Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Commission on Theft of American Intellectual Property Proposes Malware Plan for Combating Copyright Infringement


Many computer users are haunted by the idea that they may be violating copyright laws. Not everyone on the web is tech-savvy, and numerous programs make downloading possibly illegal content easier than ever. Couple the ease and accessibility of illegal downloading with confusing copyright laws, and you have a recipe for illegal activity, even if the downloader is not intentionally infringing copyright laws. This week, the Internet is buzzing with news regarding a new proposal for combating infringing activity on the internet. The proposal is novel, invasive, and sounds like illegal activity in and of itself, but nevertheless has been introduced to the United States Government.

The Next Web reports that the US entertainment industry is getting behind a plan to send malware—software made to interrupt computer operation—to alleged infringers. The plan was unveiled in a proposal by the Commission on the Theft of American Intellectual Property, which was submitted to the US Federal Government. The plan would include installing software on computers that would identify whether the computer’s user was engaging in infringing activity, and would cause a “lockdown” of the computer by locking up the files until the “guilty party” turned his or herself into authorities. The proposal also includes the idea that the computer could be locked down with the condition that it would be unlocked when the user contacted authorities—effectively confessing to engaging in copyright infringement. An even more invasive part of the proposal suggests that the malware would include a program for snapping a photo of the computer user with his or her webcam.

The Next Web notes that even Japan, which is known for treating copyright infringement with a solid hand, has not resorted to the tactics in the proposal. File sharing has been illegal in Japan since 2012, and plan to crack down on infringing activity include imprisonment and “honey trap files” which are files made to look like popular television shows that contain alerts regarding the illegality of copyright infringement. has also weighed in on the Commission’s proposal, noting that the malware could enable entertainment companies and other copyright holders to do other invasive things, such as gathering, changing, and destroying data from a network, all without the permission of the computer’s user. Even with all this activity in mind, the proposal touts that it would not violate any current laws, but would rather act to stabilize a situation and get authorities involved. However, it is unclear whether the portion of the proposal designed to infect and destroy a computer falls into the “still legal” category.

In any event, both The Next Web and appear to mirror the sentiment of many computer users, which is that such extensive and novel measures have come to be expected from the entertainment industry and other copyright holders. Still, the idea that downloading a movie or music might result in not only the destruction of one’s computer, but the immediate response of authorities and an instant confession to illegal activity is one that will not sit comfortably with many computer users.  

Copyright laws are constantly changing, and your activity on the web may be subject to legal action. If you have been contacted by anyone regarding a violation of copyright laws, your first line of defense is to contact an experienced copyright defense attorney. Call the law office of Edward R. Molari today for a confidential consultation.


"Will This Go On My Record?" Understanding CORI Access

I am frequently faced with clients trying their best to understand the potential consequences of a criminal charge, and what the outcome might mean for their future.  For such people, the question will often arise -- "is this going to show up on my record?"  It is an absolutely legitimate question, and it feels like one that should have a yes or no answer.

Unfortunately, the answer is always "kind of."  You see, every time a person is charged with a crime in Massachusetts, that fact is recorded in the Criminal Offender Record Information system, referred to as CORI.  This is maintained by the Criminal Justice Information Services division of the Executive Department of Public Safety and Security.  There are other "records" that you might want to worry about, like your interstate criminal record which is compiled by accessing various states criminal records, but access to this information is very limited.  Ordinarily, when an employer runs a person's background, what they are checking is the CORI system.

Employers, individuals, government agencies and corporations all have different levels of access to CORI information, which is what makes it hard to answer the question "will it show up on my record."  The answer is -- it depends on who is running your record.  If, for example, someone is charged with larceny, and that charge gets dismissed at their first pretrial hearing, police and courts will see that the person was charged, and that the charge was dismissed, but so will assisted living facilities, camps, local counsels on aging, day car centers, in-home care organizations, nursing homes, Massachusetts schools, Religious organizations, but only when they are checking records for people applying for employment or offering to volunteer.  Other employers will only see offenses that resuled in a conviction, or which are currently pending.

