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back to article Copyright troll Prenda refuses to explain legal strategy

Notorious copyright troll Prenda Law was seemingly dealt a fatal blow on Tuesday, when the company's top attorneys invoked their Fifth Amendment right against self-incrimination to avoid answering questions from a federal judge. US District Judge Otis Wright II of the Central District of California had summoned the Prenda …

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Rights

Using your 5th Ammendment Right is in no way an admission of anything & it absolutely does not mean you are hiding something.

It is often the easiest way to end legal proceedings when you have done no wrong but circumstances have a gun to your head and saying anything is far, far worse than saying anything at all.

There are catches though, you can't selectively apply the 5th to your testimony. If you say anything at all you lose the right to "plead the 5th".

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@Don Jefe: Re: Rights

In civil proceedings (with a few exceptions), a jury can infer guilt from a refusal to answer question. I would expect that 5th Amendment protections would not be accepted in disbarment proceedings either.

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Re: Rights

So it doesn't mean you are hiding a self incriminating statement? Is that not the point of "pleading the 5th"? That you not bear witness against yourself. It might not be an outright admission of guilt, but is it not a tacit admission that you are withholding a fact which would incriminate you in a wrongdoing? Just curious.

Of course it doesn't mean you can get out of paying tax on ill gotten gains, always have to pay the revenoo.

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Re: Rights

Lawyers pleading the 5th. That's a bit rich innit?

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@Rampant Spaniel: Re: Rights

"So it doesn't mean you are hiding a self incriminating statement? Is that not the point of "pleading the 5th"? That you not bear witness against yourself. It might not be an outright admission of guilt, but is it not a tacit admission that you are withholding a fact which would incriminate you in a wrongdoing? "

While logically, a refusal to answer a question would imply guilt, the law simply prohibits the jury in a criminal proceeding from making this obvious inference; rather in the same way that a defendant's refusal to take the stand in a criminal trial is not to be construed as an admission of guilt. I believe that a defendant can not refuse to testify in civil proceedings, even if that testimony consists solely of the defendant invoking his Fifth Amendment rights (but I am not 100% sure). But in a civil action, inferences can be drawn from the invocation of one's Fifth Amendment rights.

It's not so much to do with logic per se as with the fact that criminal proceedings are conducted under certain very different rules than are civil proceedings, with criminal proceedings demanding much more stringent standards be met in order to establish guilt. It's "beyond a reasonable doubt" vs. "a preponderance of evidence".

As an example, a jury must be unanimous in its decision to convict, whereas in a civil proceeding a person can be found guilty even if there is a dissenting juror. (There might well be exceptions to these general statements due to the complexity of the law and the vast number of different jurisdictions.)

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Re: @Rampant Spaniel: Rights

the law simply prohibits the jury in a criminal proceeding from making this obvious inference

Yes, but this isn't a criminal proceeding.

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Re: @Rampant Spaniel: Rights

Thank you for the explanation :-) I was a little confused as there are countries with a right to silence, but a right not to self incriminate is rather paradoxical as by invoking it you are admiting guilt, I guess no one ever said the legal system made much sense!

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Vic
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Re: @Rampant Spaniel: Rights

> Yes, but this isn't a criminal proceeding.

...Yet.

Vic.

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Re: @Rampant Spaniel: Rights

Let's not forget, it is perfectly possible to be tried for one thing and guilty of another. It may be that in answering a question of the type, "where were you on X?" it would be reasonable to not answer if one were running a moonshine operation even if it could prove one wasn't stealing a candy bar at the local 7-11. Of course this depends on the relative gravity of the crimes involved. Likewise, taking the 5th can apply to any witness not just the present defendant and it is far more preferable than lying only to get caught in the lie after. Finally, I don't believe there is a requirement that the answer necessarily be incriminating.

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Re: @Vic

And that "yet" is exactly why they invoked it.

This is rapidly looking to become a criminal matter.

