Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 1 of 8
`
`Carl D. Crowell, OSB No. 982049
`email: carl@crowell-law.com
`CROWELL LAW
`P.O. Box 923
`Salem, OR 97308
`(503) 581-1240
`Of attorneys for Plaintiff
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`
`
`Plaintiff,
`
`
`
`
`
` Case No.: 3:15-cv-0907-AC
`
`
`PLAINTIFF’S MOTION FOR PARTIAL
`SUMMARY JUDGMENT;
`EXHIBITS 1 - 3
`
`
`FRCP 56; FRCP 12(c)
`
`DALLAS BUYERS CLUB, LLC,
`
`
`
`v.
`
`JOHN HUSZAR,
`
`
`
`
`
`Defendant
`
`
`CONFERRAL
`The parties have conferred on this motion by email and telephone and they are unable to
`
`
`
`resolve this matter.
`
`SUMMARY PARTIAL JUDGMENT FRCP 56 / FRCP 12(c)
`
`
`
`Plaintiff moves for a partial summary judgment for copyright infringement in that the
`
`Defendant John Huszar has admitted all material elements and there are no material facts in
`
`dispute as to liability and willfulness.
`
`
`
`This motion is supported by the record of this action, including the admissions of the
`
`defendant deemed admitted (Exhibit 1; ECF 71-1; ECF 84, Order), the Second Amended
`
`Complaint (ECF 63) and the Defendant’s Answer (ECF 71) as modified in response to Plaintiff’s
`
`Motion to Strike. Exhibit 2; ECF 72; ECF 95, Order.
`
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`
`
`Page 1 of 8
`
`

`

`Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 2 of 8
`
`MEMORANDUM
`
`1.
`
`Background
`
`Plaintiff initially brought claims against an unknown defendant known only to be a user
`
`of a Comcast commercial / business account, originally identified as DOE-173.11.1.241. ECF 1,
`
`May 27, 2015. Plaintiff sought leave for initial discovery and with leave of the Court
`
`subpoenaed ISP Comcast for the identity of the business associated with Internet protocol
`
`address (“IPA”) 173.11.1.241.
`
`In response, Comcast identified Integrity Computer Services who was initially non-
`
`responsive to Plaintiff’s efforts to identify the infringer. After initial investigation and willful
`
`obstruction, Integrity Computer Service was named as a defendant. ECF 10. Defendant’s first
`
`appearance was October 29, 2015. ECF 15. In response to a motion to dismiss claiming
`
`Integrity Computer Service was dissolved and the real party at interest was John Huszar, a
`
`Second Amended Complaint over objections was allowed naming John Huszar. ECF 63. Then,
`
`in an in-person conference with the Court, Plaintiff’s counsel and the Defendant Huszar were
`
`directed to develop a discovery plan which was to include the production of the only computer
`
`known to have accessed IPA 173.11.1.241, the IPA through which the infringing activity was
`
`observed. ECF 29. Subsequent to this personal directive Defendant Huszar irretrievably deleted
`
`both the hard drive of the relevant computer and the backup RAID drive, resulting in a sanctions
`
`order against him. ECF 95.
`
`In the course of this case, Defendant Huszar has worked with at least seven (7) counsel,
`
`four (4) now being of record in this action. The current wave of counsel began appearing in
`
`February 2017. ECF 100. Now after over two years, on review of the docket as a whole,
`
`including all the pleadings, it is clear that the only issue possibly tried to a jury is damages as
`
`elements to all other matters have been admitted. Wherefore Plaintiff moves for partial summary
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`Page 2 of 8
`
`
`
`

`

`Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 3 of 8
`
`judgment based on facts admitted and pleadings as to liability and willfulness to permit more
`
`efficient management of the remaining issue of damages.
`
`2.
`
`The Admissions – Exhibit 1
`
`
`
`On April 6, 2016, after conferral between counsel pursuant to FRCP 26, counsel for
`
`Plaintiff served on then counsel for Defendant requests for admissions pursuant to FRCP 36. On
`
`September 12, 2016, after five (5) months without any response or indication a response would
`
`be provided, Plaintiff requested the Court direct the defendant to respond to pending requests or
`
`deem the requests admitted absent a response. ECF 77 (Motion) and Exhibit 1 (ECF 77-1). The
`
`Defendant continued to refuse to respond to the discovery requests, respond to the Court, or
`
`Plaintiff’s motion. On October 11, 2016, “Plaintiff's request for admissions [were] deemed fully
`
`admitted based on the lack of any response by Defendant Huszar.” ECF 84.
`
`
`
`An admission, even an admission deemed admitted because of a failure to respond, is
`
`binding on the party at trial. Conlon v. U.S., 474 F.3d 616, 621 (9th Cir., 2007). An admission
`
`may “carry more weight than a witness statement” because an admission “cannot be countered
`
`by other evidence.” McNeil v. AT&T Universal Card, 192 FRD 492, 494 n. 4 (E.D. Pa. 2000);
`
`See also 9th Cir. Model Jury Instruction 2.12, Use of Requests for Admission, (“You must treat
`
`these facts as having been proved.”). A court should limit evidence that is inconsistent with a
`
`Rule 36 admission. 999 v. C.I.T. Corp., 776 F.2d 866, 869 (9th Cir.1985).
`
`
`
`Pursuant to FRCP 36 and the October 11, 2016 Order, the following facts (and others) are
`
`deemed admitted:
`
`4. Admit that defendant John Huszar has used the BitTorrent protocol for the exchange of
`files with others in violation of U.S. copyright law.
`
`5. Admit that prior to the filing of this suit John Huszar was familiar with the use of
`BitTorrent for the downloading of media.
`
`
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`
`
`Page 3 of 8
`
`

