Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1794 Page 1 of 102
`
`EXHIBIT INDEX
`Government Response In Opposition To Defendants’ Motion To Dismiss The
`Wire Fraud Counts For Fifth Amendment Due Process & Sixth Amendment Notice
`Violations
`
`
`
`
`
`Description
`Exhibit
`A Transcript of February 20, 2020 Hearing
`B Transcript of April 8, 2020 Hearing
`C Mueller, Internet Governance, ARIN Stumbles into the
`Nortel-Microsoft IP Address Deal,
`https://www.internetgovernance.org/2011/04/15/arin-
`stumbles-into-the-nortel-microsoft-ip-address-deal/
`D Marsan, Network World, Does ARIN have the Right to
`Approve all IPv4 Address Sales?,
`https://www.networkworld.com/article/2203104/does-arin-
`have-the-right-to-approve-all-ipv4-address-sales-.html
`E Curran, Quora, How can MIT sell their IPv4 Address Space
`for Millions of Dollars when they Theoretically don't “own”
`the Addresses?, https://www.quora.com/How-can-MIT-sell-
`their-IPv4-address-space-for-millions-of-dollars-when-they-
`theoretically-dont-own-the-addresses
`F Lindsey, ComputerWorld, Protect Your Pre-1997 IP
`Address,
`https://www.computerworld.com/article/2514777/protect-
`your-pre-1997-ip-address.html
`
`Pages
`1-58
`59-77
`78-84
`
`85-89
`
`90-91
`
`92-101
`
`
`
`EXHIBIT INDEX
`Government Response In Opposition To Defendants’ Motion To Dismiss The
`Wire Fraud Counts For Fifth Amendment Due Process & Sixth Amendment Notice
`Violations
`
`
`
`
`
`Description
`Exhibit
`A Transcript of February 20, 2020 Hearing
`B Transcript of April 8, 2020 Hearing
`C Mueller, Internet Governance, ARIN Stumbles into the
`Nortel-Microsoft IP Address Deal,
`https://www.internetgovernance.org/2011/04/15/arin-
`stumbles-into-the-nortel-microsoft-ip-address-deal/
`D Marsan, Network World, Does ARIN have the Right to
`Approve all IPv4 Address Sales?,
`https://www.networkworld.com/article/2203104/does-arin-
`have-the-right-to-approve-all-ipv4-address-sales-.html
`E Curran, Quora, How can MIT sell their IPv4 Address Space
`for Millions of Dollars when they Theoretically don't “own”
`the Addresses?, https://www.quora.com/How-can-MIT-sell-
`their-IPv4-address-space-for-millions-of-dollars-when-they-
`theoretically-dont-own-the-addresses
`F Lindsey, ComputerWorld, Protect Your Pre-1997 IP
`Address,
`https://www.computerworld.com/article/2514777/protect-
`your-pre-1997-ip-address.html
`
`Pages
`1-58
`59-77
`78-84
`
`85-89
`
`90-91
`
`92-101
`
`
`
`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1795 Page 2 of 102
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`Exhibit A
`
`1
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1796 Page 3 of 102
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`..
`
`..
`
`UNITED STATES OF AMERICA,
`PLAINTIFF,
`V.
`JACOB BYCHAK,
`MARK MANOOGIAN,
`MOAMMED ABDUL QAYYUM,
`PETR PACAS.
`.
`DEFENDANTS.
`. . . . . . . . . . . . . . . . . .. SAN DIEGO, CALIFORNIA
`
`. NO.18-CR-4683-GPC
`.
`. FEBRUARY 20, 2020
`. 1:00P.M.
`.
`.
`.
`
`TRANSCRIPT OF MOTION HEARING
`BEFORE THE HONORABLE GONZALO P. CURIEL
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANT
`JACOB BYCHAK:
`
`FOR THE DEFENDANT
`MARK MANOOGIAN:
`
`FOR THE DEFENDANT
`MOHAMMED ABDUL QAYYUM:
`
`///
`
`UNITED STATES ATTORNEY'S OFFICE
`BY: SABRINA L. FEVE, ESQ.
`MELANIE K. PIERSON, ESQ.
`880 FRONT STREET, ROOM 6293
`SAN DIEGO, CALIFORNIA 92101
`LAW OFFICE OF DAVID W. WIECHERT
`BY: JESSICA MUNK, ESQ.
`115 AVENIDA MIRAMAR
`SAN CLEMENTE, CALIFORNIA 92672
`MINTZ LEVIN
`BY: RANDY K. JONES, ESQ.
`3580 CARMEL MOUNTAIN ROAD, SUITE 300
`SAN DIEGO, CALIFORNIA 92130
`BIENERT, MILLER & KATZMAN, PLC
`BY: WHITNEY Z. BERNSTEIN, ESQ.
`903 CALLE AMANECER, SUITE 350
`SAN CLEMENTE, CALIFORNIA 92673
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`(APPEARANCES CONTINUED)
`FOR THE DEFENDANT
`PETR PACAS:
`
`BIRD MARELLA BOXER WOLPERT NESSIM
`DROOKS & LINCENBERG
`BY: NAEUN RIM, ESQ.
`1875 CENTURY PARK EAST, SUITE2300
`LOS ANGELES, CALIFORNIA 90067
`
`COURT REPORTER:
`
`
`
`JULIET Y. EICHENLAUB, RPR, CSR
`USDC CLERK'S OFFICE
`333 WEST BROADWAY, ROOM 420
`SAN DIEGO, CALIFORNIA 92101
`JULIET_EICHENLAUB@CASD.USCOURTS.GOV
`
`REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER
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`SAN DIEGO, CALIFORNIA; FEBRUARY 20, 2020; 1:01 P.M.
`-O0O-
`THE CLERK: CALLING ITEM NUMBER ONE ON CALENDAR, CASE
`NUMBER 18CR4683, USA VS. JACOB BYCHAK, DEFENDANT NUMBER ONE; IF
`I CAN HAVE THE APPEARANCE OF THE ATTORNEY PLEASE.
`MS. MUNK: GOOD AFTERNOON, YOUR HONOR. JESSICA MUNK
`ON BEHALF OF JACOB BYCHAK WHO IS PRESENT IN COURT.
`THE COURT: GOOD AFTERNOON.
`THE CLERK: DEFENDANT NUMBER TWO, MARK MANOOGIAN.
