Judge Orders Private to Amend XHamster Suit

Aug 26, 2011 12:00 PM PST

CEDAR RAPIDS, Iowa — A federal judge on Thursday ordered Private Media Group to amend its copyright infringement suit against the operators of XHamster, dashing the company's hope for a default judgment against the tube site.

Private, in its original complaint against the fledgling tube site, had named Westchester, Calif.-based WhoIsGuard as XHamster's "doing business as" entity in the suit and claiming it had properly served court papers. Later, it asked for default judgment after it said the defendants hadn't responded to the suit under court-imposed deadlines.

On Thursday, U.S. Magistrate Judge Paul Voss agreed with XHamster and WhoIsGuard attorneys, ordering Private to amend its complaint to name XHamster as the primary defendant by Sept. 1.

XHamster attorneys, in its plea to vacate a default judgment, said that Private "would like to skip the trial and move directly to the judgment phase" and that, quoting from "Alice’s Adventures in Wonderland," "Courts are not Wonderland and [Private] is not the Queen."

"[Private] has knowingly named and served the wrong party in the present lawsuit — and having been offered every opportunity both by counsel for WhoIsGuard and xHamster to correct the mistake — has nevertheless chosen to seek both a default and default judgment against a party neither named nor served in this action."

XHamster also noted that a Private spokesman had recently been quoted on XBIZ that the adult entertainment company was ready to take over the tube site and sell it.

"Finally, in a direct and shocking attempt to wreck harm on xHamster’s business and interfere with its business relations, [Private] has used its improperly gained tactical position to comment in the media that it has “even started to entertain offers for the [xHamster] site,” XHamster counsel said in the brief.

Private, in the suit, has asked for at least $10.8 million in damages for the alleged illegal streaming of 73 videos on the site that is said to have nearly 65 million page views a day and is ranked No. 55 worldwide by Alexa.

XHamster attorney Val Gurvits told XBIZ that he's "disappointed that it took a court order to force [Private] to do the right thing."

"On the other hand, I am pleased that the court ordered Fraserside to properly name my client.  XHamster has legitimate meritorious defenses to this lawsuit and we look forward to presenting them in court."

Jason Tucker, Private's spokesman, said Thursday's ruling isn't a setback to the case and that the entertainment company plans on following through.

"Now the XHamster.com owners must stop hiding and answer for their actions," Tucker told XBIZ. "This is a positive step in the right direction.  This also reinforces that no matter where you are or who you are, you cannot avoid us forever."

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