Copyright Troll Slayer: How Morgan Pietz Exposed the Prenda Law Fraud Machine

Jeff Lewis (00:00) Welcome everyone, I am Jeff Lewis.

Tim Kowal (00:01) And I'm Tim Kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience of 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 (00:15) Yeah, if you find it unhelpful, send an email to Fran. She's responsible for all the content.

Tim Kowal (00:20) Today we welcome Morgan Pietz to the show. Morgan is a fellow First Amendment litigator along with Jeff. He is a former opposing counsel of mine, but 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-SLAPP cases at both the trial and appellate level. Jeff tells me he's best known as the "copyright troll slayer"—who helped bring down Prenda Law, the copyright trolling operation 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-SLAPP statute that passed the Conference of California Bar Associations. Welcome to the podcast, Morgan.

Morgan Pietz (01:24) Hey, thank you gentlemen for having me. Pleased to be here.

Jeff Lewis (01:27) Yeah, let me add to that bio. Morgan's my go-to guy. Him and Matthew Strugar are the two lawyers I want to be when I grow up. Any case involving Does, fictitious defendants, and that kind of thing, he's my man.

Morgan Pietz (01:40) I appreciate that. You know, John Doe is a frequent client of mine. I seem to get hired repeatedly by John Doe.

Jeff Lewis (01:44) [Laughter]

Tim Kowal (01:48) Yeah, it's always good to have repeat work. Well, Morgan, we wanted to get into a little bit of the backstory and how it started and where we are now with Prenda, with the Prenda Law case. If any of our listeners are not already initiated, we'll get to that in a moment. Maybe in the meantime, you can look that up on Wikipedia and bring yourself up to speed. But that was back in 2012, 2013. And that might have—I'm not sure where the federal prosecution ended. I think the perpetrator, at least one of the perpetrators—I think his name is Paul Hansmeier—is still in prison maybe. At any rate, there are some updates with him because he's been trying to get a repeat act of his trolling operation back in the court. He's been filing declaratory relief actions from prison to try to get those started. But before we get into that, Morgan, would you lead us in with where you are now? What kind of work are you doing today? Has the Prenda Law case been a prologue to where you are now, still doing IP and copyright litigation and protecting the little guy against IP bullies?

Morgan Pietz (02:55) So, yes and no. I still primarily do intellectual property, although now many of my clients are no longer the little guy, but also often big companies. Although I have both. I represent both plaintiffs and defendants in primarily IP matters. Also First Amendment issues as well. Anything anti-SLAPP is always near and dear to my heart. But when I did the Prenda Law case, it was actually even longer than 10 years ago. It was more like 2012 and 2013 that all of that was really going crazy, although it dragged on 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've had a few stops along the way. I joined a medium-sized firm for a while and just did a ton of trials, and 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 and Gould to revamp their LA office. So 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. 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, and trade secret.

Tim Kowal (04:18) You mentioned that you're revamping the LA office. Is the managerial task of running that office taking away from your trial work? And how are you managing the administrative versus the actual practice of law?

Morgan Pietz (04:30) Well, I'll put it this way: 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 than what I've been doing. So it's great to have a department for that. I'll put it that way.

Tim Kowal (04:51) Well, one of the things that struck me about—and I'm not going to steal this because Jeff was telling me he really wanted to ask about this—the Prenda Law case. So I don't want to steer too much into that. But one thing that did strike me is that there's an interesting doctrinal aspect to trolling law, but it seems like the big piece of it was really outing all of the deception and manipulations that went on around it. And usually when it comes to uncovering 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. Did you have a team? I think this was after you had left Big Law and had started out on your own. And so I wonder if the resources that you have now at Merchant and Gould are allowing you to do more investigation without having to risk turning away all other business.