`MR. JONES: GOOD AFTERNOON. RANDY JONES ON BEHALF OF
`DEFENDANT MARK MANOOGIAN WHO IS ALSO PRESENT IN COURT.
`THE COURT: GOOD AFTERNOON.
`THE CLERK: DEFENDANT NUMBER THREE, MOHAMMED ABDUL
`
`QAYYUM.
`
`MS. BERNSTEIN: GOOD AFTERNOON, YOUR HONOR. WHITNEY
`BERNSTEIN ON BEHALF OF MR. QAYYUM WHO IS PRESENT BEFORE THE
`COURT.
`
`THE COURT: GOOD AFTERNOON.
`THE CLERK: AND DEFENDANT NUMBER FOUR, PETR PACAS.
`MS. RIM: GOOD AFTERNOON, NAEUN RIM ON BEHALF OF PETR
`PACAS WHO IS PRESENT BEFORE THE COURT.
`THE COURT: GOOD AFTERNOON.
`MS. PIERSON: AND MELANIE PIERSON AND SABRINA FEVE ON
`BEHALF OF THE UNITED STATES.
`THE COURT: GOOD AFTERNOON TO ALL. WE'RE HERE ON A
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1799 Page 6 of 102
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`MOTION TO DISMISS WIRE FRAUD COUNTS AND TO STRIKE WIRE FRAUD
`ALLEGATIONS IN COUNT ONE FOR FAILURE TO STATE AN OFFENSE, AND
`THE COURT HAS REVIEWED THE MOVING PAPERS, THE RESPONSE AND
`REPLY, I'VE ALSO VIEWED A NUMBER OF THE CITED CASES. AND I
`HAVE SOME QUESTIONS. I THINK THE PARTIES HAVE DONE AN
`OUTSTANDING JOB IN BRIEFING THE ISSUES PRESENTED. BUT THE WAY
`I SEE IT, THERE'S TWO CRITICALLY IMPORTANT ISSUES.
`ONE IS WITH RESPECT TO IP ADDRESSES AND WHETHER OR
`NOT THEY QUALIFY OR CONSTITUTE PROPERTY FOR PURPOSES OF THE
`MAIL FRAUD STATUTES AND OR WIRE FRAUD AND -- I SHOULD SAY WIRE
`FRAUD; AND THEN THE SECOND QUESTION RELATES TO THE QUESTION OF
`THE QUESTION OF A CONVERGENCE, AND UNDER LEW, WHETHER OR NOT
`THE FALSE STATEMENTS AND MISREPRESENTATIONS NEED TO BE DIRECTED
`TO THE PERSON, THE ENTITY, THAT ENDS UP LOSING SOME PROPERTY OR
`MONEY.
`
`SO WITH RESPECT TO THE IP ADDRESSES AS PROPERTY, I
`UNDERSTAND THAT THERE ARE TWO CASES THAT ARE RELIED UPON THE
`PARTIES RESPECTIVELY. THERE ARE A NUMBER OF ADDITIONAL BUT THE
`PRIMARY CASES THAT PROVIDE SOME GUIDANCE ARE DOWLING ON THE
`DEFENSE SIDE RELATING TO COPYRIGHTS AND WHETHER OR NOT
`COPYRIGHTS QUALIFY AS A PROPERTY IN A SEPARATE OR DIFFERENT
`CONTEXT BUT WHETHER OR NOT THE COURT WAS PREPARED TO FIND THAT
`COPYRIGHTS AFFORD A CONCRETE ENOUGH OR DEFINITE ENOUGH BENEFIT
`TO QUALIFY AS PROPERTY; AND THEN THE NINTH CIRCUIT DECISION IN
`-- I'M NOT SURE IF IT'S KREMEN OR KREMEN, AND THAT INVOLVED A
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1800 Page 7 of 102
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`DOMAIN NAME AND APPLYING CALIFORNIA LAW THAT THE NINTH CIRCUIT
`CONCLUDED THAT DOMAIN NAME INDEED QUALIFIED AS PROPERTY.
`I DON'T THINK ANYONE DISPUTES THAT WHAT WE HAVE IS
`SOMEWHERE IN THE MIDDLE AND THAT THERE ARE A NUMBER OF
`ASSERTIONS REGARDING WHAT ARIN'S POSITION HAS BEEN WITH RESPECT
`TO IP ADDRESSES, AND THEN THE GOVERNMENT PROVIDES PERHAPS SOME
`NUANCE OBSERVATIONS ABOUT MR. CURRAN'S DECLARATIONS PREVIOUSLY
`FILED AND QUERY WHETHER OR NOT THE COURT SHOULD CONSIDER MR.
`CURRAN'S DECLARATIONS FOR PURPOSES OF THESE PROCEEDINGS WHERE
`IT'S THE INDICTMENT THAT'S BEING CHALLENGED.
`AT THIS POINT, I'M MORE ON THE SIDE OF DOWLING, THAT
`WHAT WE HAVE WITH RESPECT TO IP ADDRESSES AND THE RIGHTS THAT
`ARE PROVIDED ARE MORE SIMILAR TO COPYRIGHTS IN BEING A BUNDLE
`OF RIGHTS THAT ARE PROVIDED, THAT THEY ARE NOT AS ABSOLUTE AS A
`DOMAIN NAME. THEY DO NOT INVOLVE AS MUCH ACTIONS, CREATION BY
`A PERSON WHO OBTAINS THE RIGHTS TO A DOMAIN NAME. THE FACT
`THAT ARIN ASSERTS THAT IT HAS CERTAIN RIGHTS TO TERMINATE THE
`RIGHTS OF AN IP ADDRESS OR NETBLOCK HOLDER SUGGESTS THAT
`THERE'S MORE LIMITATIONS IN THE CASE OF IP ADDRESSES OR
`NETBLOCKS THAN THERE IS IN THE CASE OF DOMAIN NAMES.
`AND SO AT THIS POINT I'D LIKE TO HEAR FIRST FROM THE
`GOVERNMENT BECAUSE, AS I STATED, I THINK AT THIS POINT I'M
`SIDING MORE WITH THE DOWLING ANALYSIS AND FINDING THAT THAT IS
`MORE SALIENT THAN THAT PROVIDED BY KREMEN. SO WITH THAT, I'LL
`HEAR FROM YOU.
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1801 Page 8 of 102
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`MS. FEVE: YOUR HONOR, I'D START BY LOOKING AT RULE
`12. AND RULE 12 SAYS THAT IN A MOTION TO DISMISS, WHICH IS
`WHAT'S BEFORE THE COURT, WE LOOK AT THE FOUR CORNERS OF THE
`INDICTMENT.