With that in mind, you can find all the details by taking a look at this chart, published by CJIS explaining the various levels of access to CORI information following the recent CORI reform law.  You can also call my office to discuss your concerns and find out what can be done to keep your record as clean as possible.

Plaintiffs Seeking Class Certification in YouTube Copyright Suit Dealt Major Blow by Court

A ruling from the United States District Court for the Southern District of New York affirms at least one Judge’s view that class action status is not appropriate for plaintiffs in copyright infringement suits. Ars Technica reports that Judge Louis Stanton denied class certification to a massive group of plaintiffs seeking to hold YouTube liable for copyright infringement in Football Association Premier League, Ltd. et al, v. YouTube Inc. et al.  The proposed class would include those individuals or entities with ownership over copyrighted work that was posted without permission on YouTube on or after April 15, 2005. The suit runs parallel to a suit commenced in 2007, Viacom v. YouTube. Ultimately, Judge Stanton ruled in favor of YouTube on a Motion for Summary Judgment in that case.

In the current case, numerous plaintiffs, including the Football Association Premier League Limited, the Rodgers and Hammerstein Organization, and the National Music Publishers’ Association, among others, would be required to fit into two subclasses of victims. The first subclass would include those copyright owners who asked YouTube to take allegedly infringing material off of the site, but it remained on the site or was reposted. The second class would include music publishers whose material was allegedly infringed even though YouTube “knew or should have known” about the alleged infringement.

Under the Federal Rules of Civil Procedure, cited by Judge Stanton, there are several prerequisites to class status. First, the class must include so many plaintiffs that joinder would be impracticable. Second, there must be common questions of law and fact as to members of the class. Third, the claims or defenses of the parties representing the class must be typical to those of the class. Finally, fourth, representatives must fairly and adequately represent the members of the class.

According to NBC News, Judge Stanton ruled that copyright claims are “poor candidates for class-action treatment” due to the unique and fact-intensive analysis required for each claim. In the same report cited above,  Ars Technica further noted that Judge Stanton held that the nature of copyrightable works is that they are each unique, and that the issues of “title, assignment, waiver and fair use,” which are part of the Copyright statute, require individualized analysis. Judge Stanton also noted that economic need was not a justification for granting class status because the statutory damages scheme was put in place to give “litigation value” to each individual plaintiff. Finally, on a different note, Judge Stanton established that he had already reviewed similar issues in the Viacom case.

NBC News noted that Viacom has not completely given up and has filed to appeal Judge Stanton’s ruling. The attorney in the instant case stated that his clients are weighing their options, and may decide to appeal Judge Stanton’s decision.

The Copyright Law statute provides for serious penalties for copyright infringement. If you have been contacted by anyone regarding alleged copyright infringement, contact an experienced copyright law attorney today.


Porn-Trolling Empire’s Fortune may have Run Out as Court gets Wise to Lawyers’ Copyright Infringement Scheme

A group of so-called Internet “porn-trolling” attorneys received a bit of a shakedown last week in The United States District Court for the Central District of California. According to District Court Judge Otis T. Wright’s Order Issuing Sanctions, the principals of firm Prenda Law abused the statutory copyright law scheme, and the court system, in order to harass thousands of defendants to settle outright.

Judge Wright held that Prenda Law principals John Steele, Paul Hansmeier, and Paul Duffy created shell corporations AF Holdings and Ingenuity 13, and assigned to these shells the copyrights to several pornographic movies. John Steele elaborated on the method by which Prenda Law lawyers made their millions with in October of 2012. Forbes reported that Mr. Steele originally conjured up the idea for porn-trolling litigation when he was a law student at the University of Minnesota. He noticed the high level of copyright infringement occurring on internet routers with music, and wanted to find a way to find the infringing persons and sue them. After law school, and a stint in family law, Mr. Steele partnered up with companies in the adult entertainment industry to do just that—except he would troll peer-to-peer network sharing platforms for users ripping off porn movies, rather than music.

