Set a-sail on the murky depths of the Sea of Infringement, an armada of illegal DVD replicators, peer-to-peer file sharers and content thieves plunder intellectual property like marauding outlaws.
They come armed with a boatload of hacker's tools, ripping DVDs and using video-hosting and bit torrent sites to shamelessly steal everything that is not nailed down — which in the case of most adult content producers could be every piece of intellectual property that they own.
But one company has declared war. It's a clash of the Titans against the digital denizens, and Gill Sperlein is a first-class pirate killer. As in-house legal counsel for gay production company Titan Media, Sperlein has probably filed more piracy lawsuits than any other attorney in the business.
With more than 40 copyright infringement cases filed in five years and 318,000 cease-and-desist letters sent in 2006 alone, Sperlein's list of foes is long and formidable; all the way from an individual who tried to sell a CD photo collection of Titan-owned images on eBay, to entities like video-sharing service Veoh Networks (backed by Time-Warner), LFP/Hustler, AEBN (operator of PornoTube) and WebNovas Technologies (XTube.com).
Titan's latest suit was filed in U.S. district court in San Francisco in October. The company accuses Gilbert Michael Gonzales and 21 "John Doe" defendants of operating an online piracy ring based in Desert Hot Springs, Calif., though several individuals named in the suit were tracked to Canada and Europe. The case alleges that the group uploaded more than 45 Titan titles — entire movies, including DVD extras — on to video-hosting service RapidShare.com and then used blogs to post links that would allow pirates to access the video files.
Sperlein has never lost a case.
Alright, you say — that's great for a company like Titan that can afford a legal hired gun to prosecute the scurvy scoundrels.
But what can smaller producers do to protect themselves? And what should they do, once they know their content is being infringed?
In this Q&A with XBIZ, Sperlein talks about gathering evidence and defending your property, and he puts out a call to unite the industry against the pirate horde.
XBIZ: What are some of the best methods for finding evidence of piracy on P2P sites or pirate blogs — is it really just a matter of diligently perusing those sites by using manpower or web crawlers?
GILL SPERLEIN: We discover piracy in a number of ways. Most often infringing activity is uncovered by a Titan employee searching the web either actively or passively. Often one site with infringements leads us to others, through links or affiliate arrangements. We also have a fan base that knows our position on copyright infringement and who tips us off to infringing activity. We sometimes reward these folks with various incentives. Finally, we attempt to cooperate with other studios by letting them know when we discover infringing activity and in return occasionally other studios do the same for us.
XBIZ: Once a webmaster or content producer finds evidence of piracy, what needs to be gathered in order to mount a strong offense, if they plan on pursuing legal recourse?
SPERLEIN: The most important part about building a case comes before you discover the infringement. If you want to have a strong case you must register your copyrights with the U.S. copyright office. Once you find copyright infringement, you have to be careful to document it.
Print out the infringing pages, making sure your computer is set to print footers with a time date stamp and the URL of the page. If the infringement is in the form of video, download the file if you can, being sure to take notes about who downloaded and when. Highlight the properties of the material and take a screen capture of that page. Right click to show the source code for the page and save that. In general, do everything you can to document the infringement.
XBIZ: Is the case with the Palm Desert ring the first time you've encountered online piracy on a grassroots level like that?
SPERLEIN: Absolutely not. Peer-to-peer infringement is a huge problem and has been for a while. It is not an easy problem to deal with, because it can be difficult and expensive to identify the actual infringers. In the past we have dealt with P2P infringement mostly by sending a takedown notice to the person's Internet service provider (ISP).
In the current case, we decided we'd had enough. We are in the process of subpoenaing ISPs to discover the identity of the actual infringers. People need to understand that we can and will uncover their identities and hold them responsible.
XBIZ: In cases like this, is there potential to sue the hosting/filesharing sites, like RapidShare.com, and realistically expect to recover damages? I recently saw a case filed, in China, by the Motion Picture Association of America that named the video-hosting site and even the Internet cafe where the people downloaded the movies.
SPERLEIN: This is a complicated question that is not easy to answer. Generally an entity can be held responsible for the infringing acts of others under two circumstances: The first is if they know infringement is taking place and they provide the means that allow the infringement to occur; the second is if they profit directly from the infringing activity and don't take measures to prevent it even though they could. Each of the analysis is very fact specific, so it depends on the nature of the particular website. Certainly when entities are located outside of the U.S. it complicates things.
XBIZ: Once the appropriate evidence has been gathered and all the legal wrangling finally lands you in court, is it fairly easy to win a piracy case?
SPERLEIN: In one sense copyright infringement cases are easy because they are what is know as "strict liability." If you can prove that you own a copyright and that someone else engaged in one of the rights that is exclusive to copyright holders (for example they copied, displayed or distributed the work) then you have a case.
It does not matter whether or not the person knew you owned the copyright and it does not matter if they thought they were not doing anything wrong (you would be amazed at the excuses).
However, there can be difficulties in proving who did the actual infringement, especially if the infringement occurred through a P2P process rather than on a website. It also becomes a lot more complicated when you are trying to hold an entity responsible for the infringing activity of others.
XBIZ: Have you ever lost a case involving piracy?
SPERLEIN: No. We have either won or settled every case. Occasionally defendants will not appear to defend themselves which results in a default judgment. In those cases the challenge becomes collecting on the judgment. Sometimes it can be difficult, but we work with collection agencies, attorneys and private investigators and we usually track down the individual and collect.
We had a case recently where we had obtained a judgment years ago but had been unable to collect. We turned the matter over to a new collection agency and within a matter of weeks we had collected a substantial portion of the judgment. We have a lot of tricks and I have even had a U.S. Marshall seize domain names and auction them off in order to collect on a judgment.
XBIZ: In your opinion, is there any realistic way to even put a dent in piracy or does it really just come down to aggressively protecting your own properties?
SPERLEIN: Well, the way to put a dent in it is to aggressively protect your properties. That is what we have done for Titan and it has made a huge difference. People purchase Titan product because it's a great product, but if it were easy to obtain for free — trust me — they would stop paying for it. It's my job to make sure they cannot get it for free. Of course, if you have lousy content, people will just steal someone else's if they can't steal yours.
XBIZ: What can smaller companies that might not be able to afford full-time legal counsel do, if they have an issue with piracy? What are some good first steps?
SPERLEIN: It does not take a lawyer to send a takedown notice or cease-and-desist letter. In almost every case if you find infringement you can stop it by conditioning the owner of the website, the hosting provider or the ISP.
Of course, this approach has its limits because as long as people think nothing will happen if they get caught, they will continue to infringe until caught.
To really slow infringement you have to make people aware there are consequences and unfortunately, that means demanding compensation and bringing litigation in certain circumstances. I still think that the adult industry could benefit by organizing for the purpose of reducing infringement, but so far efforts to do so have fallen short.
XBIZ: Has Titan's aggressive stance really resulted in benefits for the company?
SPERLEIN: Absolutely, and I cannot stress this enough. If you are a producer of adult content and your sales figures are down, you seriously need to ask yourself why anyone would buy your product if they can get it for free.
For example, content from every other gay studio is available on bit torrent sites; Rapidshare (with links made available through blogs), eBay (illegal dupes), etc. Until you stop that, you are going to lose sales to people who could be customers. And it is only going to get worse.
It used to be just computer geeks and people with a lot of time on their hands that engaged in this kind of infringement. Now anyone can do it.