`THE COURT: AND I'M PREPARED TO DO THAT.
`MS. FEVE: AND THERE'S NO QUESTION THAT THE
`INDICTMENT ALLEGES PROPERTY. SO WHEN YOU USUALLY SEE A MOTION
`TO DISMISS -- WE SEE 1325'S ALL THE TIME. WHAT THE FEDERAL
`DEFENDERS HAVE KIND OF VERY DILIGENTLY AND STEADILY POINTED OUT
`IS THAT IN THE 1325 CHARGE WE NEEDED TO ALLEGE THAT THE
`DEFENDANT WAS NOT UNDER PRIOR OR OFFICIAL RESTRAINT OR THAT WE
`NEEDED TO ALLEGE THAT THERE WAS SCIENTER, THAT THE DEFENDANT
`TOOK A CONSCIOUS TOWARDS ENTERING THE COUNTRY WITHOUT
`AUTHORIZATION. IN THIS CASE, IF WE LOOK JUST AT THE
`INDICTMENT, THERE IS NO QUESTION THAT WE HAVE ALLEGED
`PROPERTY. SO --
`THE COURT: BUT IS IT ENOUGH THAT YOU JUST MERELY
`ALLEGE PROPERTY WHERE, IN FACT, LOOKING AT WHAT THE PROPERTY IS
`OR THE ALLEGED PROPERTY IS -- THE IP ADDRESS/NETBLOCKS -- THAT
`THE COURT WOULD, AS A THRESHOLD MATTER, DETERMINE WHETHER AS A
`MATTER OF LAW THESE NETBLOCKS QUALIFY AS PROPERTY?
`MS. FEVE: IT IS, YOUR HONOR, BECAUSE UNLESS YOU ARE
`PREPARED TO ISSUE A DETERMINATION ABOUT WHETHER A NETBLOCK IS
`PROPERTY WITH NO FINDINGS OF FACT AND TO DO IT SIMPLY BY
`ANALOGIZING IT TO DOWLING OR TO KREMEN, FIRST YOU'RE GOING TO
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1802 Page 9 of 102
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`REQUIRE SOME FACTUAL PREDICATE FOR WHAT AN IP ADDRESS IS
`BECAUSE EVEN BY THE COURT'S TENTATIVE YOU SAY, I FIND THEM
`SOMEWHERE IN THE MIDDLE AND MORE LIKE IT.
`AND MY QUESTION WOULD BE: BASED ON WHAT FACTS?
`BECAUSE WE CAN TALK ABOUT WHAT IP ADDRESSES ARE, AND IF THE
`COURT IS SAYING, I'M RELYING ON WEINSTEIN OR I'M RELYING ON
`THESE PRIOR JUDICIAL DETERMINATIONS ON WHAT AN IP ADDRESS IS
`AND HOW IT FUNCTIONS TO EXPLAIN WHY I THINK IT'S A COPYRIGHT,
`THEN WE CAN ADDRESS THOSE QUESTIONS AS MATTERS OF LAW. BUT IF
`THE COURT IS ACTUALLY MAKING FACTUAL FINDINGS, IF IT'S
`REFERRING TO THE DECLARATION OF JOHN CURRAN WHICH IS OUTSIDE
`THE SCOPE OF THE INDICTMENT --
`THE COURT: AND I'M NOT.
`MS. FEVE: SO, AGAIN, IF WE'RE LOOKING AT THE
`INDICTMENT -- AND AGAIN, I APPRECIATE YOUR POINT WHICH IS THAT
`IF THERE IS A DISPOSITIVE CASE ON THIS ISSUE SIMILAR TO -- I
`APOLOGIZE, I FORGET THE NAME OF THE BUT ONE OF THE CASES THE
`DEFENDANTS CITED IN THEIR REPLY BRIEF INVOLVED A DEFENDANT'S
`POSSESSION OF EAGLE FEATHERS.
`THE COURT: POSSESSION OF WHAT?
`MS. FEVE: EAGLE FEATHERS.
`THE COURT: I DON'T KNOW IF I LOOKED THAT ONE UP.
`MS. FEVE: SO THEY TALKED ABOUT THERE WERE DEFENDANTS
`WHO BROUGHT A MOTION TO DISMISS SAYING THAT PROSECUTING THEM
`FOR POSSESSION OF EAGLE FEATHERS WAS ON ITS FACE AN UNLAWFUL
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1803 Page 10 of 102
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`INTERFERENCE WITH THEIR FIRST AMENDMENT RIGHTS TO PRACTICE
`THEIR RELIGION AS THEY SAW FIT. IN THIS CASE THE MOTION WAS
`ACTUALLY DENIED, BUT THE REASON WHY THE COURT SAID, I DON'T
`EVEN NEED TO LOOK AT THE FACTS IS BECAUSE WE LITERALLY HANDLED
`THESE EXACT SAME SET OF FACTS AND ARGUMENT IN A PRIOR CASE AND
`CITED A DIFFERENT NINTH CIRCUIT ARGUMENT WHERE THEY PREVIOUSLY
`EVALUATED AND CONSIDERED THE ARGUMENT THAT IF YOU WERE
`PROSECUTED FOR THE UNLAWFUL POSSESSION OF EAGLE FATHERS WAS IT,
`IF YOU WERE A MEMBER OR A PUNITIVE MEMBER OF A NATIVE AMERICAN
`TRIBE, AN INTERFERENCE WITH YOUR FIRST AMENDMENT RIGHT, AND THE
`COURT HAD DONE A VERY DETAILED-ANALYSIS ABOUT WAS IT THE LEAST
`RESTRICTIVE MEANS OF PROTECTING A LEGITIMATE POLICY GOAL. SO
`THERE, BECAUSE THERE WAS THIS VERY SQUARE CONVERGENCE BETWEEN
`THE FACTS PRESENTED IN THAT CASE AND THE FACTS IN ANOTHER CASE,
`THE COURT SAID WE ARE COMFORTABLE TREATING THIS AS A MATTER OF
`LAW.
`
`BUT THAT WAS ALSO BY INVOKING PRIOR FACTUAL FINDINGS.