Prenda Law lawyers find their defendant porn copyright infringers by monitoring (or “trolling”) peer-to-peer file sharing platforms like BitTorrent. Through these platforms, Prenda lawyers would get alleged infringers’ Internet Protocol (IP) addresses, and then name the IP addresses as “John Doe” defendants in an infringement suit. Prenda Lawyers would then obtain a court order for the Internet Service Provider (ISP) to disclose the identity of the customer account corresponding to the IP address. With an alleged infringer’s identity in hand, Prenda lawyers would then send the alleged infringer written notification of the suit, and would give the alleged infringer an opportunity to settle for a relatively low amount (around $3,000). Due to the sensitive nature of the allegedly infringed material, and the statutory copyright laws, porn-trolling became very lucrative for Prenda lawyers.  

Mr. Steele filed his first porn copyright infringement case in the year 2010, under the firm Steele Hansmeier. At the time of the Forbes article, Mr. Steele noted that he was filing twenty porn copyright lawsuits per month, and wanted to increase the number to 300. He also noted that he and his associates had made a few million dollars litigating the suits.

After Judge Wright’s Order, Prenda Law’s good fortune may have run out. Ars Technica summarized the Order, noting that, among other things, Prenda lawyers “engaged in ‘vexatious litigation designed to coerce settlement’,” and then dropped cases the minute defendants would fight back. Judge Wright also found that Prenda Law lawyers engaged in numerous other unlawful acts, such as providing misinformation to the Court, filing numerous boilerplate complaints without informing the Court, and engaging in forgery.  In fact, two defense attorneys brought the boilerplate suits to Judge Wright’s attention, which eventually lead to his findings that Prenda lawyers had used a combination of AF Holdings and Ingenuity 13 and fraud to commence the suits.

Ultimately, Judge Wright ordered Prenda lawyers to pay over $81,000 in attorney’s fees (the base amount of fees was doubled as a punitive measure). He also recommended that Prenda Law lawyers be disbarred, and is referring Prenda Law lawyers to their state bar associations. Judge Wright additionally noted that the Prenda Law scheme could be criminal in nature. To that end, Judge Wright decided to refer the Prenda Law matter to the United States Attorney for the Central District of California, and to the Criminal Investigation Division of the IRS.  Finally, Judge Wright decided to notify all judges presiding over other Prenda Law cases of this issue.

Copyright laws are complex and, as this case demonstrates, can often catch a defendant off-guard. Internet trolling presents an especially invasive method of tracking down alleged copyright infringers and suing them for copyright infringement. If you are named as a defendant in a copyright infringement lawsuit, it is important for you to seek out the assistance of an experienced attorney. An experienced attorney can help you with your case and can defend you in court. Contact an experienced attorney immediately for a confidential consultation.

Search and Seizure in the Digital Era: Warrantless Searches for Electronic Communication?

Unlike some other countries, the United States does not subscribe to the proposition that the government is entitled to intercept all of the communications of the American people. The government’s ability to use information obtained under certain circumstances is further limited by criminal procedure laws. That being said, technology has outrun the law, creating a tug-of-war between search and seizure law and handheld electronic devices that can store enormous amounts of private information. “Cloud-based” storage and sync programs and most cellular phones now allow users to obtain and store large amounts of sensitive and private information that they can either transfer to various devices, or carry with them on a handheld device, such as an iPhone. Though various software companies, for example Spideroak, and programs, such as the Apple Text Messaging Protocol, can offer higher levels of security to users, increasingly tech-savvy law enforcement officers can now pull most information from a file or phone.

In this climate, it is not surprising that politicians, advocacy groups and judges are hotly debating the applicability requirement for a warrant when searching the phone of an arrested person. While the issue is far from being universally settled, several state Courts and the Seventh Circuit District Court have rendered decisions on warrants for cell phone searches. United States Senators have also sponsored legislation that would help to settle the issue.  

According to CNet.Com, the starting point for discussion regarding search and seizure of electronic communications is the 1986 Electronic Communications Privacy Act. Under that Act, law enforcement officers are entitled to seize e-mail messages more than 180 days old with an administrative subpoena, which does not require the probable cause element that a warrant does. In 2010, the Sixth Circuit Court of Appeals held in US v. Warshak, that Americans have a reasonable expectation of privacy in their e-mail communications. The most recent development with regards to the ECPA comes from the United States Congress. The Electronic Communications Privacy Act Amendments Act of 2013, sponsored by Senate Judiciary Committee Chairman Patrick Leahy of Vermont and Senator Mike Lee of Utah, was introduced this March. According to Senator Leahy’s website, the legislation would amend the ECPA by establishing a search warrant requirement to obtain e-mails and other electronic communications, when those communications are stored using a “cloud based” system. The legislation would also require that the government notify individuals that their e-mails and other communications have been disclosed within ten days of obtaining the warrant. Several states, such as Florida, Delaware, Maryland and Oklahoma have introduced similar legislation at the state government level.

