3

)

) CASE NO.: C-IO-3647 (MEJ) )

) PLAINTIFF 10 GROUP, INC.'S

) OPPOSITION TO ANONOMOUSLY ) FILED MOTION TO DISMISS; AND ) MOTION TO STRIKE

)

)

) No Hearing Date

) ) )

Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Paqe l of s

1 D. GILL SPERLE IN (172887)

2 THE LAW OFFICE OF D. GILL SPERLEIN

584 Castro Street, Suite 879

San Francisco, California 94114 Telephone: (415) 404-6615

4 Facsimile: (415) 404-6616 gill@sperleinlaw.com

5

6 Attorney for Plaintiff 7 10 GROUP, INC.

8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

9 10 11

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13 10 GROUP, INC. d/b/a TITAN 14 MEDIA, a California corporation,

15 Plaintiff,

16 vs.

17 DOES 1-244 individuals,

18 19 20 21 22

Defendants.

PROCEDURAL HISTROY

Plaintiff filed this action for copyright infringement against 244 Doe Defendants.

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The infringing activity occurred on line and the only information Plaintiff has as to who

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engaged in the infringing activity is the IP address from which the infringer accessed the 25

26 Internet. Thus, Plaintiff moved for leave to take early discovery, which the Court

27 permitted. (Order Granting Plaintiffs Request for Leave to Take Early Discovery, 28

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Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page2 of 9

Docket No. 10.) Plaintiff served a subpoena on the Internet access provider AT&T Internet, requesting identifying information for the subscribers to whom AT&T had assigned specific IP addresses at various dates and times.

AT&T Internet claimed it was unable to provide the subpoenaed information until March 16, 2011. Upon Plaintiffs motion, the Court extended the time to serve Defendants until July 14, 2011, in order to allow Plaintiff sufficient time to process information once provided by AT&T, to complete further investigation, to amend the Complaint with the actual names of Defendants, and to serve the Summons and Complaint. (Order Extending Plaintiff 10 Group's Time to Serve Doe Defendants and Resetting Case Management Conference, Docket No. 15).

On March 14, 2011 an anonymous individual claiming to be a possible Doe Defendant filed a Motion to Dismiss. (Docket No. 16) The individual did not identify him or herself, did not claim to be a party to the suit, and did not even claim to be one of the non-party Internet subscribers whose information Plaintiff seeks from AT&T.

Based on the anonymous non-party's filing, AT&T suspended production of the subpoenaed information, further delaying Plaintiffs ability to proceed in this matter.

On March 22, 2011 the Court issued an Order Directing Defendant' to file a Consent/Declination Form.

Plaintiff hereby opposes the Motion to Dismiss and moves to Strike the Document in its entirety, as it was not filed by a Party in this matter and was not properly signed as

1 As noted herein, this is an error as Plaintiff has not yet identified any Defendants.

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Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page3 of 9

required under the Federal Rules of Civil Procedure.' Plaintiff also respectfully requests

that the Court reconsider its Order Directing Defendant to file a ConsentlDeclination

Form based on the fact that the filer is not a Defendant in this action, a fact that

apparently was unknown or not considered by the Court prior to its Order.

ARGUMENT

I. THE INDIVIDUAL WHO FILED THE NOTICE TO DISMISS IS NOT A PARTY TO THIS ACTION AND HAS NO STANDING TO BRING A MOTION TO DISMISS.

(a) The Filer is not a Defendant.

The individual who filed the Motion to Dismiss (the Filer) is not a party to this

action. The Filer made this perfectly clear when he or she signed the filing as "Possible

John Doe".

AT &T has not provided any information about subscribers to Plaintiff; thus,

Plaintiff has no more information about whom it may eventually name as Defendants

than it did when it initially filed its Complaint and Motion for Leave to Take Early

Discovery. Plaintiff has not identified any of the Defendants, has not amended the

Complaint with the names of any individuals, and has not served a Summons or

Amended Complaint upon any Defendants.

Moreover, neither Plaintiff nor the Court knows if the individual who filed the

Motion is even one of the subscribers whose information Plaintiff seeks under the

subpoena to AT&T. If he or she is one of those individuals we do not know which one.

2 Because this is an improperly filed document that must be stricken, Plaintiff does not address the substantive arguments. Should the Court not strike the document, Plaintiff requests an opportunity to address the merits through further briefing and oral argument.

