Archive for July, 2011

Sperlein voluntarily dismissed “IO Group v. Doe” case with prejudice:

Even though the defendant lives in Texas, he was initially sued in the Northern District of California (IO Group v. Does 1-19). This case was dismissed in March, partially because of the attorney Christina DiEdoardo’s excellent work. Unfortunately, this happened not before Sperlein was able to reap some ransoms thanks to EarthLink’s lack of respect to its own customers.

This defendant is no one else than Doe #4 who filed a motion to quash (via Counsel Christina DiEdoardo – an attorney from the EFF list) and maintained his innocence all the way through the process. Although eventually Sperlein learned his (or her) real name, the defendant managed to stay anonymous in court documents thanks to US District judge Susan Illston, so his name has not been dragged through dirt.

Since the defendant was dismissed from the first case without prejudice, Sperlein was able to pursue another case against him in his home state, Texas.

For those who don’t know, I’ve been staying anonymous mostly because I fear plaintiff’s Counsel ‘s selective prosecution. I reiterated this reason in all of my court filings. I did not look into the details of this particular case until now, but when I did, I was not surprised that a person who filed a motion to quash was selectively pursued. Just another proof that my decision was right. Just another example that Sperlein cowardly goes after those who dared to threaten the flow of dirty ransom money into his pockets.

So the case was dismissed without a fuzz, seems like rats are leaving the sinking ship of copyright trolling “business”.

It seems that Doe was never amused by Sperlein’s threats and behaved with dignity. From the Motion for Leave to Take Discovery (emphasis mine):

5. Plaintiff previously filed an action in the Northern District of California against Defendant DOE and eighteen other Defendants who had similarly infringed Plaintiff’s works. Through Court authorized early discovery, Plaintiff identified the account holder whose IP address was used to access the Internet and engage in the infringing activity. The account holder, identified by EarthLink as a resident of Austin, Texas, denies he is responsible for the infringing activity. He claims that someone resides in his home with him and had access to his Internet account. He also claims he made his wireless Internet connection available to his neighbors by failing to password protect his network. He refuses to provide information to help identify the infringer, and refuses to allow a computer forensics expert to examine his computer.

Indeed, why the hell should any sane person voluntarily allow his personal stuff to be searched? Why any self-respecting person should collaborate with an extortionist?

Note the troll attorney who helped Sperlein in this vindictive lawsuit:

JAMES O. DEEGEAR III Texas Bar No. 05713500
DEEGEAR & MATTHEWS, PLLC
5945 Broadway San Antonio, Texas 78209-5235
Jim@DeegearMatthewsLaw.com
Telephone: (210) 930-5557 Telecopier: (210) 930-3607

Three new documents were filed with the court yesterday.

1. Court clerk entered default of two defendants who failed to response to the amended complaint in 21 days.

Although I advocate not responding to threatening letters and not paying ransoms, if one is named in a lawsuit and served with a summon, not replying to a complaint is not wise, especially if there is a proof of delivery. Laws are laws, and judges don’t have much room when issuing default judgments.

2. Chung Rong Zheng, who filed a good response to complaint with the help of a lawyer, was dismissed with prejudice.

Why with prejudice? Fear of another David Salery? For those who did not read my recent post, David Salery (IO Group v. Does 1-50) is opposing his dismissal without prejudice, so Sperlein probably does not want another fighting defendant and prefers to part with Zheng forever, before our troll is potentially forced to pay defendant’s attorney fees.

3. Sperlein filed a separate case management statement, in which he asks the judge to cancel the case management conference, scheduled for August 26:

The wording suggests that Sperlein does not have any intention to amend this case in order to name more defendants. As such, we probably can relax, yet I don’t understand our official status: we were not explicitly dismissed from the case. Most likely, after the judge rules on the two default entries on or before August 26, Sperlein will dismiss the entire lawsuit (without prejudice – just in case).

In theory Sperlein can file other lawsuits naming some of us, but I doubt it. Remember: his real goal is to extort settlements from those who can be easily scared. Note that he has already collected about $90K from this case only. It is unlikely that those who decided not to pay will change their minds later, so expected settlement rate would be very low, and hence does not justify an investment. You can brew strong coffee from the same beans only once.

It looks like Sperlein is slightly smarter than other trolls (especially Steele the clown): looking at the recent events, I personally think that because of mounting public outcry and judges’ growing awareness, Sperlein is thinking about an exit strategy — minimizing the inevitable damage to his reputation. Sperlein is considering a political career (recently he ran for the San Francisco Entertainment Commission but lost), and despite his talents in twisted rhetoric, this trolling saga can be a fatal blow to these ambitious plans.

IO Group v. Does 1-34 was dismissed on 7/13/11

11 defendants were dismissed earlier from this case with prejudice, which indicates settlement rate of 30% or $20,000 in ransom cash. It was a perfect case for Sperlein: no one fought, judge did not care much and let Sperlein threaten victims again and again. Remaining defendants were dismissed without prejudice.

IO Group v. Does 1-65 was dismissed on 7/15/11

Nothing indicates that Cox Communications released subpoenaed names. Cox does not cough. Case was dismissed without prejudice, so future harassment of victims is possible in theory.

My theory is that these two cases were bound to inevitable dismissal by the judges, hence Sperlein would lose ability to extort defendants from these cases. By dismissing without prejudice, he retained his rights for the second round of harassment. Let me know if you think that my speculations are wrong.

IO Group v. Does 1-244.