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@KjetilS: Re: @Rampant Spaniel: Rights

"'the law simply prohibits the jury in a criminal proceeding from making this obvious inference' Yes, but this isn't a criminal proceeding."

The lawyers themselves were not on trial at all, they were acting on behalf of the plaintiffs in a civil trial (ignoring the shell-corporation accusations etc etc.). So there were no inferences to be drawn or not drawn by a judge or jury weighing their guilt or innocence. They were invoking their Fifth Amendment rights in order not to supply possible links in a chain of evidence that might incriminate themselves. The discussion is more about the Fifth Amendment generally.

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Re: Rights

There are catches though, you can't selectively apply the 5th to your testimony. If you say anything at all you lose the right to "plead the 5th"

I'm interested in how this works in practice. What if you start giving evidence, and then you are asked something unexpected that you cannot answer truthfully without self-incriminating? Especially if you are not the accused, but rather a witness who is guilty of some unrelated crime?

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Re: Rights

As an officer of the court, they can not plead the 5th in questions as to who brought the suit. They are legally obligated to provide the names of entities or individuals who have a monetary stake in the outcome as part of the lawsuit. They are also obligated to bring notice of other suits and to apprise other courts of any rulings, adverse or otherwise, in other courts germaine to the suit they have in a court of law.. They repeatedly violated both the letter and spirit of those points and court orders associated with those points.

That they deliberately obfuscated the question as to whether any of the attorneys have a financial stake in AF Holdings is a rather glaring problem for them. There is *no* reason to not answer that question. They are *legally* required to provide that answer as part of the suit in question.

They are also legally required to show that they hold the rights to the copyrighted materials that provides the basis of the lawsuit.

Taking the 5th here, in no way ends the legal proceedings.

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Re: @Rampant Spaniel: Rights

While logically, a refusal to answer a question would imply guilt

No, that's precisely what it does not do. A refusal to answer may well lead the questioner and other observers to infer guilt, but it definitely does not imply guilt, and it especially does not do so "logically". The last would only be true if all refusers were a priori guity (or equivalently, if there did not exist a refuser who was not guilty), which is 1) conveniently disproven by the historical record (there having been any number of prisoners of conscience who refused to respond to questions on philosophical grounds, for example), and 2) would be impossible to prove even if there were no evidence to the contrary (since it would be proving a negative).

Let me be proleptic: someone will complain that Turtle was using "imply" and "logically" here informally. That's irrelevant. We're talking about the law and logic, domains where informal reasoning leads to error; and in this specific case, the adverb "logically", used informally, means precisely the opposite of its literal meaning (much like the annoying use of "literally" to mean "figuratively") - that is, the quoted sentence means, in effect, "While a common-sense interpretation of a refusal to answer might be an implication of guilt". And as is usually the case, "common sense" here would be common, but hardly sensible.

Thus under any interpretation the quoted construction is at least infelicitous and misleading, if not outright wrong.

Moreover, there are still some folks about - I count myself among them - who are capable of a modicum of critical thought, and do not regard pleading the Fifth as an admission of guilt. Even when I'm not sitting on a jury. I do not adopt that attitude because the law requires it of me; I adopt it because I can conceive of other alternative explanations.

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Re: @Rampant Spaniel: Rights

I was a little confused as there are countries with a right to silence, but a right not to self incriminate is rather paradoxical as by invoking it you are admiting guilt

You are still confused. Invoking your right not to self-incriminate is not an admission of guilt. The Fifth Amendment to the US Constitution provides (among other things) the right to refuse to bear witness against yourself in a criminal trial; it doesn't say anything about whether you are guilty. SCOTUS has held that an innocent person may have valid reasons for claiming Fifth-Amendment protection against testifying.

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Re: Rights @venneford

Taking the 5th does not end the proceedings, but it forces the court to dig up the evidence to continue. Should the court not be able to develop the evidence without their testimony the case will stop.

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Re: Rights @Nigel 11

If you start giving evidence you have to answer any and all questions within your ability to answer. It is all or nothing you can't pick and choose.

