John Dez. What they did is they created these.

Tim Kowal 20:35

Could I just uh pause there? Because I I'm interested in what what you just said, because I think that a lot of people who know about the Prend of Law case, they probably stopped reading after the basic trolling allegations and realize that's icky. And so I I'm sure that they deserved everything they got. But the actual trolling aspect of it, just in and of itself, as you point out, isn't technically unlawful. It was the fact that he they had assigned themselves the IP and then legally they had the problem Right. Even that's not unlawful, right? In other words, yeah, right.

Morgan Pietz 21:06

In other words, like even if they had become their own clients and assigned their IP, there's nothing unlawful about that either, right? But it doesn't look right. And I think they would so but what they did is they hid that fact. Is they hid turned on a cloaking device. Right, that's right. So they hid the fact that they had become their own lawyers. And so so the first thing where this whole scheme clicked, right, is that the holding company that would were the plaintiffs in these lawsuits were corporations based on the island of Nevis in the Caribbean, right? And I didn't know much about the island of Nevis other than it's where Alexander Hamilton hailed from. But apart from that, I don't think I knew one thing about the island of Nevis at the time. And I was like, Nevis. I was like, that's odd, I thought to myself when I saw these lawsuits. I'm like, what's going on? Why a Nevis Corporation, right? I've heard of Cayman. Islands corporations, right? I'd even heard of something called the Cook Islands Trust, which is another interesting exotic foreign, you know, so shall we say asset protection jurisdiction? But the thing that Nevis is known for, which I learned through Google late in my office one night, is Nevis is known as a privacy haven. If you wanted to find out who truly

Conclusion and Final Thoughts

Morgan Pietz 22:24

owns a corporation based in Nevis and you were to subpoena the local authorities there in Nevis, they wouldn't tell you because they couldn't tell you, they don't know.

Tim Kowal 22:32

So if you want to If you have something in Nevis, you might as well have a tagline that says, because we're up to something.

Morgan Pietz 22:38

Right. Well, and moreover, it's because we don't want anybody to know who owns this company, right? So so that was like the first little alarm bell that I remember going off. It's like, that's odd. I'm like, why would you choose Nevis to be an IP holding company that was very clearly set up? The company had no, as far as I could tell, purpose or operations other than to participate in this lawsuit thing. So I was like, why would you set this up as a Nevis entity and then aha, well, it's privacy. It's if you don't want anybody to know who it is that's really behind us, right? And that was one thing that happened. But to come back to your question that you asked a little bit earlier, which was, well, you know, you were just a solo, you know, with at the time you brought all this. I I had some help. You know, there were a lot of lawyers around the country who were involved in defending these kinds of cases. And something that was so remarkable about the Prendo Law story is that we were all kind of swapping notes with each other. It was like somebody would get like a development would happen in their local district court, and they would report to others that that had happened. And I think that's how I like I'd done some work in this space. Like I'd I'd defended a bunch of these John Doe cases. And what ended up sort of being the beginning of the end of Prendo was I heard from this gentleman in like upstate Minnesota, and he was a caretaker at like some lake cabins in like up north Minnesota. And he was like an outdoorsy guy. You know, my impression of mine did meet him. This is a guy who liked hunting and fishing. And I think he had he lived up on this area where John Steele had like a family lake house. And John Steele was from Chicago, and apparently he would they would go up there in the summers or maybe in the winter for ice fishing. And he was friendly with this guy named Alan Cooper, who was from upstate Minnesota, and there had been this big mystery of like who was the person signing all this stuff for these shell companies based in Nevis, and they were all like signed by this guy named Alan Cooper. And what happened was I got a call from an attorney in Minnesota who was like, hey, you know, I found your name related to some of these lawsuits. And I got a client here named Alan Cooper who's telling me like a very unusual story, which is that basically he has this like, you know, friend of his named John Steele, and that like John, as Alan told the story to me, John had come to Alan and said, Hey, Alan, if anybody starts asking you any odd questions about like, you know, legal documents, don't worry about it. Just call me. And that Alan had then grown suspicious and basically talked to some people, which is how he'd been connected with this lawyer in Minnesota. And Alan had surmised that basically John Steele and Paul Hansmeyer were running this big copyright trolling operation, and that the name that appeared as Exhibit A attached to each of the complaints as signing a copyright assignment behalf of the plaintiff was Alan Cooper. And he had basically been like, is that me? Right? Like, in other words, he was like, he had reached out with the assistance of his lawyer to ask John and Paul for clarification, like, hey, wait a minute, like, there's another Alan Cooper, right? Like, in other words, this isn't, you're not just using my name on all of your court docs, right? And then that initial call, I guess, did not go well. I think it was like his lawyer sent an email and like John Steele tried to call him like five times, like, and I forget the details, right? But it was when I had heard from this guy, Alan, who was concerned that his identity was being used by the lawyers who were running this sort of copyright trolling operation. That was like the thread that once I started pulling, it all came up.