`AND HERE -- I WOULD DISPUTE THE IP ADDRESSES ARE MORE LIKE
`COPYRIGHTS, BUT I ALSO RECOGNIZE THAT TO ENGAGE IN THAT
`ARGUMENT I AM BY NECESSITY GOING TO REFER TO FACTS OUTSIDE THE
`SCOPE OF THE INDICTMENT. SO I JUST WANT TO BEGIN BY SAYING, WE
`HAVE TRIED IN OUR MOTION TO PRACTICE WHAT WE BELIEVE THE COURT
`SHOULD BE DOING ITSELF WHICH IS TO BE LOOKING AT THE FACE OF
`THE INDICTMENT: DID WE PROPERLY ALLEGE THE ELEMENTS? IS THERE
`A CASE THAT IS SQUARELY ON THE FOUR CORNERS OF OUR CASE AS
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1804 Page 11 of 102
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`PLEAD THAT SHOWS THAT AS A MATTER OF LAW, NO MATTER WHAT FACTS
`WE PUT BEFORE THE COURT, WE CANNOT MEET OUR LEGAL BURDEN?
`THEY HAVE NOT PRESENTED THAT CASE BECAUSE AS THEY
`WANT TO POINT OUT, WHEN THEY'RE ARGUING FOR THE RULE OF LENITY,
`THEY'RE SAYING THERE'S AN ABSENCE OF DIRECT AND CONTROLLING
`PRECEDENT. THERE IS AN ABSENCE OF DIRECT AND CONTROLLING
`PRECEDENT; BUT THERE IS NOT AN ABSENCE OF LEGAL PRECEDENT. FOR
`YOUR HONOR TO SAY THERE IS NO PROPERTY INTEREST HERE WOULD BE
`IN CONFLICT WITH THE GLOBAL NAPS DECISION OUT OF MASSACHUSETTS
`WHERE THE COURT SPECIFICALLY FOUND THAT IP ADDRESSES WERE
`PROPERTY. IT WOULD --
`THE COURT: WELL, THEY FOUND IT IN A DIFFERENT
`CONTEXT THOUGH, DIDN'T IT?
`MS. FEVE: SO WHAT IS THE CONTEXT, YOUR HONOR?
`BECAUSE AGAIN, IF IT'S NOT ON THE FACE OF THE INDICTMENT --
`THE COURT: I DON'T THINK ANYONE DISPUTES THAT IP
`ADDRESS, THAT NETBLOCKS CONFER SOME ENTITLEMENT, BENEFITS AND
`RIGHTS. BUT THE QUESTION WOULD BE, UNDER EVEN KREMEN, THE
`THREE-FACTOR TEST WHETHER OR NOT THE THIRD ELEMENT WOULD BE
`PRESENT WITH RESPECT TO THE PUNITIVE OWNER MUST HAVE
`ESTABLISHED A LEGITIMATE CLAIM TO EXCLUSIVITY.
`MS. FEVE: BUT THERE IS A LEGITIMATE CLAIM TO
`EXCLUSIVITY. SIMILAR TO -- SO THE DEFENDANTS IN THEIR REPLY
`BRIEF BROUGHT UP TELEPHONE NUMBERS, AND THEY MENTIONED A STATE
`CALIFORNIA CASE AND A SEVENTH CIRCUIT CASE AND ONE OTHER CASE.
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`THEY DID NOT MENTION A HOST OF OTHER CASE -- THE FIRST CIRCUIT,
`FIFTH CIRCUIT, DISTRICT COURTS IN VIRGINIA AND FLORIDA -- BUT
`MOST NOTABLY HERE IN CALIFORNIA WHERE JUDGE WHELAN ADDRESSED
`WHETHER TELEPHONE NUMBERS COULD BE PROPERTY FOR PURPOSES OF
`EVALUATING A MOTION TO DISMISS AND HELD THAT IN FACT THE
`PLAINTIFFS COULD BRING A CLAIM FOR CONVERSION OF TELEPHONE
`NUMBERS, FINDING A POSSESSORY INTEREST; AND EVEN IF YOU LOOK AT
`THE SEVENTH CIRCUIT DECISION, THE 1-800-FLOWERS DECISION THE
`DEFENDANTS REPLY ON, JUDGE EASTERBROOK THERE DELIBERATELY PUTS
`THE WORD "PROPERTY" IN QUOTATION MARKS BECAUSE HE SAYS PRE-1997
`THERE IS NO QUESTION YOU HAD A POSSESSORY INTEREST, AND HE
`OVERTURNS THE DISTRICT COURT BECAUSE HE SAYS YOU ABSOLUTELY
`COULD SUE TO ENFORCE A CONTRACT FOR BENEFITS THAT YOU GOT BY
`SELLING YOUR PHONE NUMBER.
`SO WHAT WE SEE IS THAT ACROSS THE DISCIPLINES THERE
`ARE POSSESSORY INTERESTS WHERE EVEN IF IT'S NOT IN PERPETUITY
`AND FOREVER, WHETHER IT'S A LEASEHOLD, WHETHER IT'S A LICENSE
`THAT IS HELD BY A PRIVATE PARTY -- WE ALL UNDERSTAND THAT WHEN
`YOU HAVE A BROADCAST LICENSE YOU DON'T NECESSARILY HAVE THAT
`LICENSE FOREVER AND THAT IT'S BEEN GRANTED TO YOU BY THE STATE,
`SIMILAR TO HOW THEY'RE ARGUING IT MAY HAVE BEEN GRANTED BY THE
`AUTHORITY THAT PRECEDED ARIN; HOWEVER, THE SUPREME COURT HAS
`REPEATEDLY RECOGNIZED THAT THOSE INTERESTS, EVEN IF THEY ARE,
`"A," NOT PHYSICAL, AND "B," NOT NECESSARILY IN PERPETUITY, ARE
`CLEARLY PROPERTY RIGHTS THAT ARE RECOGNIZED AND PROTECTED UNDER
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1806 Page 13 of 102
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`ALL THE FRAUD STATUTES.
`THE COURT: WHICH RAISES THE SECOND QUESTION WHICH
`IS, THE PROPERTY RIGHT TO WHO? CERTAINLY, THERE IS, I THINK,
`THE ARGUMENT THAT THE IP ADDRESSES, THE NETBLOCKS PROVIDE A
`POSSESSORY INTEREST OF SOME TYPE, THIS BUNDLE OF RIGHTS FOR THE
`REGISTRANT OR THE INDIVIDUAL THAT IS AWARDED THAT; AND THEN
`THAT BRINGS UP THE LEW ISSUE WITH RESPECT TO WHETHER OR NOT THE
`FRAUDULENT STATEMENT, THE MISREPRESENTATION, IS DIRECTED AT THE
`HOLDER OF THE RIGHT.
