Paul Andrew Mitchell, B.A., M.S.
c/o Dr. John C. Alden, M.D.
350 – 30th Street, Suite 444
tel: (510) 452-2020
fax: (510) 832-8507
In Propria Persona
All Rights Reserved
United States Court of Appeals
) 372(c) No. 02-89005
Plaintiff/Appellant, ) APPELLANT’S BRIEF IN REPLY TO
v. ) APPELLEES AOL TIME WARNER, INC.,
) STEVE CASE, LENNERT LEADER,
AOL Time Warner, Inc. et al., ) RANDALL J. BOE AND JAMES R. BRAMSON;
) REQUEST FOR PRELIMINARY INJUNCTIONS
Defendants/Appellees.) AND LEAVE TO FILE ENLARGED BRIEF:
_______________________________) FRAP Rule 8; C.R. 28-1(b), (c).
COMES NOW Paul Andrew Mitchell, Appellant in the above entitled case, to reply to the ANSWERING BRIEF OF APPELLEES AOL TIME WARNER, INC., STEVE CASE, LENNERT LEADER, RANDALL J. BOE, AND JAMES. R. BRAMSON.
After receiving proper and timely demands for their requisite certificates of oath, like all other attorneys who have attempted to appear in the instant case Mr. Daniel Scott Schecter and Ms. Belinda S. Lee (hereinafter “Latham”) have also failed to produce valid licenses to practice law in the State of California, with oaths of office properly endorsed upon same, as required by Section 6067 of the California Business and Professions Code (“CBPC”). Latham’s BRIEF should be stricken and completely disregarded, for this reason alone.
LATHAM’S JURISDICTIONAL ERRORS ARE FATAL
Latham’s BRIEF makes fatal jurisdictional errors, most notably on Page 32 and elsewhere. Specifically, Latham errs by merely presuming without proving that the United States District Court for the Eastern District of California (“USDC”) had jurisdiction to hear Appellant’s claims, other than what Latham calls a “jurisdictionally defective copyright claim” [sic].
Latham’s arguments and presumptions are entirely backwards.
Appellant’s Initial COMPLAINT did not and could not petition the USDC; it petitioned the District Court of the United States (“DCUS”). The Article III DCUS is the only federal court with original jurisdiction to hear claims arising under the Lanham Act. See 60 Stat. 440, July 5, 1946 (uncodified at 15 U.S.C. 1121).
The only jurisdiction conferred upon the USDC in the instant case is limited to enforcement of Appellant’s SUBPOENAS for subscriber identities authorized by 17 U.S.C. 512(h). All other relief must be granted by the DCUS, because that is the Court which Appellant petitioned, and that is the Court which Congress has expressly authorized to originate the judicial Power of the United States in the instant case. See the Arising Under Clause at Article III, Section 2, Clause 1 (“3:2:1”).
Thus, the USDC did not have jurisdiction to hear Appellant’s second, third, and fourth claims for violations of the Lanham Act and various federal criminal statutes, and the DCUS did have jurisdiction.
And, as will be shown below, Latham’s BRIEF wastes everyone’s time by concealing from this Court the fact of Appellant’s Certificate of Copyright Registration No. TX‑5‑436‑561. See APPELLANT’S FIRST MOTION FOR MANDATORY JUDICIAL NOTICE, BY AFFIDAVIT, which was recently filed and is hereby incorporated by reference as if set forth fully.
Thus, the DCUS did have subject matter jurisdiction of all of Appellant’s copyright infringement claims, because said Certificate of Copyright Registration was issued on July 23, 2001 A.D. ‑‑ eight (8) days before the instant case was filed.
Latham’s BRIEF errs again by stating that the USDC exercised supplemental jurisdiction over Appellant’s fifth claim, pursuant to 28 U.S.C. 1367; however, Appellant’s Initial COMPLAINT never once invoked the latter federal statute.
Furthermore, Mr. Drozd was not authorized to exercise any civil jurisdiction in the instant case because Appellant never consented to any United States Magistrate Judges. Consent of all parties is a statutory prerequisite to the exercise of civil jurisdiction by any U.S. Magistrate Judge. No other parties consented in writing either.
Also, nobody has been able to produce the requisite credentials for Mr. Drozd, so he is not even qualified to occupy the office of U.S. Magistrate Judge in the first instance.
Appellant is not proceeding “pro se” [sic]; “se” is a neuter Latin pronoun. Appellant is healthy male Citizen of California proceeding In Propria Persona (not “pro se”).
Like so many attorneys before them, Latham’s BRIEF fails to appreciate the all important and well established principle that statutes conferring original jurisdiction must be strictly construed.
This principle applies with equal force and effect to the Rules Enabling Act at 28 U.S.C. 2072(a).
That federal statute confers authority on the U.S. Supreme Court to issue rules of evidence and civil procedure for the USDC, but the DCUS is not even mentioned. Similarly, the Local Rules were promulgated only for the USDC, but not for the DCUS. Confer at “Inclusio unius est exclusio alterius” in Black’s Law Dictionary, Sixth Edition.
Latham’s BRIEF completely ignores the fact that Appellant timely and properly requested a declaratory judgment on the exact scope of subsection 2072(a) of the Rules Enabling Act, and on the constitutionality of the Abrogation Clause at subsection 2072(b). See the Declaratory Judgments Act at 28 U.S.C. 2201.
Without the benefit of the specific interlocutory judgment that Appellant requested, the applicability of the FRCP and the Local Rules remains an open question right up to the present moment; the legal relations of the parties remain unclarified on this important point.
