Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 1 of 13
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`Michael O. Stevens, OSB No. 095198
`michael@hillsborofirm.com
`STEVENS & LEGAL, LLC
`3699 NE John Olsen Avenue
`Hillsboro, OR 97124
`Tel: (971) 533-6178
`Fax: (971) 228-2608
`
`J. Curtis Edmondson, CASB No. 236105 (pro hac vice)
`jcedmondson@edmolaw.com
`Kiren Rockenstein, OSB No. 175638
`kirenr@edmolaw.com
`EDMONDSON IP LAW
`3699 NE John Olsen Avenue
`Hillsboro, OR 97124
`Tel: (503) 336-3749
`Fax: (503) 482-7418
`
`David H. Madden, OSB No. 080396
`dhm@mersenne.com
`MERSENNE LAW LLC
`9600 SW Oak Street, Suite 500
`Tigard, OR 97223
`Tel: (503) 679-1671
`Fax: (503) 512-6113
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`Attorneys for Defendant JOHN HUSZAR
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF OREGON
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`PORTLAND DIVISION
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`DALLAS BUYERS CLUB, LLC,
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`v.
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`JOHN HUSZAR,
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`Plaintiff,
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`Defendant.
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`Case No.: 3:15-cv-0907-AC
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`DEFENDANT’S MOTION FOR
`SUMMARY JUDGMENT
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`FRCP 56
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`ORAL ARGUMENT REQUESTED
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 1
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 2 of 13
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`NOTICE OF MOTION
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`Defendant John Huszar (“Huszar”) moves for summary judgment of non-infringement on
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`the grounds that Huszar has absolute immunity under 17 U.S.C. §§ 512(a) and 512(b) as the
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`transactions at issue were routed through a Tor Exit Node; Plaintiff Dallas Buyers Club (“DBC”)
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`failed to produce a true and correct “depository copy” by the close of discovery, precluding DBC
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`from proving its case under the best evidence rule; and DBC’s torrent monitoring company misled
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`this Court and other Courts about the quality and integrity of MaverickMonitor. This motion will
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`be heard before the Honorable John Acosta in the District of Oregon, Federal Courthouse, located
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`at 1000 SW 3rd Ave #740, Portland, OR 97204 pursuant to the scheduling order at Docket 133.
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`I.
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`SUMMARY
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`MEMORANDUM
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`Huzar moves for summary judgment of non-infringement on the following grounds:
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`
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`
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`
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`II.
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`Huszar has statutory copyright infringement immunity under 17 U.S.C. §§ 512(a) and
`512(b) for an ISP (internet service provider), as he operated as an ISP with a Tor server;
`and/or
`DBC cannot “prove up” its case as DBC has failed to produce a true and correct “depository
`copy” by the close of discovery. This precludes DBC from satisfying an essential element
`of infringement; and/or
`Any data generated from the “MaverickMonitor” torrent monitoring system cannot be
`relied upon for the purposes of proving any “infringement”. The software was built without
`any formal specifications, has no documentation, has never been tested, and has no reports
`on error rates.
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`INTRODUCTION
`Huszar is the last defendant in an extensive litigation campaign, stretching from Sydney to
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`Portland, the long way around, where DBC has sued thousands of defendants for allegedly
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`downloading the movie Dallas Buyers Club, and has then asked for payments ranging from
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`$2,000.00 to $10,000.00 for a $2.99 movie. The allegations are the same in all countries –
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`defendants went to torrent sites, like “PirateBay” and downloaded the movie and infringed. What
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 2
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 3 of 13
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`these cases have in common, oddly enough, is a software company in Germany, known by various
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`names, but here known as “Maverickeye” which makes
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`the “detection” software
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`“MaverickMonitor”. MaverickMonitor is allegedly the cat’s meow in torrent monitoring
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`technology.
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`What distinguishes this case, from the other thousands, is that Huszar ran a Tor Server as
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`an ISP, giving him statutory immunity. Also, Huszar did not agree with DBC, and rather than take
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`their assertions at face value that the monitoring software was anything special, he hired an expert
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`to look at and evaluate the code – Dr. Kal Toth. Dr. Toth’s evaluation is telling; the code is nothing
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`but a stitched together patchwork of open source software based on “Monotorrent”. Despite the
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`fact that MaverickMonitor could have chosen to verify the entire movie on the alleged infringer’s
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`hard drive, MaverickMonitor chose instead to grab only 16KB of raw data to “prove”
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`infringement. 16KB out of a 4GB movie is a miniscule drop in the bucket, and certainly wholly
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`insufficient to ‘prove’ infringement.