`MS. FEVE: AND I'M HAPPY TO ADDRESS LEW, BUT I WANT
`TO MAKE SURE I FOLLOW UP ON ONE POINT WHICH IS, YOUR HONOR, WE
`DID NOT SUBMIT OVER ONE HUNDRED PAGES OF SUPPORTING DOCUMENTS.
`IF THE COURT WANTS OR FEELS THAT IT IS REQUIRED TO HAVE A
`HEARING, WE'RE PREPARED TO DO SO. BUT THE REASON I SAY THIS IS
`THAT WHEN I HEAR YOU DESCRIBING AN IP ADDRESS AND WHY IT'S MORE
`ANALOGOUS WITH A COPYRIGHT, I AM CONFUSED BECAUSE A DOMAIN
`NAME, YOU CAN HAVE ONE DOMAIN NAME JUST AS YOU CAN HAVE ONE IP
`ADDRESS, WHEREAS EVERY SINGLE ONE OF YOU US CAN HAVE THE SAME
`SONG.
`
`IF WE HAVE A COPY OF A BEYONCE SONG, I CAN HAVE THE
`ALBUM, YOU CAN HAVE THE ALBUM, EVERYONE CAN HAVE THE ALBUM; WE
`CAN LISTEN TO THE ALBUM AT DIFFERENT TIMES. MY USE AND CONTROL
`AND ENJOYMENT OF MY BEYONCE ALBUM IN NO WAY, SHAPE OR FORM
`INTERFERES WITH YOURS. AND THAT'S BECAUSE THE ONLY THING THAT
`PROTECTS THAT ALBUM, TO THE EXTENT THAT IT'S NOW IN DIGITAL
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1807 Page 14 of 102
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`FORM AS PROPERTY, IS THIS LEGAL ARTIFICE CALLED A COPYRIGHT. I
`CAN'T JUST DISTRIBUTE IT WILLY-NILLY BECAUSE IT IS COPYRIGHT
`PROTECTED. THAT IS NOT TRUE OF AN IP ADDRESS. UNLIKE WITH A
`BEYONCE ALBUM WHERE EVERY SINGLE ONE OF US COULD BE LISTENING
`TO IT AT ANY TIME WITH NO DISRUPTION TO OTHERS USE AND
`ENJOYMENT, ONLY ONE OF US CAN USE AN IP ADDRESS. AND THERE IS
`NO WAY THAT THE INTERNET WORKS IF IT IS ANYTHING OTHER THAN
`THAT CASE. AND THAT IS WHY IT'S MORE LIKE A DOMAIN NAME
`BECAUSE A DOMAIN NAME IS ACTUALLY A SHADOW OF AN IP ADDRESS.
`THE ONLY THING THAT GIVES A DOMAIN NAME VALUE AND USE
`IS WHEN YOU ASSIGN IT TO AN IP ADDRESS. OTHERWISE, IT'S LIKE
`SAYING I CAN MARKET THE 1-800-FLOWERS PHONE NUMBER, BUT IF THAT
`DOESN'T ACTUALLY CORRESPOND TO MY PHONE NUMBER, IT'S JUST A
`BRAND NAME, AND IT'S ARGUABLY CONFUSING BECAUSE IT'S NOT
`ACTUALLY GOING TO TAKE YOU TO MY COMPANY. SO THE REASON I'M
`EMPHASIZING THE FACTUAL NATURE IS TO MAKE IT CLEAR WHY AN IP
`ADDRESS, IN KREMEN, LIKE A DOMAIN NAME, IS EXCLUSIVE AND IT
`CANNOT BE USED, AND IT'S NOT SOMETHING THAT'S JUST SIMPLY A
`BUNDLE OF RIGHTS WHERE IT'S KIND OF AMORPHOUS AND REQUIRES A
`LEGAL FICTION TO DETERMINE HOW EXCLUSIVE OR NON-EXCLUSIVE IT
`IS.
`
`THE IP ADDRESS HAS INTRINSIC PHYSICAL PROPERTIES AS
`FAR AS HOW THE INTERNET AND THE TECHNOLOGY OF THE INTERNET
`WORKS. SO IF THE COURT IS GOING TO SAY IT IS NOT PROPERTY,
`IT IS GOING -- THE COURT WILL REACH THAT QUESTION ON THE LEGAL
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1808 Page 15 of 102
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`MERITS ON THE FACE OF THE INDICTMENT, BUT IT'S TO SAY, THAT
`WILL HAVE FAR-REACHING IMPLICATIONS FOR MANY CONTRACTUALISTS.
`SO I WANT, TO THE BEST I CAN, AS AN ADVOCATE, TO MAKE SURE IF
`THAT'S WHERE YOU WANT TO GO, I WOULD LIKE TO HAVE AN ACTUAL
`HEARING BECAUSE I HEAR YOU REFERRING TO JOHN CURRAN'S
`DECLARATION, AND I'D LIKE TO GIVE YOU SOME CONTEXT TO WHY HE
`SAID WHAT HE SAID --
`THE COURT: I DON'T THINK WE NEED TO GO THERE.
`MS. FEVE: AGAIN, IF WE'RE NOT GOING TO THE FCC 2010
`WORKING PAPER -- WHICH ON ITS FACE SPECIFICALLY SAYS THIS DOES
`NOT BIND EVEN THE FCC OR ANY OF THE COMMISSIONERS, THIS IS A
`THOUGHT PIECE DESIGNED TO STIMULATE CONVERSATION -- TO THE
`EXTENT WE KEEP HEARING FROM THE DEFENDANTS THAT EVERYTHING IS
`UNDISPUTED AND WE'RE COLLATERALLY ESTOPPED AND WE ARE BOUND,
`THE FCC DOCUMENT ON THE VERY FIRST PAGE SPECIFICALLY SAYS
`OTHERWISE. SO IF THE COURT IS GOING TO FIND AS A MATTER OF LAW
`WITH NO CONTROLLING PRECEDENT THAT AN IP ADDRESS IS OR IS NOT
`LIKE SOMETHING, ON SOME LEVEL YOU ARE GOING TO NEED FACTS TO
`EXPLAIN THAT RATIONALE ABSENT A CONTROLLING PRECEDENT WHERE
`THEY HAVE ALREADY REACHED THOSE FACTS AND YOU ARE BOUND BY
`THOSE DETERMINATIONS, AND THERE'S NO DAYLIGHT BETWEEN THOSE
`FACTS AND OURS.