Jeff Lewis 26:18

Thank goodness. Thank goodness Mr. Cooper found the right kind of lawyer. Can you imagine if you found the wrong kind of lawyer who reached out to Prenda and said, Oh yeah, Cooper wants in on that. Uh send us 10% or something. Thank God uh this lawyer for Cooper maybe recognized something wasn't kosher.

Morgan Pietz 26:34

Well, and and Alan too. I mean, he he was a brave guy. I mean, like, in other words, like his comment was like, I don't trust John Steele. Like, I don't want any part of whatever it is that he's up to. And that's what he told me when I met the one time I met the guy. Interesting character.

Jeff Lewis 26:48

So lots of people have read the opinion over the years, what the courtroom was like. You know, Judge Wright would set these hearings when such and such person was supposed to show up or an explanation was supposed to happen. Tell us a little bit about what it felt like to be in the courtroom back in the day on this case.

Morgan Pietz 27:03

It was a remarkable series of events. So it like, you know, just to tell a little bit more of the story. So I started it off with what must have been the world's most inflammatory notice of related cases, which was what I did is I filed a notice because like Prend a law had all these cases that were assigned to all these different judges across the Central District of California. And the first place and time that I raised this sort of concerns that had now been raised about Alan Cooper was in a notice of related cases, where I explained that not only were the complaints very similar, right, and the claims being asserted in all of these cases very similar, and they all involved the same IP. I said, now there's a common factual question about whether or not the exhibit A that's attached to as exhibit A to each of the complaints in each of these cases may be a forgery. Because, you know, I've I've recently heard from this guy, Alan Cooper, who has a relationship with John Steele, and he's saying it's not him and that he never authorized it. And we have been seeking assurances and you know, answers to questions from Prenda Law about this situation, and so far we haven't gotten any answers. So we think that there's a possible relation of all of these cases based on this Alan Cooper issue. What happened was the first thing that came across was an order relating all of the cases and sending them to Judge Wright, who coincidentally happened to have the low number case of all of the Prenda cases filing in the Central District of California.

Jeff Lewis 28:28

He must have been thrilled to get all those cases at once.

