AK47 Comes Back Swinging

AutoAdmit pseudonymous defendant “AK47″ has made a few errors in judgment. First his statements on the AutoAdmit board. Bad judgment? Yes. Legally actionable? Probably not. But, that didn’t stop anyone from including him as a defendant.

Next error in judgment – this pro se motion to quash.

Back on February 28, I wrote:

My prediction — had Mr. AK47 written his motion a little more skillfully, he might have had a great chance. Unfortunately for him, the motion is so poorly drafted that it will take some charity on the Court’s part for it to fly. I hope that for the First Amendment’s sake, the judge is feeling the love.

It appears that my prayers were answered by the First Amendment gods, because Judge Droney took the very unusual measure of appointing pro bono counsel for AK47 – John R. Williams (who seems to be pretty bad ass).

Williams argued the Motion to Quash on May 5. As a result of Williams’ work at that hearing, Judge Droney ordered Plaintiffs counsel to brief him on whether the court has subject matter jurisdiction. As discussed here, the entire case could potentially unravel, depending on how the judge rules on the subject matter jurisdiction question.

Plaintiffs counsel responded with this memorandum. I am not very impressed. I’d have given it a D plus if it were submitted in one of my classes.

Today, AK47’s attorney really opened up a box of PWNAGE. If Mr. Williams is correct, then the plaintiffs made a pretty bad tactical blunder (as if filing this frivolous case wasn’t enough of a blunder).

First off, it seems that Mr. Williams found the same ironic quote authored by the Plaintiff’s counsel:

The plaintiffs’ lead attorney in this case has appropriately written that “[b]y mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Lemle, “Rationalizing Internet Safe Harbors,” Stanford Public Law Working Paper No. 979836 (April 10, 2007), http://ssm.com/abstract=9798736. That, of course, is exactly what the plaintiffs have done here. The only basis for federal jurisdiction of this action is the plaintiffs’ claim that one of them, Doe I, “owns valid copyrights in her photographs and has registered these copyrights with the United States Copyright Office.” The plaintiffs now admit that Doe I has no such copyright at all. They argue, somewhat disingenuously, that this inaccurate claim was a mere “typographical error” and that another plaintiff in fact owns and has registered a copyright.

D’oh!

The Lemley-PWN aside, is Attorney Williams making too much hay out of a mere “typographical error?” Normally, I would say so. However, upon closer inspection of the argument, he seems to have a point. It seems that the plaintiffs have had multiple chances to fix the “error,” and only now raise it as a “typo.” Further inspection of the pleadings leads to the suggestion that perhaps it was not a typo at all.

Then comes the jurisdictional whup-ass.

The federal jurisdictional “hook” upon which the plaintiffs rely is gossamer thin in any event, as demonstrated by the fact that in their briefs opposing the motion to quash they do not even attempt to argue that they can win their copyright action. That it was manufactured specifically to allow the plaintiffs to get into federal court with their state law case can hardly be doubted, since the alleged copyright was not registered until a mere two days before this suit was filed, and it was registered by the plaintiffs’ attorney in this action. (source)

I don’t know if Judge Droney will simply toss this action – but he certainly seems to have adequate grounds to do so.

Read Williams’ memo here.