Archive for the ‘Sperlein’ Category

The only remaining IO Group’s eDonkey2000 infringement case, IO Group v. Antonio Almeida, was dismissed with prejudice yesterday:

We will never know if any money changed hands as a result of this dismissal, I hope not, or at least not too much. Marc Randazza never misses a chance to brag about huge settlements he “won”, which appear bogus when one gives a closer look at the dismissal documents¹.

I wish all the best to Antonio.

Sperlein is still active in his extortion business, he filed a bunch of cases in Eastern Disctrict of California recently, this time representing another plaintiff, Celestial Inc. I have a completely different set of wishes to him.


¹ “Defendant has an opportunity to reduce the amount payable to Plaintiff if Defendant ceases any further content theft (whether the Plaintiff’s content or anyone else’s), and if he makes regular payments toward the judgment on a schedule that will be agreed upon by the parties in a separate agreement.” — and this “agreement” never sees the light of day…

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.
Judge: Fascinating…

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.

I mentioned IO Group v. Somoza case a couple of times. That’s the case where Sperlein and his New Jersey proxies (who are currently being investigated for fraud) sued a guy who is in extremely dire financial situation and who has serious health problems. In addition, the guy said that he did not even live at the address at the time of the alleged infringement.

This case is finally over. The document says that “the parties reached a confidential settlement agreement.” We will never know if any money was involved, and I want to believe that it wasn’t. First, Carlos does not have assets to pay any large amount, and second, last week the judge on this case noticed that this lawsuit was improperly filed, so the haste in closing is suspicious. In any case, I’m glad that it is over for Carlos, and wish him all the best.

Sperlein, with the help from proxies, filed 4 suits vs. individuals in different states:

  • IO Group v. Somoza.
  • IO Group v. John Doe. Dismissed — I wrote about it earlier.
  • IO Group v. Anthony Uy. Dismissed after defendant’s attorney Stewart Kellar filed a short and precise reply to accusations. Dropping cases when more or less serious opposition emerges is nothing new: we witness many trolls use this tactics. Remember: opposition means a danger of litigation, which trolls have no intention to start, and which is rather impossible to win given the quality of the “evidence” in p2p lawsuits.
  • IO Group v. Almeida. This is the only case that is still alive, and IO Group is represented by Marc Randazza. I don’t know what is going on this case. I strongly believe that Antonio Almeida did not do what he was accused of doing: he was out of the country, and his laptop was broken (with a very solid proof). Unlike Somoza, Antonio probably has some assets, which proves that copyright trolls care about money, not justice. I hope that Antonio will stay strong, so the trolls will retreat under the bridge and let him live his life, which they impudently trespassed.

IO Group v. Does 1-244 case, which I have been a part of, is effectively over. Today federal judge William Alsup ruled in plaintiff’s favor and entered the final default judgment against the two remaining defendants, Mariusz Pralat and Malgorzata Frazyk. Defendants were ordered to pay, jointly and severally¹, $20,000 to plaintiff.

This is not the first pyrrhic victory of this kind. Motions for default judgment were granted in this type of cases previously. Why “pyrrhic”? Firstly, it is not a judgment based on merits, but rather a technical decision. As stated in the order,

The fact that defendants refuse to participate in the judicial process renders a decision on the merits virtually impossible

Secondly, good luck to plaintiff collecting the abovementioned sum from the two who live in Wisconsin and Illinois. Maybe Sperlein will negotiate a nominal amount to be paid: his buddy troll Marc Randazza loves to brag about one particular default judgment, but conceals the fact that the actual payment he is receiving in installments is lower by orders of magnitude than the one awarded.


Federal judge
William Alsup

Though judge Alsup’s decision did not surprise me, I was disappointed by his shortsightedness and formalism. A judge of his rank should be capable of seeing the forest for the trees. He had an opportunity to crash the shakedown scheme in a way judge Gibney did, but decided to close his eyes on the bigger picture and concentrate on technicalities. Misled by Sperlein’s twisted assertions, he made numerous questionable statements in his ruling, especially while applying Eitel factors. I may go over each point of his analysis later, but for now I want to repeat: it was not the judgment based on merits, because no sane judge could possibly admit the “evidence” provided by a sleazy German company as a proof of wrongdoing.

Update: As I learned later, judge Alsup’s reputation is not that high among lawyers and litigants: read what they think about him.

If those two defendants had indeed received the summons and then deliberately did not answer to the complaint, I must admit that they brought this misery on themselves. I have been repeating over and over again that while ignoring ransom letters from a troll is the only right thing to do, not responding to official summons is plain stupid. Even if that’s the case, I still feel sympathy for these two: while reduced 3 times, the punishment is still grossly disproportionate.

Also, I’m not convinced that the two defendants have indeed received the papers. I have my reasons for this doubt, and I will elaborate on them in a separate post later.

I’m worried that this judgment can potentially prompt Sperlein’s return to copyright trolling arena: he has just obtained a BFG-9000 of fear that can be effectively used against poor students and closeted gays in order to extort settlements from them, though the likelihood of his return is rather low: Sperlein is obviously more clever than other trolls, and I don’t believe that he is blind and does not to see the growing opposition among victims, judges and the public in general. I was virtually alone when I confronted him half a year ago, now I have many good people on my side, including experienced and talented attorneys.


¹Under joint and several liability or all sums, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.