Morgan Pietz 28:31

Well, I'll put it this way. I I don't know if thrilled or not, but he certainly rose to the occasion of basically taking that bull by the horns and figuring out what he was going to do with them. And what happened was I don't remember exactly where it was in there, right? He initi I also basically filed a request to basically serve some discovery, where I had explained after this inflammatory notice of related cases, right, that we weren't getting answers to our informally asked questions. So I wanted permission from the court to basically serve some discovery on the plaintiffs that would have them respond to these questions under oath. And what happened was that was granted. Judge Wright granted it, didn't go to the magistrate. I thought that was interesting at the time. I was like, oh, this, I think maybe we've got the court's attention here. And sure enough, as the time came due for Prenda and the lawyers to answer this discovery that I served, seeking to, you know, ask questions like, well, is there another Alan Cooper? Who's that person? Who who owns the companies, right? Like, what are the corporate documents, right? As the deadline for that discovery came due, the plaintiff started voluntarily dismissing all of the cases without prejudice. Not just in the Central District of California, but across the entire country. All of a sudden, there were, I think, I want to say at least dozens, if not hundreds, of these cases pending around the country. And one day it was like people just started reporting from all over that they were all being dismissed, right? And what happened was is Judge Wright issued an order to show cause race sanctions, basically saying, I don't care that you've dismissed it. I'm I'm now concerned that like there's been some misrepresentations and there are some pretty serious issues going on in these cases. And I'm ordering a show cause order, I'm ordering, and he had a list of people that I'm ordering you to appear for a hearing. Right. And some of them were parties, some of them weren't. So we showed up for a first hearing at which some of the people he had ordered to appear didn't show up on the theory that they weren't already parties to the litigation. I want to say maybe it was Paul Hansmeyer or John Steele hadn't shown up. They like, because they were like, well, we're not council of record. And in any event, we had a first hearing at which the council of record did show up and a couple other people showed up, but you know, basically we weren't getting any answers at that hearing. So then he did another order where like he ordered, you know, new counsel to come in and like serve everybody. And then there was a second show cause hearing. And at that one, it was like everybody was now paying attention, and it was a pretty remarkable scene. It was literally like standing room only in the gallery, as you know, we shut up for an evidentiary hearing at which the court had questions and at which I was, quote, invited to present evidence. Which was an unusual, uh, an unusual ask at the time. And we we put on our witnesses. We got Alan Cooper out there. He testified at the hearing. We put on a whole variety of witnesses and took the court through the whole, my allegations, at least, in terms of what I've been able to uncover. I I was able to uncover all these different links that sort of showed all of the various connections that pointed to the fact that it was really the lawyers who were behind the whole thing.

Tim Kowal 31:40

So they're basically fraudulent when assignments of the copyrights.

Morgan Pietz 31:44

It's filed as exhibit A to each of the complaints. And here's a great irony, which I have had occasion to repeat to many people throughout the course of my career since, which is that a copyright assignment only needs to be signed by the licensor or the assigner. The signature by the assignee or the licensee is legally superfluous. So like they didn't even have to do it, which was which was something that I thought was ironic. Like, in other words, the Copyright Act has its own special statute of frauds, and it says that an assignment of copyrights only needs to be executed by uh the person given away the rights. So the Alan Cooper signature was unnecessary.

Jeff Lewis 32:20

Yeah, and at the end of the day, the unnecessary signature was the thread you pulled on.

Morgan Pietz 32:25

That's right. You know, so Judge Wright issued that famous sanctions order. You know, it's it's funny. It's like, well, what's with the Star Trek references? Well, I assume not only is he a fan, right? Uh as am I, but I think that part of that order and all the Star Trek references was to make sure that people found out about it, that people heard about it, and that basically the alarm would be sounded around the judiciary about these kinds of lawyers and these kinds of cases. I remember part one of the things I think that the order said was that like, you know, notice of the order had to be given to every court case or jurisdiction in which these lawyers were practicing.

Tim Kowal 33:04

You know, I think there was intentional, it was intentional to make sure that word got out that basically what was going on in this case was not a well and that brings me back to the the point that we made a couple of times already that the uh the basic trolling operation was not itself unlawful, but that's that's the first whole paragraph of the uh of the quote that that Jeff read is in sounding the alarm. It's basically whenever you see this kind of trolling operation, might it might pass legal muster by itself. If it's all the I's are dotted and the T's are crossed and there's not any fraud or manipulation, it could pass muster, but you should still take notice of it because these kinds of cases are rife with examples of opportunists, like prend of law operators taking advantage and using it as a launching off point to execute fraudulent assignments of the copy of the IP or whatever it is in order to perpetrate a fraud on the court and to take advantage of defendants. Whether or not they're innocent, it's still a misuse of the judicial system.

Morgan Pietz 34:07

Yeah, and you know, just and just to be clear, the whole model of so-called end user litigation or John Doe, you know, infringement litigation, it wasn't Prenda or even the adult content out lawyers who came up with that. So that's something that really arose after Napster. It was really actually the music industry that pioneered so-called end user litigation. It was a new thing. It was like relatively novel. It wasn't totally new. There had been some similar sort of cases like that in the past.