Moreover, Appellant specifically requested timely interlocutory judgments on the Rules Enabling Act, in order also to demonstrate that all United States Courts of Appeals have no appellate jurisdiction to review interlocutory orders issued by the USDC, whereas this Court of Appeals does have appellate jurisdiction to review interlocutory orders issued by the DCUS. See 28 U.S.C. 1292(a)(1).
The inference is obvious, then, that the USDC must be a summary tribunal, or legislative court, because its interlocutory orders can not be appealed until final judgment is reached. See the Final Judgments Act at 28 U.S.C. 1291.
Appellant will now dismantle the remainder of Latham’s BRIEF by taking issue with its errors in the order of their appearance.
The USDC did not and could not correctly grant AOL’s Motion to Dismiss under FRCP Rule 12, because it simply did not enjoy original jurisdiction over the subject matter of Appellant’s Initial COMPLAINT. See 60 Stat. 440, July 5, 1946; strictly construed, said statute could not have conferred original jurisdiction on the USDC because the USDC simply did not exist inside California in the year 1946 A.D.
Furthermore, AOL’s Motion to Dismiss was submitted by an attorney lacking the specific credentials required by CBPC § 6067 and, as such, it should be stricken for willful misrepresentation. See 28 U.S.C. 1652 (State laws as rules of decision).
That very same attorney is presently in contempt of court for failing to produce the certificate of oath and license to practice law commanded by a valid SUBPOENA IN A CIVIL CASE issued by the Clerk of the district court on December 14, 2001 A.D.
Any and all attempts to move the USDC to dismiss the instant case, pursuant to FRCP Rule 12 (or any other such Rule), failed entirely to state any claim upon which relief could be granted by the USDC, because it lacked jurisdiction. Compare 17 U.S.C. 512(h), which does confer a limited SUBPOENA authority on the USDC, however.
Neither the Federal Rules of Civil Procedure, nor the Federal Rules of Evidence, bind the Article III DCUS in any manner whatsoever, if Appellant’s construction of the Rules Enabling Act is correct, and if Appellant’s challenge to the constitutionality of the Abrogation Clause is also correct. See detailed discussion on this point above.
The only matter over which the USDC had any jurisdiction, in the first instance, was enforcement of the civil SUBPOENAS authorized by 17 U.S.C. 512(h): to compel disclosure of the identities of Internet subscribers suspected of infringing Appellant’s exclusive copyrights.
It is also entirely misleading for Latham’s BRIEF to allege that Appellant filed no written opposition to AOL’s Motion to Dismiss. Appellant’s MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS is opposition enough, because it goes to their lack of authority to move any court in the first instance. Addressing their arguments would have been a needless waste of time if they never had any power(s) of attorney to represent any of the named Appellees. See also AUTHOR’S AFFIDAVIT CONTESTING DECLARATION OF WESLEY C.J. EHLERS, for further elaboration of several pertinent ramifications.
Amendment of Appellant’s Initial COMPLAINT would never be futile and would only help further to clarify specific points of fact and law which Appellant simply had no time to perfect, given the immense scope of Internet copyright violations which He was forced to investigate, to police, and to document at His own expense over a period spanning several years. Appellant did endeavor in good faith to keep the Initial COMPLAINT from growing excessively large, using SUPPLEMENTS.
Appellant realizes that analyzing each and every sentence in Latham’s BRIEF would, most likely, lead to excess verbiage here.
It is worthwhile to emphasize that Appellant did, in fact, file a MOTION FOR RECONSIDERATION OF USDC’S ORDER FILED IN ERROR ON JANUARY 25, 2002 A.D. Mr. Shubb then erred by attempting to deny that MOTION.
Appellant also filed three (3) separate and thoroughly detailed pleadings objecting to the so-called ORDER [sic] AND FINDINGS AND RECOMMENDATIONS by Mr. Dale A. Drozd, now shown by verified evidence to have been impersonating a U.S. Magistrate Judge during all proceedings in the instant case. See 18 U.S.C. 912.
For this and many related reasons, the Article III DCUS never did hear any Motion(s) to dismiss, by AOL or any other named Defendants. A gold-fringed flag was flying at the hearing on December 14, 2001.
The DCUS was, and still is, legally vacant and has remained so throughout the instant case. See Appellant’s NOTICE AND DEMAND FOR TEMPORARY ASSIGNMENT OF A JUDGE OF THE COURT OF INTERNATIONAL TRADE TO PRESIDE OVER THIS DISTRICT COURT OF THE UNITED STATES and Appellant’s FIRST SUPPLEMENT TO NOTICE AND DEMAND FOR CERTIFICATE OF NECESSITY.
Clearly, Latham’s BRIEF seriously misleads this Court by parroting patently false statements authored by Mr. Drozd and offered to the world as an exercise of lawful authority, when they were not.
I. Appellant’s Alleged Works and Infringement Allegations
Latham’s BRIEF simply glosses over a very important issue, namely, that Appellant’s SHAREWARE POLICY required payment of twenty-five dollars if the subject book was “useful in any way.”
Obviously, hosting modified derivatives of that book on the Internet was proof positive that the responsible parties did judge the subject book to be useful ‑‑ to themselves, to their target audiences, to the World Wide Web and to its vast community of online users.
Latham’s BRIEF falsely characterizes Appellant’s Bona Fide Offers in Compromise as “demands” [sic].
