Posts Tagged ‘io group’

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.

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.

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.

The Answer to the First Amended Complaint in our case (IO Group v. Does 1-244) was filed by Sthephen Thomas on behalf of defendant Chun Rong Zheng (Doe # 26) today:

The answer is excellent, all the allegations are denied. That’s how all the answers should look like. An IP address recorded by a questionable company in Germany using questionable technologies, with human errors (like this or this) introduced by Mr. Sperlein later — is not solid evidence.

Therefore I want to remind once again — don’t give any information to Sperlein without talking to a lawyer first. This information will be used against you, no matter how Sperlein tries to create an impression that if you “explain yourself”, you may be dismissed from a case. The information you give him, will be used against you. That’s what happened with Ms. Gonzales from Io Group v. Does 1-50 case. She acknowledged that she, albeit unknowingly, shared an IO Group’s work. But instead of behaving like a decent human being, Sperlein scoffed at her:

If someone made my clients’ works available but did so unintentionally it is up to them to set forth facts that prove that claim. This would not affect liability but may affect damages. However, I don’t think that someone searching for stolen content but simply got the wrong stolen content is going to prove they are an innocent infringer – no matter how loudly they protest that they are Christian.

If he wouldn’t dismiss her, she would be liable for admitted unwillful infringement and could end up paying up to $30,000. I don’t believe that facing such a threat, she got away without paying a settlement.

On the other hand, if all the allegations are denied, it will be a hard task to proof otherwise as the evidence is insufficient as was stated by other judges who dismissed similar cases.

Why Mr. Sperlein so impudently pursues his victims while the evidence he has is laughable? According to his Facebook page, he is an experienced Bridge player, therefore he is not a stranger to bluffing. Keep it in mind.

Back to the Answer to the First Amended Complaint. The following affirmative defenses are listed:

FIRST AFFIRMATIVE DEFENSE
1. The Complaint and each and every purported cause of action contained therein
fails to state facts sufficient to constitute a cause of action against defendant.

SECOND AFFIRMATIVE DEFENSE
2. If plaintiff suffered any damages at all, such damages were proximately caused
and are therefore equitably born by plaintiff because it could have, but failed to, properly and
adequately mitigate incurring such damages.

THIRD AFFIRMATIVE DEFENSE
3. Plaintiff is equitably barred from recovery by the doctrine of unclean hands.

FOURTH AFFIRMATIVE DEFENSE
4. Defendant is exempt from prosecution pursuant to the Online Copyright
Infringement Liability Limitation Act.

I don’t clearly understand the Second Defense. Any ideas? As for the Third Defense, it is not the first time unclean hands doctrine was mentioned: look at the similarly good answer to the complaint in the IO Group v. Anthony Uy case, written by Stewart Kellar, E-ttorney at Law™:

Also it is nice to see that defendants demand reimbursement of legal costs and other relief “as the Court deems proper”. One of the best ways to make sure copyright trolls are extinct as species is to render their “business” financially unsustainable. First, by not paying ransoms, and second, by demanding the legal costs award from plaintiff.

In his amended complaint (IO Group v. Does 1-244), Mr. Sperlein describes his client’s gay pornography flick:

22. The movie Breakers is of obvious high production values and is easily discernable as a professional work. In fact, the work was one of the first erotic movies produced in the Blu-Ray format. Plaintiff created Breakers employing professional performers, directors, cinematographers, lighting technicians, set designers and editors. Plaintiff created Breakers using state-of-the art professional-grade cameras, lighting, and editing equipment.

First of all, doesn’t Mr. Sperlein use the word “erotic” a bit liberally? The debate about the line between erotica and pornography is old as the art itself. One of the best arguments comes from the Master Tinto Brass:

…Pornography is there to give you an erection. Erotica is there to give you emotions…

So, is it yet another attempt to mislead the Court by not labeling IO Group’s products as they are: hardcore homosexual pornography?

Secondly, “Obvious… professional… state-of-the art…” Is it? Honestly, I don’t know – I never watched neither this flick nor the others, though I have read some descriptions. Since Mr. Sperlein has been caught lying, it is very reasonable to scrutinize any of his statements, this one in particular. How? If I was a defense attorney on this case, I would demand the screening of the movie for judge Alsup and the jury. It is also unreasonable to bar public from the screening of this masterpiece, the courtroom doors should be opened wide and the volume is put on max.

Today judge Alsup issued an order:

 

Previously, the following events were scheduled:

  1. All defendants must be served with the summons and complaint and proof of service on all defendants must be filed by JULY 14, 2011
  2. A case management conference is set for JULY 28, 2011, AT 3:00 P.M. Please file a joint case management statement by July 21, 2001 [sic].

Motions still can be filed, but only with the judge’s approval. I don’t think it is wise for any party to piss off the judge even by asking for a permission.

The named defendants should definitely file their replies to the Amended Complaint in order to avoid Sperlein’s Request to Enter Default. Those who have hired attorneys should talk to them about the joint case management statement. I am not sure, what pro se defendants should do about this statement. (Note that on the case IO Group, Inc., v. Does 1-50 Inclusive, Sperlein filed a Separate Case Management Conference Statement, explaining this choice by the fact that all the remaining served Does were pro per. After that, one of the defendants filed a Separate Case Management Conference Statement.)

I have mixed feelings about these developments

    Good:

  • The judge is definitely annoyed by wasting his time on this ill-conceived lawsuit, and any attempts by Mr. Sperlein to prove that the case is important and has merits may anger the judge.
  • It is inconceivable that, given the reason for the order to suspend filing of motions, that the judge will be able to set a trial date at the time of the scheduled conference, if this conference takes place as scheduled (which is doubtful).
  • While the case is effectively on hold, the named defendants, as well as those on the case who were not named, have extra time for observing the development of similar cases (e.g., IO Group, Inc., v. Does 1-50 Inclusive)

     

    Bad:

  • This is a passive disapproval of plaintiff’s actions, i.e. won’t create a good precedent for other judges on similar shake-down p2p lawsuits.

Anyway, these are rather good news than bad. At least those who are considering paying ransoms should probably wait.