Morgan Pietz (05:45) You know, it's interesting. Resources help a lot when it comes to unraveling the thread, right? But also, they don't guarantee anything. Prenda Law is not the only time. There've been a few times in my career where I got a case and something just kind of seemed off. And the more you dig, the more you dig, and eventually you figure out that something unusual at best, or maybe potentially fraudulent, has gone on. And what I've found is, actually, it takes determination more than anything to unwind a fraudulent scheme. You've 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?" And actually, sometimes that's the battle—just coming up with a creative way to figure out that somebody's lying. Which I don't know, that's not something they teach in law school, I don't think. But it served me well throughout my career.

Tim Kowal (06:45) Well, having the BS detector, yeah, and having the dogged determination or being unwilling to just accept the lie and move on.

Morgan Pietz (06:50) Right. Yeah. So 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 (07:02) And then you get into trying to track down, subpoenaing 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 we'll get into all that later. Tell us, Morgan, what kind of cases are you working on these days?

Morgan Pietz (07:19) I recently finished up a big footwear infringement case here in the Central District of California. I have handled a bunch of photo copyright infringement cases—not just the 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 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. Generally speaking, I have a pretty varied soft IP defense practice. There are some big clients who have hired me and my team to defend all different manner of soft IP claims. But like I said, we also represent plaintiffs. Depending on the case, the industry, the issue, we also 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. There's a lot that I do, but mostly IP is still my first love. Substantively, I find myself keeping—I keep returning to that area.

Tim Kowal (08:37) Okay, well with that, 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.

Morgan Pietz (08:42) Ha!

Jeff Lewis (08:45) 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'll indulge me and let me read a little. Might be a little triggering for any trolls out there who are listening. "Plaintiffs have outmaneuvered the legal system. They've discovered the nexus of 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 the same boilerplate complaint against dozens of defendants raised the court's alert. 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.

Morgan Pietz (10:05) [Laughter] Yeah.

Jeff Lewis (10:06) Yeah, boy, what a legendary sanctions order. Then it goes on. For listeners who weren't following the federal litigation, do you want to give a quick rundown of Prenda Law—who they were, what they did, and how you pulled the thread?

Morgan Pietz (10:22) Sure. Well, I'll explain it the way that many people first encountered Prenda Law. Put yourselves 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"—and insert the name of, primarily it was adult content companies that were behind this, although there were also some independent movies that you might have heard of that were the 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 assigned to you at the time that this download happened." Okay, now the question is, well, is that something that I, the subscriber, downloaded? Do I have maybe a 17-year-old son down the hall who's using the internet connection?

Tim Kowal (11:38) Well, or there's someone parked outside my house using my Wi-Fi.

Morgan Pietz (11:41) Right. Which—and by the way, fewer people had passwords back then. I'll put it this way: it was more of a hassle, it was a little bit less common. Now it's like everybody's home Wi-Fi—everybody knows you need to put a password on your home Wi-Fi. I certainly had 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 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 the movie, at which point you may be named in a federal lawsuit accusing you of copyright infringement for downloading this movie. And then—this was another interesting fight—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 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 $2,000 or $3,000." And the letter would go on to continue to say that. So that's what these cases looked like from the perspective of people who would receive the subpoenas or receive notice of the subpoenas from their internet service provider. And some of them would say, "Uh-oh, I do recognize that. Jeez, I didn't know." Either—you got me. And a lot of people just paid. In other words, it was a numbers game, where if you, the plaintiff, could basically get a court to sign off on allowing this, and you could convince the internet service provider to include the little payment link along with the notification—if you sent out a thousand of those notices and only 20% of the people paid the two or three thousand dollars, that was a profitable lawsuit for you, the plaintiff. So in any event, lots of other times people would hire me to be like, "I didn't have a password, it might have been my son." Or oftentimes there were all kinds of things. Like sometimes it was gay porn and people were concerned about being outed. There were a lot of different concerns that I would hear about 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 scenarios under which this appeared. But Prenda Law was a law firm that was one of the pioneers of basically this kind of litigation.

Jeff Lewis (14:32) 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 porn movies with interesting names?