`SO THAT IS WHY HERE IT'S TO SAY -- ONE OF THE THINGS
`THE DEFENDANTS ARGUE IN THEIR REPLY BRIEF IS WE -- UNDER THE
`1985 SHORTT, KIND OF, SAC DECISION THEY SAY, WELL, IF WE MOVE
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1809 Page 16 of 102
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`FOR AN EVIDENTIARY HEARING AND THAT HEARING WOULD IN NO WAY
`INVOLVE FACTS THAT WOULD SUBJECT TO DISPUTE AT TRIAL AND IF WE
`AGREE THAT WE WOULD NOT BE PREPARED TO ARGUE THAT WHETHER OR
`NOT AN IP ADDRESS QUALIFIES AS PROPERTY SHOULD BE SUBMITTED TO
`A JURY, THEN THEY CAN PROPERLY PUT THAT ARGUMENT BEFORE YOU AND
`EXPLAIN WHY IT IS THAT THEY BELIEVE THE FACTS ABOUT WHETHER OR
`NOT IP ADDRESSES ARE PROPERTY IS SO DIVISIBLE FROM THE
`QUESTIONS OF FACT THAT WOULD BE PRESENTED AT TRIAL. AND THEY
`WOULD ALSO BE REQUIRED TO FLAT OUT SAY, WE DON'T THINK THIS IS
`A QUESTION FOR THE JURY, BECAUSE IF WHETHER OR NOT IP ADDRESS
`ARE QUESTIONS THAT SHOULD BE SUBMITTED TO THE JURY, THEN IT
`SHOULD CERTAINLY NOT BE ADJUDICATED ON A MOTION TO DISMISS.
`SO AGAIN, TAKING A STEP BACK, I HEAR YOU SAYING, I'M
`LOOKING AT KREMEN AND I'M LOOKING AT DOWLING; AND I HEAR YOU
`TELLING ME THE MASSACHUSETTS CASE, FOR WHATEVER REASON, DOESN'T
`COUNT; AND THE BANKRUPTCY COURT PROCEEDINGS WHERE THEY HAVE
`AUCTIONED OFF IP ADDRESSES, TREATING THEM AS PROPERTY, DON'T
`COUNT.
`
`THE COURT: LET ME ASK YOU THIS: COPYRIGHTS ARE ONES
`THAT I WOULD IMAGINE CAN BE ASSIGNED, CAN BE TRANSFERRED, CAN
`BE SUBJECT OF BANKRUPTCY PROCEEDINGS --
`MS. FEVE: I DON'T KNOW ABOUT THAT, YOUR HONOR,
`BECAUSE FIRST THEY ARE -- I DON'T KNOW WHO ISSUES -- I DON'T
`REMEMBER -- I'M NOT AN EXPERT ON COPYRIGHT LAW SO I DON'T KNOW
`IF IT GOES OUT OF THE COPYRIGHT PATENT'S OFFICE OR WHAT THEIR
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1810 Page 17 of 102
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`RULES AND REGULATIONS ARE. SO AGAIN, THESE ARE FACTS THAT ARE
`BEYOND THE SCOPE OF OUR INDICTMENT WHICH I'M NOT PREPARED TO
`ARGUE OR PUT BEFORE THE COURT. WHAT I AM SUBMITTING TO THE
`COURT IS THAT IF WE LOOK AT THE CASES THAT DO LOOK AT
`INTANGIBLE PROPERTY RIGHTS -- BECAUSE THERE'S NO DISPUTE THAT
`WE'RE TALKING ABOUT INTANGIBLE PROPERTY RIGHTS, WE'RE NOT
`TALKING ABOUT HONEST SERVICES FRAUD, WE'RE NOT TALKING ABOUT
`MONEY -- IF WE LOOK AT THE CASES THAT ARE ADDRESSING INTANGIBLE
`PROPERTY RIGHTS, THEY ARE FREQUENTLY CONCERNED ABOUT POSSESSORY
`INTERESTS, AND THEY ARE NOT REQUIRING THAT THOSE POSSESSORY
`INTERESTS BE FOR SOMETHING THAT IS PHYSICAL OR THAT IS FOREVER,
`AND WE'VE PUT MANY OF THOSE CASES BEFORE THE COURT.
`AND I JUST WANT TO PULL UP CLEVELAND BECAUSE, IF YOU
`RECALL CLEVELAND, THERE THE CONTEXT WAS A LICENSE OBTAINED FROM
`THE STATE. AND ONE OF THE THINGS CLEVELAND WAS CAREFUL TO SAY
`IS THAT THE MAIL FRAUD AND THE FRAUD STATUTES HAVE AT THEIR
`ORIGIN THE DESIRE TO PROTECT INDIVIDUAL PROPERTY RIGHTS. IT
`DOES NOT SAY EXCLUSIVE OWNERSHIP. AND ANY BENEFIT FROM WHICH
`THE GOVERNMENT DERIVES FROM THE STATUTE MUST BE LIMITED TO THE
`GOVERNMENT'S INTEREST AS A PROPERTY HOLDER. SO THEY'RE TALKING
`ABOUT BEING A PROPERTY HOLDER. AT NO POINT IS THE PROPERTY
`HOLDER SOMEONE WHO MUST HAVE IT FOREVER. DOWLING IS THE
`OUTLIER. DOWLING IS NOT THE NORM. AND ONE OF THE REASONS WHY
`DOWLING IS THE OUTLIER IS THAT DOWLING SHARES IN COMMON
`SOMETHING WITH MANY OF THE CASES YOU HAVE SEED INVOLVING HONEST
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1811 Page 18 of 102
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`SERVICES FRAUD OR CASES LIKE CLEVELAND WHERE THE FRAUD IS ON
`THE GOVERNMENT OR LIKE LEW, OR AGAIN, THE FRAUD IS ON THE
`GOVERNMENT.
`SO IN DOWLING, WE HAVE A COPYRIGHT WHICH IT IS
`COMPLETELY INTANGIBLE AND THERE IS NO REAL WORLD LIMIT ON HOW
`MANY TIMES SOMETHING COULD BE PHYSICALLY LAWFULLY DUPLICATED.
