BELLEVILLE , Ill.—Lawyers for Lightspeed Media have filed an amended complaint in Lightspeed v Smith, a lawsuit filed last year against an alleged hacker, that names as defendants cable providers AT&T, Comcast Cable Communications and corporate executives for the companies. They were added for "their role in allegedly aiding hackers targeting adult content," stated Chicago-based Prenda Law Group in a press release issued yesterday.
"Lightspeed's complaint accuses Comcast, AT&T and their corporate executives of civil conspiracy, aiding and abetting computer fraud, unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive Practices Act," said Prenda. "Lightspeed has asked the court for injunctive relief, preventing AT&T and Comcast from continuing to participate in the criminal enterprise, and for monetary damages."
The original case was filed against Anthony Smith, the alleged ringleader of a "hacking gang" that targeted Lightspeed websites. According to the press release, "Lightspeed's early efforts were successful in unraveling the conspiracy when counsel for AT&T, Bartholomew Huffman, and counsel for Comcast, John Seiver informed Lightspeed that their clients would no longer comply with court-ordered subpoenas. Angry criminal subscribers were threatening to cancel their subscriptions. A recent Illinois Supreme Court order necessitated the reissuance of the subpoenas in this matter."
An attorney for Lightspeed, Paul Duffy, added the following comment: "The courts have a strong history of protecting the little guy against unlawful corporate practices. In the Ford Pinto case, for example, Ford made a business decision to pay legal damages instead of the $11 per car to make Ford Pinto gas tanks safe. Similarly, AT&T and Comcast have made a business decision to protect alleged criminals instead of severing lucrative contracts. AT&T and Comcast's subscribers have threatened my client's livelihood while continuing the unfettered hacking that is destroying his business—all under the protection of AT&T and Comcast."
The amended complaint itself states, "At the outset of this litigation, the ISPs and their Representatives were simply third-party custodians who were the sole holders of identifying information of their subscribers who have been hacking into and stealing from Plaintiff's website. Plaintiff attempted, through the only means available to it, to obtain that identifying information through discovery."
The complaint goes on to claim that "the ISPs ... through the approval and authorization of the Corporate Representative of each entity, chose to interpose themselves in this litigation, interfere with the Court's Orders, evade subpoenas, and prevent and obstruct Plaintiff from learning the identities of those ISP subscribers hacking into and stealing from its website."
But the plaintiff does not stop there in its denunciation of the action, or lack of action, taken by the service providers "to prevent their subscribers from committing criminal and tortious acts against Plaintiff even after being on actual notice of the criminal and tortious activity and having full control over the Internet accounts of their subscribers."
According to the complaint, none of the cable companies have "produced evidence suggesting that they have notified any of their subscribers to cease and desist the illegal hacking into, and theft from, Plaintiffs website" ... "produced evidence suggesting that they have cancelled a single contract with a subscriber on the ground that Plaintiff has identified it as having stolen from its website" ... or "produced evidence suggesting that they have notified law enforcement officials that certain of their subscribers have engaged in criminal activity against Plaintiff."
Instead, Lightspeed further alleges, "Upon being served with the "subpoenas, the ISPs sought to delay and derail this litigation, thereby shielding their subscribers from liability and allowing them to continue their unfettered hacking and theft from Plaintiffs website," and even "ran interference for their paying customers, despite allegations certain of those customers were using their subscriptions to commit criminal acts."
The complaint even claims that the cable companies insulted the court, which, "after hearing extensive evidence and argument from the ISPs, entered orders on April 27 and May 21, 2012, in which it directed the ISPs, among other things, to produce subscriber information for the Court to review in camera before disclosing it to Plaintiff.
"Rather than comply with that order," it charges, "the ISPs caused further delay by filing a petition with the Illinois Supreme Court under Supreme Court Rule 383, seeking a supervisory order to preclude the disclosure of subscriber information to the Court for in camera review. The Illinois Supreme Court on June 24, 2012 granted that petition and vacated the May 24, 2012 order."
Claiming ongoing harm, the complaint adds that "nearly twenty percent, or 1,805, of the group of subscribers that the ISPs seek to protect have attempted to hack into Plaintiffs website with a new, hacked user- or pass code, since this litigation began. This amount continues to increase daily. Of those, at least seventy-five have each attempted to hack Plaintiffs website five or more times each since this action began.
"A significant percentage of the alleged criminal and tortious actors are AT&T or Comcast subscribers," the complaint adds. "As such, the delay tactics and other interference on the part of the ISPs has prevented Plaintiff from learning the identities of a vast number of Defendant Smith's coconspirators."
In a separate copyright infringement case that was noted in the Prenda press release, yesterday a District of Columbia U.S. District Court judge "rejected the efforts of AT&T and Comcast to avoid compliance with subscriber identification subpoenas issued by Prenda Law Inc., stating that the ISP's legal arguments 'have no merit.'"
The amended complaint can be read here.