Morgan Pietz (14:47) That's actually where they went wrong and got into so much trouble. You've seized on what it is that differentiated Prenda from other so-called trolls. I actually think that "troll" is maybe not a helpful moniker, because it's hard—you ask five different lawyers what's the definition of a copyright troll, you're probably going to get five different definitions. The best definition I've ever seen, which was in a scholarly article, talks about trolls as being "systemic opportunists." And I think that's a good way to put it.

Tim Kowal (15:18) Well, and another term for it is running a sting operation. You can lawfully run a sting operation, or you can technically also lawfully operate a trolling operation, but neither one is in and of itself unlawful. It's what you pointed out about—they were basing the entire theory on the IP address as being equal to the defendant, and that was not the case, as you pointed out. There could be a number of people in the household or people free-riding on your IP address. And also all the fraud and manipulations that went along, as Jeff had alluded to—that Prenda Law didn't actually have clients. Prenda was actually just the face.

Morgan Pietz (15:55) Well, so to clarify, I think they did have clients at first. In other words, I think when it started out, the pitch—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 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 going to do where I'm going to file these John Doe lawsuits and go seek internet provider ISP records to identify 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 going to 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, as well as some independent movie firms, that 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 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 this seemed wrong and start asking questions. And all of a sudden, if you're filing cases against tens or even hundreds of thousands of people in dozens of courts around the country, 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 attend a scheduling conference or respond to written discovery and verify interrogatory responses—I think some of these adult entertainment companies were like, "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. I'm not sure that we want to continue being in the middle of all of these dozens of federal court litigations around the country." And so I think that became a problem after these cases had gone on for a year or two. And 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.

Jeff Lewis (18:39) Right.

Morgan Pietz (18:45) Something that's really interesting that I've thought about over the years is this: the two guys behind Prenda were these two characters. John Steele was one guy's name, and Paul and his brother Peter Hansmeier—he was the tech guy—the Hansmeier brothers were the others. One was a lawyer, one was sort of good on the internet. What I've often thought about is, if they'd just been transparent about the fact that John Steele had become 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 Hansmeier, his lawyer, had then basically been filing all the cases—I don't think there's anything unlawful about that. In other words, that's not that different from what you see with repeat plaintiffs in all different kinds of litigation, including NPEs in the patent space. It's a business that's set up to monetize intellectual property through the courts, or with a licensing scheme that's supported by the threat of litigation. But as Judge Wright alluded to in the order that you read from earlier, 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 the courts would have given everything a closer look. And in other words, since it didn't look right, I think they would have expected probably some more pushback on things like going into court and moving for expedited discovery to uncover these John Does.

Jeff Lewis (20:20) Yeah.

Morgan Pietz (20:22) What they did is they created these shell companies—

Tim Kowal (20:24) Could I just pause there? Because I'm interested in what you just said. I think a lot of people who know about the Prenda Law case probably stopped reading after the basic trolling allegations and realized that's icky. And so, "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 they had assigned themselves the IP. And then legally they had the problem.

Morgan Pietz (20:52) Even that's not unlawful, right? In other words, even if they had become their own clients and assigned the IP, there's nothing unlawful about that either. But it doesn't look right. And I think they would have—so, but what they did is they hid that fact. They hid the fact that they had become their own lawyers. And so the first place where this whole scheme clicked for me is that the holding companies that were the plaintiffs in these lawsuits were corporations based on the island of Nevis in the Caribbean. 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, that's odd." I thought to myself when I saw these lawsuits, "What's going on? Why a Nevis corporation?" I've heard of Cayman Islands corporations. I've even heard of something called Cook Islands Trusts, which is another interesting exotic foreign 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 owns a corporation based in Nevis and you were to subpoena the local authorities there, they wouldn't tell you because they couldn't tell you—they don't know.

Tim Kowal (22:24) If you have something in Nevis, you might as well have a tagline that says, "Because we're up to something."