In addition to the legislation, state courts have issued a variety of opinions on the more specific issue of warrantless cell phone searches. The New York Times reports that an Ohio court ruled that police needed a warrant to search a cell phone because it could contain much more information that the traditional notepaper carried in one’s pocket. Meanwhile, a Rhode Island judge suppressed evidence obtained from a cell phone, while a Washington court ruled that text messages are comparable to voicemail messages, and therefore do not require the protection of privacy laws. The Seventh Circuit U.S. Court of Appeals ruled on the issue this March, holding that law enforcement officers do not require a warrant to search an arrestee’s cell phone, because a cell phone is akin to a diary.

The law on the search and seizure of information on an arrestee’s cell phone, or other electronic communication is far from clear cut. If you have been arrested and your electronic information has been obtained by law enforcement officers, an experienced attorney may be able to determine whether the search and seizure was lawful. An experienced attorney can represent you in court and help you understand the charges against you. Contact an experienced attorney immediately for a confidential consultation.

Supreme Court Holds Warrant Required for DUI/OUI Blood Draw

In Missouri v. McNeely, decided on April 17th, 2013, the Supreme Court held that the police cannot force someone to give a sample of their blood during the investigation of a DUI/OUI operaing under the influence case without attempting to get a warrant, or explaining to the court why it would not have been possible to do so. 

The ordinary legal rule about searches and seizures is that the police need a warrant for any search or seizure, except where an exception to that rule applies.  For example, there are exceptions for cases where the police have a high degree of suspicion and where the only thing they are searching is a car (the 'automobile exception').  In this case, police cited the exception for cases where, if the police were required to get a warrant they could not respond in time to save the evidence they are seeking to obtain (the 'exigent circumstances exception.'). 

The argument the police made was that, if they had to take the time to get a warrant in cases where someone was arrested for driving under the influence, the time it would take them to get the warrant would allow the alcohol in that person's blood to dissipate.  What the police were asking for was a rule that in every drunk driving case, they could draw the person's blood without having to get a warrant, because every drunk driving case posed the sort of 'exigent circumstances' that justified the exception.

The Supreme Court, in an opinion written by Justice Sotomayor, held that a generalized rule to govern the whole country in every DUI/OUI case was inappropriate. Instead, in each case where the police obtain a person's blood without consent, the state will have to demonstrate that it was impractical to get a warrant.  It based this decision on the observations that blood alcohol dissipates at a relatively predictable rate, and given that police will have to transport the suspect to a medical facility, some delay is inevitable.

If you or someone you know has been charged with Operating Under the Influence (OUI) in Massachusetts, please contact my office immediately for a free and confidential consultation.

Faint Odors and Social Sharing: Recent Developments in Massachusetts’ Marijuana Laws regarding Search and Seizure and Criminal Distribution

In recent years, Massachusetts voters have called for significant change in Massachusetts’ drug offense law. For example, in January 2009, a voter approved referendum to decriminalize the possession of one ounce or less of marijuana went into effect in Massachusetts. The law, Massachusetts General Law C.94c, S. 32L, established that possession of one ounce or less of marijuana by a person eighteen years old or older, is a civil offense in Massachusetts, punishable by no more than a $100 fine and forfeiture of the marijuana. As simple as it seems, the law is far from straightforward in its application. In fact, the measure’s impact on criminal laws and criminal procedural laws, specifically those pertaining to search and seizure and criminal distribution, have been a subject of recent scrutiny by the Massachusetts Supreme Judicial Court.

