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D. GILL SPERLEIN (172887) THE LAW OFFICE OF D. GILL SPERLEIN 584 Castro Street, Suite 879 San Francisco, California 94114 Telephone: (415) 404-6615 Facsimile: (415) 404-6616 Attorney for Plaintiff IO GROUP, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) CASE NO.: C-10-3647 (WHA) ) IO GROUP, INC. d/b/a TITAN MEDIA, a ) PLAINTIFF IO GROUP, INC.’S REPLY TO ) ANONOMOUSLY FILED OPPOSITION California corporation, ) MOTION TO STRIKE ) Plaintiff, ) vs. ) No Hearing Date ) DOES 1-244 individuals, ) ) Defendants. ) PROCEDURAL FACTS Plaintiff filed this copyright infringement action on August 19, 2010. In order to

investigate the identify of defendants, Plaintiff obtained leave from the Court to serve a subpoena on AT&T, the Internet service provider that controls the ip addresses from which the infringement occurred. [Order Granting Plaintiff Leave to Take Early Discovery, Docket No. 10.] Subsequently, an unidentified individual filed an anonymous Motion to Dismiss, claiming to be a potential defendant. [Docket No. 16] Plaintiff opposed the Motion and Moved to Strike the improperly filed Motion to Dismiss. [Docket No. 18] The Magistrate Judge to whom the Clerk of the Court had assigned the matter, struck the Filer’s Consent to Proceed before a Magistrate Judge and ordered the Clerk to reassign the matter to a District Court Judge. [Docket

1 Reply to Filer’s Opposition to Motion to Strike C-10-3647 (WHA)

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No. 22] The unidentified filer submitted an Opposition to the Motion to Strike and Plaintiff replies here. The Filer did not notice a date for a motion hearing on his Motion to Dismiss and recognizing the futility in noticing a hearing where the Filer is appearing pro per and refuses to identify himself, Plaintiff did not notice a hearing for the Motion to Strike. Nonetheless, Plaintiff

5 6 7 8 9 10 11 12 13 14 sources, none of which address the issue at hand – whether it is proper for a non-party to submit 15 16 17 18 19 20 21 22 23 24 25 26 27 28

is prepared to appear should the Court calendar oral argument. ARGUMENT I. FILER DOES NOT ADDRESS PLAINTIFF’S ARGUMENTS FOR STRIKING THE MOTION TO DISMISS. In his1 Opposition to Plaintiff’s Motion to Strike, the anonymous Filer does not address Plaintiff’s arguments for striking Filer’s Motion to Dismiss, rather the Filer focuses on the merits of the arguments advanced in his improperly filed Motion. He strings together a series of hearsay discussions from pro-piracy websites, briefs filed in other cases, and other miscellaneous

an anonymous motion to dismiss on behalf of yet-to-be identified Defendants. He cannot, and the document must be struck. Although the Filer now claims that Plaintiff has subpoenaed records of his identity from AT&T2, this renders the Filer a potential non-party witness – not a potential defendant. The Filer provides no authority supporting a position that a non-party witness is permitted to file a motion to dismiss in order to prevent the discovery of his identity. The proper manner in which to seek such relief is to file a motion to quash or a motion for protective order. The non-party witness did not provide his ip address or otherwise identify a Defendant

As the Filer submitted papers anonymously, Plaintiff does not know the Filer’s gender.

