If your ISP contacted you regarding the subpoena related to this case, please contact me
Well, this event is rather minor, but since this blog’s initial goal was to cover mainly IO Group/Gill Sperlein cases (I was an unnamed defendant on the IO Group v. Does 1-244 case, which ended with two default judgments recently), I feel obliged to shed the light on Mr. Sperlein’s each and every predatory move.
So, he is back in “business”, this time representing not IO Group, where he is (or was) an in-house counsel, but another gay pornography studio, Celestial, Inc. I thought that Mr. Sperlein was cleverer than many other trolls and he sensed that it was time to quit this reputation-damaging business. I was mistaken.
On 10/14/2011 Sperlein filed a lawsuit in the Central district of California against unnamed does who allegedly shared an “audio-visual work” with a classy name “Big Dick Glory Holes, vol. 6”. I saw many complaints by various copyright trolls, but this one is the sloppiest to date. The entire complaint was copy-pasted from IO Group’s and other trolls’ earlier complaints, the dates are mixed up (the alleged infringement took place on November 8, 2011, i.e. almost a month after the case was filed), even the number of Does is ambiguous: the number “10” is handwritten on top of erased “32”, while the body of the complaint still lists 32 IP addresses.
To give Sperlein some credit, he is trying to preempt one potentially successful defense raised by defendants in similar lawsuits: all his victims allegedly shared the same file over 12-hour period: many judges have found joinders impermissible when the occurrences of alleged infringements were spread over months. One of a few additions to this document, otherwise copied from other sources, says:
Defendants acted in a collective and interdependent manner in the unlawful reproduction and distribution of Plaintiff’s motion picture by exchanging pieces of the motion picture (bits) between themselves and other bit torrent users during a less than twelve-hour period, with the first infringing action documented at 11:31 a.m. and the last recorded at 10:31 p.m.
The list of defendants shows IPs from different states and different broadband providers. My wild guess is that reducing the number of defendants from 32 to 10 has something to do with addressing the issue of multiple providers: 10 IPs belong to Comcast, which was historically very troll-friendly. We’ll see what his motion to subpoena broadband clients’ identifying information will say.
Some other problems with this lawsuit
- A strange fact is that the alleged infringement happened a year ago. Yet another proof that Sperlein has no slightest intention to litigate: threats to perform forensic analysis of defendants’ hard drives are rather hollow: even if the alleged infringement indeed took place and some defendants once had the file in question on their systems, the probability of a positive discovery result greatly diminishes over time.
- No declaration in support from a technology side is filed. IP collectors are referred only as “plaintiff’s investigators”, so a reasonable judge would conclude that the IP addresses were pulled from… you know where. [Update - Declaration in support was filed later, on 11/23]
- Document #2, “Certificate of interested parties” is very strange. It lists only one interested party — plaintiff. Isn’t it clear by definition that plaintiff is an interested party? Maybe the Central district of California has some bizarre rules requiring to always file this type of document, even if it contains a single tautological entry, I don’t know.
- It is suspicious that the certificate of interested parties does not list the abovementioned “investigators”. As a leaked ASC:Law email show, Media Protector (a German company that provided IP lists to both ASC:Law and IO Group/Sperlein) had a vested interest in the moneymaking settlement factory, so it is unreasonable to assume that IP harvesters provided the list for a flat fee this time. At least it is a good question that should be asked by the judge: he should request the agreement between the “shake-down” and “pull-numbers-from-the-ass” participants of the conspiracy to be disclosed.
So, getting back to this movie “of obvious high production values and [...] easily disceranable [sic] as a professional work”… I can’t help envisioning the following dialog in a courtroom:
Judge: What is the name of the movie in question?
Sperlein: Big Dick Glory Holes, vol. 6, Your Honor.
Judge: What does it mean?
Sperlein: I beg your pardon?
Judge: I understand all the words, but they don’t make up a meaningful phrase.
Sperlein: Oh, probably Your Honor doesn’t know what “glory hole” means.
Judge: I thought it was some term used in mining industry. Wasn’t it?
Sperlein: Not exactly, your honor, in the context of adult entertainment, “glory hole” is a hole in a partition between stalls in a public restroom.
Judge: Interesting. And what it is used for?
Sperlein: Well… umm… err… to have sex through it, anonymously.
Judge: Since public sex is illegal, why those “glory holes” even exist?
Sperlein: They are made with pocket knives, usually in bathrooms that are cleaned rarely, once a week or even month, otherwise maintenance people would patch them quickly.
So, what is my point? I don’t really want to make any point here, I just thought about this imaginary scenario when I re-read the copyright clause in the Constitution:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
All this would be funny if not for the fact that the fear of being associated with gay pornography incentivizes innocents and/or closeted gays to settle rather than fight. Let’s face it: our society is not as tolerant as it is often portrayed, and in some states and communities being openly gay may be outright dangerous, and even judges don’t always understand this.
I hope the judge will recognize the tremendous real harm that Sperlein inflicts on his victims. This harm significantly exceeds his client’s imaginary “losses” from piracy. I pray that this case be dismissed after the first motion or sua sponte.