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Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page1 of 24

1 D. GILL SPERLEIN (172887)


2 THE LAW OFFICE OF D. GILL SPERLEIN
584 Castro Street, Suite 879
3 San Francisco, California 94114
4
Telephone: (415) 404-6615
Facsimile: (415) 404-6616
5

6
gill@sperleinlaw.com

7 Attorney for Plaintiff


8
IO GROUP, INC.

10
UNITED STATES DISTRICT COURT
11 NORTHERN DISTRICT OF CALIFORNIA
12
)
13 ) CASE NO.: C 10-3647 (WHA)
IO GROUP, INC. d/b/a TITAN
)
14 MEDIA, a California corporation,
)
15 ) FIRST AMENDED COMPLAINT:
Plaintiff, )
16
) (1) COPYRIGHT INFRINGEMENT;
vs. )
17 (2) CONTRIBUTORY COPYRIGHT
MARIUSZ PRALAT, CAROL B. ) INFRINGEMENT;
18
PEAL, YUNSHU KANG, CHUN ) (3) VICARIOUS COPYRIGHT
19 RONG ZHENG, ZHI NENG WU, ) INFRINGEMENT;
RUBEN MORENO, HAO XU, ) (4) NEGLIGENCE; and
20
CHIAFEN LIN, SANG YEOL KIM, ) (5) CIVIL CONSPIRACY
21 and MALGORZATA FRACZYK, )
individuals, )
22
________________________________ ) JURY TRIAL DEMANDED
23

24
INTRODUCTION
25
1. This is an action by IO GROUP, INC., a California corporation, d/b/a Titan
26

27 Media (“Titan Media”), to recover damages arising from infringement of Io Group’s


28 copyright in its creative work Breakers by Defendants and to enjoin Defendants from

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First Amended Complaint
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1 future infringement. Defendants reproduced, distributed, and publicly displayed, through


2
the P2P network “eDonkey2000”, the Io Group-owned audiovisual work, Breakers.
3

4
2. Defendants acted in a collective and interdependent manner in the unlawful

5 reproduction and distribution of Plaintiff’s motion picture using the eDonkey2000


6
Network and Protocol.
7

8
3. Each time a Defendant unlawfully distributes a copy of Plaintiff’s

9 copyrighted Motion Picture to others over the Internet via the eDonkey2000 Network, each
10
recipient can then distribute that unlawful copy to others without degradation in sound or
11
picture quality. Thus, a Defendant’s distribution of even a single unlawful copy of the
12

13 Motion Picture can result in the nearly instantaneous worldwide distribution of that single
14
copy to a limitless number of people. In this case, each Defendant’s copyright
15
infringement built upon prior infringements.
16

17 4. Plaintiff seeks redress for the Defendants’ infringement of its exclusive


18
rights in the Motion Picture, and for injunctive relief to stop Defendants from continuing to
19
infringe upon Plaintiff’s copyrighted works.
20

21 THE PARTIES
22 5. Io Group, Inc. is a California corporation doing business as “Titan Media,”
23
with its principal place of business located at 69 Converse Street, San Francisco, California
24

25 94103. Titan Media produces, markets, and distributes adult entertainment products,

26 including Internet website content, videos, DVDs, photographs, etc. Plaintiff operates and
27
maintains a website by and through which customers paying a monthly subscription fee
28
may view Plaintiff’s photographic and audiovisual works.
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1 6. Defendants MARIUSZ PRALAT, CAROL B. PEAL, YUNSHU KANG,


2
CHUN RONG ZHENG, ZHI NENG WU, RUBEN MORENO, HAO XU, CHIAFEN LIN,
3

4
SANG YEOL KIM, and MALGORZATA FRACZYK, are individuals, each of whom is in

5 some way responsible for the damages herein alleged.


6
7. Each Defendant used an Internet connection provided by AT&T to access
7

8
the Internet for the purpose of reproducing and distributing Plaintiff’s work, Breakers.

9 8. The Defendants are a group of eDonkey2000 users or “peers” whose


10
computers are collectively interconnected for the sharing of a particular unique files – in
11
this case a file containing Plaintiff’s movie Breakers. The particular file on the eDonkey
12

13 network is associated with a unique “hash” (a file identifier generated by an algorithm).