I was reading various mass file-sharing lawsuit complaints recently and found out that they are heavily copied from each other. I was daydreaming how wonderful it could be if copyright trolls would sue each other for infringement…

Jason Fischer / Mark Randazza:

88. In the BitTorrent world, there is honor among thieves. Those who merely download files, without publishing and sharing files, are derisively called “leechers.”

Gill Sperlein:

29. In the eDonkey2000 Network, there is honor among thieves. Those who merely download files, without making files available in their share folder are derisively called “leechers.” The more files a user makes available in his share folder, the faster the system allows him to download files from others.

Andrew Contiguglia:

53. In the BitTorrent world, there is honor among thieves. Those who merely download files, without publishing and sharing files, are derisively called “leechers.”

[...and so on...]

Dear trolls!

I heard many times that “there is honor among thieves,” and I don’t care if it is true or not, because it is absolutely not applicable to file-sharing. Firstly, it is highly unprofessional for a lawyer to confuse theft with infringement. Secondly, peer-to-peer participants don’t give a damn about others, because they absolutely don’t know with whom they share their files. I don’t know about Bittorrent, but in eMule download speed is directly correlated with upload speed. So talking about accelerating downloads, you confuse common sense incentives with moral imperatives. It is not surprising since you obviously have a problem comprehending what moral is.

Could you please stop lifting nonsense from each other and start using your own ugly heads?

Thank you.


Mimi and Eunice by Nina Paley

One of few remaining IO Group v. Does cases was voluntarily dismissed this week. Congratulations to those victims who did not succumb to threats. This case was dismissed without prejudice, but today it does not make any difference: copyright trolling “business model” in failing miserably and it is not plausible that anyone from this case will be pursued in the future.

This case was somewhat famous because of two defendants:

 
An interesting fact is that default was entered as to 5 defendants earlier, two of them were dismissed with prejudice later, defendant Young Lin was even dismissed twice: in Document 44 and Document 52. (Effectively Mr. Sperlein invented a new legal concept — double escape from jeopardy.)

So what about the remaining three? Seems that Mr. Sperlein completely lost interest in copyright trolling, otherwise I don’t think he would miss this chance to straighten his weapon of fear.

Last week all the Does except Doe #10 were dismissed from this case.

On August 11, 2011, the Court directed Plaintiff to decide whether to name S.P. as a Defendant and that, if it chose to do so, to amend its complaint within seven days of August 11, 2011. The Court warned Plaintiff that, if it failed to respond, its claims against Doe 10 would be dismissed for failure to prosecute.

G. Sperlein decided not to sue the remaining defendant at this time and let this case collapse by ignoring the deadline.

As time passes, and the public awareness and outrage are growing, it is becoming less and less likely that Sperlein would dare filing a new lawsuit against Doe #10. Although it is possible in theory (the dismissal was without prejudice), it is just does not make any sense:

  • It is hard to believe that a Doe who fought (and therefore is well informed) can be coerced to pay.
  • Winning such case is also impossible, especially in light of new discoveries about the “evidence” extortionists possess.

US District Judge Claudia Wilken issued an order regarding the case “IO group v. Does 1-138”. She had severed and dismissed without prejudice all the Does except Doe #10, who had earlier filed a motion to dismiss for lack of personal jurisdiction.

In this order the judge also denied the motion to dismiss arguing that it is not possible to know if the filer is a party of the lawsuit before that filer is explicitly named, which is clearly a Catch-22 situation.

Although the judge made a right decision to dismiss misjoined defendants, and I praise her for that, with Doe #10, who remains on the case, she basically played along the troll’s ways and punished the one who fought. This alone creates significant chilling effect on any opposition to unethical copyright trolling business, strengthening extortionists’ impudence. It is fair to note, however, that judge Wilken did not pioneer this type of decision.

I still think that filing a motion to quash/dismiss does make sense: 1) there is a small chance that a judge had already made up his mind and is just waiting for an excuse to dismiss the case (for example, judge Shadur in Illinois dismissed copyright troll John Steele’s case in March); 2) many Does filing motions simultaneously create tons of additional work for plaintiff, which is always good: more troll’s time is wasted, less time he has for damaging the society; 3) this delays the progress of the case and buys you time to think about your situation and look how similar cases are progressing.

Yet I don’t recommend revealing any part of your identity in such motion: IP address, location, initials, etc. A protective order (even if granted, which is not likely to happen) does not actually protect – your initials and location are still must be publicized.

So I’m worried about Doe #10: given Sperlein’s history of vindictive lawsuits, the chance of pursuing this victim is high.

Also it seems that the judge did not bother to browse through the case history. Even looking only at the titles of filings, it is impossible to miss the fact that Verizon had already betrayed its customers and coughed out their identities: there is no way that selective dismissals of multiple Does could happen prior to the extortion phase of a predatory lawsuit. So for the judge ordering Verizon to stop revealing names after the names were revealed months ago looks troubling and unprofessional.

A couple of forum pages ago I wrote about the NJ lawyers who were investigated by SEC for security fraud. These lawyers are Sperlein’s proxies suing Carlos Somoza for copyright infringement on behalf of the IO Group, a gay hardcore pornography producer and copyright bully.

Nothing happened on this case since it was filed in the beginning of May, but a couple of days ago defendant wrote a letter to the court:

Note that some of these scam artists live in million dollar houses and drive BMW’s, yet greedy and cynical beyond imagination. Let this guy go, scumbags!

If you are not angry after reading this letter, you probably have very thick skin. I don’t, and therefore I better stop here, otherwise I’m risking speaking out not the best part of myself and later regret it.

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