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Case 2:11-cv-03478-GEB-EFB Document 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. FIRST TIME VIDEOS, LLC, ) ) Plaintiff, ) v. ) ) JOHN DOE ) ) Defendant. ) ) ____________________________________) Brett L. Gibbs, Esq.

(SBN 251000) Prenda Law Inc. 38 Miller Avenue, #263 Mill Valley, CA 94941 415-325-5900 blgibbs@wefightpiracy.com A ttorney for Plaintiff

Filed 12/30/11 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

No. Judge: COMPLAINT DEMAND FOR JURY TRIAL

Plaintiff First Time Videos, LLC, through its undersigned counsel, hereby files this Complaint requesting damages and injunctive relief, and alleges as follows:

NATURE OF THE CASE


Plaintiff files this action for copyright infringement under the United States Copyright

Act and a related civil conspiracy claim under the common law to combat the willful and intentional infringement of one of its creative works. John Doe and his co-conspirators, whose names Plaintiff expects to ascertain during discovery, illegally reproduced and distributed Plaintiffs copyrighted Video by acting in concert via the BitTorrent file sharing protocol and, upon information and belief, continues to do the same. Plaintiff seeks a permanent injunction, statutory or actual damages, award of costs and attorneys fees, and other relief.

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THE PARTIES
Plaintiff First Time Videos, LLC is a limited liability company organized and

existing under the laws of the State of Nevada. Plaintiff is the exclusive holder of the relevant rights with respect to the copyrighted creative work that is the subject of this Complaint. 3. Plaintiff is a producer of adult entertainment content. Plaintiff invests significant

capital in producing the content associated with its brand and has produced substantial numbers of videos and photographs. The copyrighted work at issue here is one of these adult videos, FTV Melena (the Video). 4. The identities of John Doe and his co-conspirators are unknown to Plaintiff. Instead,

they are known to Plaintiff only by an Internet Protocol address (IP address), which is a number assigned to devices, such as computers, connected to the Internet. In the course of monitoring Internet-based infringement of its copyrighted content, Plaintiffs agents observed unlawful reproduction and distribution occurring among the IP addresses listed on Exhibit A, attached hereto, via the BitTorrent protocol. Plaintiff cannot ascertain the identities of John Doe or his coconspirators without information from their respective Internet Service Providers (ISPs).

JURISDICTION AND VENUE


This Court has subject matter jurisdiction over the copyright infringement claim

under 17 U.S.C. 101, et seq., (the Copyright Act), 28 U.S.C. 1331 (actions arising under the laws of the United States), and 28 U.S.C. 1338(a) (actions arising under an Act of Congress relating to copyrights). This Court has supplemental jurisdiction over the civil conspiracy claim under 28 U.S.C. 1367(a) because it is so related to Plaintiffs copyright infringement claim, which is within this Courts original jurisdiction, that the two claims form part of the same case and controversy under Article III of the United States Constitution.

2 COMPLAINT

CASE NO.

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This Court has personal jurisdiction because upon information and belief, John Doe

either resides in or committed copyright infringement in the State of California. Plaintiff used geolocation technology to trace the IP address of John Doe to a point of origin within the State of California. Geolocation is a method for ascertaining the likely geographic region associated with a given IP address at a given date and time. Although not a litmus test for personal jurisdiction, geolocation suggests that John Doe resides in California. 7. Venue is properly founded in this judicial district pursuant to 28 U.S.C. 1391(b)

and 1400(a) because John Doe resides in this District, may be found in this District, or a substantial part of the events giving rise to the claims in this action occurred within this District.

BACKGROUND
BitTorrent is a modern file sharing method (protocol) used for distributing data via

Traditional file transfer protocols involve a central server, which distributes data

directly to individual users. This method is prone to collapse when large numbers of users request data from the central server, in which case the server can become overburdened and the rate of data transmission can slow considerably or cease altogether. In addition, the reliability of access to the data stored on a server is largely dependent on the servers ability to continue functioning for prolonged periods of time under high resource demands. 10. Standard peer-to-peer (P2P) protocols involve a one-to-one transfer of whole files

between a single uploader and single downloader. Although standard P2P protocols solve some of the issues associated with traditional file transfer protocols, these protocols still suffer from such issues as scalability. For example, when a popular file is released (e.g. an illegal copy of the latest blockbuster movie) the initial source of the file performs a one-to-one whole file transfer to a third

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CASE NO.