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25 Lujan, 504 U.S. at 560-61. Thus, Filer lacks Article III standing for this Court to 26

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Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page4 of 9

The non-party Filer provided no facts as to why he or she believes he or she is a "Possible

John Doe". If the individual is one of the subscribers whose records Plaintiff seeks and

he or she does not wish to have those records released, his or her remedy is to file a 4

motion to quash the subpoena. He or she has not.

Like any entrant to litigation, the Filer must establish that he or she has standing

under Article III of the U.S. Constitution to participate in this proceeding. As noted, the

Filer has not submitted any evidence that he or she is a party to the litigation. Indeed he

or she cannot, because no such evidence exists. Filing a document signed "Possible John

Doe" is not sufficient to confer standing to participate in this action. See generally

StoianofJ v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983); California Consumers v.

Columbia House, Case No. C-97-3233-VRW 1997 U.S. Dist. LEXIS 20649 at *3-4 (N.D.

Cal. Dec. 24, 1997), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 601-61 (1992)

and Warth v. Seldin, 422 U.S. 490, 498 (1973). Central to the Filer's standing is whether

the Filer has a "personal stake" in the controversy's outcome. Stoianoff, 695 F .2d at

1223; see Lujan, 504 U.S. at 601-61; Warth 422 U.S. at 498.

In this case, the Filer has not alleged, nor made any sworn statement regarding

whether or not he or she is a defendant, but claims that his or her involvement as a party

is "possible." Merely "possible" participation, however, does not create a ''personal

stake" in the litigation that is sufficient for the Court to entertain Doe's motion. See

entertain his or her Motion to Dismiss.

4

14 Hack, The Register (Sept.27, 2010),

19 peer infringers, including Larry Flynt Productions. Wconeybeer, Hustler Continues 20 Filing New Suits Despite DDoS Attacks, myce.com (Oct. 28, 2010),

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Case3:10-cv-03647-MEJ Document18 Filed03/2S/11 PageS of 9

(b) The Filer may not even be one of the AT&T Subscribers.

In this matter, Plaintiff seeks to hold responsible the individuals who infringed its

copyrighted works using peer-to-peer technology. Many people vehemently oppose

copyright holder lawsuits in which the right holders seek to enforcement their copyrights

in this manner. In the past, these detractors have shown a willingness to engage in

extreme tactics in order to disrupt litigation. For example, in September 2010, a group of

hackers conducted a "Distributed Denial of Service" (DDoS) attack on a UK-based law

firm that was prosecuting peer-to-peer infringement cases. The hackers obtained and

distributed passwords, personal information and confidential e-mails from the law firm as

part of their attack. John Leyden, Anti-Piracy Lawyers' Email Database Leaked After

http://www.theregister.co.ukl2010/09/27/anti piracy lawyer email leak! (last accessed Mar. 24, 2011).

These hackers have also engaged in attacks on plaintiffs who have sued peer-to-

http://www.myce.com!news!hustler-continues- filing-new-Iawsuits-despite-anonymous-

ddos-attacks-35952/ (last accessed Mar. 24, 2011). Perhaps coincidentally, but perhaps

not, the loosely-knit group of hackers that carried out these attacks call themselves

"Anonymous. "

Given the range and intensity of disdain peer-to-peer users have towards copyright

litigation, it is reasonable to consider that the non-party Filer may have filed his or her

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Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page6 of 9

Motion to express opposition to this type of litigation generally and is in no way

personally related to the case. This is especially reasonable in light of the fact that he or

she did not claim to be a defendant and did not claim to be an AT&T subscriber or

otherwise explain why he or she might be a possible defendant. If a non-party desires to

offer an opinion or present a position to the Court, the proper course is to request leave to

approach the Court as an amicus, which the non-party Filer has not done.

(c) Even if the Filer is an AT&T Subscriber, that alone does not indicate he or she will be named as a Defendant.

Finally, even if the non-party Filer were one of the AT&T subscribers, that fact

alone does not identify him or her as a defendant or even a possible defendant. Plaintiff

has brought other similar actions - some in the past and others currently pending. In

those actions, Plaintiff sought and obtained the identity of many subscribers assigned IP

addresses associated with infringing activity. Yet, for various reasons Plaintiff elected

not to proceed against many of these individuals. In some cases the subscriber was not

the infringer, and in other cases the subscriber was the infringer but extenuating

circumstances came into play. Just because Plaintiff seeks subscriber information for an

IP address associated with infringing activity, does not mean Plaintiff will name the

associated Subscriber as a Defendant. Further investigation is required to determine if

Plaintiff will name an individual in lieu of a Doe Defendant, and if so whom.

