Paul Andrew Mitchell, Sui Juris
c/o Forwarding Agent at:
11230 Gold Express Dr., #310-188
Gold River 95670-4484
CALIFORNIA, USA
In Propria Persona
All Rights Reserved
without Prejudice
District Court of the United States
Eastern Judicial District of California
Paul Andrew Mitchell, ) #CIV. S-01-1480 WBS DAD PS
)
Plaintiff, )
) VERIFIED COMPLAINT FOR
v. ) DAMAGES AND INJUNCTION
) FOR COPYRIGHT INFRINGEMENT
AOL Time Warner, Inc., ) AND RELATED CLAIMS:
Steve Case, )
Lennert Leader, ) JURY DEMANDED
Randall J. Boe, )
Adit Seth, ) [authorities listed infra]
George R. Boyce, )
James R. Bramson, )
California Institute of Technology, )
Embry-Riddle Aeronautical University, )
Florida Institute of Technology, )
Miami University of Ohio, )
Northeastern University, )
Pennsylvania State University, )
Princeton University, )
Stanford University, )
Stetson University, )
Swiss Federal Institute of Technology,)
University of Arkansas, )
University of Georgia, ) [continue next page:]
University of Kansas, )
University of Oregon, )
University of Texas, and )
)
Defendants. )
______________________________________)
Page
VENUE 4
PARTIES 4
SUMMARY 25
COUNT ONE 27
COUNT TWO 29
COUNT THREE 31
COUNT FOUR 33
COUNT FIVE 35
RELIEF REQUESTED: 36
ON COUNT ONE 36
ON COUNT TWO 39
ON COUNTS THREE, FOUR, AND FIVE 41
JURY DEMAND 43
VERIFICATION 43
This is an action for copyright infringement and related claims arising: under the Constitution for the United States of America, as lawfully amended (“U.S. Constitution”), specifically Article I, Section 8, Clause 8 (hereinafter "1:8:8"); under the laws of the United States, specifically the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.; the federal criminal Code at 18 U.S.C. §§ 241, 242, 371, 1512, 1513, and 2319; the Lanham Act, 15 U.S.C. §§ 1051 et seq. (uncodified); and under the treaties of the United States, specifically the Universal Declaration of Human Rights (“Declaration”) and the International Covenant on Civil and Political Rights (“Covenant”), the latter enacted with explicit reservations (both here as "Human Rights Treaties").
This Court has original jurisdiction over this action under 28 U.S.C. §§ 1331 (i.e. federal question), 1338(a) (i.e. copyrights), and 1338(b) (i.e. unfair competition); 15 U.S.C. 1121 (i.e. Lanham Act, uncodified); 18 U.S.C. 3231 (i.e. DCUS criminal jurisdiction); and 18 U.S.C. §§ 1512(g), and 1513(d) (i.e. extraterritorial Federal jurisdiction, crimes against Federal Witnesses).
See also 28 U.S.C. 1331 supra, in pari materia with the Arising Under Clause at Article III, Section 2, Clause 1 ("3:2:1") and with the Supremacy Clause ("6:2"), i.e. Constitution, Laws and Treaties. The latter two clauses mirror each other in respect to these matters.
Venue is proper in this judicial district under 28 U.S.C. sections 1391(b)(2) and 1400(a) and (b).
Plaintiff Paul Andrew Mitchell (hereinafter "Plaintiff") is a Citizen of California State presently inhabiting Sacramento county in California State. Plaintiff is the sole Author of the subject book, all editions, without exception.
Plaintiff is informed and believes, and on that basis alleges that:
Defendant AOL Time Warner, Inc. ("AOL") is a corporation domiciled in the State of Delaware, with its principal place of business at 22000 AOL Way, Dulles, Virginia.
AOL is duly registered with the California Secretary of State to do business as a foreign corporation in California State.
Defendants Steve Case (Chairman & Chief Executive Officer), Lennert Leader (Treasurer & Chief Financial Officer), Randall J. Boe (Associate General Counsel), Adit Seth (Legal Intern), George R. Boyce (Internet Contact) and James R. Bramson (Designated Agent) are now, and were at all times relevant to matters alleged herein, citizens of the United States [sic] working in various positions on the payroll of Defendant AOL.