Today (4 days past the deadline) Sperlein filed proof of service to 2 defendants:

  • MARIUSZ PRALAT (Doe # 1)
  • MALGORZATA FRACZYK (Doe #36)

He voluntarily dismissed 5 defendants

With prejudice (cannot sue based on the same complaint):

  • ZHI NENG WU (Doe #29)
  • HAO XU (Doe # 33)

Without prejudice (can sue later based on the same complaint):

  • CAROL B. PEAL (Doe #27)
  • RUBEN MORENO (Doe #31)
  • SANG YEOL KIM (Doe #35)

Also he requested to enter default against

Which leaves one defendant in undetermined state:

  • CHUN RONG ZHENG (Doe #26) – this defendant had just filed very good response

I presume that this defendant is implicitly dismissed since no proof of service was filed.

“About” page has been updated, so new visitors would get up to speed in understanding of the issue. I described who copyright trolls are and why their “business” is immoral and damaging. Also, I told my story in brief.

I suggest recording every phone conversation with a troll. If the situation develops as I expect (similar to UK — investigation and disciplining), these recordings may help investigators. Also, in the unlikely scenario of actual trial, these recordings may be played in front of the jury, which certainly won’t help a troll defend his “good faith” methods.

One of this blog’s readers also suggests reporting trolls to law enforcement authorities. I don’t know if it works, but it is worth trying — there is nothing to lose if acting discretely. But keep in mind: if the troll learns what you did, he may go after you.

In order to make sure the recording is legal, you must notify the troll that you are recording. This Wikipedia article explains the US recording laws.

The notification is necessary because California is a two-party state, and

If a caller in a one-party state records a conversation with someone in a two-party state that caller is subject to the stricter of the laws and must have consent from all callers (Cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006)).

If you and your troll are not from California, refer to the list of two-party states in the article.

Accepted forms of notification for recording by a telephone company

    The FCC defines accepted forms of notification for telephone recording by telephone companies as:

  • Prior verbal (oral) or written consent of all parties to the telephone conversation.
  • Verbal (oral) notification before the recording is made. (This is the most common)
  • An audible beep tone repeated at regular intervals during the course of the call.

Note that the law re: verbal is not worded “consent” but “notification” Notification as the FCC defines.

Most likely you’ve already noticed that Sperlein has voluntarily dismissed one of IO Group’s cases, IO Group v. Anthony Uy:

I don’t have any additional information. No new entries on defendant’s attorney’s (Stewart Kellar) blog. Given the defendant’s harsh response to the complaint, I doubt that he paid anything to plaintiff. Anyway, no more harassment for Anthony. Hence my congratulations.

Various sources suggest that some extortion victims received more than one threatening letter after ISPs cough up their identities. Is it so? I wonder why some are targeted more aggressively than the rest. Please vote only if you can positively answer to one of the following questions. Did anyone received any phone calls? Comments are welcome.

    Monkey trap (plural monkey traps)

  • (literally, probably folk-lore) A cage containing a banana with a hole large enough for a monkey’s hand to fit in, but not large enough for a monkey’s fist (clutching a banana) to come out. Used to “catch” monkeys that lack the intellect to let go of the banana and run away.
  • (figuratively) A clever trap of any sort, that owes its success to the ineptitude or gullibility of the victim.

 

Copyright trolls hate light and try to avoid publicity, so that they could continue their shady shake-down business. They are not too stupid and do understand that earlier or later their scam will be brought to light and their little extortion enterprises will melt as a result. That’s what is happening with ACS: Law in Great Britain right now, but not in the US yet.

So, rationally thinking, the lower they lay, the longer the ransom cash will flow. So why do they allow obviously wrong cases to continue? These cases get publicity and draw attention that clearly harm their “business” model. For example:

I can go on and on, but you can google these stories, there are lots of them.

What is striking is that in every such case trolls continue to press charges instead of letting clearly innocent people go. These extreme cases are usually related to just a small percentage of their victims, and letting these victims go wouldn’t seriously undermine their extortion revenue, and at the same time they would avoid harmful publicity and general public’s mounting rage.

The answer is simple: greed. Like in monkey trap cases, they just can’t let a banana go to save themselves from being caught. Unlike monkeys, they understand the situation, but obviously greed dominates common sense inside their hard sculls.

Greed destroyed Andrew Crossley in UK, greed will eventually destroy the US copyright trolls.

So, continue holding your banana, Troll, someone is already on the way with a nice cage!

There is an interesting development in IO Group v. Does 1-50 Inclusive case.

David Salery is one of the few defendants who are actively fighting: he filed the Motion to Dismiss For Lack of Jurisdiction on May 26. Another defendant who was fighting on this case is Liselotte Acevedo-Paquette (she filed her Motion to Dismiss, Motion to Quash and General Defenses on May 27.) Hearing on both motions was set to July 26. Immediately after the hearing date was set, Sperlein dismissed Liselotte with prejudice, which means that no new lawsuits based on the same claim can be filed against her.

Later David Salery filed Separate Case Management Conference Statement — June 15.

On July 5 David Salery was dismissed without prejudice, which means that harassment was bound to continue, most likely in his home state Florida, where a bizarre troll Marco Randazza is always available and ready to help his buddy troll.
David was not impressed by this perspective, and yesterday he filed Objection to Dismissal, sweet and short:

Good job, David! It may be more reasonable to sit and wait, it may be cheaper to settle than to fight, but only those who care to stand against “legal” criminals can change the picture. I’ll root for you.

P. S. Mr. Sperlein, who claims that his evidence-gathering methods are impeccable, still did not master basic spelling: in all his filings he calls David Salary. Well, if one is not capable of thinking about anything but money, this error is understandable. Also, if names can be so easily misspelled, why should we trust the numbers (IP addresses)?

Update

Unfortunately, objection to motion to dismiss did not have any effect, because

Because Rule 41(a) allows Plaintiff to dismiss Mr. Salery without prejudice, the Court cannot prevent Plaintiff from doing so.