14
The unique hash value of the file these Defendants shared is
15
23025B1F57308A2C154A4E78CD1CC36F.
16

17 9. Plaintiff is informed and believes and based thereon alleges that each of the
18
Defendants, was and is the agent and representative of the other Defendants, acting within
19
the purpose and scope of said agency and representation. Plaintiff is further informed and
20

21 believes and based thereon alleges that each of the Defendants authorized and ratified the
22 conduct herein alleged of each of the other Defendants.
23
10. Each of the Defendants engaged in the copyright infringement scheme
24

25 together. During the months of April, May, and June 2010, they all reproduced, shared,

26 distributed, and republished the same file as identified by the hash ID


27
23025B1F57308A2C154A4E78CD1CC36F and containing Plaintiff’s motion picture,
28
Breakers.
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1 JURISDICTION
2
11. This Court has subject matter jurisdiction over Plaintiff’s claims for
3

4
copyright infringement and related claims pursuant to 17 U.S.C. §§ 101, et. seq., and 28

5 U.S.C. §§ 1331 and 1338(a).


6
12. Defendants either reside in, solicit, transact, or are doing business within the
7

8
Jurisdiction; they have committed unlawful and tortious acts both within and outside the

9 Jurisdiction with the full knowledge that their acts would cause injury in this Jurisdiction.
10
As such, Defendants have sufficient contacts with this judicial district to permit the Court’s
11
exercise of personal jurisdiction over each.
12

13 13. The file that each of the Defendants reproduced and distributed clearly
14
indicates within the first twenty seconds of play that name of the work is Breakers and that
15
Titan Media, a California business, produced the movie. As the Defendants engaged in an
16

17 intentional tort (copyright infringement) against a California company, and the infringed
18
material clearly identified Plaintiff as the owner of the movie, the Defendants knew or
19
should have known that infringement upon the copyright would cause harm and damage in
20

21 California. Moreover, pursuant to 17 USC §205(c), recordation of a document in the


22 Copyright Office gives all persons constructive notice of the facts stated in the recorded
23
document, including the residency of the copyright holder.
24

25 14. Plaintiff’s claims arise out of the Defendants’ conduct which gives rise to

26 personal jurisdiction over Defendants. By taking the affirmative act of both downloading
27
and uploading a known California company’s intellectual property, Defendants engaged in
28
intentional acts. As the Defendants knew or should have known (and only could not have
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1 known through willful blindness) that the copyright they infringed upon was California
2
intellectual property, the Defendants expressly aimed their acts at a California company.
3

4
15. The Plaintiff is well known as being a California company and the

5 Entertainment industry is commonly known to be centered in California. There was


6
clearly foreseeable harm in this jurisdiction, and the Defendants’ conduct caused harm that
7

8
they knew or should have known was likely to be suffered in this forum.

9 16. It was a foreseeable consequence of the Defendants’ actions that the Plaintiff
10
would suffer harm to its profits, business reputation, and goodwill. It was foreseeable that
11
Plaintiff would suffer these harms in this jurisdiction and venue.
12

13 INTRADISTRICT ASSIGNMENT
14
17. The Court Clerk previously assigned this matter to the San Francisco
15
Division.
16

17 VENUE
18
18. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b)(2) and
19
1400(a).
20

21 BACKGROUND
22 19. Technological advances have made it increasingly possible to transfer large
23
amounts of data, including digital video files, by and through the Internet. As Congress
24

25 and the courts clarify the law and close legal loopholes in order to hold infringers liable for

26 their actions, would-be infringers develop new and often increasingly complex means of
27
engaging in piracy, hoping that the complexity of their systems will help them avoid
28

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1 detection, identification, and prosecution. Defendants’ infringement represents one of


2
these manifestations of on-line digital piracy.
3

4
20. In using the peer-to-peer (P2P) network “eDonkey2000”, each of the

5 Defendants conspired with other individuals, including the other Defendants, to reproduce
6
and distribute Breakers. Each of the Defendants conspired to provide other individuals
7

8
with pieces of the infringed work in exchange for other pieces of the work.

9 FACTS COMMON TO ALL CLAIMS


10
21. Plaintiff has won numerous awards for its high-quality work beginning with
11
an award for Best Gay Video in its first year in existence (1995). Since then Plaintiff has
12

13 won awards nearly every year including awards for Best Art Direction, Best Videography,
14
Best Packaging, Best DVD Extras, Best Cinematography, and Best Editing. Competitors
15
and consumers alike recognize Plaintiff as one of the highest quality producers of gay
16

17 erotica.
18
22. The movie Breakers is of obvious high production values and is easily
19
discernable as a professional work. In fact, the work was one of the first erotic movies
20

21 produced in the Blu-Ray format. Plaintiff created Breakers employing professional


22 performers, directors, cinematographers, lighting technicians, set designers and editors.
23
Plaintiff created Breakers using state-of-the art professional-grade cameras, lighting, and
24

25 editing equipment.