Defendant Daniel Levy is a citizen of the United States doing business as Levity in New York City.
Defendant Jonathan Steuer is a citizen of the United States doing business as Cyborganic Media in San Francisco, California.
Defendant Brian Oblivion (believed to be an alias) is a citizen of the United States doing business as L0PHT Heavy Industries (spelled “el ‑ zero ‑ P ‑ H ‑ T”) in Boston, Massachusetts.
Professor Donald D. Hoffman is a citizen of the United States and faculty member employed by the Department of Cognitive Sciences at the University of California, Irvine.
Karl Kleinpaste is a Citizen of Pennsylvania State employed by the Justsystem Pittsburgh Research Center in Pittsburgh, Pennsylvania.
The twenty (20) named colleges and universities are well known public and private educational institutions.
Defendants Does 1 thru 2,500 are presently unnamed Party(s) whose identity(s) are yet to be formally discovered.
In March of 1992, Plaintiff conceived, wrote, and caused to be published an original book entitled "The Federal Zone: Cracking the Code of Internal Revenue" under the pen name of "Mitch Modeleski", abbreviated "The Federal Zone" (hereinafter "the subject book").
Also in March of 1992, Plaintiff transmitted two (2) bound copies of the subject book to the Acquisitions Librarian at the Library of Congress in Washington, D.C.
Plaintiff decided against registering His exclusive copyright with the U.S. Copyright Office, because of unresolved questions as to any tax liability(s) that might result therefrom.
The first edition was printed and bound in a quantity of five hundred (500) books.
The second edition was printed and perfect bound in a quantity of two thousand (2,000) books.
In December of 1992, Plaintiff entered a printed second edition of the subject book into evidence in the case of People v. Boxer, California Supreme Court docket number #S‑030016. Plaintiff subsequently published the pleadings in that case at Internet URL:
http://www.supremelaw.com/cc/boxer/index.htm
In the summer of 1993 A.D., the trust account that Plaintiff managed -- to deposit funds for all prepaid orders -- was levied without any notice to Plaintiff, without any hearing(s), and without the warrant of distraint (court order) required by the holding in U.S. v. O'Dell, 160 F.2d 304 (6th Cir., 1947), reducing the balance on deposit to zero dollars ($0.00).
Subsequently, Plaintiff was reduced to selling the electronic third (3rd) and fourth (4th) editions as “shareware” [sic] on standard 1.44‑megabyte (million character) 3.5‑inch “floppy” computer disks.
Each Chapter and each Appendix in these editions was stored in a separate computer file, with a separate README file, Preface, Introduction, thirteen (13) Chapters numbered 1 thru 13, Conclusions, and twenty‑six (26) Appendices lettered A thru Z, for a total of forty‑three (43) separate and discrete computer files.
All README files contained the following SHAREWARE POLICY:
“The
electronic third edition of The Federal Zone is being distributed as computer
‘shareware’. The purpose of shareware
is to combine personal honor with the phenomenon of spontaneous digital reproduction. If the information
contained in the electronic third edition is useful in any way,
we ask that its recipients send $25 in cash, check or money order to [trust account supra].”
[bold
emphasis added]
The Preface in
the electronic third and fourth editions contained an explicit
requirement, under a "Disclaimer" heading, that users not modify the content of the character stream in
any way, to wit:
"The purpose of this requirement is faithfully to preserve all punctuation, Capitalization [sic], bold [sic], italics [sic], and underlines [sic] exactly as found in the original text. Permission is hereby given to translate the electronic fourth edition into formats compatible with different word processors, resulting at most in cosmetic changes like different margins which may cause changes in pagination."
This requirement is here termed the "fidelity requirement." Identical language was also placed in all README files (Exhibit A‑1).