Morgan Pietz (22:29) Right, well, and moreover, it's because "we don't want anybody to know who owns this company." So that was like the first little alarm bell that I remember going off. "That's odd. 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. If you don't want anybody to know who's really behind this, 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 were just a solo at the time you brought all this down"—I had some help. 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 Prenda Law story is that we were all kind of swapping notes with each other. Somebody would get a development 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, I'd defended a bunch of these John Doe cases. And what ended up being the beginning of the end of Prenda was I heard from this gentleman in upstate Minnesota. He was a caretaker at some lake cabins up north in Minnesota. He was an outdoorsy guy. My impression of him—I did meet him—this guy liked hunting and fishing. He lived up in this area where John Steele had a family lake house. John Steele was from Chicago, and apparently 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. There had been this big mystery of, who was the person signing all of this stuff for these shell companies based in Nevis? And they were all signed by this guy named Alan Cooper. What happened was I got a call from an attorney in Minnesota who said, "Hey, I found your name related to some of these lawsuits, and I've got a client here named Alan Cooper who's telling me a very unusual story." Which was, basically, he had this friend named John Steele, and John had come to Alan and said, "Hey, Alan, if anybody starts asking you any odd questions about legal documents, don't worry about it, just call me." And Alan had then grown suspicious and basically talked to some people, which is how he'd been connected with this lawyer in Minnesota. Alan had surmised that John Steele and Paul Hansmeier were running this big copyright trolling operation, and that the name that appeared as Exhibit A attached to each of the complaints—signing a copyright assignment on behalf of the plaintiff—was Alan Cooper. And he had basically been like, "Is that me?" In other words, he was like, he had reached out with the assistance of his lawyer to ask John and Paul for clarification. "Hey, wait a minute. There's another Alan Cooper, right? 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 his lawyer sent an email and John Steele tried to call him like five times. I forget the details. 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 copyright trolling operation—that was the thread that, once I started pulling, it all came unraveled.

Jeff Lewis (26:08) Yeah. Thank goodness Mr. Cooper found the right kind of lawyer. Can you imagine if he'd found the wrong kind of lawyer who reached out to Prenda and said, "Yeah, Cooper wants in on that. Send us 10%." Thank God this lawyer for Cooper maybe recognized something wasn't kosher.

Morgan Pietz (26:27) Well, and Alan too. I mean, he was a brave guy. His comment was like, "I don't trust John Steele. 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 him—the one time I met the guy. Interesting character.

Jeff Lewis (26:41) So lots of people have read the opinion over the years. Tell us what the courtroom was like. 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 (26:55) It was a remarkable series of events. Just to tell a little bit more of the story: I started it off with what must have been the world's most inflammatory notice of related cases. What I did is I filed a notice because Prenda 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 these 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, and the claims being asserted in all of these cases very similar, and they all involved the same IP, but I said, "Now there's a common factual question about whether or not the document attached as Exhibit A to each of the complaints in each of these cases may be a forgery." Because 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've been seeking assurances and 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 filed in the Central District of California.

Jeff Lewis (28:21) He must have been thrilled to get all those cases at once.

Morgan Pietz (28:25) Well, I'll put it this way. I don't know if "thrilled" is the right word, but he certainly rose to the occasion of taking that bull by the horns and figuring out what he was going to do with them. What happened was—I don't remember exactly where it was in there—but he initiated, and I also basically filed a request to serve some discovery, where I explained after this inflammatory notice of related cases that we weren't getting answers to our informally asked questions. So I wanted permission from the court to 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, "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 ask questions like, "Well, is there another Alan Cooper? Who's that person? Who owns the companies? What are the corporate documents?"—as the deadline for that discovery came due, the plaintiffs 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.

Jeff Lewis (29:39) Wow. [Laughter]

Morgan Pietz (29:54) And what happened was Judge Wright issued an order to show cause re sanctions, basically saying, "I don't care that you've dismissed it. I'm now concerned that there have been some misrepresentations and there are some pretty serious issues going on in these cases. And I'm ordering a show cause order." And he had a list of people—"I'm ordering you to appear for a hearing." And some of them were parties, some of them weren't.