26 23. The illegally traded file contains Plaintiff’s movie Breakers, clearly
27
identified with Plaintiff’s trademark TITANMEDIA®.
28

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1 24. The eDonkey2000 Network is a peer-to-peer file sharing protocol used for
2
distributing and sharing data on the Internet, including files containing digital versions of
3

4
motion pictures. Rather than downloading a file from a single source like earlier P2P

5 networks, the eDonkey2000 Network allows users simultaneously to download and upload
6
pieces of a file from multiple peers.
7

8
25. In order to participate in the eDonkey2000 Network, the user first downloads

9 software known as an eDonkey2000 client. The client allows users to search the
10
computers of other users or “peers”. The search process is conducted through a group of
11
centralized servers.
12

13 26. Once a user identifies a file he wishes to download, the centralized


14
eDonkey2000 servers locate copies of the file on the computers of other peers who have
15
made that precise file available by placing it in the share folder integrated in the peer’s
16

17 eDonkey client. The servers will only locate exact copies of the file as determined by a
18
hash i.d. The servers will not locate similar copies of the same movie. Even if the file has
19
an entirely different name, the eDonkey servers will locate the file if it has the same hash
20

21 i.d. If a peer changes the file name but nothing else, the server will still recognize the file.
22 If, on the other hand, a user deletes even a few seconds from the beginning of the movie,
23
this changes the content of the file and causes it to have a new hash i.d. The eDonkey2000
24

25 servers will not include the modified file in search results even if the file has the same file

26 name as the file for which the user is searching.


27
27. Once the eDonkey tracking servers locate share folders offering the exact
28
hash id, it directs pieces of those files to the peer downloading the file. This method
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1 speeds up delivery. Rather than waiting for the file to download piece by piece from one
2
source, it locates, copies, and sends pieces from multiple sources at the same time. All the
3

4
pieces then reassemble on the downloader’s computer. However, even before system fully

5 downloads the entire file, the peer can simultaneously offer pieces of the file for upload to
6
other peers.
7

8
28. Unlike similar bit torrent technology, a file can remain in a user’s share

9 folder indefinitely and users can locate and download the file, or pieces of it, at any time in
10
the future.
11
29. In the eDonkey2000 Network, there is honor among thieves. Those who
12

13 merely download files, without making files available in their share folder are derisively
14
called “leechers.” The more files a user makes available in his share folder, the faster the
15
system allows him to download files from others.
16

17 30. Plaintiff has recorded each Defendant named herein actually publishing
18
Plaintiff’s motion picture, Breakers via the eDonkey2000 Network.
19

20
FIRST CAUSE OF ACTION

21 COPYRIGHT INFRINGEMENT – 17 U.S.C. §501


22
Plaintiff Titan Media Owns Federally Registered Copyrights of Various Creative Works

23 31. Plaintiff repeats and incorporates by this reference the allegations set forth in
24
paragraphs 1 through 30, inclusive.
25
32. At all times relevant hereto, Plaintiff has been the producer and owner of the
26

27 audiovisual works Breakers, which Defendants reproduced and distributed by and through
28
the P2P network “eDonkey2000”.

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1 33. Plaintiff holds a copyright registration certificate from the United States
2
Copyright Office for Breakers. The registration certificate number is PA 1-617-991.
3

4
Defendants Willfully Infringed Plaintiff’s Registered Copyrights

5 34. Plaintiff is informed and believes and based thereon alleges that Defendants
6
without authorization, reproduced and distributed Plaintiff’s copyright registered works by
7

8
and through the P2P network “eDonkey2000”.

9 35. At some time prior to April 9, 2010, Defendant MARIUSZ PRALAT,


10
without authorization, reproduced Plaintiff’s registered work Breakers by downloading the
11
digital file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various
12

13 eDonkey peers. Pralat placed the file in his “share folder” making it available for
14
immediate, as well as, future downloading by other eDonkey2000 peers including the
15
remaining Defendants. On April 9, 2010 at 13:27:36 GMT, Plaintiff’s investigators
16

17 documented that an eDonkey peer offered Hash


18
23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.
19
Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using
20

21 the AT&T controlled ip address 99.147.204.85. AT&T later identified Mariusz Pralat as
22 the subscriber to whom it had assigned the ip address at that date and time. Plaintiff is
23
informed and believes and based thereon alleges that the file
24