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Unhappy

Re: Rights

Perhaps it would help if we just called it "The right to silence."

In police interrogation it would be answering "No comment" to questions by the police.

But I'd love to find any other cases where the lawyers have plead the 5th.

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Headmaster

Re: @Rampant Spaniel: Rights

While logically, a refusal to answer a question would imply guilt ...

No, it doesn't: not logically or legally. Previous posters have already covered what valid inferences (note: "to infer" rather than "imply") can be drawn from refusal to comment in criminal vs civil suits, so I've nothing to add. In terms of logic, though, it's obvious that no firm inference can or should be made from such a refusal to comment. Various logical possibilities exist, ranging from hiding one's guilt, protecting another guilty party or avoiding incriminating oneself for a different crime than the one being examined, the belief that the question need not be answered (for whatever reason), avoiding revealing something that is embarrassing (though not illegal, such as having an affair, being the subject of blackmail or whatever), simply not understanding the question or being incompetent, or believing that the question is unfair and best not answered ("so have you stopped beating up your wife?"). Logically speaking, a refusal to speak doesn't lend any weight to any of these (or other) possibilities being correct.

Apart from that, most of what you said was fair enough. It's just a pet peeve of mine when people talk about logic in a clearly illogical way. That, and mixing up "imply" and "infer"...

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Anonymous Coward

Time for the state Bar to start looking at these legal professionals. Let them try pleading the fifth there, it won't get them very far.

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Flame

Burn them.

Burn them with fire.

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Anonymous Coward

"such misconduct as brings discredit to the profession"

Attorneys not ethical? Say it ain't so...

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Most of the people from Prenda Law had already testified, by submitting sworn statements as evidence. One of the lawyers was deposed for a whole day

The substance of most of those statements have proven to be deliberate misleading or outright false.

This is invoking the fifth after having initially testified, not declining to make a statement.

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then an appeal on one case with a healthy dose of purjury should sort out the previous cases. Good luck getting money back though.

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"Most of the people from Prenda Law had already testified, by submitting sworn statements as evidence. One of the lawyers was deposed for a whole day

The substance of most of those statements have proven to be deliberate misleading or outright false."

IANL but that sounds like the definition of perjury.

Can anyone confirm?

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Re: IP Trolls

The problem is the underlying IP laws are corrupt.

That is a problem. The problem is that these guys are crooks.

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Re: IP Trolls

"propaganda spread by the Reg and similar media that IP law is somehow virtuous"

I think I have been reading a different El Reg than the one you are talking about. I'm sure the overriding bias from the Reg was IP law was totally fucked and the very title of this post "IP Trolls" shows their contempt for the system.

Add to that the fact its a Merkin judge crying about it and you have the whole Reg xenophobic , anti-IP traveling road show. (nothing xenophobic in the article, I just wanted to see if chromes new spell check could handle it, and its got an x in it)

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Re: IP Trolls

"I think I have been reading a different El Reg than the one you are talking about. I'm sure the overriding bias from the Reg was IP law was totally fucked"

I think it depends on your starting position. In all, I believe el Reg has maintained a fairly balanced view on the matter, but this upsets people on both extremes.

To the "pirate" who thinks they should get everything free, the opinion that any IP law is required at all goes against their standpoint, so el Reg is siding with the big, nasty corporations who want to force them to pay for stuff.

To big corps and their supporters who want this IP system, because it benefits them, the suggestion that IP law needs reform shows that el Reg is siding with the pirates and wants them to give everything away for free.

In reality, this publication has regularly stated that, while we need IP law to protect those who innovate or create, the current system is completely screwed and needs reform.

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Re: IP Trolls

It's fairly obvious you don't produce anything digital for a living, otherwise you'd have a slightly less childish view on IP law.

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This post has been deleted by a moderator

Anonymous Coward

@Eadon

"If you're addressing me, I have a published patent, and also various copyrighted works and also I make a living from digital engineering. I suspect that my own experience and expertise vastly exceeds yours, so I am more qualified to comment than you, who makes "childish" insults instead of presenting an intellectual refutation."