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party, who then performs similar transfers. The one-to-one whole file transfer method can significantly delay the spread of a file across the world because the initial spread is so limited. 11. In contrast, the BitTorrent protocol is a decentralized method of distributing data.

Instead of relying on a central server to distribute data directly to individual users, the BitTorrent protocol allows individual users to distribute data among themselves. Further, the BitTorrent protocol involves breaking a single large file into many small pieces, which can be transferred much more quickly than a single large file and in turn redistributed much more quickly than a single large file. Moreover, each peer can download missing pieces of the file from multiple sourcesoften simultaneouslywhich causes transfers to be fast and reliable. After downloading a piece, a peer automatically becomes a source for the piece. This distribution method contrasts sharply with a one-

In BitTorrent vernacular, individual downloaders/distributors of a particular file are

called peers. The group of peers involved in downloading/distributing a particular file is called a swarm. A server which stores a list of peers in a swarm is called a tracker. A computer program that implements the BitTorrent protocol is called a BitTorrent client. Each swarm is unique to a particular file. 13. The BitTorrent protocol operates as follows. First, a user locates a small torrent file.

This file contains information about the files to be shared and about the tracker, the computer that coordinates the file distribution. Second, the user loads the torrent file into a BitTorrent client, which automatically attempts to connect to the tracker listed in the torrent file. Third, the tracker responds with a list of peers and the BitTorrent client connects to those peers to begin downloading data from and distributing data to the other peers in the swarm. When the download is complete, the BitTorrent client continues distributing data to other peers in the swarm until the user manually disconnects from the swarm or the BitTorrent client otherwise does the same.
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The degree of anonymity provided by the BitTorrent protocol is extremely low.

Because the protocol is based on peers connecting to one another, a peer must broadcast identifying information (i.e. an IP address) before it can receive data. Nevertheless, the actual names of peers in a swarm are unknown, as the users are allowed to download and distribute under the cover of their IP addresses. 15. The BitTorrent protocol is an extremely popular method for transferring data. The

size of swarms for popular files can reach into the tens of thousands of unique peers. A swarm will commonly have peers from many, if not every, state in the United States and several countries around the world. And every peer in the swarm participates in distributing the file to dozens, hundreds, or even thousands of other peers. The BitTorrent protocol is also an extremely popular method for unlawfully copying,

reproducing, and distributing files in violation of the copyright laws of the United States. A broad range of copyrighted albums, audiovisual files, photographs, software, and other forms of media are available for illegal reproduction and distribution via the BitTorrent protocol. 17. Efforts at combating BitTorrent-based copyright infringement have been stymied by

BitTorrents decentralized nature. Because there are no central servers to enjoin from unlawfully distributing copyrighted content, there is no primary target on which to focus anti-piracy efforts. Indeed, the same decentralization that makes the BitTorrent protocol an extremely robust and efficient means of transferring enormous quantities of data also acts to insulate it from anti-piracy measures. This lawsuit is Plaintiffs only practical means of combating BitTorrent-based infringement of the Video.

ALLEGATIONS COMMON TO ALL COUNTS


At all times relevant hereto, Plaintiff was the exclusive rights holder with respect to

BitTorrent-based reproduction and distribution of the Video.


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Plaintiff has applied for a certificate of copyright registration for the Video from the

United States Copyright Office, and that application is currently pending (Application No. 1677992262). 20. The torrent file used to access the copyrighted material was named in a manner that

would have provided an ordinary individual with notice that the Video was protected under the copyright laws of the United States. 21. Plaintiff employs proprietary peer-to-peer network forensic software to perform

exhaustive real time monitoring of the BitTorrent-based swarm involved in distributing the Video. This software is effective in capturing data about the activity of peers in a swarm and their infringing conduct. John Doe and his co-conspirators, without Plaintiffs authorization or license,

intentionally downloaded a torrent file particular to Plaintiffs Video, purposefully loaded that torrent file into their BitTorrent clients, entered a BitTorrent swarm particular to Plaintiffs Video, and reproduced and distributed the Video to numerous third parties. 23. Plaintiff observed John Does and his co-conspirators activities in the torrent swarm

specific to the Video and created a log identifying John Doe and his co-conspirators by their IP address and the date and time of their unlawful activity. The IP address associated with John Doe is identified on Exhibit A attached hereto. The IP addresses associated with John Does co-conspirators are also identified on Exhibit A.