In the last couple of years, the Massachusetts SJC has had occasion to develop its jurisprudence on the harmonization of the marijuana decriminalization law and the Fourth Amendment’s restriction against unreasonable search and seizure. The SJC rendered its first landmark decision in 2011 in Commonwealth v. Cruz. In that case, the Commonwealth sought to appeal the lower court’s ruling that evidence that the defendants were in possession of drugs was suppressed because it was obtained unlawfully when police ordered the defendant out of his vehicle and searched it based on a “faint odor” of marijuana and the defendant’s statement that he had smoked marijuana earlier that day. In reviewing the factors the police set forth as warranting reasonable suspicion to search, the SJC held that reasonable suspicion must be based on criminal activity as opposed to infractionary conduct, and that the “faint odor” coupled with the defendant’s statement that he had smoked earlier in the day suggested that any marijuana in the defendant’s possession would have been less than one ounce. The SJC affirmed the lower court’s decision to suppress the evidence.

The SJC further expanded its analysis of the decriminalization law in terms of search and seizure in 2012 in Commonwealth v. Daniel. The Defendants in Daniel had moved to suppress evidence of firearms based on the marijuana decriminalization law after they had been stopped and searched for a motor vehicle infraction by Boston police. The lower court suppressed the evidence, and the Commonwealth appealed the decision to the SJC. The SJC found this case distinguishable from Cruz, where police only smelled the faint odor of marijuana. In Daniels, the police smelled the odor of freshly burnt marijuana, and the driver handed the police two baggies of marijuana after police questioned her. The driver had also been driving erratically. Based on these factors, the SJC reversed the lower court’s decision to suppress the evidence based on the decriminalization law.

Finally, in a case decided this April, 2013, the SJC showed its intent to give full effect to the voter’s intentions in passing the decriminalization law. In Commonwealth v. Jackson, the SJC was presented with a case involving the issue of whether the sharing of a joint fulfilled the elements of criminal distribution of marijuana. Until the SJC’s decision on this issue, it was believed throughout Massachusetts that even though possession of one ounce or less of marijuana was not a crime, the sharing of a joint containing an ounce or less of marijuana was still criminal distribution. The SJC clarified the law, holding that the social sharing of marijuana is akin to simple possession, and that such conduct does not violate the distribution statute.

Massachusetts’ marijuana laws are often difficult to navigate and, as illustrated above, are rapidly changing. If you have been charged with a marijuana-related offense, you should seek out the assistance of an experienced attorney immediately.

Massachusetts to Strengthen Gun Control Laws in the Wake of the Sandy Hook Tragedy?

Earlier this month, neighboring state Connecticut passed landmark legislation strengthening its firearms laws in response to the devastating shooting that took place at Sandy Hook Elementary School last year. According to the New York Post, the legislation would, among other things, create a dangerous weapon offender registry, ban over 100 firearms under the state’s assault weapons ban, mandate background checks for all firearms sales and establish rules for purchasing ammunition. The legislation passed 26-10 in the Connecticut state Senate and 105-44 in the House of Representatives. Connecticut Governor Dannel Malloy is scheduled to sign the bill into law this Thursday at the state Capitol. The legislation would place Connecticut among the states with the strictest gun control laws, including New Jersey, New York, California and Massachusetts.

Connecticut, however, is not the only state in which lawmakers have pledged to strengthen firearms laws in response to recent gun crimes. Massachusetts Governor Deval Patrick also introduced legislation this Session that aims to further strengthen Massachusetts’ already comparatively restrictive gun control laws.  H 47 would further tighten Massachusetts’ gun control laws that were last significantly strengthened in 1998. The current Bill includes measures that would:

  • Limit firearm purchases to one per month per buyer;
  • Prevent the furnishing of a machine gun to anyone under 21 years of age;
  • Bring Massachusetts into compliance with the NICS background check system, specifically by requiring that all mental health adjudications be provided to the state, which will be provided to the US Attorney General for firearms licensing purposes;
  • Create four new gun related crimes: assault and battery by means of a firearm, assault by means of a firearm, being a felon in possession of a firearm and commission of a violent misdemeanor while in possession of a weapon;
  • Require firearms dealers at gun shows to connect to the Massachusetts Instant Record Check System, and require that private gun sales be made at the business of a licensed dealer for electronic tracking purposes;
  • Allow a rebuttable presumption that an individual charged with a felony involving a firearm and physical force is “dangerous” for determining pretrial detention; and
  • Limit access to rounds of high-capacity ammunition.