Tim Kowal 34:38

Were you talking about like the BitTorrent, the kind of torrent type of litigation where all of the uh the data is filtered through hundreds or thousands of computers and it's hard to pinpoint the actual pirate server on the internet because there's no single server.

Morgan Pietz 34:52

That's right. And if you remember, like I'm old enough, you know, where I Napster came out when I was a freshman in college. So I feel like positioned to see this in real time in my life. But that obviously was a huge problem for the record industry. Totally changed the way the record industry worked. I think a lot of people, there were some years there where like, oh, the record industry will never recover. I mean, that has proven false. But one thing that is for sure is that the whole industry changed dramatically, right, as a result.

Tim Kowal 35:19

When they had their head, their head in the sand for a while. I knew a lot of people who knew that downloading music without paying for it was wrong, but they thought that this is the convenience that everyone wants. And the big guys who hold the copyrights refuse to make it available through their own platform. So they get what they've got coming to them, basically.

Morgan Pietz 35:36

That's right. And and the recording industry's response to that, among others, right, was to basically launch this litigation campaign that would make people sort of worried, you know, that uh if you are downloading music on Napster or Kazah or LimeWire or any of the early file sharing services, you know, now you had to have in the back of your mind that if you did that, the the record company might sue you and you might end up, you know, having to pay them a bunch of money. I think the record companies spent a lot of money on that effort, and it was some pioneering legal work that they did. I don't think it was a money-making effort. I think it was part of a PR campaign to basically try and drive education of consumers that downloading content without paying for it is unlawful under the Copyright Act, right? Or downloading copyrighted content, right? The RIAA in particular had really pioneered this kind of case, but they also, I think, spent a lot of money on it. And they did, in fact, make an example out of a few people, including being famously Jamie Thomas Rassett, was like the case that ended up going all the way through to trial and up on appeal. And you know, there was a question raised about whether her, I want to say it was a six-figure damage award was unconstitutional. Because in any event, they did do it and succeed in a sense in basically like pioneering the way for doing this kind of litigation. But it was really sort of like the porn companies in particular that figured out how to take that procedural model and like leverage the stigma associated with porn to like get people to just pay. And that was part of what was really driving the prend-a-law model, right? Is that there was the stigma associated with porn. People just didn't want to be named in a lawsuit, accusing them of downloading some salacious title. And, you know, it's interesting. One of the other interesting things is there's a lot of First Amendment lawyers in the adult industry. You know, in other words, some real First Amendment good lawyers, you know, who who really are are First Amendment champions who are hired frequently in the adult industry. And to be clear, the Prenda guys were not them. So, in other words, and in fact, a lot of people in the adult industry actually turned on Prenda and basically said, what these guys are doing is wrong. And it's giving all the rest of us a bad name. And in particular, I remember someone, this is a secondhand story, so take it with a grain of salt, but that basically John Steele had given his supposedly given his pitch to a room full of people in the adult industry and exclaimed with glee that they could charge twice the price when it was gay porn. And that basically because people would be that much more uh afraid to be associated with the stigma of that. And that that really upset certain people in the, in particular the gay adult industry, that basically people would be taking the threat of being outed and like weaponizing that to make a buck in a copyright lawsuit. It actually like that really rubbed people in the adult business the wrong way, as you can imagine. So that was that was a that was something I learned later in terms of like what had gone on. But it was an interesting piece of the puzzle for sure. Interesting. So go ahead.

Jeff Lewis 38:39

Yeah, yeah. No, no, I was just gonna say, so like to wind up because we want to uh talk about a couple other things. Offline, we had talked about a resurgence of this end user type of litigation that we saw in in the prend-a-law cases. Do you have any current cases, you know, in 2026 where the the end user being targeted has has come back into fashion?