Plaintiff refers to the Filer in the masculine, while recognizing the Filer may be female.
2 Reply to Filer’s Opposition to Motion to Strike C-10-3647 (WHA)

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Doe he believes he may replace, claiming AT&T did not provide the information. However, Filer could have easily contacted AT&T to obtain this information. Several other AT&T

subscribers whose information Plaintiff subpoenaed contacted Plaintiff’s attorney and provided their ip addresses. [Declaration of D. Gill Sperlein in Support of Reply at ¶3] The Filer makes

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 which are inaccurate and unsupported. Indeed, no facts presented in the Filer’s papers are 25 26 27 28

clear that the actual reason he filed anonymously is because he did not want Plaintiff to know who filed the motion. Specifically, he wrote, “I am acting anonymously in order in ensure that all the Does in this case are treated equally and that my actions do not subject me to possible retaliation by Plaintiff by means of selective prosecution.” [Opposition to Motion to Strike, p. 2, ¶3] This is not a proper reason for proceeding anonymously, even if the Filer were a party to the action. For the reasons set forth in Plaintiff’s Motion to Strike and unrebutted in the Filer’s Opposition, a litigant is entitled to know who seeks to direct the outcome of litigation by filing motions with the Court. Chief Magistrate Judge James, recognizing that the Filer is not entitled to file anonymous papers with the Court, struck the Filer’s Consent to Proceed before Magistrate Judge. [Docket No. 22] If the Filer, as a non-party witness whose identity has been subpoenaed, has concerns about the process, the proper course of action is to file a motion to quash in the Northern District of Texas (the Court from which the subpoena issued) or, after conferring with the Plaintiff, to file a motion for protective order in this Court. Plaintiff would stipulate to a protective order.

[Declaration of Keith Ruoff in Support of Plaintiff’s Reply at ¶2] Moreover, the Filer levies upon Plaintiff and its attorney a number of personal attacks,

supported with a signed declaration. Several of these unsubstantiated claims bear specific

In his original Motion to Dismiss, Filer did not claim to be one of the subscriber’s whose
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mention. At subsection II (b), the Filer claims that in another case Plaintiff’s counsel threatened sanctions against a defendant “just because he used ghost written motion.” Actually, the case involved motions written surreptitiously by an attorney for a party claiming to appear pro per.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 records Plaintiff has subpoenaed from AT&T.
4 Reply to Filer’s Opposition to Motion to Strike C-10-3647 (WHA)

The attorney publically stated the motion did not have merit but that the motions would “create more work for the people suing you, and therefore it will take more effort to reveal your identity.” [Sperlein Declaration at ¶4] Filer also claims that Plaintiff’s counsel has attempted to exploit a sense of shame around pornography and refers to Plaintiff’s counsel as a “Copyright Troll” with no interest in protecting the copyrights of the plaintiff’s works but only wishes to exploit alleged infringers for a financial windfall. “Copyright trolls usually target less sophisticated people who cannot afford a lawyer, because these people are more likely to opt for settlements.” Again, these statements are not supported by fact, nor could they be. Plaintiff has a long history of seeking to protect its content even against large corporate defendants or in situations where no recovery was likely. [Id. at ¶2; Rouff Declaration at ¶3] As far as Plaintiff knows, the Filer has never contacted Plaintiff’s attorney to make inquires, explain his position, request a protective order, discuss any aspect of the case, or inquire about the motives behind Plaintiff’s lawsuit. [Id. at ¶5] The true facts about Plaintiff and its motives are quite different. Like most businesses comprising the adult entertainment industry, Io Group is a small family run business that has suffered plummeting revenues in recent years as a direct result of on-line piracy. The infringer’s named as Defendants in this matter and hundreds of thousands like them have made unauthorized copies of Plaintiff’s intellectual property and provided it to hundreds of thousands of “peers”. They engage in this behavior for their own personal gratification and financial benefit even knowing their acts violate the law. The results have been devastating, with most companies reporting between 30% to 50% decreases in revenue. Plaintiff’s DVD sales are down