COUNT I COPYRIGHT INFRINGEMENT


Plaintiff hereby incorporates by reference each and every allegation contained in the

preceding paragraphs as if fully set forth fully herein. 25. John Does and his co-conspirators conduct infringes upon Plaintiffs exclusive

rights of reproduction and distribution that are protected under the Copyright Act.
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John Does and his co-conspirators conduct infringes upon Plaintiffs exclusive

rights of reproduction and distribution that are protected under the Copyright Act. 27. John Does and his co-conspirators conduct was willful within the meaning of the

Copyright Act: intentional, and with indifference to the Plaintiffs rights. 28. Plaintiff has been damaged by John Does and his co-conspirators conduct, including

but not limited to economic and reputation losses. Plaintiff continues to be damaged by such conduct, and has no adequate remedy at law to compensate the Plaintiff for all of the possible damages stemming from the John Does and his co-conspirators conduct. 29. Plaintiff hereby reserves the right, pursuant to 17 U.S.C. 504(c), to elect to recover

statutory damages for each infringement, in lieu of seeking recovery of actual damages. As John Does and his co-conspirators infringement was intentional and willful, the

Plaintiff is entitled to an award of statutory damages, exemplary damages, attorneys fees, and the costs of the suit.

COUNT II CIVIL CONSPIRACY


Plaintiff hereby incorporates by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein. 32. In using the peer-to-peer BitTorrent file distribution method, John Doe and his co-

conspirators engaged in a concerted action with other yet unnamed individuals to reproduce and distribute Plaintiffs Video by exchanging pieces of the Video file in the torrent swarm. 33. John Doe and his co-conspirators downloaded a torrent file, opened it using a

BitTorrent client, and then entered a torrent swarm comprised of other individuals distributing and reproducing Plaintiffs Video.

7 COMPLAINT

CASE NO.

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Participants in the torrent swarm have conspired to provide other individuals with

pieces of the Video in exchange for receiving other pieces of the same Video to eventually obtain a complete copy of the file. 35. In furtherance of this civil conspiracy, John Doe and his co-conspirators committed

overt tortious and unlawful acts by using BitTorrent software to download the Video from and distribute it to others, and were willful participants in this joint activity. 36. alleged above. As a proximate result of this conspiracy, Plaintiff has been damaged, as is more fully

JOINDER OF CO-CONSPIRATORS
Plaintiff intends to seek leave of the Court to amend this complaint to join John Does

co-conspirators as defendants in this action pursuant to Fed. R. Civ. P. 20(a)(2).

JURY DEMAND
Plaintiff hereby demands a jury trial in this case.

PRAYER FOR RELIEF


WHEREFORE, Plaintiff respectfully requests Judgment and relief as follows: 1) Judgment against John Doe that he has: a) willfully infringed Plaintiffs rights in

federally registered copyrights pursuant to 17 U.S.C. 501; and b) otherwise injured the business reputation and business of Plaintiff by his acts and conduct set forth in this Complaint; 2) Judgment in favor of the Plaintiff against John Doe for actual damages or statutory

damages pursuant to 17 U.S.C. 504, at the election of Plaintiff, in an amount to be ascertained at trial; 3) Order of impoundment under 17 U.S.C. 503 & 509(a) impounding all infringing

copies of Plaintiffs audiovisual works, photographs or other materials, which are in John Does possession or under their control;
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On Count II, an order that John Doe is jointly and severally liable to Plaintiff in the

full amount of the Judgment on the basis of a common law claim for civil conspiracy to commit copyright infringement; for an award of compensatory damages in favor of the Plaintiff and against John Doe, jointly and severally, in an amount to be determined at trial; 5) Judgment in favor of Plaintiff against John Doe awarding the Plaintiff attorneys fees,

litigation expenses (including fees and costs of expert witnesses), and other costs of this action; and 6) Judgment in favor of the Plaintiff against John Doe, awarding Plaintiff declaratory

and injunctive or other equitable relief as may be just and warranted under the circumstances.