Jeff Lewis (30:13) Right.

Morgan Pietz (30:17) 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 Hansmeier or John Steele who hadn't shown up, because they were like, "Well, we're not counsel of record." And in any event, we had a first hearing at which the counsel of record did show up and a couple other people showed up, but basically we weren't getting any answers at that hearing. So then he did another order where he ordered new counsel to come in and served 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 standing room only in the gallery as we showed 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 ask at the time. And 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'd been able to uncover. I was able to uncover all these different links that showed all of the various connections that pointed to the fact that it was really the lawyers who were behind the whole thing.

Jeff Lewis (31:33) Yeah.

Tim Kowal (31:34) So they're basically fraudulent assignments of the copyrights.

Morgan Pietz (31:37) 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 they didn't even have to do it, which was something that I thought was ironic. 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 the person giving away the rights. So the Alan Cooper signature was unnecessary.

Jeff Lewis (32:11) Yeah, and at the end of the day, the unnecessary signature was the thread you pulled on.

Morgan Pietz (32:19) That's right. So Judge Wright issued that famous sanctions order. It's funny—"What's with the Star Trek references?" Well, I assume not only is he a fan, 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 one of the things I think the order said was that notice of the order had to be given to every court or jurisdiction in which these lawyers were practicing. It was intentional—it was intentional to make sure that word got out that basically what was going on in this case was not okay.

Jeff Lewis (33:07) Yeah.

Tim Kowal (33:07) Well, and that brings me back to the point that we've made a couple of times already—that the basic trolling operation was not itself unlawful. But that first whole paragraph of the quote that Jeff read is sounding the alarm. It's basically: whenever you see this kind of trolling operation, it might pass legal muster by itself if 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 the Prenda Law operators taking advantage and using it as a launching-off point to execute fraudulent assignments 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 (34:02) Yeah, and just to be clear, the whole model of so-called end-user litigation or John Doe infringement litigation—it wasn't Prenda or even the adult content lawyers who came up with that. 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 relatively novel. It wasn't totally new—there had been some similar cases in the past.

Tim Kowal (34:34) Are you talking about the BitTorrent, the torrent type of litigation, where all of 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 (34:48) That's right. And if you remember, I'm old enough where Napster came out when I was a freshman in college. So I feel positioned to see this in real time in my life. But that obviously was a huge problem for the record industry. It totally changed the way the record industry worked. I think a lot of people thought for some years that the record industry would never recover. That has proven false. But one thing that is for sure is that the whole industry changed dramatically as a result of that.

Tim Kowal (35:16) And they had 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 (35:35) That's right. And the recording industry's response to that, among others, was to basically launch this litigation campaign that would make people worried that if you are downloading music on Napster or Kazaa or LimeWire or any of the early file-sharing services, now you had to have in the back of your mind that if you did that, the record company might sue you and you might end up 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. The RIAA in particular had really pioneered this kind of case, but they also spent a lot of money on it. And they did, in fact, make an example out of a few people, including, famously, Jamie Thomas-Rasset—that was the case that ended up going all the way through to trial and up on appeal. And there was a question raised about whether her—I want to say it was a six-figure damage award—was unconstitutional. In any event, they did do it and succeeded in a sense in basically pioneering the way for doing this kind of litigation. But it was really the porn companies in particular that figured out how to take that procedural model and leverage the stigma associated with porn to get people to just pay. And that was part of what was really driving the Prenda Law model—the stigma associated with porn. People just didn't want to be named in a lawsuit accusing them of downloading some salacious title. It's interesting. One of the other interesting things is there are a lot of First Amendment lawyers in the adult industry. In other words, some real First Amendment champions who are hired frequently in the adult industry. And to be clear, the Prenda guys were not them. In fact, a lot of people in the adult industry actually turned on Prenda and basically said, "What these guys are doing is wrong. 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 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, because people would be that much more afraid to be associated with the stigma of that. And that really upset certain people, in particular in the gay adult industry, that people would be taking the threat of being outed and weaponizing that to make a buck in a copyright lawsuit. It actually really rubbed people in the adult business the wrong way, as you can imagine.

