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Titan Sues 44 John Doe Defendants for Infringement

With two suits in one week, Titan goes after pirates with a vengeance
Titan Sues 44 John Doe Defendants for Infringement
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Mar 3, 2008 6:00 PM PST    Text size: 
SAN FRANCISCO — Gay multimedia company Titan Media and its parent company the Io Group have filed suit in U.S. District Court in Northern California against Mark LaPerna and 44 John Doe defendants, claiming copyright infringement.

LaPerna, who is also known by the screen name “Marco Briody,” is the creator of a social network called The Big Dick Club (TBDC), hosted by networking site Ning.com. The TBDC site has been in operation since September.

According to claims by Titan, members of TBDC were posting copyrighted photos and video clips within the private social network and sharing those files with members, some of whom were posting the material on smaller networks also hosted by Ning.com.

Titan also alleges that operators of TBDC illegally used their company logo in the form of a banner advertisement.

Ning.com is a network hosting website that allows members to create private social networks similar to MySpace or Facebook.

By Saturday, TBDC network had ceased operating, and both Titan attorney Gill Sperlein and LaPerna indicated that Ning.com had made the decision to shut down the site. TBDC had more than 10,000 members and provided features that allowed members to post photographs and upload video content into embedded Flash format, as well as a forum area and other interactive features.

While LaPerna is the only named defendant thus far; of the other 44 defendants named in the suit, John Does 1-7 are identified by their screen names and are alleged to have operated smaller social networks also hosted by Ning.com. The remaining defendants are individuals that posted Titan material, according to the suit.

LaPerna and other defendants became aware of the suit after Sperlein acquired access to TBDC site and made various posting informing the members that a suit had been filed and that legal action was pending.

“I’m outraged. I can’t sleep,” LaPerna told XBIZ. “I can understand copyright infringement and all that, but it’s a private site.”

In a lengthy conversation with XBIZ, LaPerna defended his position by asserting that the network was private and that he had posted a disclaimer relinquishing responsibility for material posted on the site by members. He also pointed out that along with the disclaimer, several anti-Titan logos had been posted warning members not to display any Titan material on the site.

“There is no Titan on my site. There was no Titan on my site,” LaPerna claimed. “The only Titan on my site was the banner link to their site, which is an advertisement. I thought it was the least I could do for the studios. If there’s a movie from Falcon or any of the other studios, I could at least give them a link so that [the members] could go purchase through the link. People pay $350 a week for the space that I gave Titan. If you go to Gaywatch, or MonstorCockTube.com or any of the other sites, they’re going to charge them $350 for the space that I gave them.”

LaPerna emphasized that TBDC was a private network and that it was not a profit-generating enterprise. He compared the sharing of material among members to buying a copy of a DVD and then inviting friends to view it in the privacy of one’s home, saying that the member’s computers were located in their homes.

Despite his claims, LaPerna openly admitted that the gay studios whose banners he displayed on the site were unaware of his “advertising” efforts, and he was adamant that though Titan had conducted a clandestine investigation by applying for membership and gaining access to the site, that the studio had been unable to find any Titan material other than the banner logo. LaPerna also stated that the banner advertisements were linked to the various studio sites so that members could go there and purchase videos.

However, XBIZ gained access to TBDC on Friday and found that there were video clips of Titan material posted on the site, including two clips from Titan’s recently released video “The Breakers,” which clearly displayed the movie title and featured performers’ credits.

The Titan banner displayed on the front page of the site, when clicked, linked to the log-in page for video hosting site Flickr, as did other banner advertisements displayed there for gay studios including Raging Stallion and Bel-Ami, among others.

Video clips that were labeled by various studios were also posted in the video area of the site, including material from Raging Stallion, Bel-Ami and Ralph Woods, among others.

LaPerna stated in his interview that, when he first started the site, he would review every video posted by members individually, to ensure against copyright infringement, but as the site grew larger, he lacked the time and resources to check every posting and simply trusted the members to avoid Titan material, since he had posted numerous warnings. He cited Titan's ongoing litigation against a ring of 21 alleged infringers, led by a ringleader whose screen name was Mikey G.

“I’ve always stressed ‘no Titan,’ because I knew what was going on with Mikey G. That’s why they didn’t find any, out of 3,000 videos and 18,000 pictures, they did not find one Titan piece of material on the site. Except for their logo, which I have linked to their site for free advertisement,” LaPerna said.

“[Sperlein] should have seen that, by going on the site, how anti-Titan we were,” he added. “Then he went around and harassed all the members and threatened all the members. I think he was on the site for approximately four hours, when I woke up and saw all this stuff.”

At the time of the interview, LaPerna had not yet retained legal counsel, but had been advised by a lawyer that if he had affiliated with the gay studios displayed on TBDC site, he might have avoided legal action.

Industry attorney Al Gelbard told XBIZ that the fundamental elements of the case were cut and dry.

“Distributing an image over the Internet is, unless you have the rights to do that, infringing on someone else’s copyrights,” Gelbard said. “And it’s pretty simple — whether you send it to one of your friends or whether you send it to a thousand people that you ‘know.’ It’s copyright infringement — unless he’s got a license.”

Gelbard explained also that LaPerna’s claims of free advertising and privately sharing material between members were unlikely to be legally defensible.

“The free advertising thing is, with all due candor, a crock of shit,” Gelbard said. “I can’t steal anybody’s music and put it up on a website and put their picture next to it, and say ‘If you like this please buy it’ to somebody else. It’s infringing on copyright, and your motive, whether it be legitimate or otherwise, is irrelevant.

“The concept of public performance is covered under copyright,” Gelbard added. “It’s one thing to have your next-door-neighbor over and play them a record. It’s another thing to let 25,000 people come over and play it for them. One is private use. The other is public performance.”

Sperlein told XBIZ that with the emerging availability of network hosting sites like Ning.com that a new type of copyright infringer has also begun to emerge.

“This is actually a shift, because before, when you had to piece together some clips and the whole process was still very cumbersome, it was like younger, college-aged computer ‘geek’ type people,” he said. “But now, it’s so easy to go in — all you have to do is sign up for a membership and upload content. It doesn’t have to be in any particular format — so now it’s these middle-aged, gay men who are posting and thinking, ‘Okay, I’ll post a few and then I’ll get a huge amount of stuff.’”

Titan Media vice president Keith Webb also pointed out that TBDC, as well as other file-sharing networks, may also be in violation of 18 U.S.C. 2257 labeling requirements for posting adult material.

“The labeling requirement is that if you’re distributing or putting it into commerce that you have to ensure that it is labeled,” Webb said. “You don’t have to go out and ensure that the labeling is correct, but you have to ensure that it’s labeled.”

While Titan’s lawsuit is in no way affected by potential violation of 2257 labeling provisions, it is clear that the studio is leaving no stone unturned in its aggressive pursuit of copyright infringement, from their lawsuit against peercasting website Veoh, all the way down to a suit the company filed last week against a Houston-area retailer that was allegedly renting illegally replicated copies of Titan videos.

Webb pointed out that the studio’s aggressive policy boiled down to dollars-and-cents, and said that the company estimates that efforts to protect their content have resulted in a 10 percent increase in net revenue overall.

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