More to the specific misconduct adequately alleged by Appellant, Latham’s BRIEF openly concedes that Defendant AOL, and its responsible officers and employees, did fail to remove modified derivative copies of component chapters of the subject book during the period between July 1998 and March 17, 1999. Those copies were counterfeits!
A proven delay of nine (9) months is not exactly an expeditious response by AOL, or by its responsible officers and employees!
Latham’s BRIEF again glosses over another crucial point of fact by glibly stating that Appellant “mailed a memorandum outlining his concerns to one of the Individual Defendants; that mailing was returned to Mitchell.”
More accurately, Exhibit D‑32 in the Initial COMPLAINT is further positive proof that Appellant attempted, on August 20, 1999 A.D., to inform AOL’s Designated Agent for Notification of Copyright Infringement Claims of yet another, separate copyright infringement completely unrelated to the proven violation at domain DEOXY.ORG.
What did AOL’s Designated Agent do with that U.S. Mail?
Why, Defendant Bramson refused it, without even opening it!
Similarly, on June 11, 2001 A.D., Defendant AOL Prime Host (an AOL subsidiary) was likewise informed of the same infringement in a file with a hyperlink to domain AOL.COM. See Exhibit K‑63. In response to that NOTICE AND DEMAND FOR AUTHORIZATION, AOL Prime Host also fell silent.
It is quite painfully obvious that Appellant’s Initial COMPLAINT did correctly allege that His copyright works continued to be stored on AOL’s network of computers, and that one or more of the Individual Defendants knowingly decided either to do nothing to enforce Appellant’s exclusive copyrights, or to delay their response for such a long time that millions of additional copyright violations likely resulted from their obvious and culpable negligence. Six million?
How many digital copies of the subject book is the Internet capable of reproducing during 84 consecutive months, anyway? Answer: probably trillions.
The verified fact of Appellant’s Certificate of Copyright Registration has already been covered above.
It is worth noting here that Latham’s BRIEF obviously confuses Appellant’s original Form TX Application for Copyright Registration of all extant editions, executed on June 21, 2001 A.D., with Appellant’s subsequent NOTICE OF COPYRIGHT REGISTRATION, BY AFFIDAVIT, executed and filed in the instant case on September 10, 2001 A.D.
Appellant was extremely busy during the period between June 21 and September 10, 2001 A.D. To support Himself, Appellant found it necessary to render professional services as a Private Attorney General on five (5) unrelated federal and State cases. See Appellant’s FIFTH SUPPLEMENT TO COMPLAINT FOR DAMAGES AND COMPLAINT FOR BREACH OF CONTRACT, executed on November 8, 2001 A.D., for details of further retaliation suffered by Appellant during that month.
It should come as no surprise that every single “i” is not dotted with exquisite precision, and every single “t” is not crossed with horizontal perfection. Such is a world inhabited by petty bureaucrats.
Appellant filed the latter NOTICE with the understanding that no application would ever be complete without the required deposit and fees; such is the meaning of “said application” as that term was used in His NOTICE, and as it was intended to be understood by Appellant.
Appellant’s application, deposit, and fee were delivered to the U.S. Copyright Office on July 23, 2001 A.D., which is also the effective date showing on the Certificate of Copyright Registration later issued by that Office. The USPS Return Receipt (“green card”) also exhibits this very same date. No contest there.
The pertinent laws, and instructions issued by the U.S. Copyright Office, make it very clear that an applicant is required to deposit two (2) complete copies of the best edition, and not two complete copies of all editions or two complete copies of multiple editions. See 17 U.S.C. 408(b)(2), in chief.
Latham’s BRIEF also conveniently overlooks the federal statute which prohibits U.S. Magistrate Judges from hearing and ruling on any motion to dismiss for failing to state a claim upon which relief can be granted. See 28 U.S.C. 636(b)(1)(A).
Moreover, United States Magistrate Judges are not authorized to preside at all on civil cases in the DCUS, unless the DCUS has assigned its duties to a United States Magistrate, pursuant to 28 U.S.C. 3008. But, this authority is limited to particular proceedings under Chapter 176 of that Title (Federal Debt Collection Procedures). Again, compare FRCP Form 34A (ORDER OF REFERENCE).
Lacking the requisite credentials, Mr. Drozd was never lawfully designated to conduct hearings, or to submit to the DCUS proposed findings of fact, or recommendations for its disposition of any motion to dismiss for failing to state a claim upon which relief can be granted. See 28 U.S.C. §§ 636(b)(1)(B), 3008. No lawful ORDER OF REFERENCE is evident in the record now before this Court (compare FRCP Form 34A).
Mr. Drozd attempted to convene the USDC in error, and submitted his proposed findings and recommendations to the USDC in error, because the USDC lacked original jurisdiction in the first instance. Mr. Drozd also erred by attempting ultra vires to issue “orders” directly from the USDC, sometimes in his footnotes. Very bad!!
Appellant submits that there is not a single proven deficiency in the Initial COMPLAINT and 3 SUPPLEMENTS which cannot be easily cured by submission to the DCUS of at least one AMENDED COMPLAINT. Not one!
Proceeding In Propria Persona, Appellant cannot be forced to satisfy the same technical requirements that are imposed upon licensed attorneys who are qualified officers of the court. On this point, this Court is reminded that Appellant has now properly cited the authorities in U.S. v. Hough, 157 F.Supp. 771, 774 (USDC, S.D. Calif. 1957); Traguth v. Zuck, 710 F.2d 90, 95 (2nd Cir. 1983); Hoffman v. U.S., 244 F.2d 378, 379; Mookini v. U.S., 303 U.S. 201, 205 (1938); and Darr v. Burford, 339 U.S. 200 (1950).