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30% over the past year alone. More individuals now watch Plaintiff’s content via pirated sources then do via legal or paid sources. [Ruoff Declaration at ¶4] As revenue declines, cut-backs including layoffs naturally ensue. Plaintiff, a company that generally employs about twenty people full time with benefits including health care and a retirement plan, has laid off 15% of its full-time staff in the past year. [Id. at ¶5] Unfortunately, the least skilled of the labor force, those least likely to find other work in a difficult economy, are almost always the first to be laid off, losing not only their income, but also their health insurance. Whoever distributed Plaintiff’s work to a worldwide group of peers through the Filer’s Internet account is directly responsible for a portion of the damages Plaintiff and its employees have suffered. infringer. If the Filer, or someone he is protecting, is responsible for the infringing activity, one can understand why he would want the case dismissed. On the other hand, if the Filer honestly had nothing to do with the infringement, then someone else accessed his account without his permission. In such case, the Filer is a witness who will be able to help in the investigation to discover who illicitly accessed his Internet account. As a non-party witness his name will never be placed in the public record and his concerns about public disclosure are unfounded. II. EVEN IF ADDRESSED ON THE MERITS, THE ANONOMOUS FILER’S MOTION TO DISMISS SHOULD BE DENIED. Although the Anonymous Filer’s Motion must be stricken, Plaintiff briefly addresses the merits of his Motion to Dismiss here. Although the Filer speaks of generally about fairness, he does not explain how he would be unfairly prejudiced if Plaintiff were permitted to discover his Plaintiff deserves the opportunity to investigate its claims and bring suit against the

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5 Reply to Filer’s Opposition to Motion to Strike C-10-3647 (WHA)

identity prior to evaluating jurisdiction and joinder. Unless the Filer is indeed the infringer or is deliberately trying to protect the identity of someone he knows to be the infringer, one would expect cooperation in the investigation. Conversely, Plaintiff, the actual Defendants, and the Court will be burdened by a multiplicity of actions which might otherwise be unnecessary if the determination of jurisdiction and joinder are delayed until Plaintiff identifies the Defendants.

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Jurisdiction Cannot Be Properly Analyzed Until the Defendant Is Identified. In order to learn the identities of Defendants, Plaintiff has subpoenaed subscriber

information for individuals to whom AT&T assigned various ip addresses linked to infringing activity. Upon obtaining the identities, and prior to amending the Complaint with real names, Plaintiff will further investigate issues of liability, jurisdiction, and joinder. In some cases the subscriber will be named; in many cases the subscriber will not. Filer argues that the “geography of an IP is easily identifiable”. [Opposition to Motion to Strike, p.1, n. 1] Therefore, the argument continues, Plaintiff must file the lawsuit in the jurisdiction where the infringement took place. In the first instance, the anonymous filer has not provided evidence that one can accurately determine the location of an ip address. Moreover, the argument is fundamentally flawed because it misapplies principles of personal jurisdiction. The argument assumes one can only bring an action in one district - the district in which the defendant accessed the Internet. However, personal jurisdiction can be based on a number of different theories including domicile, residence, consent, and minimum contacts in the forum state. See, International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158; Shaffer v. Heitner 233 U.S. 186, 207, 97 S. Ct. 2569, 2581 (1977). Often personal jurisdiction lies in more than one district and Plaintiff may bring an action in any district that holds personal jurisdiction over the defendant. The Doe Defendants may even be subject to general personal jurisdiction in the Northern District of California, but until we know the Does’ identities we cannot make that determination. Also, each Doe Defendant may be subject to specific personal jurisdiction based on any number of facts that the Court cannot analyze until Plaintiff identifies the Defendants. For example, a Defendant may have obtained the infringed content from Plaintiff’s website, in which case he consented to personal jurisdiction in this District by clicking on the website’s Terms of Use. Moreover, Plaintiff has a viable argument that personal jurisdiction lies in the Northern District of California, regardless of where the infringer accessed the Internet. An individual can subject himself to personal jurisdiction in a state where he has engage in intentional acts which he knows will cause harm in the forum state. Panavision International, L.P. v. Toppen, 141 F.3d