`IN CLEVELAND, IN LEW, IN SEVERAL OTHER CASES, WE HAVE THE
`GOVERNMENT ISSUING A LICENSE OR A VISA. IT IS SOMETHING THAT
`THE GOVERNMENT CAN ISSUE AS MANY TIMES AS IT WANTS BECAUSE ON
`SOME LEVEL IT IS A LEGAL ARTIFICE AND THE ONLY REASON IT IS NOT
`A LEGAL FICTION IS BECAUSE OF THE RULES SURROUNDING IT
`THE COURT: I'M NOT SURE I UNDERSTAND YOU
`DISTINGUISHING DOWLING. YOU SAID WITH A COPYRIGHT YOU HAVE
`UNTOLD NUMBERS OF ITEMS THAT ARE COPYRIGHTED. IS THAT WHAT
`YOU'RE SAYING?
`MS. FEVE: SO THE LEGAL PROTECTION OF A COPYRIGHT IS
`SAYING YOU CAN'T DUPLICATE THIS.
`THE COURT: "THIS." YOU CAN'T MAKE ONE COPY --
`MS. FEVE: YOU CAN'T MAKE A COPY OF THIS UNLESS YOU
`PAY ME FOR MY COPYRIGHT. SO THE COPYRIGHT ITSELF IS SIMILAR TO
`A LICENSE. THERE IS NOTHING PHYSICAL OR INTRINSIC ABOUT IT.
`IT IS THE GOVERNMENT SAYING YOU GAVE US WHATEVER YOUR
`APPLICATION WAS AND WE GAVE YOU A COPYRIGHT, JUST AS IN LEW WE
`GAVE YOU A VISA.
`THE COURT: WE RECOGNIZE THIS INTELLECTUAL
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1812 Page 19 of 102
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`PROPERTY.
`MS. FEVE: WE RECOGNIZE THIS INTELLECTUAL PROPERTY.
`THE COURT: AND CARPENTER TELLS US THAT PROPERTY IS
`NOT LIMITED TO TANGIBLE PROPERTY. SO, SO FAR SO GOOD.
`MS. FEVE: RIGHT. SO FAR SO GOOD. BUT WHERE DOWLING
`SAYS THERE'S A DIFFERENCE IS THAT THERE IS NOTHING TO PREVENT
`THE DISSEMINATION AND THE COPYING OTHER THAN THE COPYRIGHT.
`AND SO HERE --
`THE COURT: THAT'S NOT THE REASON THE DOWLING COURT
`REACHED ITS CONCLUSION, IS IT?
`MS. FEVE: I BELIEVE IT IS, YOUR HONOR. I BELIEVE A
`CONSIDERABLE AMOUNT OF THEIR DISCUSSION IS ABOUT THE FACT THAT
`IT COULD BE COPIED AND THAT THERE WAS NOTHING INTRINSIC TO IT
`OTHER THAN THE KIND OF LEGAL CONCEDE OF THE --
`THE COURT: THE COURT SAID, A COPYRIGHT LIKE OTHER
`INTELLECTUAL PROPERTY COMPRISES A SERIES OF CAREFULLY DEFINED
`AND CAREFULLY DELIMITED INTEREST TO WHICH THE LAW AFFORDS
`CORRESPONDINGLY EXACT PROTECTIONS. I GUESS ONE CAN ARGUE THAT
`HERE THERE'S ARIN THAT HAS CRAFTED WITH SPECIFICITY CERTAIN
`RIGHTS AND THEN CERTAIN LIMITATIONS.
`MS. FEVE: WELL, FIRST, IP ADDRESS AREN'T
`INTELLECTUAL PROPERTY. THAT'S ONE OF THE FIRST, MOST IMPORTANT
`DISTINCTIONS.
`THE COURT: WOULDN'T IT BE A STRONGER ARGUMENT THAT
`SOMETHING IS DESERVING OF BEING VIEWED AS PROPERTY TO THE
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1813 Page 20 of 102
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`EXTENT THAT IT IS INTELLECTUAL PROPERTY, THAT IT'S SOMEONE'S
`DESIGN, SOMEONE'S CREATION?
`MS. FEVE: YOUR HONOR, FOR PURPOSES OF THE INTANGIBLE
`PROPERTY STATUTES, THAT'S NOT WHERE THEY HAVE GONE. WHERE THEY
`HAVE GONE IS, IS THIS INTANGIBLE? CAN YOU HAVE EXCLUSIVE USE?
`AND WHAT I UNDERSTOOD THE DISTINCTION IN DOWLING BEING IS
`INTELLECTUAL PROPERTY IS INHERENTLY DIFFERENT BECAUSE THE ONLY
`THING TO PREVENT OR MAINTAIN EXCLUSIVITY IS THE STATE'S
`RECOGNITION OF THE INTELLECTUAL PROPERTY. ARIN IS NOT CREATING
`SOMETHING BY ITS RECOGNITION. ARIN IS A TRAFFIC COP WHO IS
`SAYING YOU CAN GO FORWARD AND YOU CAN'T. BUT THEY ARE
`FUNCTIONING IN A WAY THAT'S SIMILAR TO OTHER THIRD PARTIES THAT
`CAN KIND OF REGULATE AND MAINTAIN A REGISTRY.
`IF WE DO TAKE A STEP BACK AND LOOK AT THE PHONE
`NUMBERS, AGAIN, THEY HAVE A VERY, VERY DIFFERENT REGULATORY
`HISTORY SO WE NEED TO BE CAREFUL ABOUT THEIR TECHNICAL
`SIMILARITIES. BUT THE REASON WHY WE'RE SAYING THIS IS VERY
`DIFFERENT THAN DOWLING IS THAT ARIN DOESN'T CREATE THE
`INTELLECTUAL PROPERTY, AND IT DOESN'T RECOGNIZE IT, AND
`THEREFORE, CONFER SOME BENEFIT. ARIN IS A SUCCESSOR AND
`INTEREST TO MULTIPLE -- IACA AND BEFORE THAT YOU HAD DARPA.
`AND THE FACT IS YOU COULD HAVE NONE OF THESE PEOPLE, BUT IT'S
`JUST THAT THEN YOU WOULD HAVE CHAOS. YOU WOULD HAVE SOME
`PEOPLE WHO WOULD ANNOUNCE IP'S AND THEN OTHER PEOPLE WHO WOULD
`TRY TO HIJACK THEM, AND THEN THERE WOULD BE NO REGISTRY WHERE
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1814 Page 21 of 102
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`PEOPLE COULD GO LOOK WHO IS THE RECOGNIZED REGISTRY.