`

`Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 4 of 8
`
`6. Admit that John Huszar, without permission or consent of the authors, willfully copied
`and distributed multiple copyrighted files through a public peer-to-peer network.
`
`7. Admit that John Huszar, without permission or consent of plaintiff copied and
`distributed at least portions of the motion picture Dallas Buyers Club through a public
`BitTorrent network.
`
`See generally Exhibit 1; ECF 77-1.
`
`
`3.
`
`The Pleadings – Exhibit 2
`
`
`
`Plaintiff’s Second Amended Complaint, filed July 7, 2017, and after contested motions
`
`practice (See ECF 37, et seq.), contains the following allegations relevant at this point:
`
`7. Dallas Buyers Club has been registered with the United States Copyright Office by the
`owner, DBC, Registration No. PA 1-873-195, 2013
`
`8. Under The Copyright Act, DBC is the proprietor of copyrights and related interest
`needed to bring suit.
`
`Pursuant to FRCP 8(b)(6), “An allegation—other than one relating to the amount of
`
`
`
`damages—is admitted if a responsive pleading is required and the allegation is not denied.”
`
`Defendant’s Answer, as modified by the Court’s Order to Strike (ECF 95), is submitted as
`
`Exhibit 2. In Defendant Huszar’s Answer, filed over a year ago on August 19, 2016, Huszar
`
`generally fails to deny any allegations other than to deny his personal downloading of Plaintiff’s
`
`motion picture.
`
`
`
`Defendant Huszar does not deny Plaintiff’s claim, right, or ownership of the motion
`
`picture Dallas Buyers Club, or dispute the validity of the copyright certificate, a public record,
`
`true copy submitted as Exhibit 3. Defendant Huszar raises no defenses, affirmative or otherwise,
`
`other than to deny he personally download Plaintiff’s motion picture. This claim in the Answer
`
`is contrary to the conclusive admissions deemed admitted and therefore immaterial.
`
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`
`
`Page 4 of 8
`
`

`

`Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 5 of 8
`
`4.
`
`Copyright Infringement Summary Judgment
`
`
`
`Summary judgment is appropriate “if the pleadings, the discovery and disclosure
`
`materials on file, and any affidavits show that there is no genuine issue as to any material fact
`
`and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
`
`U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).
`
`
`
`“To establish a claim of copyright infringement by reproduction, the plaintiff must show
`
`ownership of the copyright and copying by the defendant.” Kelly v. Arriba Soft Corp., 336 F.3d
`
`811, 817 (9th Cir. 2003); see also, Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846
`
`(9th Cir. 2012).
`
`a. Ownership by Plaintiff
`
`
`
`Plaintiff submits as evidence of ownership Exhibit 3, the true copy of Plaintiff’s
`
`Copyright Registration No. PA 1-873-195, a public record issued by the United States Copyright
`
`Office establishing the first element of Plaintiff’s claim. Under 17 U.S.C. §410(c), a copyright
`
`registration certificate constitutes prima facie evidence of the validity of the copyright and all
`
`facts stated on the certificate, including the statements relating to originality and Plaintiff’s
`
`ownership of the motion picture. Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d
`
`1140, 1144 (9th Cir. 2003); See also 9th Circuit Model Jury Instruction 17.7; North Coast Indus.
`
`v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992) (“[R]egistration of the copyright
`
`certificate itself establishes a prima facie presumption of the validity of the copyright in a
`
`judicial proceeding […]”). Further, as per the pleadings, the claim of ownership and the rights
`
`of Plaintiff as a registered copyright owner are properly plead and not denied, and thus deemed
`
`admitted. FRCP 8(b)(6).
`
`
`
`Defendant now bears the burden of rebutting the presumption of validity. United Fabrics
`
`Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011); Hamil America Inc. v. GFI,
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`Page 5 of 8
`
`
`
`