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`What is equally strange is despite producing this blockbuster hit, DBC, who has sued
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`thousands of people, has never had a copy of the depository copy of the movie. The depository
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`copy was sitting on film reels, likely at Universal Studios. That raises a bigger question – what
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`was MaverickMonitor looking at when they compared the thousands of infringed works?
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`III. UNDISPUTED FACTS
`A. There are both a theatrical film version and a DVD version of Dallas Buyers Club
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`DBC applied for and received a copyright certificate on the theatrical version of Dallas
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`Buyers Club. (RJN 1-1). The theatrical version was published on November 1, 2013. Id. Six reels
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`of film was deposited with the Copyright Office by Carly Seabrook. (RJN 1-2). The theatrical
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`version of the movie was released in the United States at the Mill Valley Film Festival on October
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`10, 2013. (RJN 1-3).
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 3
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 4 of 13
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`The theatrical version was subsequently reedited into a “DVD”. The DVD version of the
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`film was released on February 4, 2014. (RJN 1-4). The DVD version contains extra material not
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`present in the theatrical version. (See Vorrath Decl,). Namely, the DVD version contains extra
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`material not present in the theatrical version.
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`B. DBC hires MaverickMonitor to track infringements
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`Beginning in 2013, DBC began a campaign to sue individuals in the United States and
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`other countries for alleged infringement. Over 300 lawsuits were filed in the United States against
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`at least 1000 defendants.
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`The MaverickMonitor software has no formal specifications, no test plan, no user manual,
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`or any documentation commonly associated with commercial software development. (See Toth
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`Decl.). There is no documentation describing how the software works in real-time, what type of
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`computer servers it operates on, how many computer servers it operates on, the failure rate of either
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`the computer servers and/or the software. There was no documentation on how a particular torrent
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`is located, how the torrent is processed, how the hash is processed, how data is collected from the
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`swarm, and how a PCAP (packet capture) is generated. (See Rockenstein Decl., Exhibit 1, Toth
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`Expert Report)
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`This software was developed by one or two programmers in German who have had no
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`formal training in software development or validation processes.
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`C. Defendant Huszar operates an ISP with Tor installed
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`Huszar runs a small ISP in Oregon City where he configured a “Tor Exit Relay” using IP
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`address 173.11.1.241. The Tor virtual machine (VM) was located on a server that also stored
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`multiple business-related VMs. The Tor VM operated entirely independently and was the only
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`VM with access to the IP address at issue in this case. (Docket 40 aka Second Huszar Decl. ¶ 17;
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 4
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 5 of 13
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`Docket 39 aka First Huszar Decl. ¶ 8; Huszar Dep. 47:24-48:2.)
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`D. This Lawsuit
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`On May 27, 2015, DBC sued Integrity Computer Systems for the infringement of Dallas
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`Buyers Club (Docket 1) as a “Doe”. On October 29, 2015, Huszar made a “pro-se” appearance at
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`Docket 15, stating that his system had no record of the infringing materials. Huszar offered to help
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`then Plaintiff’s attorney Carl Crowell locate the infringer, but was rebuffed. On November 3, 2015,
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`Crowell moved to strike Huszar’s appearance; oddly Crowell made no mention that Huszar tried
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`to cooperate. Then Crowell filed an opposition to Huszar’s motion appearance at docket 15.
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`(Docket 22). Huszar responded to Crowell’s opposition. (Docket 26). Huszar raised several
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`defenses, including the DMCA Defense. (Docket 27-1).
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`The case progressed. An order was entered instructing an adverse jury instruction be
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`entered. (Docket 95). Discovery was taken on DBC’s 30(b)(6) designee on topics regarding the
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`“works” (Michael Wickstrom); and the operation of the BitTorrent monitoring system, (Robert
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`Young).
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`IV. ARGUMENT
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`Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials
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`on file, and any affidavits show that there is no genuine issue as to any material fact and that the
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`movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323,
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`106 S. Ct. 2548 (1986). “To establish a claim of copyright infringement by reproduction, the
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`plaintiff must show ownership of the copyright and copying by the defendant.” Kelly v. Arriba
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`Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003).