Appellant’s Initial COMPLAINT and 3 SUPPLEMENTS have more than adequately alleged violations of at least three of His exclusive rights ‑‑ the rights of reproduction, of distribution, and of preparation of derivative works ‑‑ without necessarily citing any particular subsections of 17 U.S.C. 106. In particular, see 17 U.S.C. §§ 106(1), 106(2), and 106(3). We try not to sweat the small stuff.
A properly AMENDED COMPLAINT can easily cure these specific omissions without too much difficulty.
Substance prevails over form.
Appellant did allege one or more of the required elements of copyright infringement against AOL and the Individual Defendants. Specifically, verified evidence indicates that both AOL and the Individual Defendants failed expeditiously to remove proven copyright infringements of which they had adequate notice and actual knowledge. See Exhibit D‑1‑B: Appellant’s Index of Email during October 1997, and Exhibit K‑63: Appellant’s NOTICE AND DEMAND FOR AUTHORIZATION emailed to Defendant AOL Prime Host (an AOL subsidiary) on June 11, 2001 A.D.
The Initial COMPLAINT is not time-barred by the 3-year statute of limitations. The filing date was chosen specifically to correspond to Appellant’s NOTICE OF DEFAULT AND PASSAGE OF DEADLINE, dated August 2, 1998 A.D., as evidenced by Exhibit D‑13. August 1, 2001 A.D. falls within the 3-year limit. Laws governing accrual also favor Appellant.
Latham’s BRIEF seriously misrepresents Appellant’s Lanham Act claims by asserting that the modified derivatives in question only modified fonts and formatting. In so doing, they are making the very same and quite serious mistake that was also made by Mr. Drozd.
Specifically, Appellant’s SHAREWARE POLICY was entirely removed from almost every single copy that made it onto the Internet. See Exhibit A‑1, in chief. Other serious corruptions were allowed to invade the original text of the subject book, such as the wholesale destruction of tabular information (to name just one such corruption).
Discovery in civil cases can form the basis of establishing probable cause for federal and State grand juries to indict the responsible parties for violations of the pertinent criminal codes. This is the main reason why Miranda Warnings are entirely appropriate, even in civil cases. On this point, see the holdings of the U.S. Supreme Court in Counselman v. Hitchcock, 142 U.S. 547, 563 (1892), McCarthy v. Arndstein, 266 U.S. 34, 40 (1924), George Smith v. U.S., 337 U.S. 137 (DCUS 1949), and Miranda v. Arizona, 384 U.S. 436 (1966).
This Court will please take careful note of the fact that Appellant has timely and properly reserved His fundamental Right to petition the DCUS for leave to institute criminal proceedings, as a qualified Private Attorney General. For this reason alone, the various federal criminal statutes prohibiting violations of Appellant’s fundamental Rights, federal witness tampering, retaliation and conspiracy are quite availing in the context of the instant case. See 18 U.S.C. 3231.
Appellant never once abandoned the substance of the Initial COMPLAINT, not even for a brief moment.
Appellant has now thoroughly overcome the presumption that final judgments entered by district courts are regular and correct.
As to AOL and the Individual Defendants, the evidence before this Court clearly establishes that all are implicated for neglecting to take affirmative steps expeditiously to remove the specific copyright violations in question. This was their obligation under the pertinent federal laws ‑‑ to police their systems ‑‑ and they breached that obligation on more than one occasion, before and after enactment of the DMCA. See Appellant’s Exhibit L‑11: the Napster decision.
It was not Appellant’s obligation to police the Internet.
AOL and the Individual Defendants also falsely represented those specific violations as having been stopped, when those violations were not stopped for another 9 full months at least, and most probably for a total of 14 months. A lot can happen on the Internet in 14 months!
The INFORMAL BRIEF option offered by this Court authorized Appellant to utilize its standard outline which encourages the incorporation by reference of briefs submitted to the district court, and to refer this Court to such briefs for arguments on the merits of this appeal:
The informal brief may make it easier for you to make your arguments to the Court without worrying about the rules on what a brief is supposed to look like and what it must contain. The Court will give the same consideration to an informal brief as it will give to a standard brief that satisfies all the rules. You should submit whatever brief is easier for you to prepare.
[INFORMATION FOR PRO SE APPELLANTS/PETITIONERS]
[Option of Proceeding on an Informal Brief]
[bold emphasis added]
APPELLANT’S INFORMAL OPENING BRIEF, and all incorporated briefs, do more than adequately demonstrate why the district court’s decisions were erroneous, and why a dismissal with prejudice and without leave to amend should not be affirmed by this honorable Court.
A. Written Opposition to AOL’s Motion to Dismiss
To repeat, Appellant did not fail to file written opposition to AOL’s Motion to Dismiss; this point is covered above.
APPELLANT’S INFORMAL OPENING BRIEF, all incorporated pleadings, and all Excerpts of the Record (“ER”) contain extensive substantive opposition, e.g. in re copyright registration.
B. Alleged Criminal Claims
The federal criminal statute at 18 U.S.C. 4 required Appellant to report felony criminal conduct to a judge of the United States. COUNTS ONE, THREE, and FOUR do satisfy Appellant’s legal obligations under that statute. See 17 U.S.C. 506(a)(2); 18 U.S.C. §§ 241, 1512, 1513, and 2319(c)(1); also Pages 32 and 34 in the Initial COMPLAINT.