Morgan Pietz 39:01

So not yet, but I have a theory that this playbook that the recording industry pioneered and that the porn industry really sort of took to the next level may be about to make a bit of a comeback. Maybe, maybe not. But being a copyright lawyer, among other things, you know, I paid close attention to the Cox v. Sony decision by the Supreme Court uh just a couple of months ago. And my own theory is that we're probably going to start to see an uptick or at least people reconsidering the idea of end user litigation again, now that in the wake of Cox v. Sony, holding intermediaries liable for their role in facilitating or enabling infringement by end users, now it just became so much more difficult as to be almost impossible. So, and just to back up for anybody who's not following the latest in Supreme Court copyright case law, you know, Cox v. Sony was a case that the recording industry or certain record companies brought Sony among them against Cox, an internet service provider, where the idea was the record companies were trying to hold the ISP liable for the fact that they had customers who were using their Cox internet to repeatedly download all kinds of copyrighted content owned by the record companies. It wasn't just that, it was that the record companies would send DMCA notices saying, according to our BitTorrent tracking software, this IP address is downloaded. 300 of the titles owned by so that would be a strike, a DMCA notice, right? A DMCA strike letter. And like the ISPs would get not just one, not two, not three, but like 20 different strike letters, and they wouldn't terminate the people. And the gist of the lawsuit was, well, at a certain point, now you're you're willfully, you're inducing the infringement, or basically you, ISP, should be liable for what your customers are doing because you know what they're doing and you're not take doing anything to stop it, right? And the Supreme Court in Cox v. 70 basically made it next to impossible to sue the middleman on on those facts.

Tim Kowal 41:00

Do you have any insight, Morgan, whether different I mean this uh this was apparently versus Cox, but do you have any uh insight whether different ISPs take a different approach when they get those uh those strike letters? Because I I recall, I think it's beyond the statute of limitations now, but way, way, way back when I had uh downloaded some software from a news group. I don't know if news groups are still around, but that was uh a hotbed, an easy way to get licensed licensed software. And uh I got an email from my ISP saying we got an alert. Basically they had gotten a strike letter, probably, or or maybe not, maybe they're just diligently policing their own users. And I remember I got that that hand slap was all I needed, but I thought that was interesting that I I was a very low-level offender, and yet I was getting action taken by my ISP, I can't remember who it was at the time, Roadrunner or something like that. A Time Warner, I guess it was, probably. Not I don't think I ever had Cox, but I wonder if different ISPs are more or less diligent when it comes to getting those strike letters.

Morgan Pietz 41:59

So short answer is yes. I think that all of the ISPs have their own policies internally and handle these a little bit differently. And really more importantly, I think in the wake of Cox B. Sony, I don't know if they can ignore these strike letters from the content owners entirely, but uh boy, they certainly need not fear the prospect, I think, of being sued for contributory infringement liability, which is ultimately the hammer that I think previously Cox and the other ISPs in the world were concerned that, you know, if we don't pay attention to these strike letters, then maybe we're setting ourselves up to be contributorily liable for infringement. But in the wake of Cox V. Sony, I don't think I'm saying anything that others haven't predicted. I think most of these strike letters from content owners are gonna go straight into the round file and just be ignored by ISPs because there's now no threat that it's gonna become the ISP's problem if they don't do anything to like let's put it this way like the ISPs want to have as many customers as possible. It costs them money if they're terminating people's accounts, right? So why would they economically be incentivized to do that anymore in the wake of Coxby Sony?

Tim Kowal 43:08

But so in other words, yeah, there would be no incentive, right?

Morgan Pietz 43:10

After Prenda, I had some cases. I had a class action I did against a sort of middleman that was in the business of sending out DMCA subpoenas and notices. It wasn't Sony, it was a different record company that had hired them, but like they were sort of using the DMCA in a way that if we asserted it wasn't meant to be used. But in any event, there was a lot of time and attention where, in other words, the recording industry and other big content owners pivoted away from the end user litigation campaign that at least caught people's attention, but may have not been super economically viable. And that attention instead focused on how can we get the internet service providers and other intermediaries to police our content for us, right? And we got to basically threaten them and set them up for potential contributory infringement liability. And that's been like a 10 plus year. Litigation campaign, right? That ultimately culminated in Coxby Sony. And the the end result of that is one that I think that most big content owners aren't thrilled with, at least not the ones that were involved in that kind of intermediary litigation campaigns. So, okay, if you can't sue the intermediaries for infringement, how do you stop infringement? Well, there's a few things you can do, and one of them is to bring back the end-user litigation campaigns.