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1316, 1321 (9th Cir. 1998)(“In tort cases, jurisdiction may attach if the defendant’s conduct is aimed at or has an effect in the forum state.”). Copyright infringement may be characterized as an intentional tort. See, Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1997), overruled on other grounds by Feltner v. Columbia Pictures Television, 523 U.S. 340, 140 L. Ed. 2d 438, 118 S. Ct. 1279 (1998); Janel Russell Designs, Inc. v. Mendelson & Assocs., 114 F. Supp. 2d 856, 862 (D. Minn. 2000). Plaintiff’s works

prominently display Io Group’s brand and the title of the works. [Ruoff Declaration at ¶6.] Each work contains a label disclosing that age verification records for performers are maintained in San Francisco, as required under 18 U.S.C § 2257. [Id.] Each of the works is registered with the U.S. Copyright office (Id. at ¶7) thereby putting defendants on constructive notice of the facts in the registration certificate, including Io Group’s location. (“Recordation of a document in the Copyright Office gives all persons constructive notice of the facts stated in the recorded document); See, Moldo v. Matsco, Inc. (In re Cybernetic Servs.), 239 B.R. 917, 922 (B.A.P. 9th Cir. 1999). Thus, each infringing Doe had knowledge that his intentional acts would cause harm in this district, fulfilling the requirements of Calder and thereby establishing personal jurisdiction in this District. b. The Court Will Be Better Equipped to Analyzed Joinder after Plaintiff Names Defendants. Similar to jurisdiction, a complete analysis of joineder will benefit from the information

Plaintiff subpoenaed because AT&T likely assigned multiple ip addresses to the same individual. Like most residential Internet access providers, AT&T assigns ip addresses on a dynamic

21 22 23 24 25 26 27 28 information, Plaintiff discovered the ISP had assigned one subscriber three different ip addresses basis. Each time a user logs on to the Internet, AT&T may assign a different ip address. Therefore, it is very likely that several of the relevant ip addresses were assigned to the same individual, even though he is currently identified as several different Does in the Complaint. [Sperlein Declaration at ¶6.] This is not just a theoretical possibility. Plaintiff recently filed a very similar action against fifty Bell South subscribers. When Bell South provided subscriber

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listed as three different Does in the Complaint. Three other subscribers were each assigned two of the ip addresses identified in the complaint. In the Complaint, Plaintiff assigned each of these ip addresses a separate Doe number. [Id. at ¶7] In other words, in four cases, claims against the same defendant would have been severed into different cases had the Court ordered severance

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Does 1-19, 551 F. Supp. 2d 1, 11 (D.D.C. 2008) (Kollar-Kotelly, J.); London-Sire Records, Inc. 25 26 27 28 v. Doe 1, 542 F. Supp. 2d 153, 161 n.7 (D. Mass. 2008); Sony Music Entm't, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 568 (S.D.N.Y. 2004). This is not only the most recent decision on this issue, but the Court benefited from extensive amicus briefing from consumer groups including,
8 Reply to Filer’s Opposition to Motion to Strike C-10-3647 (WHA)

prior to identifying the subscribers. In this case, the infringer who used the Filer’s internet access account may someday be substituted for several of the Doe Defendants. Since the defendants would suffer no prejudice if the issue of joinder is delayed until after production, it seems exceedingly fair and practical to wait until Plaintiff identifies the Does before completing a joinder analysis. In this way, the Court can avoid the risk of severing claims against the same individual. Independent of the fact that some of the Does are likely to be the same individual, joinder in this matter is permissible. While the Filer points out that some courts have severed claims against multiple Does, other Courts have reached the opposite conclusion – especially at this early stage. Most recently, a District of Columbia District Court addressed the question of evaluating joinder prior to subpoenaing the ip subscriber’s identity and held, “[s]everance at this stage, however, as numerous other courts both in and outside this District have held, is premature”. Call of the Wild Movie, LLC, v. Does 1-1,062, 2011 Lexis 29153 at *13 (DDC April1, 2011), Citing, Achte/Neunte Boll Kino Beteiligungs GMBH & Co, KG v. Does 1 - 4,577, No. 10-cv-00453, ECF No. 34 (D.D.C. July 2, 2010) (Collyer, J.); West Bay One, Inc. v. Does 11653, No. 10-cv-00481, ECF No. 25 (D.D.C. July 2, 2010) (Collyer, J.); Arista Records LLC v.

