YNOT – A U.S. District Court has awarded San Francisco, Calif.-based Titan Media more than $1.35 million in damages from a company owned by two German men. According to the judge’s ruling, Antelope Media LLC’s “tube” site allowed users to infringe the gay adult studio’s intellectual property rights with impunity while Antelope profited from advertising and membership fees.In addition to the financial award, Judge Maxine M. Chesney issued a permanent injunction barring Antelope and its owners, representatives and subsidiaries from making any further infringing use of Titan’s property.
In order to give Titan an opportunity to collect on the summary judgment—rendered in default after the defendants failed to respond to Titan’s lawsuit—Chesney also permanently enjoined Antelope and its associates from transferring domain names and proceeds from domain operations until the judgment has been satisfied in full.
“This ruling clearly shows that the financial and monetary benefits of advertising, affiliate program commissions, and charging membership fee for access quashes the tube sites’ defense as an internet service provider,” Titan Vice President Keith Webb said. “Once you profit directly from the infringement, you become liable for the infringement itself.
“Without income streams adult tube sites cannot survive,” he added. “With income streams they become liable for the content they are profiting from. Doesn’t sound like a very good position to be in these days.”
Titan filed the copyright-infringement suit last year and served German citizens Thorsten Palicki and Maik Herrmann with court documents in August while the men were on U.S. soil at the Internext trade show in Hollywood, Fla. According to General Counsel Gill Sperlein, Titan filed the original lawsuit in August 2008 and had been chasing Palicki and Herrmann through an evolving web of shell companies until it caught up with them at Internext.
The amended complaint with which Palicki and Herrmann were served is the third to be submitted to the court and the first to name the two men as respondents. Previously, as soon as Titan served the corporate entities listed as the owners of MonsterCockTube, the corporations dissolved and ownership of the website was transferred to another business entity in a new country, Sperlein told AVN.com. In every case, the new corporation was owned or controlled at least in part by Palicki and Herrmann.
When the suit originally was filed, MonsterCockTube was owned by Antelope Media LLC of Arizona. Antelope dissolved nine days after being served, and MonsterCockTube was transferred to a British company, Sunrise Media Ltd., which disappeared when ownership was transferred to the current domain registrant, Newhaven, located in The Netherlands.
In her ruling, the judge called Antelope’s infringement “particularly egregious.”
“First, defendants gained commercial advantage by using plaintiff’s copyrighted works, specifically, by displaying plaintiff’s works on defendants’ websites, for which they charge their customers, including California residents, a monthly access fee, and on which they earn revenue by selling advertising space, and by enrolling in ‘affiliate programs through which [d]efendants receive payments for directing individuals to other websites,” Chesney wrote.
“Second, defendants, within a week of learning of the instant lawsuit, transferred ownership of their websites to fictitious names, in an apparent attempt to evade service and hinder plaintiff’s ability to locate and identify the infringing parties,” she continued. “Third, defendants have continued their infringing activities after being notified of the instant action. Fourth, defendants engaged in various technological steps to block plaintiff from gaining access to defendants’ websites, in an apparent attempt to prohibit plaintiff from learning the full extent of the infringing conduct.”
Perhaps most offensive to the judge was the defendants’ repeated attempts to hide their assets. Even though Herrmann and Palicki are foreign nationals, their first company was registered and based in Arizona. Not until MonsterCockTube.com ran afoul of American intellectual property law did Herrmann and Palicki intentionally bankrupt the company by transferring its assets to shells in European nations. That, noted Chesney, was a clear-cut violation of California’s Uniform Fraudulent Transfer Act.
“[G]iven that defendants fraudulently transferred ownership of the domain names from a domestic company, which could have been readily located, to companies and individuals residing outside the United States, it is readily apparent defendants were attempting to preclude or at least make it considerably more difficult for plaintiff to locate any party against whom a judgment could be executed,” Chesney wrote. “Under such circumstances, and given that plaintiff apparently is aware of the current location of the entities who presently own the domain names, the Court finds it appropriate to prohibit defendants from further transferring ownership of the domain names, or the proceeds thereof, and the record discloses no equitable reason why plaintiff should not be granted [injunctive] relief.”
The judgment may turn out to be the least of the German men’s woes. Reportedly well-known and liked within the gay adult industry, Palicki and Herrmann also own and operate the AlphaMaleCash affiliate program. Prior to service of the lawsuit, the connection between AlphaMaleCash and MonsterCockTube was not common knowledge. Subsequently, several large affiliate programs cut their ties to AlphaMaleCash.
Herrmann, Palicki, nor any other representative from AlphaMaleCash or MonsterCockTube has responded to repeated requests for comment.