H 47 is currently before the Joint Committee on Public Safety and Homeland Security.  Additionally, according to the Governor’s website, Patrick also introduced legislation that would increase the state budget by $5 million dollars for Department of Health programs for public awareness of mental health treatment and the promotion of public safety.

Whether H 47 will pass the House and the Senate is not certain. It is, however, important to stay mindful of changes in the law as they develop. Common gun crimes that occur in Massachusetts currently relate to carrying firearms, improperly storing firearms, and possessing firearms without an FID card, but this list is subject to change. These crimes can carry serious penalties, such as severe fines and jail time.  If you have been charged with a firearm-related crime, seek out an attorney immediately.

Breaking Glass Pictures v. Swarm Sharing Hash File

Looks like someone has not been paying attention.  Just as the last of the remaining Massachusetts bittorrent cases are in the process of being severed and dismissed, Alexandra Capachietti has filed three new cases against a total of 84 individual John Does.  The cases filed are:

 1:13-cv-10732-JLT - Complaint
 1:13-cv-10734-RGS - Complaint
 1:13-cv-10733-MBB - Complaint

Each case alleges that various John Doe defendants downloaded a film titled Six Degrees of Hell, a remarkably poorly rated horror film.

Although the complaint takes pains to point out that, unlike other similar cases, the film involved in this case is not a pornographic film (a fact disclosed in the complaint in bold, capital lettering), that fact does not address the concerns that has led the judges in Massacusetts to conclude that joinder in cases such as these is inappropriate. 

The fact that other such cases have involved pornographic material was just one of several concerns for the judges who have been busy dismissing these cases from their dockets.  The primary concern, and conclusion reached after no small amount of soul searching ont the part of the courts, has been that a transaction identified by an IP address simply does not sufficiently identify a person with enough certainty to justify filing a case. 

Whether the film at issue is pornographic or not, I would expect these three cases to meet the same end as those that came before, but only time will tell.

If you have been contacted by your ISP, or anyone else, regarding one of the three above matters, contact an attorney immediately to discuss filing a motion to quash the subpoena.

Massachusetts Courts Stand Up To Trolls

The last few weeks have seen a huge change in the trajectory of copyright trolling cases in Massachusetts.  First, Judge Sorkin issued an order quashing the subpoenas issued in a Discount Videos case filed by Marvin Cable.  Then, Judge Young seemingly reversed his support for copyright trolling cases, and issued an order exercising the discretion of the court to sever and dismiss the charges against all the John Does except the first one in one of the earliest copyright trolling cases filed in this jurisdiction.

In the following weeks, three more cases have been effectively dismissed after motions to quash were allowed.  It now appears that there are at least three judges and/or magistrates who appear prepared to exercise the discretion of the court to shut down these cases.

The best news by far, however, is that Judge Sorkin has now denied a motion for early discovery.  In doing so, Judge Sorkin was unrestrained in his opinion of the merits of these lawsuits:

The discovery they seek cannot provide the Plaintiffs with sufficient information to identify the Doe Defendants. Nor have the Plaintiffs requested leave in their submissions to take depositions, either orally or upon written questions – the only discovery mechanism available to Plaintiff under the Federal Rules of Civil Procedure when seeking information from third parties, as is the case here. In light of the Plaintiffs’ counsel’s assertion at the July 30, 2012 hearing that it was prepared to take depositions (see, 12- cv-10805-NMG, Docket # 23 at 48) and in light of his concession that depositions were the only available discovery mechanism (id. at 47), the omission of any written request for depositions in the Plaintiffs’ renewed motions for discovery speaks volumes about the Plaintiffs’ lack of interest in actually litigating these cases.

Judge Sorkin went on to state that the Plaintiffs' assertions "smack of bad faith" and its conduct "suggests an improper effort to engage in judge shopping and evidences a disregard for the Court’s limited public resources."

The message is clear - copyright trolling in Massachusetts is living on borrowed time.