The Fifth Column: Marc Randazza attempts to sabotage defense against copyright trolls

About a month ago I was amused by the appearance of a well-known copyright bully Marc Randazza as a counsel for a defendant in a copyright trolling case Media Products, Inc. v. Does 1-120 (3:12-cv-30100) brought by a weretroll¹ Marvin Cable in Massachusetts. This discovery has triggered a twitter exchange with Randazza. One particular statement seemingly described Randazza’s credo in less than 140 characters:

This principle is not new and most of lawyers think of it as a must-follow rule. I don’t see any problem with it either, however, if this rule is applied without any ethical safeguards, it becomes pure evil. This concept is a relative (or even a derivative) of the Machiavellian ends justify the means, which is wrongly understood by many as an absolute paradigm. Actually, Machiavelli applied this principle narrowly and advocated that it should be used only by governments and only to help their citizens. He believed that private associations and individuals (including Randazza’s clients) cannot ethically use this philosophy for personal greed or profit.

So, what would you say if a lawyer advocates for his client “best he can” while this “best” is prone to significant collateral damage? Imagine if you are one of the negotiators in an armed hostage situation and you are responsible only for a single hostage out of many. Will you provoke bloodshed if you are sure that gunpowder smoke and chaos would allow you to smuggle your client to safety? Logically, this kind of behavior would make you an expensive, demanded negotiator. Yet do we, the society, want such “professionals” to succeed?

Revenons à nos moutons. Randazza has finally filed his first motion, but it was… a motion in opposition to another defendant’s motion!

Doe 120, via his counsel Nicholas S. Guerrera, filed a motion to sever all Does but one arguing wrong joinder. This year we witnessed the case law in making: currently more and more judges opine that it is a huge stretch to claim that the same swarm participants are “the part of the same transaction or series of transactions” — a necessary condition of a proper joinder. Moreover, it is clear as day that the real goal behind lumping together tens and hundreds of Does is the strategy to save on filing fees and paperwork in order to obtain contact information of putative victims as cheaply as possible; judges finally started to get this simple truth.

So, now Randazza argues that the joinder is proper and the frivolous lawsuit must proceed. He presents twisted arguments, some of which are impudent lies, lies that even Brett Gibbs is not capable of conceiving (emphasis is mine):

If this Court severs all of the defendants, the Plaintiff will then likely file 120 separate claims, forcing each of the 120 defendants to stand alone facing a much larger, and well-financed, opponent, causing unnecessary expense to all parties involved…

Randazza’s arguments are disingenuous to say the least because he knows from experience (or ought to) that severance in a CEG lawsuit equals the end of it for all intents and purposes. Therefore, because, based on previous troll lawsuit experience, severance would mean the end of the litigation for his client with 99.9% probability, he is either (a) trying to run up the Doe’s legal fees, (b) pursuing a not so hidden agenda, or (c) both.

Read this masterpiece of hypocrisy:

I would probably fall from my chair after reading this presumably defense motion, if I did not know that Marc Randazza is a troll himself and has filed dozens of mass bittorent cases similar to this one, albeit he is on the other side of the isle this time. Obviously, beside the best interest of his client, Randazza also cares about his current and future lawsuits and wants to destroy a major defense, which is almost settled as a law, and destroy it from within. The Fifth Column indeed. We already see the results of his sabotage: it did not take long before troll Mike Meier quoted Randazza’s reasoning to justify improper joinder.

I’m sure Randazza will come up with another set of twisted arguments to drag his client out of this lawsuit while letting the other 119 sink. Yet I hope that the judge will learn about Randazza’s other role as a plaintiff attorney and adverse interests derived from this fact. Then, I hope that someone will refresh the judges’ memory of the Rule 1.7 of the ABA Model Rules of Professional Conduct:

[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer’s ability to recommend or advocate all possible positions that each might take because of the lawyer’s duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

While what’s going on here is so obviously slimy, I wonder if Randazza made a slightest attempt to stop admiring his reflection in the vanity mirror for a moment and question whether his actions in fact are severely reputation-damaging, maybe not among his numerous devotees, but among attorneys in general and prospective clients with deep pockets.

Update

As I finished writing this post, I learned that an anti-troll EFF veteran Ray Beckerman has picked up the fight against Mike Meier and attacked the applicability of Randazza’s arguments:

Then, in a manner suggesting a quote from a court opinion, or at least a neutral commentator, Plaintiff’s attorney inserts into his opposing memorandum of law in this case (at pages 6-7) a lengthy single-spaced self-serving block quote from a memorandum of law submitted in another BitTorrent case in Massachusetts by a Doe defendant purportedly represented by Marc Randazza, Esq. Said attorney has sued hundreds of BitTorrent users in the last year on behalf of copyright holder plaintiffs, which raises the question of how and why he came to be making a motion, purportedly on behalf of a Doe defendant in that case, that clearly goes against the interests of the defendants in that case.