Also discussed above is Appellant’s timely and proper reservation of His fundamental Right to petition the DCUS for leave to institute criminal proceedings, based upon sworn testimony obtained, and verified evidence discovered, during the civil phase of this case. See Petition Clause; Counselman, McCarthy, and George Smith supra.
The constitutionality of the Rules Enabling Act has now been properly challenged, and the United States retains a statutory right to intervene ex rel. Paul Andrew Mitchell, to institute criminal proceedings in the DCUS. See Appellant’s MOTION FOR INTERLOCUTORY JUDGMENT AND CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS; Appellant’s FIRST SUPPLEMENT TO MOTION FOR INTERLOCUTORY JUDGMENT AND CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS; 28 U.S.C. 2403; 18 U.S.C. 3231; and Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143, 151 (1987) (re: private attorneys general).
A private Citizen may move a federal court on behalf of the United States ex relatione. United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) (enumerating specific Article III guarantees).
None of the individuals named in Appellant’s VERIFIED CRIMINAL COMPLAINTS has denied any of the charges made in those COMPLAINTS. California State is extraterritorial to federal municipal jurisdiction. See specifically 18 U.S.C. §§ 1512(g), 1513(d).
C. Copyright Infringement Claims
1. Certificate of Copyright Registration
Satisfied Subject Matter Jurisdiction
It was in the year 1992 A.D. when Appellant first decided against registering His exclusive copyright with the U.S. Copyright Office.
Appellant’s Initial COMPLAINT was drafted during years of preparation that preceded the filing date of August 1, 2001 A.D.
Immediately before filing the Initial COMPLAINT, Appellant reviewed the pertinent case law, and He acted timely and appropriately upon learning that federal copyright litigation could not commence without first applying for a certificate of registration.
As thoroughly discussed above, Appellant then applied for formal registration of all editions of the subject book (not just one).
The effective date of the Certificate of Copyright Registration later issued by the U.S. Copyright Office was July 23, 2001 A.D. ‑‑ eight days before the instant case was filed in the DCUS Sacramento.
The U.S. Copyright Office has, to date, not refused Appellant’s subsequent applications for formal registration of the electronic third and fourth editions of the subject book. Those subsequent applications were made necessary by a misconstruction of 17 U.S.C. 408(b)(2) by the staff of the U.S. Copyright Office, by Mr. Drozd, and by Mr. William B. Shubb. Also, Mr. Shubb’s credentials are nowhere in evidence either, despite Appellant’s proper FOIA request for same.
To date, the U.S. Copyright Office has never refused any of Appellant’s applications for copyright registration.
Therefore, Appellant has satisfied the pertinent federal law making registration a prerequisite to a suit based upon a copyright.
2. Appellant Did Allege Elements of Direct,
Vicarious and Contributory Infringement
This point is quite thoroughly covered in Appellant’s MOTION TO STRIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE ‑‑ PART I. See the heading entitled PLAINTIFF’S FIRST CAUSE OF ACTION DOES STATE CLAIMS FOR DIRECT, VICARIOUS AND CONTRIBUTORY INFRINGEMENT, and subsequent discussion under that heading.
Appellant argues that deliberately refusing to open and examine U.S. Mail adequately describing a discrete copyright infringement is tantamount to direct infringement, particularly when the recipient of said mail had already been designated AOL’s official Agent for Notification of Copyright Infringement Claims, under the DMCA.
There is no question but that AOL and the Individual Defendants had the right and ability to control and/or supervise the party(s) responsible for the infringing material and activity.
In fact, Exhibit D‑12 is a written communication from one of the Individual Defendants which expressly identifies the subject matter as the “Copyright Infringement” [sic] and which then falsely reports the removal of the subject book from two Internet websites which AOL had the right and ability to control. This was fraud!
When Appellant confirmed 7 weeks later that the violations were not removed, in fact, Appellant then refused Exhibit D‑12 and returned same to the sender (Defendant Adit Seth). In other words, AOL was thereby provided with actual notice that Exhibit D‑12 contained false and misleading statements, and equally incriminating admissions.
At that specific juncture ‑‑ upon receipt of the returned mail ‑‑ Appellant argues that AOL and the Individual Defendants had no other viable option, and no available excuses, except to delete the counterfeits in question without any further delays. Why not?
What did they do instead? Answer: they neglected to do anything at all, until some unidentified individual(s) finally removed those counterfeits some 7 months later (i.e. 9 months minus 7 weeks), most probably by moving those same counterfeits to Internet domain CYBORGANIC.COM, operated by Defendant Jonathan Steuer.
Again, on June 11, 2001 A.D., Defendant AOL Prime Host was likewise informed of a separate and discrete violation in a file with a hyperlink to domain AOL.COM. See Exhibit K‑63. In response to that NOTICE AND DEMAND FOR AUTHORIZATION, AOL Prime Host also fell silent.
Furthermore, there was the high probability of personal financial benefit. They obtained unjust enrichment by procuring free copies of a popular book which some readers have described as a modern “classic.” Many readers have referred to the knowledge they gained from the book as being “invaluable,” e.g. see IRC 3402(n).
AOL the company also obtained unjust enrichment by offering an intellectual resource which created “draw” for AOL’s web servers, enhancing the probability of increased advertising revenues due to higher market visibility, and diluting prospects for Appellant to benefit from advertising revenues scaled to the activity rates at His own website ‑‑ the Supreme Law Library at http://www.supremelaw.org.