Respectfully Submitted, PRENDA LAW INC.

______/s/ Brett L. Gibbs__________________ Brett L. Gibbs, Esq. (SBN 251000) Prenda Law Inc. 38 Miller Avenue, #263 Mill Valley, CA 94941 blgibbs@wefightpiracy.com A ttorney for Plaintiff

9 COMPLAINT

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DEMAND FOR A JURY TRIAL Plaintiff hereby demands a jury trial as provided by FRCP 38(a).

______/s/ Brett L. Gibbs_________________ Brett L. Gibbs, Esq. (SBN 251000) A ttorney for Plaintiff

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CASE NO.

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EXHIBIT A

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John Doe
IP Address 76.114.57.33 ISP Comcast Cable Communications Date/Time (UTC) 2011-10-18 06:21:35

Co-Conspirators
IP Address 108.13.114.147 108.13.17.246 108.13.200.232 108.13.24.136 108.13.87.74 173.14.74.189 173.51.192.201 173.55.156.75 174.77.54.220 174.77.58.103 207.204.228.155 207.204.228.226 208.127.51.32 208.87.57.27 208.87.58.63 24.113.251.60 24.130.112.254 24.130.53.149 24.23.17.20 24.4.121.45 24.4.229.1 24.4.235.186 24.4.96.57 24.5.122.5 24.5.128.171 24.5.181.29 24.5.22.63 24.6.244.91 24.7.22.19 24.7.96.186 50.0.151.197 65.78.145.122 66.159.251.72 66.214.41.109 66.215.165.112 66.215.197.250 67.160.244.227 67.164.214.145 67.166.155.55 ISP Verizon Online Verizon Online Verizon Online Verizon Online Verizon Online Comcast Cable Communications Verizon Online Verizon Online Cox Communications Cox Communications Reliablehosting.com Reliablehosting.com DSL Extreme Webpass Webpass Wave Broadband Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Sonoma Interconnect Roseville Telephone Company DSL Extreme Charter Communications Charter Communications Charter Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Date/Time (UTC) 2011-09-07 04:33:37 2011-09-16 01:44:50 2011-09-27 21:23:56 2011-10-01 13:39:35 2011-10-21 21:06:28 2011-09-08 07:02:24 2011-10-24 15:38:10 2011-09-19 22:56:56 2011-11-23 01:48:43 2011-10-17 17:07:38 2011-11-14 04:32:05 2011-10-31 01:08:51 2011-09-14 19:45:56 2011-09-22 00:07:40 2011-09-07 20:33:23 2011-09-30 07:03:31 2011-09-27 02:14:33 2011-12-04 15:59:28 2011-11-08 15:19:57 2011-10-24 22:18:06 2011-09-24 18:43:08 2011-10-15 06:45:18 2011-09-16 03:27:50 2011-09-27 16:07:58 2011-09-22 14:19:10 2011-10-15 19:00:53 2011-11-02 09:04:37 2011-09-22 23:33:46 2011-09-28 05:48:35 2011-11-15 01:42:09 2011-11-18 05:13:49 2011-09-29 23:47:09 2011-12-09 10:32:00 2011-09-21 22:35:49 2011-10-19 17:23:19 2011-10-20 05:30:08 2011-09-09 13:57:36 2011-10-25 00:18:34 2011-09-21 04:48:48