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the Electronic Frontier Foundation, Public Citizen, the ACLU, and ACLU of the Nation’s Capital. The Order offers the most detailed, complete, and thoughtful analysis of the issue to date. The Court noted that joinder requirements should be "liberally construed in the interest of

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Resolution Procedures in the Northern District of California, rev. 3/09. 25 26 27 28 Because litigation is uncertain and expensive, parties most often elect to settle disputes prior to litigation. However, in cases involving online copyright infringement, parties often cannot engage in this preferred approach until the plaintiff first identifies the defendants.
9 Reply to Filer’s Opposition to Motion to Strike C-10-3647 (WHA)

convenience and judicial economy in a manner that will secure the just, speedy, and inexpensive determination of the action." Call of the Wild, 2011 Lexis 29153 * 13, Citing, Lane v. Tschetter, No. 05-1414, 2007 U.S. Dist. LEXIS 49524, 2007 WL 2007493, at *7 (D.D.C. July 10, 2007) (quoting Jonas v. Conrath, 149 F.R.D. 520, 523 (S.D. W.Va. 1993)); see also Davidson v. District of Columbia, 736 F. Supp. 2d 115, 119 (D.D.C. 2010). Further, the Court held that defendants in peer-to-peer infringement cases can logically be joined because they are actually trading pieces of movies with each other. Id. at *16. Though there are differences between bit torrent technology used in the Call of the Wild case and the eDonkey2000 technology used in this case, the principle of speeding transmission by obtaining pieces of movies from many different peers is consistent through both technologies. [Ruoff Declaration at ¶8] There is a logical and permissible basis for joining these Defendants under the rules and good reason to delay further analysis until after Plaintiff identifies the Defendants. c. Practical Considerations Support Maintaining These Properly Joined Defendants in One Suit. The first line of “Dispute Resolution Procedures in the Northern District of California” a

pamphlet that every litigant must read, states, “It is the mission of this court to do everything it can to help parties resolve their disputes as fairly, quickly and efficiently as possible.” Dispute

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Identifying the proper defendants early allows the parties to discuss settlement options that become less practical once litigation costs rise. Allowing for the early discovery of defendants inures to the benefit of all parties and the Court. In this matter AT&T contacted each subscriber to notify them that it would release their

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Respectfully Submitted, 25 26 27 28 Dated: April 15, 2011 /s/ D. Gill Sperlein D. Gill Sperlein THE LAW OFFICE OF D. GILL SPERLEIN Attorney for Plaintiff
10 Reply to Filer’s Opposition to Motion to Strike C-10-3647 (WHA)

subscriber information unless the subscriber filed a motion to quash or motion for a protective order. [Opposition to Plaintiff’s Motion to Strike, Exhibit A] None have done so. Only the Filer who submitted the anonymous Motion to Dismiss objected to the release of his information. Once Plaintiff is able to interview the subscribers, dismiss the Does for which AT&T has no records, combine Does where AT&T assigned multiple ip address, and determine if any of the Defendants share the Filer’s desire to sever, the Court will have ample opportunity to consider arguments for and against joinder. A solution that considers the concerns of defendants who do not want to be severed, is to sever the claims of those defendants who request it, and allow the others to proceed together. See e.g., Io Group, Inc. v. Does, 1-435, N.D. Cal, 10-4382 (DMR) Order Severing Plaintiff’s Claims against Defendant J.W., Docket No. 20 (Dec. 15, 2010). CONCLUSION The individual who anonymously filed a motion to dismiss in this matter is not a party to the case – but a non-party whose records have been subpoenaed. He filed the motion in violation of the Federal Rules and it should be stricken. Plaintiff should be allowed to receive the information subpoenaed from AT&T at which time the Court can perform a complete analysis of jurisdiction and joinder.

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