25 23025B1F57308A2C154A4E78CD1CC36F remained in Pralat’s share folder after

26 Plaintiff’s investigators initially recorded it, thereby making it available for the remaining
27
Defendants and other peers to download.
28

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1 36. At some time prior to April 20, 2010, Defendant CAROL B. PEAL, without
2
authorization, reproduced Plaintiff’s registered work Breakers by downloading the digital
3

4
file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various eDonkey

5 peers, including Defendant Pralat. Peal placed the file in her “share folder” making it
6
available for immediate, as well as, future downloading by other eDonkey2000 peers
7

8
including the remaining Defendants. On April 20, 2010 at 06:05:48 GMT, Plaintiff’s

9 investigators documented that an eDonkey peer offered Hash


10
23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.
11
Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using
12

13 the AT&T controlled ip address 99.151.112.236. AT&T later identified Carol B. Peal as
14
the subscriber to whom it had assigned the ip address at that date and time. Plaintiff is
15
informed and believes and based thereon alleges that the file
16

17 23025B1F57308A2C154A4E78CD1CC36F remained in Peal’s share folder after


18
Plaintiff’s investigators initially recorded it, thereby making it available for the remaining
19
Defendants and other peers to download.
20

21 37. At some time prior to May 24, 2010, Defendant CHUN RONG ZHENG,
22 without authorization, reproduced Plaintiff’s registered work Breakers by downloading the
23
digital file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various
24

25 eDonkey peers, including Defendants Pralat, and Peal. Zheng placed the file in his “share

26 folder” making it available for immediate, as well as, future downloading by other
27
eDonkey2000 peers including the remaining Defendants. On May 24, 2010 at 21:15:42
28
GMT, Plaintiff’s investigators documented that an eDonkey peer offered Hash
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1 23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.


2
Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using
3

4
the AT&T controlled ip address 69.106.107.92. AT&T later identified Chun Rong Zheng

5 as the subscriber to whom it had assigned the ip address at that date and time. Plaintiff is
6
informed and believes and based thereon alleges that the file
7

8
23025B1F57308A2C154A4E78CD1CC36F remained in Zheng’s share folder after

9 Plaintiff’s investigators initially recorded it, thereby making it available for the remaining
10
Defendants and other peers to download.
11
38. At some time prior to May 26, 2010, Defendant ZHI NENG WU, without
12

13 authorization, reproduced Plaintiff’s registered work Breakers by downloading the digital


14
file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various eDonkey
15
peers, including Defendants Pralat, Peal, and Zheng. Wu placed the file in his “share
16

17 folder” making it available for immediate, as well as, future downloading by other
18
eDonkey2000 peers including the remaining Defendants. On May 26, 2010 at 23:11:52
19
GMT, Plaintiff’s investigators documented that an eDonkey peer offered Hash
20

21 23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.


22 Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using
23
the AT&T controlled ip address 75.6.246.205 AT&T later identified Zhi Neng Wu as the
24

25 subscriber to whom it had assigned the ip address at that date and time. Plaintiff is

26 informed and believes and based thereon alleges that the file
27
23025B1F57308A2C154A4E78CD1CC36F remained in Zheng’s share folder after
28

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1 Plaintiff’s investigators initially recorded it, thereby making it available for the remaining
2
Defendants and other peers to download.
3

4
39. At some time prior to June 6, 2010, Defendant RUBEN MORENO, without

5 authorization, reproduced Plaintiff’s registered work Breakers by downloading the digital


6
file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various eDonkey
7

8
peers, including Defendants Pralat, Peal, Zheng and Wu. Moreno placed the file in his

9 “share folder” making it available for immediate, as well as, future downloading by other
10
eDonkey2000 peers including the remaining Defendants. On June 6, 2010 at 05:00:30
11
GMT, Plaintiff’s investigators documented that an eDonkey peer offered Hash
12

13 23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.


14
Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using
15
the AT&T controlled ip address 69.110.31.162 AT&T later identified Ruben Moreno as
16

17 the subscriber to whom it had assigned the ip address at that date and time. Plaintiff is
18
informed and believes and based thereon alleges that the file
19
23025B1F57308A2C154A4E78CD1CC36F remained in Moreno’s share folder after
20

21 Plaintiff’s investigators initially recorded it, thereby making it available for the remaining
22 Defendants and other peers to download.
23
40. At some time prior to June 8, 2010, Defendant HAO XU, without
24

25 authorization, reproduced Plaintiff’s registered work Breakers by downloading the digital

26 file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various eDonkey


27
peers, including Defendants Pralat, Peal, Zheng, Wu, and Moreno. Xu placed the file in
28
his “share folder” making it available for immediate, as well as, future downloading by
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1 other eDonkey2000 peers including the remaining Defendants. On June 8, 2010 at


2
09:31:27 GMT, Plaintiff’s investigators documented that an eDonkey peer offered Hash
3

4
23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.