The Preface in the electronic third and fourth editions also contained an explicit requirement, under a "Special Notice" heading, about payment of the single copy cost, to wit:
"This book is protected by a Common Law Copyright under the name of the author. … If you make unauthorized copies of this book without paying the Author for those copies, you are obtaining unjust enrichment by doing so, and therefore you are no different from the government officials who are stealing from you."
This requirement is here termed the "payment requirement."
A printed hard copy of the electronic fourth edition is attached as Exhibits A‑1 thru A‑43 and incorporated by reference, as if set forth fully herein (one Exhibit per computer file).
In 1995, in his concurring opinion in the case of U.S. v. Lopez, 115 S.Ct. 1624 (1995), U.S. Supreme Court Justice Anthony Kennedy used the term “federal zone” as a household word, giving it a permanent place in the history of American constitutional jurisprudence.
In December of 1995, Plaintiff first became aware of the Internet World Wide Web ("Web"), and of the Navigator software originally developed and marketed by the Netscape Corporation, which corporation was later acquired by Defendant AOL.
Also in December of 1995, Plaintiff discovered a modified, derivative copy of the electronic fourth edition of the subject book at the Internet address http://www.deoxy.org (hereinafter "Domain DEOXY.ORG"), with all component chapters and appendices (except the README file) in as many separate and discrete computer files.
A more commonly used term for an "Internet address" is the Uniform Resource Locator (hereinafter "URL").
Hard copies of the modified, derivative files at DEOXY.ORG, as printed by the Microsoft Internet Explorer software, are attached as Exhibits B‑1 thru B‑42 and incorporated by reference, as if set forth fully herein (42 exhibits, not 43).
The corresponding raw text files are attached as Exhibits C‑1 thru C‑42, respectively, and also incorporated by reference, as if set forth fully herein (42 exhibits, not 43).
The README files, describing the SHAREWARE POLICY, were never copied onto the Internet at Domain DEOXY.ORG.
At that point in time (December 1995), Plaintiff did not have the time, nor the requisite expertise, to determine exactly what Internet user(s), company(s) and computer(s) were hosting said URL and the related computer files at said URL.
In September of 1996, Plaintiff's schedule and available financial resources permitted Plaintiff to hire an experienced Internet consultant, to assist in designing and developing Plaintiff's own Internet Web site.
That Internet consultant provided Plaintiff with technical instructions which enabled Plaintiff to determine that Domain DEOXY.ORG was most probably being hosted by Defendant AOL.
During the summer of 1997 A.D., Plaintiff’s client in U.S.A. v. Gilbertson introduced a printed seventh edition of the subject book as an Exhibit attached to that client’s OPENING BRIEF to the Eighth Circuit Court of Appeals in St. Louis, Missouri.
Plaintiff later published the pleadings in that case at URL:
http://www.supremelaw.com/cc/gilberts/index.htm
Over a period of several months, time permitting, Plaintiff surveyed the entire Internet, using the Alta Vista search engine developed by Digital Equipment Corp. (now owned by Compaq Corp.)
During October of 1997, Plaintiff produced a summary of initial survey findings in a private Internet file named TFZLINKS at Domain SUPREMELAW.COM, also known as the Supreme Law Library.
A true and correct hard‑copy of the TFZLINKS file is attached as Exhibit D‑1‑A and incorporated by reference, as if set forth fully herein.
At entry number three (3) in TFZLINKS, the original file at Internet URL http://www.deoxy.org/fz/fedzone.htm was reported to have a creation date of May 13, 1997, and "AOL" [sic] was listed as the "Name Server" [sic] for said URL.
Also during October of 1997, Plaintiff commenced to transmit a consistent series of electronic and printed ("hard‑copy") messages directed to Defendant AOL, to other violators at Internet domains known to Plaintiff, and to Internet email lists of which Plaintiff was an active member during various periods of time (e.g. SNETNEWS and LIBERTY‑AND‑JUSTICE [sic]). See Exhibit D‑1‑B.
Said series of messages informed their many recipients of the ongoing copyright violations at Domain DEOXY.ORG and elsewhere on the Internet, and demanded compliance with the fidelity requirement and with the payment requirement supra.