Case 2:11-cv-03478-GEB-EFB Document 1-1


67.169.113.40 67.169.83.243 67.169.93.17 67.169.93.94 67.182.80.36 68.101.121.251 68.105.106.145 68.107.112.91 68.107.124.111 68.109.95.238 68.183.228.4 68.4.60.223 68.5.137.1 68.5.36.20 68.6.84.18 68.68.34.229 68.7.144.111 68.7.241.86 68.8.254.210 69.106.247.57 69.17.112.51 69.181.103.199 69.181.163.213 69.181.252.140 69.181.38.29 69.230.165.12 69.230.167.61 69.236.73.144 69.238.50.183 70.181.232.63 70.187.161.234 70.191.88.8 71.142.207.61 71.177.44.113 71.198.171.20 71.198.92.41 71.202.28.89 71.9.60.183 71.92.64.13 72.134.22.227 72.194.115.9 72.207.113.44 72.211.215.152 72.219.156.125 72.220.86.75 74.100.21.38 74.213.244.134 Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Cox Communications Cox Communications Cox Communications Cox Communications Cox Communications DSL Extreme Cox Communications Cox Communications Cox Communications Cox Communications Reliablehosting.com Cox Communications Cox Communications Cox Communications AT&T Internet Services Covad Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications AT&T Internet Services AT&T Internet Services AT&T Internet Services AT&T Internet Services Cox Communications Cox Communications Cox Communications AT&T Internet Services Verizon Online Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Charter Communications Charter Communications Road Runner Cox Communications Cox Communications Cox Communications Cox Communications Cox Communications Verizon Online Color Broadband

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2011-10-08 13:23:52 2011-09-26 15:40:56 2011-09-07 15:08:35 2011-12-12 18:37:18 2011-10-27 23:44:56 2011-10-19 14:09:38 2011-09-21 02:34:11 2011-12-02 08:53:59 2011-10-14 00:42:43 2011-12-10 05:11:55 2011-11-24 09:21:10 2011-11-07 12:25:26 2011-10-18 17:15:44 2011-09-30 07:53:04 2011-10-10 17:22:22 2011-11-20 10:28:48 2011-11-27 19:59:03 2011-10-11 19:37:07 2011-09-10 09:32:40 2011-09-21 09:41:06 2011-10-26 04:14:11 2011-09-22 14:19:09 2011-09-14 01:02:14 2011-10-04 10:26:18 2011-10-11 05:20:27 2011-12-08 16:02:58 2011-09-21 22:16:40 2011-11-12 07:50:26 2011-11-05 01:23:46 2011-10-13 14:40:51 2011-10-29 02:37:05 2011-11-17 08:58:01 2011-12-12 08:19:31 2011-11-17 07:48:29 2011-10-27 05:09:22 2011-10-02 00:57:30 2011-09-07 01:24:23 2011-09-21 07:10:34 2011-09-21 11:11:09 2011-09-27 14:31:34 2011-10-18 06:13:53 2011-10-24 15:19:34 2011-12-04 04:42:03 2011-10-01 06:09:54 2011-11-18 18:10:49 2011-09-30 02:31:23 2011-10-01 01:40:41

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75.111.39.70 75.18.185.90 75.31.172.44 75.31.50.196 75.80.29.227 75.83.95.37 75.85.56.100 76.102.167.139 76.102.212.130 76.103.198.53 76.126.203.59 76.126.48.149 76.174.41.178 76.175.165.58 76.20.11.36 76.246.3.49 76.90.72.118 76.91.182.237 76.91.67.73 76.95.102.150 98.207.225.164 98.207.236.95 98.224.90.23 98.234.165.71 98.234.242.38 98.238.218.235 98.248.242.56 98.252.70.83 99.151.30.4 Suddenlink Communications AT&T Internet Services AT&T Internet Services AT&T Internet Services Road Runner Road Runner Road Runner Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Road Runner Road Runner Comcast Cable Communications AT&T Internet Services Road Runner Road Runner Road Runner Road Runner Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications Comcast Cable Communications AT&T Internet Services

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2011-11-02 04:34:15 2011-12-12 07:09:28 2011-11-08 07:42:02 2011-11-17 05:35:37 2011-12-07 05:39:16 2011-09-09 19:27:15 2011-11-08 10:38:28 2011-10-18 16:39:06 2011-09-23 05:59:34 2011-11-09 09:57:29 2011-10-04 23:11:27 2011-09-30 16:32:33 2011-11-19 08:32:13 2011-12-02 20:02:25 2011-10-14 04:00:58 2011-11-22 08:17:17 2011-10-18 20:50:51 2011-09-28 00:25:47 2011-11-26 07:34:19 2011-10-03 17:07:07 2011-09-16 17:09:55 2011-10-20 01:48:17 2011-11-28 17:20:54 2011-10-26 05:21:04 2011-10-14 14:19:05 2011-12-01 08:18:08 2011-11-13 00:18:32 2011-09-28 23:14:23 2011-11-07 02:20:38