5 Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using
6
the AT&T controlled ip address 99.144.233.234 AT&T later identified Hao Xu as the
7

8
subscriber to whom it had assigned the ip address at that date and time. Plaintiff is

9 informed and believes and based thereon alleges that the file
10
23025B1F57308A2C154A4E78CD1CC36F remained in Xu’s share folder after Plaintiff’s
11
investigators initially recorded it, thereby making it available for the remaining Defendants
12

13 and other peers to download.


14
41. At some time prior to June 8, 2010, Defendant CHIAFEN LIN, without
15
authorization, reproduced Plaintiff’s registered work Breakers by downloading the digital
16

17 file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various eDonkey


18
peers, including Defendants Pralat, Peal, Zheng, Wu, Moreno and Xu. Lin placed the file
19
in his “share folder” making it available for immediate, as well as, future downloading by
20

21 other eDonkey2000 peers including the remaining Defendants. On June 8, 2010 at


22 19:22:29 GMT, Plaintiff’s investigators documented that an eDonkey peer offered Hash
23
23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.
24

25 Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using

26 the AT&T controlled ip address 76.220.40.238 AT&T later identified Chiafen Lin as the
27
subscriber to whom it had assigned the ip address at that date and time. Plaintiff is
28
informed and believes and based thereon alleges that the file
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1 23025B1F57308A2C154A4E78CD1CC36F remained in Lin’s share folder after Plaintiff’s


2
investigators initially recorded it, thereby making it available for the remaining Defendants
3

4
and other peers to download.

5 42. At some time prior to June 9, 2010, Defendant SANG YEOL KIM, without
6
authorization, reproduced Plaintiff’s registered work Breakers by downloading the digital
7

8
file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F from various eDonkey

9 peers, including Defendants Pralat, Peal, Zheng, Wu, Moreno, Xu, and Lin. Kim placed
10
the file in his “share folder” making it available for immediate, as well as, future
11
downloading by other eDonkey2000 peers including the remaining Defendants. On June
12

13 8, 2010 at 07:38:05 GMT, Plaintiff’s investigators documented that an eDonkey peer


14
offered Hash 23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to
15
download. Plaintiff’s investigators documented that the eDonkey peer connected to the
16

17 Internet using the AT&T controlled ip address 76.245.99.43 AT&T later identified Sang
18
Yeol Kim as the subscriber to whom it had assigned the ip address at that date and time.
19
Plaintiff is informed and believes and based thereon alleges that the file
20

21 23025B1F57308A2C154A4E78CD1CC36F remained in Kim’s share folder after


22 Plaintiff’s investigators initially recorded it, thereby making it available for the remaining
23
Defendants and other peers to download.
24

25 43. At some time prior to June 13, 2010, Defendant MALGORZATA

26 FRACZYK, without authorization, reproduced Plaintiff’s registered work Breakers by


27
downloading the digital file identified as Hash 23025B1F57308A2C154A4E78CD1CC36F
28
from various eDonkey peers, including Defendants Pralat, Peal, Zheng, Wu, Moreno, Xu,
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1 Lin and Kim. Fraczyk placed the file in her “share folder” making it available for
2
immediate, as well as, future downloading by other eDonkey2000 peers. On June 13,
3

4
2010 at 00:52:21 GMT, Plaintiff’s investigators documented that an eDonkey peer offered

5 Hash 23025B1F57308A2C154A4E78CD1CC36F for other eDonkey peers to download.


6
Plaintiff’s investigators documented that the eDonkey peer connected to the Internet using
7

8
the AT&T controlled ip address 99.177.146.113 AT&T later identified Malgorzata

9 Fraczyk as the subscriber to whom it had assigned the ip address at that date and time.
10
Plaintiff is informed and believes and based thereon alleges that the file
11
23025B1F57308A2C154A4E78CD1CC36F remained in Fraczyk’s share after Plaintiff’s
12

13 investigators initially recorded it, thereby making it available for other eDonkey2000 peers
14
to download.
15
SECOND CAUSE OF ACTION
16
CONTRIBUTORY COPYRIGHT INFRINGEMENT
17