`THE COURT: I GUESS AT THIS POINT THE FACT WE'RE EVEN
`TALKING ABOUT ARIN WE ARE IN FACT GOING OUTSIDE THE FOUR
`CORNERS OF THE INDICTMENT WHICH LEADS ME THEN TO ASK THE
`DEFENSE -- AND BY THE WAY, THIS ARGUMENT WITH RESPECT TO
`WHETHER OR NOT WE HAVE ENOUGH FACTS HERE, WHETHER OR NOT
`THERE'S SUFFICIENT UNDISPUTED FACTS AND THAT WE WOULD REQUIRE
`SO MUCH MORE AS FAR AS FACTS IS SOMETHING THAT I DID NOT
`OBSERVE IN THE GOVERNMENT'S RESPONSE.
`BUT I DO APPRECIATE THAT AS A THRESHOLD MATTER THAT
`THAT IS SOMETHING THAT THE COURT WOULD HAVE TO ENTERTAIN AND
`HAVE TO PROVIDE A SUFFICIENT FACTUAL PREDICATE TO SUPPORT AN
`ORDER DISMISSING THE INDICTMENT. AT THE SAME TIME, SINCE
`EVERYONE WAS FOCUSED ON THE SUBSTANCE OF THESE ISSUES, THAT'S
`WHY I BEGAN MY QUERY WITH THAT; BUT HAVING SAID THAT, LET ME
`HEAR FROM THE DEFENSE WITH RESPECT TO THIS THRESHOLD QUESTION
`OF WHETHER OR NOT THERE IS SUFFICIENT FACTS BEFORE THE COURT SO
`THAT IT COULD ISSUE A RULING ON THIS MOTION.
`MS. MUNK: YES, YOUR HONOR. I'M LOOKING AT THE PHONE
`BECAUSE I PULLED UP RULE 12 BECAUSE THE GOVERNMENT SAID RULE 12
`SAYS THE COURT MUST STAY WITHIN THE FOUR CORNERS OF THE
`INDICTMENT. IT DOES NOT SAY THAT ANYWHERE. IN FACT, IF YOU
`LOOK AT RULE 12(D), WHAT IT SAYS IS THE COURT MUST DECIDE EVERY
`PRETRIAL MOTION BEFORE TRIAL UNLESS IT FINDS GOOD CAUSE TO
`DEFER RULING. IT THEN SAYS, WHEN FACTUAL ISSUES ARE INVOLVED
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1815 Page 22 of 102
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`IN DECIDING A MOTION, THE COURT MUST STATE ITS ESSENTIAL
`FINDINGS ON THE RECORD. SO THE RULE ACTUALLY CONTEMPLATES
`CERTAIN PRETRIAL MOTIONS WHERE THE COURT MAY HAVE TO MAKE
`FINDINGS OF FACT.
`WE DID ADDRESS THIS IN OUR REPLY, BUT I WILL JUST
`KIND OF SUMMARIZE WHAT THE CASES IN THE NINTH CIRCUIT HAVE SAID
`ABOUT THIS. IT'S TRUE THAT THE COURT SHOULD TAKE THE
`ALLEGATIONS IN THE INDICTMENT AS TRUE IN A PRETRIAL MOTION
`WHERE THE COURT IS BEING ASKED TO DECIDE AN ISSUE OF LAW. AND
`I WANT TO MAKE THAT CLEAR THAT THIS IS WHAT WE'RE DEALING WITH.
`THE QUESTION OF WHETHER AN IP ADDRESS IS PROPERTY UNDER WIRE
`FRAUD STATUTE, THAT'S AN ISSUE OF STATUTORY CONSTRUCTION AND IT
`IS AN ISSUE OF LAW. IT'S NOT A QUESTION FOR THE JURY. IT'S
`NOT A QUESTION THAT WILL EVER GO TO THE JURY. THE JURY DOES
`NOT GET TO DECIDE WHETHER OR NOT SOMETHING IS QUOTE, UNQUOTE,
`PROPERTY AND WE KNOW THAT FROM, FIRST -- WELL, I WON'T CITE ALL
`THE CASES.
`BUT ALL OF THE CASES WHERE THE SUPREME COURT HAS
`ADDRESSED THESE QUESTIONS OR SIMILAR QUESTIONS -- MCNALLY,
`SKILLING, DOWLING -- THE COURT IS CONSIDERING AS A MATTER OF
`LAW WHETHER COPYRIGHTS OR INTANGIBLE OBJECTS ARE PROPERTY AND
`THOSE ARE NOT QUESTIONS THAT THEY DEFERRED TO THE JURY. SO
`BECAUSE THIS IS A QUESTION OF LAW, IF THERE ARE ANY FACTS THAT
`THE COURT NEEDS TO MAKE THIS DETERMINATION, THE COURT CAN
`CONSIDER THOSE FACTS. IF THEY'RE UNDISPUTED, WE DON'T NEED TO
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`Case 3:18-cr-04683-GPC Document 176-1 Filed 06/08/20 PageID.1816 Page 23 of 102
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`HAVE AN EVIDENTIARY HEARING. IF THEY ARE DISPUTED, THAT MAY BE
`SOMETHING THAT THE COURT FINDS NECESSARY.
`THE COURT: LET ME HAVE YOU RESPOND TO THE ARGUMENT
`THAT WE DON'T HAVE A DETERMINATIVE CASE, WE DON'T HAVE
`PRECEDENT, THAT STANDS FOR THE PROPOSITION THAT THESE
`IP/NETBLOCKS DO NOT QUALIFY AS PROPERTY AND THAT, IN FACT, YOU
`HAVE ONE MAGISTRATE, I BELIEVE, IN A CASE PROVIDING THE VIEW
`THAT THESE NETBLOCKS WOULD CONSTITUTE PROPERTY; SO THAT, GIVEN
`THE STATE OF THE LAW, THAT WE OURSELVES DON'T HAVE ENOUGH FACTS
`BEFORE US WITH RESPECT TO THINGS LIKE ARIN AND LEGACY AND WHAT
`ALL THAT TRANSLATES INTO. WHY DO YOU THINK WE HAVE SUFFICIENT
`FACTS ON THE RECORD BASED UPON WHAT'S IN THE INDICTMENT WHEN
`THERE
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