Later on, said series of messages also demanded immediate removal of all unauthorized copies and all modified derivatives of the subject book from the Internet and from all computers to which suspected violators had any write access whatsoever.
In some cases, specifically during the month of October 1997, said messages tendered bona fide offers in compromise to several individuals suspected of direct copyright infringement, and bona fide offers to hold them harmless. See Exhibit D‑1‑B.
Not one such offer was ever accepted.
Specifically, on October 17, 1997, Plaintiff mailed to Defendants Case and Leader a BONA FIDE OFFER IN COMPROMISE AND BONA FIDE OFFER TO HOLD HARMLESS, on the subject of Defendant AOL’s unauthorized electronic copy of “The Federal Zone: Cracking the Code of Internal Revenue,” fourth edition.
A true and correct copy of said OFFER is attached as Exhibit D‑2 and incorporated by reference, as if set forth fully herein.
Defendant AOL and several of its
anonymous agents either ignored, or failed to comply with, said OFFER and the many written requests
that were made in Plaintiff's several messages sent during October 1997 and afterwards.
Also on October 17, 1997, Plaintiff mailed a written letter to the Internet Network Information Center ("InterNIC"), requesting written confirmation that Domain DEOXY.ORG was, in fact, being hosted by Defendant AOL.
A true and correct copy of said letter is attached as Exhibit D‑3 and incorporated by reference, as if set forth fully herein.
InterNIC professional staff later replied with a written letter confirming that Domain DEOXY.ORG was, in fact, hosted by computers owned and operated by Defendant AOL.
On November 3, 1997, Plaintiff mailed a VERIFIED CRIMINAL COMPLAINT to the Postmaster of the United States Postal Inspection Service at Dulles 20166‑9323, COMMONWEALTH OF VIRGINIA, citing copyright violations, and the transmission of false and misleading information through the United States Mail.
Said COMPLAINT also cited the criminal statute at 18 U.S.C. 2.
A true and correct copy of said COMPLAINT is attached as Exhibit D‑4 and incorporated by reference, as if set forth fully herein.
On December 17, 1997, Plaintiff utilized the Internet to query the InterNIC WHOIS database for the names of all Contacts responsible for Domain DEOXY.ORG.
The results of said query are attached as Exhibit D‑5 and incorporated by reference, as if set forth fully herein. Domain name servers (“DNS”) were listed in the following order:
DNS01.WEB.AOL.COM [emphasis added]
DNS02.WEB.AOL.COM [emphasis added]
152.163.212.26
152.163.212.27
As of that date (12/17/1997), the above data were last updated on "05‑Jun‑97"; and, the database record containing these data for Domain DEOXY.ORG was first created on "30‑May‑96".
Prior
to residing at Domain DEOXY.ORG,
the copyright violations
in question had resided at Internet Domains EXECNET.COM,
INTAC.COM and LEVITY.COM
infra.
On June 8, 1998, Plaintiff transmitted electronic and hard copies of Plaintiff's FINAL BONA FIDE OFFER IN COMPROMISE.
A true and correct copy of said OFFER is attached as Exhibit D‑6‑A and incorporated by reference, as if set forth fully herein.
On July 7, 1998, Plaintiff transmitted His standard NOTICE AND DEMAND via electronic mail (“email”) to AOL and to AOL subscriber Terry W. Stough, demanding proof of Plaintiff’s authorization (if any) to promote another stolen electronic copy at Domain NEBONET.COM.
A true and correct copy of said message dated July 7, 1998, is attached as Exhibit D‑6‑B and incorporated by reference, as if set forth fully herein.
Plaintiff transmitted copies of other email correspondence with Terry W. Stough to the following email addresses within AOL:
On July 17, 1998, Plaintiff transmitted another electronic message to Defendant Case at email address stevecase@aol.com with a Subject: line of "COPYRIGHT VIOLATION: The Federal Zone (all editions)" [sic], and with electronic copies to the following additional email addresses:
A true and correct copy of said message dated July 17, 1998, is attached as Exhibit D‑7 and incorporated by reference, as if set forth fully herein.