Jeff Lewis (38:31) Wow. Interesting.

Jeff Lewis (38:36) So, to wind up, because we want to talk about a couple other things: offline, we had talked about a resurgence of this end-user type of litigation that we saw in the Prenda Law cases. Do you have any current cases in 2026 where the end-user being targeted has come back into fashion?

Morgan Pietz (38:50) Not yet, but I have a theory that this playbook that the recording industry pioneered—and that the porn industry really 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, I paid close attention to the Cox v. Sony decision by the Supreme Court 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 just became so much more difficult as to be almost impossible. And just to back up for anybody who's not following the latest in Supreme Court copyright case law: Cox v. Sony was a case that certain record companies—Sony among them—brought against Cox, an internet service provider. The idea was that 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. And 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 has downloaded 300 of the titles owned by—" so that would be a strike, a DMCA notice, a DMCA strike letter. The ISPs would get not just one, not two, not three, but 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 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 doing anything to stop it. And the Supreme Court in Cox v. Sony basically made it next to impossible to sue the middleman on those facts.

Tim Kowal (41:02) Do you have any insight, Morgan, whether different ISPs take a different approach when they get those strike letters? Because I recall—I think it's beyond the statute of limitations now—but way, way back when, I had downloaded some software from a newsgroup. I don't know if newsgroups are still around, but that was a hotbed—easy way to get licensed software. And I got an email from my ISP saying, "We got an alert." Basically, they got a strike letter, probably. Or maybe they're just diligently policing their own users. And I remember that hand slap was all I needed. But I thought that was interesting, that 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. 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 (42:01) 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 v. Sony, I don't know if they can ignore these strike letters from the content owners entirely, but boy, they certainly need not fear the prospect 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 about—that 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—and I don't think I'm saying anything that others haven't predicted—I think most of these strike letters from content owners are going to go straight into the round file and just be ignored by ISPs, because there's now no threat that it's going to become the ISP's problem if they don't do anything. Let's put it this way: the ISPs want to have as many customers as possible. It costs them money if they're terminating people's accounts. So why would they be economically incentivized to do that anymore in the wake of Cox v. Sony?

Tim Kowal (43:12) Yeah, there would be no incentive, right?

Morgan Pietz (43:14) 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 they were using the DMCA in a way that we asserted it wasn't meant to be used. But in any event, there was a lot of time and attention where 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 not have 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?" And, "We've got to basically threaten them and set them up for potential contributory infringement liability." And that's been a ten-plus-year litigation campaign that ultimately culminated in Cox v. Sony. And the end result of that is one that I think most big content owners aren't thrilled with, at least not the ones that were involved in that kind of intermediary litigation campaign. So okay, if you can't sue the intermediaries for infringement, how do you stop infringement? Well, there are a few things you can do, and one of them is to bring back the end-user litigation campaigns.

Jeff Lewis (44:31) Yeah, although there's an argument that those end-user campaigns weren't terribly successful. But if you have no other options, I guess that's the way to go.

Morgan Pietz (44:39) That's right. Well, and the question is also, what kind of content are we talking about? In other words, if you're talking about an extremely expensive piece of software—not to pick on Tim—but if you're talking about a single installation of an enterprise software, well yeah, if one person is using that without authorization, it's probably worth it to go after them, depending on what kind of software we're talking about.

Tim Kowal (45:02) Allegedly. I just want to put that on the record. Alleged download.

Morgan Pietz (45:03) Allegedly. That's right. Thank you.