18 44. Plaintiff repeats and incorporates by this reference the allegations set forth in
19
paragraphs 1 through 43, inclusive.
20
45. It is helpful to think of the process of transferring files on the eDonkey2000
21

22 Network in the context of a constructed puzzle. In furtherance of sharing this puzzle, it is


23 deconstructed into tiny pieces. These pieces are then uploaded and distributed among one
24
or more peers. Once a peer identifies a file he wants to download, the Network locates all
25

26 the peers currently on line and offering for distribution the identical file as identified by the

27 unique hash id. The eDonkey client, in conjunction with software residing on tracking
28
servers, is capable of locating all the unique corresponding pieces that make up the original

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1 file. The software then downloads pieces of the file from various peers, always seeking
2
the pieces that will download the fastest. Once all the pieces are located and downloaded,
3

4
the software places the pieces into the original order thereby reconstructing the entire

5 original copyrighted file.


6
46. When users all possess the same infringing file as identified by the unique
7

8
hash value (as in this case), it is because each infringer possesses an exact digital copy

9 containing the exact pieces unique to that file. Returning to the puzzle analogy, other
10
puzzles may be constructed from the same movie, but those pieces will not fit together
11
with the pieces from another puzzle. Only pieces from the puzzle identified by the unique
12

13 hash i.d. will fit together.


14
47. Each of the Defendants downloaded, uploaded, and distributed the precise
15
same hash file to the eDonkey2000 network.
16

17 48. Because it is the exact same motion picture, using the exact same hash, in the
18
same general timeframe, the transaction of events at issue in this Complaint is common to
19
all Defendants, thus rendering the Defendants properly joined in this action.
20

21 49. Each of the peers who illegally downloaded the movie derived portions of
22 their illegal replication of the file from multiple peers including the other Defendants. At
23
the same time, each Defendant offered pieces of the file to help other peers, including the
24

25 remaining Defendants, replicate and compile new copies of the file.

26 50. The Defendants knew of the infringement and were conscious of their own
27
infringement and of the fact that multiple other persons derivatively downloaded the file
28
containing Plaintiff’s Motion Picture.
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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page17 of 24

1 51. The infringement by other eDonkey2000 peers could not have occurred but
2
for the Defendants’ participation in uploading the Plaintiff’s protected work. As such, the
3

4
Defendants’ participation in the infringing activities of others is substantial.

5 52. Each defendant is contributory liable for the infringing acts of the other
6
Defendants.
7

8
THIRD CAUSE OF ACTION
VICARIOUS COPYRIGHT INFRINGEMENT
9

10
53. Plaintiff repeats and incorporates by this reference the allegations set forth in
11
paragraphs 1 through 52, inclusive.
12

13 54. The Defendants each received a direct financial benefit from the infringing
14
conduct of the other Defendants who offered Breakers for download, by receiving a free
15
reproduction of Plaintiff’s movie, Breakers.
16

17 55. Plaintiff is informed and believes and based thereon alleges that each
18
Defendant received free unauthorized copies of other movies in exchange for offering a
19
free copy of Breakers to other peers including the remaining Defendants.
20

21 56. Defendants could have prevented the infringing activity of their peers by
22 refraining from offering infringing copies of Breakers for those peers to download and
23
further distribute. Thus, each Defendant had the right and ability to control the infringing
24

25 activity of the other Defendants with regard to Breakers.

26 57. Each of the Defendants is vicariously liable for the infringing activity of the
27
remaining Defendants.
28

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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page18 of 24

1 FORTH CAUSE OF ACTION


2 CIVIL CONSPIRACY

3
58. Plaintiff repeats and incorporates by this reference the allegations set forth in
4

5
paragraphs 1 through 57, inclusive.

6 59. Without authorization, each of the Defendants uploaded and distributed


7
Plaintiff’s copyrighted work by and through the eDonkey2000 Network.
8

9
60. The eDonkey2000 Network is used almost exclusively to locate, reproduce,

10 and distribute infringing content.


11
61. Plaintiff is informed and believes and based thereon alleges that the material
12
made available by and through the eDonkey2000 Network includes a substantial amount of
13

14 obviously unauthorized material including, for example, first run feature films prior to
15
DVD or even box office release.
16
62. In order to access and use the eDonkey2000 Network, a user must first
17

18 download special software called an eDonkey client.