Said message dated July 17, 1998, contained active, valid hyper‑text links to two (2) additional messages that Plaintiff had previously published in the Supreme Law Forum ("Forum"), at the following URL's:
http://www.supremelaw.com/wwwboard/messages/1181.html
http://www.supremelaw.com/wwwboard/messages/1182.html
True and correct copies of these two Forum messages are attached as Exhibits D‑8 and D‑9 respectively, and incorporated by reference, as if set forth fully herein.
On July 22, 1998, Plaintiff transmitted two (2) more electronic messages to Defendant Steve Case at email address stevecase@aol.com with a Subject: line of "COPYRIGHT VIOLATION" [sic].
These two electronic messages are likewise attached as Exhibits D‑10 and D‑11‑A, respectively, and incorporated by reference, as if set forth fully herein.
Then, on July 23, 1998, Plaintiff published in the Supreme Law Forum a PUBLIC NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE, at URL:
http://www.supremelaw.com/wwwboard/messages/1270.html
Said NOTICE AND DEMAND contained the following specific language:
“Formal DEMAND is hereby made of you to delete ALL extant copies of component electronic files in "The Federal Zone: Cracking the Code of Internal Revenue," all editions, and ALL hypertext links to extant copies, whether such links are now valid or not, and ALL pointers to same which now exist in the index databases of all Internet search engines, and to do so on all computers now in your possession or control, and all computers to which you have any write access whatsoever.”
Plaintiff then transmitted an identical email message, containing a valid hyper‑text link pointing to said PUBLIC NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE, to all Internet domains and to all Internet users suspected, at that time, of infringing Plaintiff’s exclusive copyrights in the subject book.
The stated deadline for recipients’ specific performance was 5:00 p.m. Pacific Daylight Time (“PDT”) on July 31, 1998.
A true and correct copy of said PUBLIC NOTICE AND DEMAND is attached as Exhibit D‑11‑B and incorporated by reference, as if set forth fully here.
On July 30, 1998, Plaintiff received from Defendant Seth, via Federal Express Priority Overnight delivery, a hard copy letter alleging that all component files of the subject book had been removed from Internet Domains DEOXY.ORG and PARASCOPE.COM [sic].
A true and correct copy of said letter from Defendant Seth is attached as Exhibit D‑12 and incorporated by reference, as if set forth fully herein.
On August 2, 1998, Plaintiff posted and published in the Forum a formal NOTICE OF DEFAULT AND PASSAGE OF DEADLINE, at Internet URL:
http://www.supremelaw.com/wwwboard/messages/1319.html
A true and correct copy of said NOTICE OF DEFAULT is attached as Exhibit D‑13 and incorporated by reference, as if set forth fully herein.
[A] On September 20, 1998, approximately seven (7) weeks after receipt of Defendant Seth's hard copy letter, Plaintiff confirmed, and then carefully re‑confirmed, that the following modified, derivative files still remained at Domain DEOXY.ORG as hosted by Defendant AOL:
http://www.deoxy.org/fz/4.htm Chapter 4 D-14
http://www.deoxy.org/fz/11.htm Chapter 11 D-15
http://www.deoxy.org/fz/b.htm Appendix B D-16
http://www.deoxy.org/fz/c.htm Appendix C D-17
http://www.deoxy.org/fz/deception.htm Appendix G D-18
http://www.deoxy.org/fz/x.htm Appendix X D-19
Plaintiff attaches true and correct printed copies of said modified derivatives as Exhibits D‑14, D‑15, D‑16, D‑17, D‑18, and D‑19 respectively, and incorporates same by reference, as if set forth fully herein.
Also on September 20, 1998, Plaintiff refused Defendant Seth's letter for fraud, and mailed said refusal back to Defendant Seth at AOL's mailing address at 22000 AOL Way, Dulles, Virginia.
Said refusal is attached as Exhibit D‑20 and incorporated by reference, as if set forth fully herein.
During the summer and fall of 1998 A.D., after suffering protracted criminal retaliation for His extensive judicial activism and re
