Case3:10-cv-04472-BZ Document59

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Ira M. Siegel, Cal. State Bar No. 78142 email address: irasiegel@earthlink.net LAW OFFICES OF IRA M. SIEGEL 433 N. Camden Drive, Suite 970 Beverly Hills, California 90210-4426 Tel: 310-435-7656 Fax: 310-657-2187 Attorney for On The Cheap, LLC DBA Tru Filth, LLC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION On The Cheap, LLC DBA Tru Filth, LLC, a California corporation, Plaintiff, v. DOES 1-5011, Defendants. CASE NO. CV 10-04472 BZ PLAINTIFFS RESPONSE TO AUGUST 24, 2011 ORDER (Doc. #57) JUDGE: BERNARD ZIMMERMAN, United States Magistrate Judge Date: August 24, 2011 Time: 10:00 a.m. Courtroom: C15th Floor

Plaintiff hereby responds to the Court's August 24, 2011 Order (Doc. #57) issued subsequent to the hearing held on August 24, 2011. Following close on the heels of the hearing held on August 24, 2011, the following appeared essentially anonymously on the web page <fightcopyrighttrolls.com>, which itself is an essentially anonymously-registered domain name (see the record, attached hereto as Exhibit J, from the "whois" search found here (with hyphens or dashes being part of the URL):
http://www.internetbs.net/en/domain-nameregistrations/controller.html?action=WhoisAction&event=showWhoisHTML&domain=fightcopyrighttrolls.c om&securityKey=14986&goToMyAccount=Next)

Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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The Court is asked to note the terms published with reference to counsel by this anonymous poster: "Troll" "he extorted" "most sinister" "He participates in setting up shameless honeypot schemes"
Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

The Court is asked to not assume the gender of the poster despite the pseudonym used. From the following image at this web page <http://www.scribd.com/SophisticatedJaneDoe/info>, we see that someone using the same moniker, and perhaps the same person as a the above poster, is a self-admitted potential defendant in an unrelated copyright infringement case who wants to see roadblocks in the way of copyright enforcement.

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The Court obviously could itself characterize these statements and determine that at least two of them are tortious in nature. This is brought to the Court's attention because it further illustrates that with which we are dealing: people pirating copyrighted works and otherwise engaging in tortious activity behind what they hope is the shield of anonymous IP addresses and the hurdles and expenses to which a copyright owner must go to uncover their identities. The Court is already aware of comments regarding copyright piracy made by Vice President Joe Biden and former U.S. Senator Chris Dodd. These comments are confirmed by 20th Century Fox Filmed Entertainment chairman Jim Gianopulos in a June, 2011 interview with The Hollywood Reporter that can be found here:
http://www.hollywoodreporter.com/news/fox-filmed-entertainments-jim-gianopulos-197096

The Hollywood Reporter reported that Mr. Gianopulos said that biggest issue the global film industry faces is theft, and further (emphasis added), "Its very difficult to have a properly organized market when you're making things that cost you money and other people are taking it for free." Obviously, if copyright piracy makes things difficult for a large studio such as 20th Century Fox, small independent studios such as Plaintiff are even more grievously afflicted by copyright piracy. During the hearing, the Court accidentally referred to potential defendants as "victims." Obviously, the victim here is Plaintiff, who has had its copyright infringed by thousands of defendants taking an illegal advantage of capabilities provided by BitTorrent technology, at least some of whom believe they have the "right to be free of the tyranny of paying for entertainment that was created by others." Plaintiff urges this Court to NOT judge this case by what so far appears to be the relatively few, if any, potentially EXCEPTIONAL situations. And, Plaintiff notes, these few cases may be exceptional only if the whole truth has actually been told by the few purported potential defendants that have, in their obvious self interest, submitted statements, sometimes anonymously and sometimes not even under penalty of perjury.

Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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During the hearing the Court expressed sympathy for one of the movants who had asserted that the infringement was committed by an adult relative for whom the movant purportedly must provide supervisory care. Again, this matter should not be judged by what, practically by definition, would be an exceptional situation if that movant were telling the whole truth. Further, for all we know, that adult relative may be allowed to visit malls or even drive an automobile. Are we supposed to be willing victims of that adult relative's stealing goods from stores or committing vehicular battery just because that relative purportedly must be under the supervision of the movant? The Court also pointed out that Rule 1 of the Rules of Civil Procedure provides as follows: "These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."