`
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`1. SUMMARY JUDGMENT IS APPROPRIATE AS HUSZAR OPERATED A
`TOR EXIT NODE; DBC FAILED TO PRODUCE THE DEPOSITORY COPY;
`AND DBC REPEATEDLY MISLED THIS COURT ABOUT THE SOURCE
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 5
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 6 of 13
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`AND INTEGRITY OF THE BITTORRENT MONITORING SYSTEM
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`A. Huszar has statutory immunity under 17 U.S.C. §§ 512(a) and 512(b)
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`When the world-wide-web exploded in 1993 with the introduction of the Mozilla web
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`browser, copyrighted material was passed through ISPs. In 1998, Congress passed the Digital
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`Millennium Copyright Act (DMCA) to protect computer operators from liability when transitory
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`material passed through their networks. 17 U.S.C. § 512.
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`17 U.S.C. § 512(a) states as follows:
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`(a) Transitory Digital Network Communications.—A service provider shall
`not be liable for monetary relief, or, except as provided in subsection (j), for
`injunctive or other equitable relief, for infringement of copyright by reason
`of the provider’s transmitting, routing, or providing connections for,
`material through a system or network controlled or operated by or for the
`service provider, or by reason of the intermediate and transient storage of
`that material in the course of such transmitting, routing, or providing
`connections, if—
`(1) the transmission of the material was initiated by or at the direction of a
`person other than the service provider;
`(2) the transmission, routing, provision of connections, or storage is carried
`out through an automatic technical process without selection of the material
`by the service provider;
`(3) the service provider does not select the recipients of the material except
`as an automatic response to the request of another person;
`(4) no copy of the material made by the service provider in the course of
`such intermediate or transient storage is maintained on the system or
`network in a manner ordinarily accessible to anyone other than anticipated
`recipients, and no such copy is maintained on the system or network in a
`manner ordinarily accessible to such anticipated recipients for a longer
`period than is reasonably necessary for the transmission, routing, or
`provision of connections; and
`(5) the material is transmitted through the system or network without
`modification of its content.
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`17 U.S.C. § 512(b) states as follows:
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`(b) System Caching.—
`(1)Limitation on liability.—A service provider shall not be liable for
`monetary relief, or, except as provided in subsection (j), for injunctive or
`other equitable relief, for infringement of copyright by reason of the
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 6
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 7 of 13
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`intermediate and temporary storage of material on a system or network
`controlled or operated by or for the service provider in a case in which—
`(A) the material is made available online by a person other than the service
`provider;
`(B) the material is transmitted from the person described in subparagraph
`(A) through the system or network to a person other than the person
`described in subparagraph (A) at the direction of that other person; and
`(C) the storage is carried out through an automatic technical process for the
`purpose of making the material available to users of the system or network
`who, after the material is transmitted as described in subparagraph (B),
`request access to the material from the person described in subparagraph
`(A), if the conditions set forth in paragraph (2) are met.
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`
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`17 U.S.C. § 512(a), provides broad immunity to service providers that merely serve as
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`conduits or caching servers for internet communications. As stated in Perfect 10, Inc. v. CCbill
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`LLC, 488 F.3d 1102 (9th Cir. 2007):
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`Section 512(a) provides a broad grant of immunity to service providers
`whose connection with the material is transient. When an individual clicks
`on an Internet link, his computer sends a request for the information. The
`company receiving that request sends that request on to another computer,
`which sends it on to another. After a series of such transmissions, the request
`arrives at the computer that stores the information. The requested
`information is then returned in milliseconds, not necessarily along the same
`path. In passing the information along, each intervening computer makes a
`short-lived copy of the data. A short time later, the information is displayed
`on the user's computer.
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`Tor (The Onion Router) is open source software that allows a person to configure their
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`computer to serve as an “exit point” for internet browsing for any other computer on the internet.
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`(See Edmondson Decl, Exhibits 4 and 5). In short, the software allows a person to act as a public
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`service “virtual private network”. Tor has many laudable uses, for example, if you are critical of
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`the Venezuelan government, you can make a post to a political blog from Caracas without having
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`the security police trace your IP address and throw you in jail. The negative aspect of Tor is that
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`some people may use it for infringing uses. In either case, the operator of the Tor exit node cannot
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 7
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 8 of 13
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`monitor the transactions, nor be held responsible for their transmission.
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`Plaintiff has made no allegations, nor produced any evidence, that would support its claims
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`that Huszar did anything besides run an ISP. In fact, Plaintiff admitted as much as explaining that
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`17 U.S.C. § 512(c) cannot be used as a defense in this case. (See Docket 22). Further, under
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`examination from Mr. Crowell at Huszar’s deposition, there was no dispute a Tor node was used.
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`(See Exhibit 1, Huszar Deposition on February 2, 2016).