19
63. The center of the conspiracy is the scheme to traffic in infringing content.
20
64. The purpose of the eDonkey2000 Network (i.e., for certain participants to
21

22 identify themselves as a source for a file hash and thereby facilitate the reproduction and
23 distribution of infringing copies of copyrighted works between a network of
24
coconspirators) is apparent to any user who downloads a eDonkey client and uses the
25

26 client for that purpose.

27 65. Once a user identifies and selects the infringing content he wants to
28
download, he or she can then use the eDonkey client to locate that file, on the computers of

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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page19 of 24

1 other users offering the file for distribution and then transfer the infringing file to his or her
2
computer.
3

4
66. The transfer of infringing files cannot occur without the existence and

5 assistance of the participant users, including the Defendants named herein, who supply the
6
infringing content.
7

8
67. Plaintiff is informed and believes and based thereon alleges that each of the

9 Defendants downloaded an eDonkey client for the purpose of conspiring with other
10
eDonkey2000 Network users to reproduce and distribute movies generally, and Breakers
11
specifically, in violation of copyright laws.
12

13 68. Plaintiff is informed and believes and based thereon alleges that at the time
14
each Defendant downloaded an eDonkey client, he or she knew the client would provide
15
access to infringing movies made available by other users and would allow the Defendant
16

17 to provide infringing movies to other eDonkey2000 Network users.


18
69. Plaintiff is informed and believes, and based thereon alleges, that at the time
19
each Defendant downloaded an eDonkey client, he or she intended to access a network of
20

21 other eDonkey2000 Network users for the purpose of reproducing and exchanging
22 infringing copies of movies in violation of copyright laws.
23
70. Plaintiff is informed and believes, and based thereon alleges, that eDonkey
24

25 clients reward users for making content available to others by enabling faster download

26 speeds for those who make content available.


27
71. Plaintiff is informed and believes and based thereon alleges that in addition
28
to the infringing files containing digital copies of Plaintiff’s movies, each identified
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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page20 of 24

1 Defendant without authorization offered infringing content belonging to other copyright


2
holders for others to download, knowing the infringing nature of the content they offered.
3

4
72. Plaintiff is informed and believes and based thereon alleges that each

5 Defendant without authorization offered infringing content to others, knowing that other
6
eDonkey2000 Network users would download the infringing content and further distribute
7

8
it in exchange for still more infringing content.

9 73. Plaintiff is informed and believes, and based thereon alleges, that each
10
Defendant distributed infringing movies, including Breakers, in anticipation of receiving
11
copies of infringing movies in return.
12

13 74. Each Defendant knew or should have known that the infringing content the
14
Defendant downloaded to his or her computer came from the computers of other users,
15
who made the content available to him or her, as well as others in the same network of
16

17 eDonkey2000 Network users, in violation of copyright laws.


18
75. Each Defendant understood the nature of the conspiracy to violate copyrights
19
and agreed to join the conspiracy by downloading an eDonkey client with the intention of
20

21 using that eDonkey client to knowingly download, reproduce, and distribute infringing
22 files with coconspirators.
23
76. Each Defendant engaged in an unlawful act in furtherance of the conspiracy
24

25 when he or she, without authorization, used an eDonkey client to download, reproduce,

26 and distribute copies of Plaintiff’s copyright registered work, Breakers.


27
77. Defendants, all and each of them, conspired with the other Defendants by
28
agreeing to provide infringing reproductions of various copyright protected works,
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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page21 of 24

1 including Plaintiff’s work Breakers, in exchange for infringing reproductions of other


2
copyright protected works, including other works belonging to Plaintiff.
3

4
78. Each Defendant took affirmative steps to advance the conspiracy by

5 unlawfully and without authorization reproducing Plaintiff’s work, Breakers, and


6
distributing the work to coconspirators by and through the eDonkey2000 Network in
7

8
anticipation of receiving other infringing copies of copyright protected works in exchange.