Jeff Lewis 44:27

So although there's an argument that those end user campaigns weren't terribly successful, but if you have no other options, I guess uh that's the way to go.

Morgan Pietz 44:35

That's right. Well, and the question is also what what kind of content are we talking about, right? Like in other words, if you're talking about a extremely expensive piece of software, not to pick on Tim, right? Like, but in other words, if you're talking about a single installation of an enterprise software, right? Well, yeah, if somebody's one person is using that without authorization, it's probably worth it to go after them, right? Depending on what kind of software we're talking about, I guess. But allegedly. Allegedly, that's right. Put that on the record. Alleged download. But the the to use a metaphor that I've written about before, right? I actually think that like part of the problem here is that for your average run-of-the-mill, say teenager who's downloading a song that they probably know they shouldn't be, right? What's the right punishment for that? Well, actually there's 10 songs on this album, and you knew that you shouldn't have been doing this, so you're liable for $1.5 million in statutory willful infringement plus attorney's fees. Is that the right, is that the right penalty? Does the does the punishment fit the crime there? And the metaphor that I've used before is that I think actually a lot of the problem and I understand why the statutory incentive is the way that it is, right? Like in other words, I'm not saying that I think statutory damages are wrong, right? But I'm saying that if you what you start trying to do is leverage that threat times tens or hundreds of thousands of people and scale it up to where you're basically using the threat of a seven-figure lawsuit to change behavior, right? It kind of seems wrong to a lot of people. It's like it doesn't pass the does the punishment fit the crime thing or test, right? But what if instead of it being a $1.5 million threat that it's an extremely, extremely low percentage chance that you're going to get caught and have to pay that punishment? But if you do, it's a life-altering consequence, right? Is that really the appropriate, is that the best way to get effective deterrence is an extremely small likelihood of a devastating consequence? Or is there not a better way to get effective deterrence to have a more likely chance of getting caught coupled with a much smaller penalty? So, like the metaphor I like to use is a traffic ticket, right? Like, in other words, why do people not drive 120 miles an hour down the freeway? Well, in part, it's because you know it's unsafe. You hope that a lot of people are gonna do it that way, right? But there's a lot of people where the reason they don't drive 20 miles an hour over the speed limit is because they know if they do, they're gonna get caught and it's gonna be expensive and it's gonna be annoying, and it's a it's something that they don't want to do. And I actually think that like there's there's maybe there's a way to do some version of end user litigation that is more on the traffic ticket model rather than the $1.5 million plus attorneys fees model that could be used to more effectively deter infringing behavior.

Tim Kowal 47:26

This this is where it'd be interesting to segue into uh the uh anonymity litigation, because uh wouldn't the answer be to be able to subpoena all of Cox's users to find out the identity of all the end users who have been downloading the copyrighted material. And then then you go to work. That's right.

Morgan Pietz 47:45

So I mean it's interesting. The question of why does an end user have the right to basically be anonymous is like an interesting one to me at least. I'm in a probably I think maybe uh maybe we're in a small group of people who find that interesting, but in any event. It's so like this came up in one of the early file sharing cases, actually, where there was a question where the defendants had said, well, wait a minute, they're seeking to see all the different songs that I downloaded on BitTorrent or one of the other file sharing services, right? The defendants asserted that they had a First Amendment right to anonymity that protected that from being disclosed. And the interesting thing that the judge, in that case, it was a DC case, said was, Well, in a sense, your curated list of the songs that you have saved in your file sharing service that other people can then access and copy from you. In a sense, your playlist there is like speech, that that is a form of speech, namely your curated playlist of songs, and that as such, First Amendment rights attach to that speech, including the First Amendment right to speak anonymously. So there is at least some a First Amendment right to anonymity in your ISP records. But there's a balancing test, and you know, that that right has to give way to a plaintiff's right to pursue remedies or claims uh for infringement or other things, such that it's not, you know, you you don't have a right to remain an anonymous. You have a right, you have a privilege that requires that the plaintiff needs to be able to state like a colorable claim before that anonymity and some other things before that anonymity is going to be pierced.