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`Further, this Court recognized Huszar was running a Tor Service as a Service Provider. As
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`stated at Docket 95:
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`Defendant decided to stop running the Tor Node because of the demands of
`this lawsuit and Plaintiff’s counsel, and as such Defendant was not
`concerned about migrating the Tor VM or losing the Tor software and
`associated data when he used the RAID tool to overwrite the hard drives in
`an attempt to repair the drives.
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`What distinguishes this case from the “run of the mill BitTorrent case” is Plaintiff produced
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`evidence that the alleged infringer was using a Tor Node.
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`DBC failed to produce the depository copy
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`B.
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`To establish a prima facie case of copyright infringement, a plaintiff “must show ownership
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`of the allegedly infringed material” and “demonstrate that the alleged infringers violated at least
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`one exclusive right granted to copyright holders under 17 U.S.C. § 106.” A&M Records, Inc. v.
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`Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). In order to obtain a copyright registration, an
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`applicant must deposit as a part of his application a "copy" or "copies" of the original work.
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`Put simply, DBC must do three things to prove infringement of its movie:
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`1) Provide the registration certificate;
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`2) Produce a copy of the work that is the subject of the registration certificate; and
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`3) Show that Huszar copied (e.g. violated the exclusive right) for that work.
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 8
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 9 of 13
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`DBC failed to produce evidence regarding the second element – the depository copy that
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`it needs to make the comparison. Since DBC did not provide these documents to Huszar by the
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`discovery cutoff, it is precluded from using substitute documents (such as the movies in the .tar
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`files).
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`Federal Rules Evidence (FRE) 1002, states:
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`An original writing, recording, or photograph is required in order to prove
`its content unless these rules or a federal statute provides otherwise.
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`FRE 1002 aims to guard against incomplete or fraudulent proof by requiring the possessor
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`of an original to produce it, unless it can be shown to have been lost or destroyed through no fault
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`of the proponent. While FRE 1002 has most often been invoked in contract cases, it has also been
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`invoked in cases dealing with copyright infringement when trying to assess the “substantial
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`similarity” of an allegedly infringing work to the original. See Seiler v. Lucasfilm, Ltd., 808 F.2d
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`1316, 1319 (9th Cir. 1987) (“There can be no proof of ‘substantial similarity’ and thus of copyright
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`infringement unless Seiler’s works are juxtaposed with Lucas’ and their contents compared.”)
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`(applying the best evidence rule in a copyright action); id. (“[P]roof of the infringement claim
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`consists of the works alleged to be infringed.”); accord Airframe Sys., Inc. v. L-3 Commc’ns Corp.,
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`658 F.3d 100, 107 (1st Cir. 2011) (“Having presented no evidence sufficient to prove the content
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`of its registered source code versions, Airframe cannot show that any of its registered works is
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`substantially similar to the allegedly infringing M3 program.”); Gen. Universal Sys., Inc. v. Lee,
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`379 F.3d 131, 146 (5th Cir. 2004) (per curiam) (“Without providing its own source code for
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`comparison, GUS did not satisfy the requirement that the infringed and infringing work be
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`compared side-by-side.”).
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`Absent evidence of the copyrighted work and the allegedly infringing works, the record is
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 9
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`Case 3:15-cv-00907-AC Document 138 Filed 02/28/18 Page 10 of 13
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`insufficient to allow appellate review of the jury’s verdict. See, e.g., Olson v. Nat’l Broad. Co.,
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`855 F.2d 1446, 1448, 1451 (9th Cir. 1988) (granting JMOL to copyright defendant because no
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`reasonable jury could have found substantial similarity); cf. Shaw v. Lindheim, 919 F.2d 1353,
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`1355 (9th Cir. 1990) (“We have frequently affirmed summary judgment in favor of copyright
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`defendants on the issue of substantial similarity.”).
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`The court in Seiler also addressed the issue of the copyright registration stating that while
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`“Section 410(c) makes the copyright certificate prima facie evidence of "the validity of the
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`copyright and of the facts stated in the certificate."…”, “None of the statements in the certificate
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`can be of any use therefore until Seiler proves that the reconstructions are the same as the originals.
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`Prima facie evidence of statements in the certificate is irrelevant until that proof has been made.”.
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`During discovery, Huszar requested categories of documents which included the
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`depository copies (Defendant’s Requests for Production, Second Requests (No. 19)). DBC did not
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`provide the depository copies. Discovery closed in this case on January 12, 2018, and no depository
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`copy was provided by this date. It was the responsibility of DBC to provide Huszar with a copy of
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`the depository works, since the work was not produced, it is impossible for DBC to lay the
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`foundation for its case, as these documents were not produced in discovery.