Thus, the participation by AOL and the Individual Defendants was substantial. With proven knowledge of the infringing material and activity, both AOL and the Individual Defendants induced, caused, and/or materially contributed to the infringing conduct of numerous other Internet users on a worldwide basis. What an example they set!
Just how many copies of the subject book were actually reproduced and distributed by AOL’s network of Internet file servers during the 9 months between July 1998 and March 17, 1999, and during the 14 months between July 1998 and August 20, 1999?
How many other Internet users there were, and what their true identities may be, are questions that must await careful judicial enforcement of each SUBPOENA IN A CIVIL CASE that was lawfully issued and properly served upon AOL’s attorneys and other named Defendants. See Appellant’s Exhibit “J” in toto.
To date, AOL has failed to produce any of the information required by that SUBPOENA, justifying court-ordered sanctions for obstructing discovery that is absolutely essential to assessing accurately Appellant’s actual damages from copyright infringements.
Appellant’s delay until August 1, 2001 A.D. to file this action is not lacking logical explanations. Without a doubt, the widespread infringement of Appellant’s exclusive copyrights, by means of a vast and powerful Internet, was the main reason for the large number of named Defendants, and the concomitant huge workload for Appellant.
The sheer scope of these violations necessitated a great deal of data and document management, both hard-copy and electronic. It also necessitated a managed series of first class letters as the only practical way of keeping track of the infringers’ actual whereabouts, for eventual service of SUMMONSES and SUBPOENAS. Appellant opted in favor of email and against contacting any violators by phone or facsimile. Several named Defendants completely disappeared after receiving NOTICES OF INTENT TO SUE. See Appellant’s Exhibit “G”.
Nobody paid Appellant to do all this work, making it necessary that he postpone or preempt ongoing copyright enforcement, in order to make a living. Simply put, the task of enforcing His exclusive copyrights quickly grew to become a massive consequential burden, particularly since none of the proven violations resulted in any sales of the subject book ‑‑ by definition! Quod erat demonstrandum.
3. AOL is Not Protected by the DMCA’s
Limitations on ISP Liability
Once again, it is simply not true to state that all of Appellant’s works were removed from AOL’s computers by March 1999. Appellant’s notice to Defendant James R. Bramson was dated August 20, 1999 A.D. See Exhibit D‑32. Appellant’s notice to Defendant AOL Prime Host (an AOL subsidiary) was dated June 11, 2001 A.D. See Exhibit K‑63. These Exhibits accurately date an infringement that was completely discrete and separate from the counterfeit violations now proven to exist at domain DEOXY.ORG.
AOL and the Individual Defendants did have actual or constructive knowledge that the material, and activities using the material, on its network of computers were infringing Appellant’s copyrights.
AOL and the Individual Defendants had the right and the ability to control such infringing material and activities.
AOL and the Individual Defendants did receive financial benefit directly attributable to such infringing material and activities.
After receiving written notification from the copyright owner, AOL failed to respond expeditiously to remove or to disable access to the claimed infringing material and activities.
Appellant did allege with great specificity that modified derivatives of the subject book were stored on AOL’s network of Internet file servers, not only at the discretion of someone other than AOL, but also by Individual Defendants who knew or should have known about the infringing digital files, who admitted in writing the files were copyright infringements, who stated falsely the files had been removed, and who then did nothing for at least 7 whole months after being informed that Exhibit D‑12 contained false and misleading statements ‑‑ on AOL’s company letterhead, no less!
Respondeat superior. See 18 U.S.C. 1964(a) (COUNT SIX perhaps?)
Thus, it is misleading at best for Latham’s BRIEF to claim, “After July 30, 1998, Mitchell did not allege that he provided any further notices to AOL of alleged copyright infringements during the time period at issue in his first claim.” The evidence in Exhibit D‑32, dated August 20, 1999 A.D., clearly refutes this claim. Exhibit K‑63, dated June 11, 2001 A.D., also refutes this claim. Appellant also returned Exhibit D‑12 to its sender some 7 weeks after July 30, 1998 A.D.
Latham’s BRIEF is provably incorrect for these reasons. Let’s call them honest mistakes, and move on, please.
D. Appellant Has Stated a Valid Lanham Act Claim
This point is quite thoroughly covered in Appellant’s MOTION TO STRIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE ‑‑ PART I. See the heading entitled PLAINTIFF’S COUNT TWO STATES A VALID CAUSE OF ACTION FOR SUBSTANTIAL ALTERATIONS, and subsequent discussion under that heading. The alterations were substantial. Exhibit A‑1!
All by itself, removing Appellant’s SHAREWARE POLICY from most of the counterfeits that made it onto the Internet should qualify this claim for relief under the Lanham Act, and treble (triple) damages.
To reiterate, given the facts as alleged in Appellant’s Initial COMPLAINT, in 3 SUPPLEMENT’s, and in all incorporated Exhibits, there was a very strong likelihood of widespread public deception and deliberate confusion, both of which were sufficient to support a Section 43(a) Lanham Act lawsuit, and to warrant granting all relief requested under COUNT TWO in that Initial COMPLAINT.
Appellant’s allegations ‑‑ that Appellees presented to the public, and to the world, a multitude of distorted, truncated and corrupted versions that impaired the integrity of Appellant’s book ‑‑ seek to redress the very rights sought to be protected by the Lanham Act, and should be recognized as stating a valid cause of action under that federal statute (uncodified at 15 U.S.C. 1125(a)).
Appellant’s COUNT TWO does state a valid claim upon which relief can and should be granted by the DCUS. See 60 Stat. 440, admitted by Mr. Drozd to be the correct citation during the preliminary hearing on December 14, 2001 A.D. Appellant and Mr. Drozd did agree on this!