Jeff Lewis (45:03) [Laughter]

Morgan Pietz (45:06) But to use a metaphor that I've written about before: I actually think that part of the problem here is that, for your average run-of-the-mill teenager who's downloading a song that they probably know they shouldn't be, what's the right punishment for that? "Well, actually there are 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 penalty? Does the punishment fit the crime there? And the metaphor that I've used before is that—I understand why the statutory incentive is the way that it is. I'm not saying that I think statutory damages are wrong. But I'm saying that if 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, it kind of seems wrong to a lot of people. It's like, it doesn't pass the "does the punishment fit the crime" test. But what if, instead of it being a $1.5 million threat, it's an 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. Is that really the best way to get effective deterrence—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 the metaphor I like to use is a traffic ticket. 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 going to think that way. But there are 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 going to get caught and it's going to be expensive and it's going to be annoying. And I actually think that there's maybe 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 attorney's fees model, that could be used to more effectively deter infringing behavior.

Tim Kowal (47:30) This is where it would be interesting to segue into the anonymity litigation, because 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 you go to work.

Morgan Pietz (47:45) That's right. So it's interesting. The question of why an end user has the right to basically be anonymous is an interesting one to me, at least. We're probably in a small group of people who find that interesting, but in any event. 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." And 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 D.C. 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 is a form of speech, namely your curated playlist of songs. And as such, First Amendment rights attach to that speech, including the First Amendment right to speak anonymously." So there is at least some First Amendment right to anonymity in your ISP records. But there's a balancing test, and that right has to give way to a plaintiff's right to pursue remedies or claims for infringement or other things such that you don't have a right to remain anonymous—you have a privilege that requires that the plaintiff needs to be able to state a colorable claim, and some other things, before that anonymity is going to be pierced.

Tim Kowal (49:31) Was that a little bit like a SLAPP prong-two analysis, where you have to show a minimal merit, but you have to basically show that you have some evidence—a prima facie showing on every element of the claim?

Morgan Pietz (49:36) Yeah, similar. And the other thing is that the law—and this varies around a little bit by circuit—such that the exact way the test is articulated in terms of the standard for allowing discovery that will be used to identify an internet service provider's customer is a little bit different depending on not just the circuit where you're in or what the type of case is. 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 (50:15) So putting the Prenda case together with Sony's claim for infringement, 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 make that—it's the Krinsky showing that you just alluded to—that you'd have to make a prima facie showing of all the elements of infringement? So what is practically or legally stopping Sony from pursuing end-user litigation and starting to subpoena Cox for the identity of their end users?

Morgan Pietz (50:51) So there are a few different parts to that question. I think the response to the first part is, they would tell you there is clearly a prima facie showing here that somebody infringed our content. In other words, that much is probably not in dispute unless something is very badly wrong. Somebody using your IP address downloaded our stuff. 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. With respect to the "What's 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, in the early 2000s. So if it's a Sony or whatever 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. You have to imagine yourself being the person at the record label whose job it is to explain to Bruno Mars or whomever, "Yeah, we're suing your fans for downloading your music. FYI, if you check the fine print of your contract, it gives us the right to do this. And if you have any fans reaching out to you because they're upset that they're getting sued, this is what's going on here." So I think that there are some practical or real-world or maybe PR reasons why a business model set up around suing your own fans and customers is something that is maybe a "break glass in case of emergency" type strategy. But that being said, 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. I think Cox v. Sony made it quite a bit harder actually than it was even just earlier this year.

Tim Kowal (53:05) Well, I think we have a couple other topics we'd love to get to, but I think we are over time. So Morgan, we might have to bring you back again just to cover the anti-SLAPP piece of things. Jeff, do you have anything final before we wrap it up?

Jeff Lewis (53:19) No, I think that wraps us up. If you want to drop the dime on Tim for his alleged software infringement, or you have ideas about future topics for our podcast, go ahead and email us at info@calpodcast.com. And in the meantime, look for future episodes about how to prepare your case for trial and appeal.

Morgan Pietz (53:24) [Laughter]

Tim Kowal (53:26) Allegedly. Thanks again, Morgan.

Morgan Pietz (53:39) All right, thank you gentlemen. Appreciate it.