The Filer is not currently a defendant in this law suit and has provided no facts to

suggest that he or she will ever be a defendant in this law suit. If he or she is named as a

defendant at some time in the future, he or she may bring a properly noticed and signed

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26 known. See Fed. R. Civ. P. 10(a), requiring that all parties be named in the caption of

27 any filing. Allowing parties to proceed anonymously, or pseudonymously, is inimical to 28

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Case3:10-cv-0364?-MEJ Document18 Filed03/25/11 Page? of 9

1 Motion to Dismiss. Until that time he or she may not.

II.

THE NON-PARTY FILER HAS NO RIGHT TO PROCEED ANONYMOUSLY IN THIS CASE.

Filer, identifying him or herself as a "Possible John Doe," declined to establish

whether he or she is a party, or some other individual or entity. Defendants have been

identified as "John Doe" in this case because their true identities are not yet known. As

Plaintiff discovers the Defendants' true identities, they will be added to the caption and

proceeded against as in any other action where the identities of all parties are known from

the beginning.

The identity of the parties in any action - civil or criminal - should not be

concealed. United States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008). The burden to

proceed anonymously is a high one, and requires the party seeking anonymity to

demonstrate that 1) identification creates of retaliatory physical or mental harm; 2)

anonymity is necessary to preserve privacy in a matter of a sensitive and highly personal

nature; or 3) the anonymous party is compelled to admit his or her intention to engage in

illegal conduct, thus risking criminal prosecution. Does I through XXIII v. Advanced

Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000), citing James v. Jacobson, 6 F.3d 233,

238 (4th Cir. 1993) and Doe v. Stegall, 653 F.2d 180,186 (5th Cir. 1981).

Indeed, it is unusual for parties to proceed anonymously once joined in litigation,

and the Federal Rules of Civil Procedure operate to ensure the parties to litigation are

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26 11 (a). "The court must strike an unsigned paper unless the omission is promptly

27 corrected after being called to the attorney's or party's attention." Id. (emphasis added.) 28

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Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page8 of 9

this goal, and parties must seek leave from the court to do so. Does I through XXIII, 214

F.3d at 1064-65.

The Filer has not done so in this case, and cannot meet the standards required to

proceed anonymously. Not only has there been no motion to proceed anonymously, the

Filer's Motion to Dismiss (Doc. # 16) cannot even be construed as a request for such

relief from the Court. Namely, the Motion to Dismiss fails to address any of the three

prerequisite circumstances required to proceed anonymously by Does I through XXIII.

As the Filer is not entitled to proceed anonymously - but erroneously assumed he or she

could - the Court should strike his or her Motion to Dismiss as being improperly filed by

an individual with no right to proceed anonymously.

III. THE COURT MUST STRIKE UNSIGNED PAPERS FILED WITH THE COURT.

For the reasons stated above, the Filer is not a party or a recognized amicus to

the Court and has no right or standing to file any papers with the Court, much less a

Motion to Dismiss. However, even if the Filer were a bona fide party or amicus, he or

she would not be allowed to file papers anonymously.

Federal Rule of Civil Procedure Number 11 reads in part, "[e]very pleading,

written motion, and other paper must be signed by at least one attorney of record in the

attorney's name - or by a party personally if the party is unrepresented. The paper must

state the signer's address, e-mail address, and telephone number." Fed. Rule Civ. Pro.

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Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Page9 of 9

The non-party Filer did not sign the Motion to Dismiss and thus The Court

must strike the document.

CONCLUSION

Allowing individuals with no demonstrated relationship to an action to direct

litigation by filing anonymous papers would almost certainly lead to unrestrained chaos.

For the reasons stated herein, namely that the Filer is not a party to this action, has not

been granted leave to proceed anonymously, and failed to properly sign (or notice) the

Motion, the Court should strike and disregard the anonymously filed Motion to Dismiss.

Respectfully Submitted,

Dated: March 25, 2011

lsi D. Gill Sperlein

D. Gill Sperlein

THE LAW OFFICE OF D. GILL SPERLEIN Attorney for Plaintiff

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