E. Appellant Has Stated a Valid Claim for
Unfair Competition under California State Laws
This point is also quite thoroughly covered in Appellant’s MOTION TO STRIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE ‑‑ PART II. See the heading entitled UNFAIR COMPETITION CAN BE REDRESSED BY CALIFORNIA STATE LAW(S) AND COMMON LAW, and subsequent discussion under that heading; also California Civil Code section 22.2 (the common law is the rule of decision in California courts).
Appellant’s COUNT FIVE is proper, cumulative in the context of COUNTS ONE thru FOUR, and does state a valid claim upon which relief can and should be granted by the DCUS, with or without amendments to the Initial COMPLAINT.
III. Dismissal without Leave to Amend
It is in this closing section that Latham’s BRIEF makes its most obvious and its most serious errors, because it exhibits demonstrable bias, a selective reading of the facts, and a preconceived conclusion.
First of all, Appellant did not persistently disregard any Court rules or procedures. On the contrary, in a timely procedural move, Appellant moved the DCUS for an interlocutory judgment on the exact scope of the Rules Enabling Act, and on the constitutionality of the Abrogation Clause in that Act. Then, Appellant supplemented that motion with further evidence concerning the USDC’s Local Rules. Pursuant to the principle established by the Ninth Amendment, the Law is clear on this point: statutes granting original jurisdiction to the federal courts must be strictly construed.
Ladies and gentlemen, one does not apply chess rules to a bridge game. Specifically, Mr. Drozd committed a plain error by attempting to use the limited authority of the Article IV USDC to usurp the judicial Power of the United States conferred by Article III. Desperately trying to avoid the matter at hand, Mr. Drozd even violated standard federal practice by attempting to issue “orders” in his footnotes. Then, wonder of wonders, Mr. Dale A. Drozd actually agreed with Appellant, during a preliminary hearing on 12/14/2001, that 60 Stat. 440 was a correct citation in the Initial COMPLAINT.
Second, it is entirely clear that any deficiencies found to exist in the Initial COMPLAINT can be easily amended. The matter of copyright registration is an obvious issue in this context. Any fair reading of the BACKGROUND FACTS in the Initial COMPLAINT will reveal that Appellant arranged those facts in chronological order, as much as possible. Appellant’s decision not to register His exclusive copyright was made in 1992 A.D., when the first edition was published and long before He even knew about the Internet, the World Wide Web, or Hyper-Text Markup Language (“HTML”).
Upon discovering that copyright registration was a prerequisite to filing a copyright lawsuit, Appellant timely and correctly applied to the U.S. Copyright Office for a certificate of registration of all editions. In July 2001 A.D., Appellant completed Form TX, paid the fees, and deposited two (2) copies of the best edition, as required by 17 U.S.C. 408(b)(2). His application, deposit and fees were received by the Copyright Office on July 23, 2001 A.D.
Although there were unexplained delays in receiving confirmation, the U.S. Copyright Office did eventually issue a certificate of registration, and it never refused to register Appellant’s exclusive copyright. The events of September 11, 2001 A.D. did intervene. Appellant surmises that the real reason why that Office issued a certificate when it did was Appellant’s MOTION FOR ORDER ENJOINING FURTHER INACTION BY THE REGISTER OF COPYRIGHTS, which MOTION was later denied by this Court of Appeals. See FRAP Rule 8.
This Court will please note well that the chronology found in the BACKGROUND FACTS does end prior to June 21, 2001 A.D., the date showing on Appellant’s first Application for Copyright Registration.
Thus, the Initial COMPLAINT can be easily amended by updating the BACKGROUND FACTS to include relevant events that occurred immediately before the Initial COMPLAINT was filed on August 1, 2001 A.D.
This simple fact was overlooked entirely by Latham. Thus, there is at least one credible factual allegation that does give the DCUS original jurisdiction of the subject matter in Appellant’s COUNT ONE.
Third, Appellant did not waive His right to argue on appeal that the lower court erred by attempting to deny leave to amend. Due process of law is one of Appellant’s fundamental Rights. Competent waivers of fundamental Rights must be knowingly intelligent acts, done with sufficient awareness of the relevant circumstances and likely consequences. Brady v. U.S., 397 U.S. 742 at 748 (1970). This Court cannot presume acquiescence in the loss of any fundamental Rights. Ohio Bell v. Public Utilities Commission, 301 U.S. 292 (1937).
In this context, the Court will please take careful note of AUTHOR’S FOURTH SUPPLEMENT TO COMPLAINT AGAINST DEFENDANT CARNEGIE MELLON UNIVERSITY, and Appellant’s FIFTH SUPPLEMENT TO COMPLAINT FOR DAMAGES AND COMPLAINT FOR BREACH OF CONTRACT. In typical fashion, Mr. Drozd erred twice again by attempting to strike these two SUPPLEMENTS, with “orders” issued from the USDC (again, without jurisdiction).
Normally, leave to amend must be requested after the first answer is filed. However, in this case, Appellant had good cause to challenge the right of each retained attorney to file anything at all, in the first place. See Appellant’s MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS and AUTHOR’S AFFIDAVIT CONTESTING DECLARATION OF WESLEY C.J. EHLERS, both of which are extremely relevant in the present context, particularly the latter AFFIDAVIT.