Plaintiff contends that the most important objective set forth in Rule 1 is that a "just" determination be reached, the second most important is that it be inexpensive and that speed, while important, is the least important of the three objectives. Regarding speed, what good is achieved if an unjust result is quickly achieved? Further, Plaintiff notes that Congress has provided that a copyright owner may bring an action for infringement at any time up to three years after the claim accrued. 17 U.S.C. 507(b). That is, Congress has already provided that both a plaintiff and a defendant may know of a potential claim for as long as three years before an action must be brought. Regarding expense, Plaintiff has cited to the Court opinions of other courts that have pointed out that the opportunity to take discovery at this stage of the litigation is for many reasons the most expeditious and efficient means for victims of mass copyright infringements to enforce their rights, with no real prejudice or significant increase in expense for any potential defendant. As for justice, the requirement to provide justice is even biblical, and we are historically enjoined from favoring either those perceived as poor or those perceived as rich. See, e.g., Leviticus, 19:15. So, even though the Court, or any of us, may want to exhibit sympathy for
Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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what might really be the exceptional case, Plaintiff submits that we should not be setting the course of this case by any purportedly exceptional cases (even if they do turn out to truly be exceptional after we have an opportunity to actually examine the movants if and when they are named as defendants). In discussing policy considerations in cases such as this, Chief Magistrate Judge MariaElena James commented as follows in an order issued, almost at the same time as the hearing in the instant case, in New Sensations, Inc. v. Does 1-1474, Case No. CV 11-2770 MEJ, 2011 U.S. Dist. LEXIS 94909, at [*19]-[*22] (N.D. Cal. August 24, 2011), "3. Prejudice to Any Party or Needless Delay "Finally, the Court assesses whether joinder would prejudice the parties or result in needless delay. Joinder in a single case of the putative defendants who allegedly infringed the same copyrighted material promotes judicial efficiency and, in fact, is beneficial to the putative defendants. Id. at 344; LondonSire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 161 (D. Mass. 2008) (court consolidated separate Doe lawsuits for copyright infringement since the cases involve similar, even virtually identical, issues of law and fact: the alleged use of peer-to-peer software to share copyrighted sound recordings and the discovery of defendants identities through the use of a Rule 45 subpoena to their internet service provider. Consolidating the cases ensures administrative efficiency for the Court, the plaintiffs, and the ISP, and allows the defendants to see the defenses, if any, that other John Does have raised.). "Here, Plaintiff is currently obtaining identifying information from ISPs so that they can properly name and serve the defendants. If the Court were to consider severance at this juncture, Plaintiff would face significant obstacles in its efforts to protect its copyright from illegal file-sharers and this would only needlessly delay the case. Plaintiff would be forced to file 1,474 separate lawsuits, in which it would then move to issue separate subpoenas to ISPs for each defendants identifying information. Plaintiff would additionally be forced to pay the Court separate filing fees in each of these cases, which would further limit its ability to protect its legal rights. This would certainly not be in the interests of convenience and judicial economy, or secure a just, speedy, and inexpensive determination of the action. Call of the Wild, 770 F. Supp. 2d at 334 (citation omitted) (declining to sever defendants where parties joined promotes more efficient case management and discovery and no party prejudiced by joinder). "Further, the Doe Defendants are currently identified only by their IP addresses and are not named parties. Consequently, they are not required to respond to Plaintiffs allegations or assert a defense. Defendants may be able to demonstrate prejudice once Plaintiff proceeds with its case against them, but they cannot demonstrate any harm that is occurring to them before that time. Id. "Thus, the Court finds that, at this preliminary stage, Plaintiff has met the requirements of permissive joinder under Rule 20(a)(2). The putative defendants are not prejudiced but likely benefitted by joinder, and severance would debilitate Plaintiffs efforts to protect its copyrighted material and seek redress from the Doe Defendants who have allegedly engaged in infringing activity. To be fair, the Court recognizes that the questions of joinder and severance must be deferred until after discovery has been authorized and any motions to quash
Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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filed. The Court is also cognizant of the logistical and administrative challenges of managing a case with numerous putative defendants, a number of whom may seek to file papers pro se. However, severing the putative defendants at this early stage is no solution to ease the administrative burden of the cases. The Court therefore declines to sever the Doe Defendants at this time." In view of the foregoing, Plaintiff submits that ALL of the pending motions, be they for orders to quash or for dismissal or otherwise, be dismissed until Plaintiff has actually named defendants. See, for example, the order of Judge Edward M. Chen in MCGIP, LLC v. Does 118, No. C-11-1495 EMC, 2011 U.S. Dist. LEXIS 64188 (N.D. Cal. June 2, 2011). In the Court's August 24, 2011 Order (Doc. #57), the Court inquired and ordered as follows: 1. On what date was Danielle Staub Raw released for public distribution? 2. How many copies of Danielle Staub Raw has plaintiff sold? 3. What is the total amount plaintiff has received in settlements from any of the doe defendants? 4. On what date did plaintiff engage Copyright Enforcement Group to investigate possible infringement of Danielle Staub Raw? Plaintiff is also ORDERED to provide a copy of any form letter it has sent to any doe defendant offering a settlement. The Court also provided that Plaintiff may file the requested information under seal. Regarding inquiry 1, the Danielle Staub Raw motion picture was released on or about June 9, 2010. See Exhibit K attached hereto. (Note that despite the negative review shown in Exhibit K, enough people thought sufficiently highly of the motion picture that thousands of people engaged in copyright infringement.) Regarding inquiry 2, that figure will be filed under seal. Regarding inquiry 3, Plaintiff objects to it. Settlements with doe defendants are confidential by contract. This Court has certainly presided over many cases that have been resolved by confidential settlements. Regarding inquiry 4, Copyright Enforcement Group was engaged on or about May 21, 2010 to prepare to investigate, and then to investigate, possible infringements of the motion
Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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picture. In view of the pandemic piracy, noted by, among others, Joe Biden, Chris Dodd, and Jim Gianopulos, this is sound business practice. Plaintiff has given careful consideration to the Court's order that a copy of any letter it has sent to any doe defendant offering a settlement be provided to the Court. Plaintiff respectfully objects to this order. Pursuant to Rule 408 of the Federal Rules of Evidence: Rule 408. Compromise and Offers to Compromise (a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. However, let us for the moment discuss in the abstract the concern that the Court raised during the August 24, 2011 hearing. Essentially, the Court said that it is concerned that there might be something wrong with a plaintiff, that has a good faith belief that it has a claim for a tortious action committed by another party, sending a letter to that party (i) identifying the claim, (ii) informing that party that it likely will be sued in view of that claim in a particular court (San Francisco, for example), and (iii) offering to settle the matter in exchange for a payment of money. That is, WITHOUT addressing what is in letters sent on Plaintiff's behalf, which as noted above should not be considered by the Court in view of Rule 408, let us address what the Court apparently considers is a "worse case" situation. The flip side of that is this, what is at all wrong with that? How often have parties named as defendants in lawsuits complained that they were surprised by a lawsuit and thought they should have been given an opportunity to settle before they were actually sued?

Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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//

Would a potential defendant be better served if he, she or it were "blind-sided" by a lawsuit? Does it matter whether or not any particular court is mentioned? Further, a plaintiff has the right to sue a defendant in at least any court in which such plaintiff has a good faith belief that jurisdiction is proper. (As discussed at the hearing, even outof-state potential defendants have copied from and made available to other potential defendants that are in this District infringing copies of the motion picture. In other words, potential defendants have participated in infringements in this District.) In addition, as pointed out in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-704, 72 L. Ed. 2d 492, 102 S. Ct. 2099 (1982) "Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived. * * * Finally, unlike subject-matter jurisdiction, which even an appellate court may review sua sponte, under Rule 12(h), Federal Rules of Civil Procedure, '[a] defense of lack of jurisdiction over the person . . . is waived' if not timely raised in the answer or a responsive pleading. "In sum, the requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue." In summary, to the extent that any plaintiff in any type of case offers a potential defendant an opportunity to settle ahead of being named as an actual defendant, that plaintiff is doing a service to the defendant, and, consequently to the judicial system, by potentially resolving a case before it must be litigated in a court. Contrary to statements by the admitted apparent soon-to-be named infringer of a copyright in another case (i.e., the self-named "sophisticatedjanedoe") and others hoping to escape the tyranny of paying for their entertainment, there is no "extortion" here and the only known victim is the Plaintiff whose copyright has been infringed. Stated another way, just because a whole group of people, even thousands of people, engage in similar actions and try to self-apply the labels of victim and virtuosity upon themselves, that does not mean that they are not actually committing a wrong.

Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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For the reasons discussed above and in all the other papers submitted in this case by Plaintiff, Plaintiff submits that all motions filed by purported potential defendants should be denied, and Plaintiff requests, as discussed at the hearing, that the Court extend to early October, 2011 Plaintiff's opportunity to name actual defendants. Respectfully submitted,

Date: August 31, 2011

Ira M. Siegel, Cal. State Bar No. 78142 email address: irasiegel@earthlink.net LAW OFFICES OF IRA M. SIEGEL 433 N. Camden Drive, Suite 970 Beverly Hills, California 90210-4426 Tel: 310-435-7656 Fax: 310-657-2187 Attorney for Plaintiff On The Cheap, LLC DBA Tru Filth, LLC

Plaintiffs Response to August 24, 2011 Order CV 10-04472 BZ

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Exhibit J

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From the "whois" search found here (with hyphens or dashes being part of the URL):
http://www.internetbs.net/en/domain-nameregistrations/controller.html?action=WhoisAction&event=showWhoisHTML&domain=fightcopyrighttrolls.com&securityKey=1 4986&goToMyAccount=Next

Exhibit J, Page 1 of 1

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Exhibit K

Don't Waste Your Time With Danielle Staub Raw | MoonDog Sports

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Fri8/26/11 10:15 AM

Celebrities, Films, Hot Babes, Television NEWS Dont Waste Your Time With Danielle Staub Raw
Published by MoonDog on June 15, 2010
Like Be the first of your friends to like this.

Hustler.com released Danielle Staub Raw on June 9, hyping it with the same vigor as every celebrity sex tape to hit the market. And just like most amateur sex tapes, Danielle Staub Raw amounts to a huge waste of time. Staub, a divorced, single mother of two daughters, is best known for being featured in the Bravo network reality TV series Real Housewives of New Jersey. Staub is alleged to have had a checkered past when stories surfaced of her reported use of drugs, frequent sex partners and run-ins with the law. Hustler predictably suggested Danielle Staub Raw would show you a side of her that youve never seen before. While some moments throughout the 75 minute tape do expose Staub like weve never seen her, it

http://moondogsports.com/2010/06/15/dont-waste-your-time-with-danielle-staub-raw/

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Exhibit K, Page 1 of 3

Don't Waste Your Time With Danielle Staub Raw | MoonDog Sports

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isnt necessarily a side of her youd want to see. The first 10 minutes of the tape show Staub in the kitchen preparing breakfast for her unidentified boyfriend. While we never see his face, there are suggestions hes an athlete, with Staub asking him if he could sneak her into the locker room so they could have sex. Later in the tape while theyre doing the deed, Staub says he scored a touchdown, suggesting hes a football player. Unfortunately for viewers, one of the physical features we didnt want to be exposed to is the worst boob job in history. In fact, the physician who performed Staubs breast augmentation should have their license to practice medicine revoked. Both of Staubs breasts are lopsided and scars from the procedure are clearly visible, a less than aesthetically pleasing image. During the moments Staubs boyfriend positions the camera to reveal them having sex, we see shes adorned her vagina with two pieces of jewelry. Mind you the amount of time we actually see them engaging in intercourse is fleeting, with a good portion of the tape providing us with a great view of Staubs bedroom furnishings. With her boyfriend frequently placing the camera on the bed away from the action, it brings to mind the movie The Blair Witch Project. In keeping with the sub plot of her boyfriends athlete status, the couple take a half time water break to rehydrate, something that wasnt needed considering not much sex was taking place. After Staubs boyfriend achieves climax, he takes the camera into the bathroom where we get to
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Exhibit K, Page 2 of 3

Don't Waste Your Time With Danielle Staub Raw | MoonDog Sports

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see her sitting on the toilet riveting stuff indeed. After a few minutes of mindless chatter and Staub taking a shower, the tape comes to an end. Staub isnt bad looking for a woman of 47 (45 when she made the tape) and aside from the terrible boob job, shes kept her body in excellent shape. But like every celebrity sex tape that promises so much, Danielle Staub Raw fails to deliver.

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Plaintiffs Response to August 24, 2011 Order CV 10-04472 B

PROOF OF SERVICE

I, Ira M. Siegel, hereby certify that I am a resident of the County of Los Angeles in California; I am over the age of eighteen years and am not a party to the within entitled action; and my business address is 433 N. Camden Drive, Suite 970, Beverly Hills, California 90210. I served a copy of the foregoing PLAINTIFFS RESPONSE TO AUGUST 24, 2011 ORDER on the interested parties in said action as follows: Putative defendant Doe 703 NONE-This movant provided no address whatsoever. Putative defendant Doe M: NONE-This putative defendant has withdrawn his, her or its appearance. Putative defendant Doe T: By email Doe 406: NONE-mail sent to the address provided by this purported Doe is constantly returned Electronic Frontier Foundation Through the Court's ECF system. I declare under penalty of perjury that the foregoing is true and correct. Executed this 1st day of September, 2011 at Los Angeles, California.

______________________________ Ira M. Siegel