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`DBC may argue that Huszar is required to access the depository directly from the
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`Copyright Office. The problem with this is that DBC has not provided any evidence that this
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`depository copy is the same as the version they allege has been infringed. The DVD/online
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`streaming version are not the original documents. FRE 1002. Since DBC will not have the
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`copyrighted work available for its case in chief, there is nothing for DBC to “compare against” for
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`the purpose of proving infringement. DBC’s case fails as a matter of law, and judgment should be
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`entered in favor of Huszar.
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 10
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`C.
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`Results and data regarding infringement from MaverickEye’s torrent “monitoring”
`software are inadmissible
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`Huszar requested DBC produce a copy of the source code, documentation, test data, etc.
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`that was used to monitor Huszar’s IP address. DBC initially objected to this request, but the parties
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`agreed that the code and any other documents related to the code would be produced.
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`Huszar retained Dr. Kal Toth who looked at the code and produced a report. Dr. Toth is
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`eminently qualified to testify on software verification, validation, and reliability having managed
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`the development of such systems in industry and taught hundreds of students in Portland on
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`industry standards for the development of reliable software. Dr. Toth did a thorough examination
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`of the code and found that it is based on an open source computer program known as
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`“Monotorrent” and “SharpPcap”. There is no real evidence in the code where the programs had
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`been modified, nor is there any apparent release history documented in the code. Some of Dr.
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`Toth’s observations from his report are:
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`¶5.6 - The reliability of MaverickMonitor cannot be assessed without
`objective evidence that recommended patches and updates released by the
`open source development teams, namely, MonoTorrent and SharpPcap,
`have been applied or installed. Such evidence has not been provided.
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`¶5.7 - MaverickMonitor has a large code base of over 140,0000 lines of
`source code (LOC). This means that the number of latent (undetected)
`defects could be quite large. There is no evidence of effective testing.
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`¶5.11 - No evidence has been provided that adequate testing was conducted
`during development. Patzer in [3a, Skype Deposition of Michael Patzer,
`October 13, 2016] confirmed that his team did not test the BitTorrent
`software
`to
`verify
`that
`it
`operated
`correctly.
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`In the absence of verifiable evidence, an objective software professional
`cannot conclude that MaverickMonitor detects the IP addresses of
`infringing BitTorrent users correctly, consistently and reliably.
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`(See Rockenstein Decl, Exhibit 1, Toth Expert Report)
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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`At issue here is whether this Court would admit data created by an untested and unverified
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`computer system. Ultimately, software cannot “testify”, only an expert can testify as to what the
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`software produces. The Seventh Circuit looked at this issue and denied admissibility of expert
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`testimony under Daubert where all the expert did was “rely” on advertisements about a software
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`product. Autotech Technology v. Automationdirect.Com, 471 F.3d 745, 749 (7th Cir. 2006).
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`Bizarrely, DBC’s fact and expert witness, Robert Young, testified that he never installed and ran
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`the MaverickMonitor software on any server despite being designated by DBC as its 30(b)(6)
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`designee on software. (See Exhibit 2, Young Deposition, p. 106:15-18). DBC, a company that used
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`software to sue thousands of people, has no idea how this software works.
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`An expert cannot “create” reliable data from an “unreliable” computer system. Perhaps
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`Maverickmonitor worked 50% of the time. The problem is that we have no idea for this case which
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`side of the coin was up for Huszar, nor does DBC, or MaverickMonitor. It is, technically speaking,
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`simply the equivalent of a random number generator, and as such any data generated from the
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`MaverickMonitor system should be excluded. As such DBC has no data whatsoever to show that
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`Huszar infringed.
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`CONCLUSION
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`DBC has sued thousands of people in the United States and many more across the world
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`for the alleged infringements of its movie, Dallas Buyer’s Club. All of this was done using a flawed
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`and unreliable BitTorrent monitoring system known as MaverickMonitor. If the Court had known
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`this software was of such poor quality and reliability, would they have even allowed early
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`discovery under FRCP 26? That is a question that may never be answered since these motions are
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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`brought ex-parte before there is any discovery. However, here Huszar demonstrated with an
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`inspection of the code that MaverickMonitor’s claim of “100% accuracy” is a complete fraud.
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`Huszar respectfully requests this Court grant his motion for summary judgment and deem
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`him the prevailing party.
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`
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`DATED: February 28, 2018
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`
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`
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`Respectfully submitted,
`
`STEVENS & LEGAL, LLC
`
`
`/s/ Michael O. Stevens
`Michael O. Stevens, OSB No. 095198
`michael@hillsborofirm.com
`Attorney for Defendant
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`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`Page 13
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