9 79. The Defendants’ conspiracy with others to unlawfully reproduce and


10
distribute infringing copies of infringing works by and through the eDonkey2000 Network
11
caused Plaintiff harm in an amount to be determined at trial.
12

13 80. Each Defendant is jointly and severally liable for the harm Plaintiff suffered
14
as a result of the Defendants participation in the conspiracy to illegally reproduce,
15
distribute and exchange infringing copyright protected works.
16

17 FIFTH CAUSE OF ACTION


NEGLIGENCE
18

19
81. Plaintiff repeats and incorporates by this reference the allegations set forth in
20
paragraphs 1 through 80, inclusive.
21

22 82. Defendants accessed or controlled access to the Internet connection used in


23 performing the unauthorized copying and sharing of Plaintiff’s Motion Picture described
24
above.
25

26 83. Defendants failed to adequately secure their Internet access, whether

27 accessible only through their computer when physically connected to an Internet router, or
28

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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page22 of 24

1 accessible to many computers by use of a wireless router, and failed to prevent its use for
2
this unlawful purpose.
3

4
84. Reasonable Internet users take steps to secure their Internet access accounts

5 to prevent the use of such accounts for nefarious and illegal purposes. As such,
6
Defendants’ failure to secure their Internet access accounts, and thereby prevent such
7

8
illegal uses thereof, constitutes a breach of the ordinary care that reasonable persons

9 exercise in using an Internet access account. In fact, AT&T, the Internet service provider
10
who provided service for Defendants requires in its Terms of Use that subscribers secure
11
wireless routers with a password.
12

13 85. Upon information and belief, Plaintiff alleges that Defendants’ failure to
14
secure their Internet access allowed for the copying and sharing of Plaintiff’s Motion
15
Picture Breakers by use of the eDonkey2000 Network on Defendants’ respective Internet
16

17 connections, and interfering with Plaintiff’s exclusive rights in the copyrighted work.
18
86. By virtue of this unsecured access, Defendants negligently allowed the use of
19
their Internet access accounts to perform the above-described copying and sharing of
20

21 Plaintiff’s copyrighted Motion Picture, Breakers.


22 87. Had Defendants taken reasonable care in securing access to their Internet
23
connections, such infringements as those described above would not have occurred by the
24

25 use of their Internet access accounts.

26 88. Defendants’ negligent actions allowed others to unlawfully copy and share
27
Plaintiff’s copyrighted Motion Picture, Breakers, proximately causing financial harm to
28
Plaintiff and unlawfully interfering with Plaintiff’s exclusive rights in the Motion Picture.
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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page23 of 24

1 JURY DEMAND
2
89. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff
3

4
demands a trial by jury of all issues properly triable by a jury in this action.

5 PRAYER
6
WHEREFORE, Plaintiff Io Group, Inc. respectfully requests judgment as follows:
7

8
(1) That the Court enter a judgment against all Defendants that they have: a)

9 willfully infringed Plaintiff’s rights in federally registered copyrights under 17 U.S.C. §


10
501; and b) otherwise injured the business reputation and business of Plaintiff by all
11
Defendants’ acts and conduct set forth in this Complaint.
12

13 (2) That the Court issue injunctive relief against all Defendants, and that all
14
Defendants, their agents, representatives, servants, employees, attorneys, successors and
15
assigns, and all others in active concert or participation with them, be enjoined and
16

17 restrained from copying, posting or making any other infringing use or infringing
18
distribution of audiovisual works, photographs or other materials owned by or registered to
19
Plaintiff;
20

21 (3) That the Court enter an order of impoundment pursuant to 17 U.S.C. §§ 503
22 and 509(a) impounding all infringing copies of Plaintiff’s audiovisual works, photographs
23
or other materials, which are in Defendants’ possession or under their control;
24

25 (4) That the Court order all Defendants to pay Plaintiff’s general, special, actual

26 and statutory damages as follows: Plaintiff’s damages and Defendants’ profits pursuant to
27
17 U.S.C. § 504(b), or in the alternative, enhanced statutory damages in the amount of one
28

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First Amended Complaint
10-3647 (WHA)
Case3:10-cv-03647-WHA Document41 Filed05/24/11 Page24 of 24

1 hundred fifty thousand dollars ($150,000.00) per infringed work, pursuant to 17 U.S.C. §
2
504(c)(2), for Defendants’ willful infringement of Plaintiff’s copyrights;
3

4
(5) That the Court order all Defendants to pay Plaintiff both the costs of this

5 action and the reasonable attorney’s fees incurred by it in prosecuting this action pursuant
6
to 17 U.S.C. § 504; and
7

8
(6) That the Court grant to Plaintiff such other and additional relief as is just and

9 proper.
10

11
Dated: May 24, 2011 Respectfully submitted,
12

13

14
/s/ D. Gill Sperlein
15
________________________________
16
D. GILL SPERLEIN
17 THE LAW OFFICE OF D. GILL SPERLEIN
Attorney for Plaintiff, IO GROUP, INC.
18

19

20

21

22

23

24

25

26

27

28

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First Amended Complaint
10-3647 (WHA)