Tim Kowal 49:25

Yeah, a little bit is that a little bit like slap prong two analysis where you have to show is it is like a minimal merit, but you have to basically show that you have some evidence, prima facie showing on every element of the claim.

Morgan Pietz 49:35

Aaron Powell Similar. And and the other thing is that the law on this varies around a little bit by circuit, such that the exact way that the test is articulated in terms of the standard for allowing discovery that will be used to identify an internet service provider's customer, right, is a little bit different depending on not just the circuit where you're in or what the type of case is, where there's a lot of room for good lawyering to show that either you should or shouldn't get to find out who's behind it.

Tim Kowal 50:08

So does putting uh putting the the Prenda case together with uh Sony's claim for infringement, uh, do they have the same problem where they might have IP addresses, but that doesn't necessarily mean that they know the infringer? And so would they be able to would they be able to make that uh it's the Krinsky showing that that uh you just alluded to, that you'd have to make a prima facie showing all the elements of infringement. So what is practically or legally stopping Sony from going for pursuing end user litigation and uh start starting to subpoena Cox for the the identity of their end users?

Morgan Pietz 50:43

So there there's a few different parts of that question. So I think the response to the first part of the question is they would tell you, well, there is clearly a prima facie showing here that somebody infringed our content, right? And in other words, like it that that much is probably not in dispute unless something's you know very bad wrong, right? But somebody using your IP address downloaded our stuff, right? That's that's I think the first response you would get to that question. And we now need the court's assistance and its subpoena power to figure out who that person is. That's I think the first response you'd get to that question. With respect to the well, what's the stopping Sony piece of it? Nothing. And in fact, I don't remember specifically if Sony was one of the participants in the early wave of RIAA file sharing litigation, but I think they were. And in any event, certainly other record companies have done that, at least back in the day, so to speak, so early 2000s, where, you know, if it's a Sony or what whoever the record company or big content owner, they absolutely could start filing those cases again. And legally speaking, there's a relatively well-trodden procedural path that they could follow to do it. I think the practical answer to the question, though, is different, which is, you know, you have to imagine yourself being the person at the record label whose job it is to explain to, you know, Bruno Mars or whomever, yeah, we're suing your fans for downloading your music, right? You know, FYI, right? If you check the fine print of your contract, it gives us the right to do this. And, you know, if you had if you have any fans, you know, reaching out to you because they're upset that they're getting sued, right? Like that's that's this is what's going on here. So I think that there are some practical or real-world or maybe PR reasons why basically a business model set up around suing your fans, your own fans and customers, is something that is maybe a break glass in case of emergency type strategy. But that being said, like what else are the big content owners going to do to make sure that their content is not just infringed or pirated out of China or wherever? I mean, it's a scary world out there for content owners. And I think Cox V Sony made it quite a bit harder, actually, than it was even just earlier this year.

Tim Kowal 52:56

Well, I think uh we we have a couple other topics we'd love to get to, but I think we are over time. Uh okay. So, Morgan, we we might have to bring you back again just to to cover the anti-slap piece of things. Uh Jeff, do you have any anything uh final before we wrap it up? No, I think that wraps us up.

Jeff Lewis 53:11

If you want to drop the dime on Tim for his alleged software infringement, or you've got ideas about future topics for our podcast, go ahead and email us at infocalpodcast.com. And in the meantime, look for future episodes about how to prepare your case for trial and appeal.

Morgan Pietz 53:27

Thanks again, Morgan. All right, thank you, gentlemen.

Announcer 53:29

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