If that's the case, you're nothing but a hypocrite for not having put it all in the public domain.

And your views of IP are very childish indeed.

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Re: IP Trolls @Eadon

I am; I doubt it, but whatever; And as me, my family, my employees and their families all rely on the continued income from the digital wares I developed and have been peddling for the last 12 years, I can assure you I have some interest in being able to enforce our license. This requires strong, internationally consistent Intellectual Property laws that protect digital property, and as I have had to invoke these in three different jurisdictions to date, I think you'll find I am exceptionally well qualified to have an opinion on this.

Congrats on your copyrighted works, that's super but sadly irrelevant - unless they're digital and you make a living from them, which you may notice was the point I made in my original post.

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Anonymous Coward

this situation isn't helped by propaganda spread by the Reg and similar media that IP law is somehow virtuous, and those that object to it and rebel against it are somehow the problem or "pirates".

The law, correctly applied, is the law, and we should follow it. That it has flaws is no excuse for criminal activity.

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copyright infringment is in theory, and despite the best efforts of industry lobbyists, still a civil rather than a criminal matter.

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Trollface

Prenda simply forgot to "lobby" the correct fundraisers/parties/institutions.

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>The law, correctly applied, is the law, and we should follow it.

Dredd? Is that you?

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FAIL

Thanks for your input.

Back to work Dredd.

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"The law, correctly applied, is the law, and we should follow it. That it has flaws is no excuse for criminal activity."

Just to be clear I down voted you because copyright infringement despite what Big Media companies like to claim is a civil not criminal matter.

Either you don't know this or are ignoring it. One makes you look ignorant (it's been mentioned numerous times in El Reg articles and comments) the other makes you look stupid.

Your choice.

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Re: The law, correctly applied, is the law, and we should follow it.

I vas only obeying orders!

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That it has flaws is no excuse for criminal activity."

Apart from seconding what others have already said regarding your naive statements, it worth remembering that some laws need to be broken to get them changed.

Womans suffrage movement

Rosa Parks

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Vic
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> copyright infringement despite what Big Media companies like to claim is a civil not criminal matter.

It is in England and Wales[1], if performed in a commercial setting.

Section 107 is an evil piece of legislation...

Vic.

[1] Not sure about the rest of the UK, and I can't be bothered to look ATM...

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Yes it is - and has been for a long time.

Have you seen any Big Media companies hauled up on criminal charges after breaching those laws? (Quite a few artists have complained loudly about record companies ripping off their works in compilations, etc)

I thought not.

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FAIL

Wrong

The law, correctly applied, is the law, and we should follow it. That it has flaws is no excuse for criminal activity

Wrong. I cite the Nurenburg trials. "Simply following orders" (which were lawful at the time) is no defence for someone accused of crimes against humanity or genocide.

More generally, we all have the right to flout the law. It's often called civil disobedience. It is a form of protest about an unjust law or a more general inequity in society. What honorable protestors have to accept is that they do face punishment under the law that they flouted. Either the punishment is sufficiently minor that they don't care, or they calculate (rightly or wrongly) that public outrage will prevent such punishment taking place and instead result in a change to the unjust law.

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Unhappy

"It is in England and Wales[1], if performed in a commercial setting."

I think these guys scam contention was you'd downloaded their clients pron for you personal consumption. TBH playing it in a commercial setting might actually make their case just a bit more creditable.

"Section 107 is an evil piece of legislation..."

Indeed.

I sense the hand of the Dark Lord.

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Serves them right

The bastards.

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Flame

<profanity filter off>

Die you bastards die

</profanity filter off>

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Looks like you trumped the LA Times:

http://www.latimes.com/business/la-fi-hiltzik-20130410,0,1341753,full.column

Although, for the record, this is the first of Michael Hiltzik's columns I've agreed with...so it's probably an abberation.

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