Proper way of replying to frivolous claims

The Answer to the First Amended Complaint in our case (IO Group v. Does 1-244) was filed by Sthephen Thomas on behalf of defendant Chun Rong Zheng (Doe # 26) today:

The answer is excellent, all the allegations are denied. That’s how all the answers should look like. An IP address recorded by a questionable company in Germany using questionable technologies, with human errors (like this or this) introduced by Mr. Sperlein later — is not solid evidence.

Therefore I want to remind once again — don’t give any information to Sperlein without talking to a lawyer first. This information will be used against you, no matter how Sperlein tries to create an impression that if you “explain yourself”, you may be dismissed from a case. The information you give him, will be used against you. That’s what happened with Ms. Gonzales from Io Group v. Does 1-50 case. She acknowledged that she, albeit unknowingly, shared an IO Group’s work. But instead of behaving like a decent human being, Sperlein scoffed at her:

If someone made my clients’ works available but did so unintentionally it is up to them to set forth facts that prove that claim. This would not affect liability but may affect damages. However, I don’t think that someone searching for stolen content but simply got the wrong stolen content is going to prove they are an innocent infringer – no matter how loudly they protest that they are Christian.

If he wouldn’t dismiss her, she would be liable for admitted unwillful infringement and could end up paying up to $30,000. I don’t believe that facing such a threat, she got away without paying a settlement.

On the other hand, if all the allegations are denied, it will be a hard task to proof otherwise as the evidence is insufficient as was stated by other judges who dismissed similar cases.

Why Mr. Sperlein so impudently pursues his victims while the evidence he has is laughable? According to his Facebook page, he is an experienced Bridge player, therefore he is not a stranger to bluffing. Keep it in mind.

Back to the Answer to the First Amended Complaint. The following affirmative defenses are listed:

1. The Complaint and each and every purported cause of action contained therein
fails to state facts sufficient to constitute a cause of action against defendant.

2. If plaintiff suffered any damages at all, such damages were proximately caused
and are therefore equitably born by plaintiff because it could have, but failed to, properly and
adequately mitigate incurring such damages.

3. Plaintiff is equitably barred from recovery by the doctrine of unclean hands.

4. Defendant is exempt from prosecution pursuant to the Online Copyright
Infringement Liability Limitation Act.

I don’t clearly understand the Second Defense. Any ideas? As for the Third Defense, it is not the first time unclean hands doctrine was mentioned: look at the similarly good answer to the complaint in the IO Group v. Anthony Uy case, written by Stewart Kellar, E-ttorney at Law™:

Also it is nice to see that defendants demand reimbursement of legal costs and other relief “as the Court deems proper”. One of the best ways to make sure copyright trolls are extinct as species is to render their “business” financially unsustainable. First, by not paying ransoms, and second, by demanding the legal costs award from plaintiff.

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11 responses to ‘Proper way of replying to frivolous claims

  1. I am not a lawyer, (I haven’t even played one on TV) but in my opinion, I think what he may be getting at, without saying it outright in the second affirmative defense, is that the copyright holder did not send out any take down notices to the OSP torrent sites. Again, in my opinion, by not doing this, the copyright holder, is leaving the “bait” out there for someone to take. By making this claim, I think that the plaintiff will have to show that they attempted to protect their copyright interest by sending out take down notices to the OPS’s or by other means. If the copyright holder can not produce, this may also prove the “Unclean Hands Doctrine”, showing they were left up as a way of entrapment to collect IP addresses specifically for the lawsuit. If my train of thought is correct, well, good play!

    What I do not understand about this response is the claim his client is protected by the Online Copyright Infringement Liability Limitation Act in the fourth affirmative defense. From what I have read, my understanding is that it is to protect OSP’s, You-Tube for example, from being sued if someone uploads copyrighted material to their site. I did not see reading this act where it protects a person who downloads copyrighted material. If you can expand on this, it would be appreciated.

    • Good guess. As for #4, I did not raise questions because I have not looked into the Online Copyright Infringement Liability Limitation Act yet, but I will and share my thoughts if I have any.

      It is natural for us to try understanding possible defenses, but from the other hand we don’t want to give Sperlein clues, as I always stress out. I hope that Mr. Stephen Thomas has very solid ideas to show the troll his place under the bridge.

      BTW defendant (Chun Rong Zheng, Doe #26) is one of those who allegedly downloaded a mislabeled file (“Tsubaki House – SnapShot #05”), so he has a fallback argument to claim innocent infringement ($200-$700 file) if other defenses fail. I hope this information is irrelevant and the judge won’t buy that IP address is a sufficient evidence of wrongdoing in the first place.

      • I’m not a technical expert, but my understanding is that the Online Copyright Infringement Liability Limitation Act is designed to protect “intermediaries” from liability.

        Essentially, by possessing a computer that more than one person has legitimate access to you are yourself providing an access point as an intermediary. Therefore, Thomas would have to prove that you specifically were the one who committed the illegal act as opposed to someone else who has access to your computer. Obviously, that’s pretty difficult for him, and lack of such ability could be seen as grounds for dismissal.

        I don’t know how strong this defense might be, but keep in mind that when the judge is already on your side, or at least against the plaintiff, it’s a lot easier to make things go your way.

        • As I understand, multiple affirmative defenses is basically a fallback strategy, therefore defenses are listed in the order from strongest to weakest. In IO Group v. Almeida case, even “fair use” is listed while this defense simply contradicts the previous ones: how it is possible to use a movie in question fairly if one denies any knowledge of it in the first place?

          As for a judge that has already formed his opinion, I’m 100% agree. Judge Zimmerman is clearly pissed at Ira Siegel, as a result he won’t likely make any decision in Ira’s favor if law permits. This week he granted a couple of motions to quash, which does not happen often in these cases.

  2. could you do a lot of people a great favor and make these lawyer documents available for download on your sire instead of at scribd !

    scribd wants money, scribd want registration, and both are against what all this is about.

    so, PLEASE !

    • I don’t understand… I tried to access some random linked documents using Chrome and Firefox with cookies cleaned (needless to say I was not logged in) and I did not see any problem – Scribd did not ask for registration and displayed them. Moreover, I’m connected via VPN, so IP address is not an issue.

      Can you give me an example of a broken link – one that does not show a document but requires registration instead?

    • Scribd allows you to download the file if you have uploaded a document to your account.

      1) Accounts are free to create.
      2) You could try using the “temp” account and guessing at the four-letter password that begins with “t”
      3) If someone has not already uploaded a document for user temp that day, you can do so.
      3) It does not matter what document you upload… “readme.txt” is sufficient
      4) Download Scribd documents all you like for the rest of the day.

      • I don’t think it is something malicious. Many have problems with Scribd, many organizations even censor it treating it as a “online storage site.” That’s why, when I have time, I supply a link to an alternative location of the document, usually it is one of the links in the post body.

  3. Thank you for bring this issue to light. I am having this same problem now. My question is: if your telecom provider is served a subpoena to show something, what can a lawyer write to stop the telecom from showing it?
    My telecom provider wrote, ” We will comply with this Subpoena unless we receive legal documents that delay or terminate the process on or before such date”

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