`

`Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 6 of 8
`
`193 F.3d 92, 98 (2d Cir. 1999). To rebut this presumption, Defendant must plead and prove that
`
`Plaintiff defrauded the Copyright Office and that the putative fraud relates to the underlying
`
`ability to register the work. 17 U.S.C. §411(b)(1). The standard for fraud is high and goes
`
`beyond a mere misstatement or clerical error. L.A. Printex Indus. v. Aeropostale, 676 F. 3d at
`
`853. Defendant has not and cannot present such evidence as there has been no fraud nor has any
`
`claim of fraud been plead.
`
`b. Infringement is established
`
`
`
`The Copyright Act (17 U.S.C. § 101, et seq.) protects the copyright owner by granting the
`
`exclusive right to “reproduce, distribute, and publicly display copies of the work.” 17 U.S.C. §
`
`106. To establish infringement, a plaintiff need only demonstrate that an infringer violated one of
`
`the exclusive rights granted under 17 U.S.C. § 106, such as the right to copy or duplicate. See 17
`
`U.S.C. § 501(a) (infringement occurs when alleged infringer engages in activity listed in § 106);
`
`see also Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.1987).
`
`
`
`In the present case Defendant Huszar, though the admissions deemed admitted over a
`
`year ago, admits he used the BitTorrent protocol for the exchange of files with others in violation
`
`of U.S. copyright law (No. 4); that prior to the filing of this suit John Huszar was familiar with
`
`the use of BitTorrent for the downloading of media (No. 5); that John Huszar, without
`
`permission or consent of the authors, willfully copied and distributed multiple copyrighted files
`
`through a public peer-to-peer network (No. 6); and that John Huszar, without permission or
`
`consent of plaintiff copied and distributed at least portions of the motion picture Dallas Buyers
`
`Club through a public BitTorrent network. These admissions are binding. Conlon v. U.S., 474
`
`F.3d at 621.
`
`
`
`Downloading and distributing copyrighted material through the use of BitTorrent is an
`
`infringing act violating the copyright holder's right to reproduction. 17 U.S.C. § 106 (1). This is
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`Page 6 of 8
`
`
`
`

`

`Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 7 of 8
`
`well established and affirmed in Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 10334.
`
`(9th Cir., 2013).
`
`
`
`To the extent Defendant might argue he did not download the entire film, there is no de
`
`minimis defense available to the defendant. "[A] taking may not be excused merely because it is
`
`insubstantial with respect to the infringing work.... `[N]o plagiarist can excuse the wrong by
`
`showing how much of his work he did not pirate.'" Harper & Row v. Nation Enters., 471 U.S.
`
`539, 565, quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.1936).
`
`Though de minimis copying might be a component of a properly plead fair use defense together
`
`with all other factors, no such defense has been plead or is at issue.
`
`
`
`Finally, as per the sanctions ordered against the Defendant, (ECF 95) Defendant has
`
`already willfully destroyed any evidence related to his conduct and should not now be permitted
`
`to even raise the issue.
`
`c. Defendant’s conduct was willful as a matter of law
`
`
`
`Willfulness in the copyright context of 17 U.S.C. § 504(c)(2) can be based on either
`
`“intentional” behavior, or merely “reckless behavior.” In re Barboza, 545 F.3d 702, 707 (9th Cir.
`
`2008). "To prove 'willfulness' under the Copyright Act, the plaintiff must show (1) that the
`
`defendant was actually aware of the infringing activity, or (2) that the defendant's actions were
`
`the result of 'reckless disregard' for, or 'willful blindness' to, the copyright holder's rights." Louis
`
`Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 944 (9th Cir. 2011) (quoting Island
`
`Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 2005)).
`
`As per the admissions deemed admitted in this matter, Huszar admits he used the
`
`BitTorrent protocol for the exchange of files with others in violation of U.S. copyright law (No.
`
`4); that prior to the filing of this suit John Huszar was familiar with the use of BitTorrent for the
`
`downloading of media (No. 5); that John Huszar, without permission or consent of the authors,
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`Page 7 of 8
`
`
`
`

`

`Case 3:15-cv-00907-AC Document 122 Filed 11/14/17 Page 8 of 8
`
`willfully copied and distributed multiple copyrighted files through a public peer-to-peer network
`
`(No. 6).
`
`These admissions, taken as true, and bolstered by Huzar’s willful spoliation of evidence
`
`must be accepted as not less than reckless behavior under the Copyright Act and therefore willful
`
`in the context of 17 U.S.C. § 504(c)(2).
`
`
`
`CONCLUSION
`
`For all of the foregoing reasons, Plaintiff respectfully requests that the Court summarily
`
`adjudicate the following issues: 1.) Dallas Buyers Club, LLC owns a valid copyright for the
`
`motion picture Dallas Buyers Club and is the proper Plaintiff in this action; 2.) Defendant John
`
`Huszar copied and distributed Plaintiff’s motion picture Dallas Buyers Club; 3.) Defendant John
`
`Huszar’s conduct was willful as a matter of law under the Copyright Act.
`
`The issue of damages remains to be presented to a jury.
`
`
`
`Respectfully submitted this 14th day of November, 2017.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MOTION MPSJ: FRCP 56 /12(c)
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`CROWELL LAW
`
`
`
`/s/ Carl D. Crowell
`Carl D. Crowell, OSB No. 982049
`carl@crowell-law.com
`503-581-1240
`Of attorneys for the Plaintiff
`
`
`
`Page 8 of 8
`
`