Appellant later bolstered that challenge with SUBPOENAS for their requisite credentials. Their failure to produce any licenses to practice law, and any certificates of oath endorsed on those licenses, proves that their clients never answered. In particular, see U.S. v. High Country Broadcasting Co., 3 F.3d 1244 (9th Cir. 1993) (entry of default judgment was appropriate when unlicensed corporate president attempted to represent his corporation in court). This Ninth Circuit authority is obviously right on point here, and Appellant argues that it is also dispositive.
A motion for summary judgment is now proper.
Accordingly, Appellant was and still is entirely justified, particularly by subsequent events, in filing additional supplements to the Initial COMPLAINT without needing first to request leave of the DCUS to do so. None of the named Defendants has really answered.
Fourth, it is rather gratuitous for Latham to accuse Appellant of manipulating this action “as a soapbox for His legal and political philosophies and as a mechanism for personally harassing the Individual Defendants” [sic]. Appellant never did harass any of the Individual Defendants. Appellant’s various written communications to them were polite, required, legally correct, and protected by the First Amendment. Not one Individual Defendant has ever complained of harassment by Appellant. So, Latham is pushing a “straw man” here.
Appellant believes that all the attorneys who attempted to appear in this case have acted like spoiled brats. They have made careers out of enforcing the law against others; but, when someone succeeds in enforcing the law against them, they whine and moan about how they have been harassed! They did not raise our flag on Iwo Jima.
The matters of Appellant’s criminal complaints and Miranda Warnings have been covered already above. The Partial Invoice to Lonnie G. Schmidt was filed in part to document the continuing economic retaliation Appellant has suffered from criminals posing as clients needing to pick His brains, only to stiff Appellant later for thousands of dollars worth of His professional services.
In this context, see 18 U.S.C. §§ 1512, 1513, and 2319, as correctly cited in Appellant’s COUNTS ONE, THREE, FOUR, & Exhibit L‑6: Legislative History of the Anticounterfeiting Consumer Protection Act of 1996 (“ACPA”); also the predicate acts itemized at 18 U.S.C. 1961.
Modified derivative chapters are counterfeits! See the ACPA.
But, before that happens, Appellant wants to be absolutely sure that a qualified federal judge has been seated on a court of competent jurisdiction known as the District Court of the United States (“DCUS”) ‑‑ a judge who is learned in law, independent, unbiased, and not subject to the obvious undue influence wielded by the Executive Branch, or by extortion rackets hiding in Puerto RICO under color of the Federal Alcohol Administration aka Trust #62. See IRC 3402(n).
Civil RICO actions can proceed in the Superior Court of California. Find Me a federal judge with the requisite qualifications and relevant experience, and I will bring COUNT SIX to the federal judiciary. This Court is reminded that a motion is presently pending before it for a Certificate of Necessity that the present vacancy on the DCUS be filled with a judge from the Court of International Trade.
If the DCUS must remain vacant when Appellant needs it most, then this honorable Court has no alternative but to ORDER this case transferred to the Superior Court of California, under the authority conferred upon the latter by the International Covenant on Civil and Political Rights, enacted with Specific Reservations by the Congress of the United States. See Supremacy Clause, in chief: United States Treaties are the supreme Law of the Land throughout America.
Also, in light of all that has happened so far to Appellant, particularly the ongoing wrongs that resulted from protracted economic retaliation that He has endured, Appellant respectfully recommends that this honorable Court exercise its power, under Rule 8 of the Federal Rules of Appellate Procedure (“FRAP”), to grant without any further delays all preliminary injunctive relief heretofore itemized in the RELIEF REQUESTED by Appellant’s Initial COMPLAINT.
Lastly, Appellant has appended briefs submitted to the district court, and filed each of them here in the Excerpts of the Record. Hence, Appellant respectfully requests relief from strict conformity to C.R. 28-1(b). See discussion on this point at Pages 14‑15 supra; and at Howe, Traguth, Hoffman and Darr at Page 12 supra. In chief, Appellant’s MOTION FOR RECONSIDERATION OF USDC’S ORDER FILED IN ERROR ON JANUARY 25, 2002 A.D. and His MOTION TO STRIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE ‑‑ PARTS I, II and III should be considered in full by this Court. It created much more work to reiterate the entire contents of these essential pleadings within the Outline provided for Informal Briefs. Appellant does wish to refer this Court to those briefs for arguments on the merits of this appeal.
Thank you all for your most professional consideration.
I, Paul Andrew Mitchell, Sui Juris, Appellant in the above entitled action, hereby verify under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge, and belief, so help me God, pursuant to 28 U.S.C. 1746(1).
Dated: July 4, 2002 A.D.
Signed: /s/ Paul Andrew Mitchell
Printed: Paul Andrew Mitchell, B.A., M.S., Sui Juris
Appellant In Propria Persona (not “Pro Se” [sic])
I, Paul Andrew Mitchell, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of America, and that I personally served the following document(s):
FRAP Rule 8; C.R. 28-1(b), (c)
by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following:
Judge Alex Kozinski Clerk of Court (16x)
Ninth Circuit Court of Appeals Attention: Cathy Catterson
P.O. Box 91510 Ninth Circuit Court of Appeals
Pasadena 91109-1510 P.O. Box 193939
CALIFORNIA, USA San Francisco 94119-3939
Latham & Watkins
633 West Fifth Street
Los Angeles 90071-2007
[Please see USPS Publication #221 for “addressing” instructions.]
Dated: July 5, 2002 A.D.
Signed: /s/ Paul Andrew Mitchell
Printed: Paul Andrew Mitchell, Appellant In Propria Persona