c/o P.O. Box 370
Sunset Beach 90742
CALIFORNIA, USA
tel: (562) 592-9047
fax: (562) 592-4917
All Rights Reserved
without Prejudice
United States Court of Appeals
Ninth Circuit
Paul Andrew
Mitchell, ) Appeal No. 02-15269
)
Plaintiff/Appellant, ) MOTION FOR
ORDER
) ENJOINING
FURTHER INACTION
v. ) BY THE REGISTER OF COPYRIGHTS:
)
AOL Time Warner, Inc. et
al., ) FRAP Rule 8(a)(1)(C),
8(a)(2);
) FREv Rule
201(d)
Defendants/Appellees.)
_______________________________)
)
Register of Copyrights, )
)
Respondent. )
_______________________________)
COMES NOW Paul Andrew Mitchell, Appellant in the
above entitled case, to move this honorable Court, pursuant to Rule 8 of the Federal Rules of Appellate Procedure
(“FRAP”), for an ORDER enjoining the Register of Copyrights from further
inaction in the matter of Appellant’s application for copyright registration, and
for a routine stay of the Briefing Schedule, and to provide Notice to all
interested party(s) of same.
Appellant
hereby states that:
(i) moving the district court is now entirely impractical, because this Court of Appeals has jurisdiction; and,
(ii) the district court failed to correct the Magistrate Judge’s plain errors with respect to Appellant’s application for copyright registration, even after Appellant moved the district court for reconsideration.
On July 17, 2001 A.D., Appellant applied for registration of His exclusive copyright in the subject book by transmitting to the Register of Copyrights a completed Application Form TX, two (2) copies of the best edition, and the registration fee of $30.00.
Subsequently, Appellant received from the Copyright Office a completed PS Form 3811 (“green card”) confirming that the Copyright Office did receive the completed application on July 23, 2001 A.D. (See Attachment “A”.)
Ever since this latter date, however, the Copyright Office has failed to confirm registration, and it has also failed to refuse registration.
Appellant appears to be in “legal limbo” as a result of inaction by the Register of Copyrights.
On August 1, 2001 A.D., Appellant filed the instant action in the District Court of the United States (“DCUS”), Eastern Judicial District of California, in Sacramento, California.
COUNT ONE in Appellant’s Initial COMPLAINT alleges copyright infringements by all 129 named Defendants.
On or about September 10, 2001 A.D., Appellant filed in the DCUS His NOTICE OF COPYRIGHT REGISTRATION, BY AFFIDAVIT. (See Attachment “B”.)
On December 31, 2001 A.D., without jurisdiction and without the consent of any parties, a U.S. Magistrate Judge filed an ORDER [sic] AND FINDINGS AND RECOMMENDATIONS, later adopted in full by U.S. District Judge William B. Shubb. (See Attachment “C”.)
Those FINDINGS AND RECOMMENDATIONS committed a plain error by concluding, “Because plaintiff has not registered his copyright, the first cause of action must be dismissed for lack of subject matter jurisdiction.” (See Attachment “D”, pages 6 thru 8.)
Appellant then moved the DCUS to strike those FINDINGS AND RECOMMENDATIONS (see Attachment “E”, Pages 12 of 42 thru 17 of 42), and also requested reconsideration of Judge Shubb’s ORDER adopting same in full (see Attachment “F”, Page 11 of 22, lines 13-16).
In error, Judge Shubb denied Appellant’s motions to strike and for reconsideration. (See Attachment “G”.)
On February 14, 2002 A.D., Appellant wrote a letter to the Copyright Office, requesting confirmation whether or not registration has been refused. (See Attachment “H”.) On March 5, 2002 A.D., Appellant mailed a second copy of that letter to the Copyright Office.
Appellant now believes that the Copyright Office abused its discretion by failing to register Appellant’s copyright, and also by failing to refuse registration.
The legal “limbo” caused by the Register’s abuse of discretion has resulted in prejudice to Appellant.
APPLICABLE CASE LAW
Appellant argues that the facts and law in this instance are relatively simple and straightforward. The statute at 17 U.S.C. 411(a) allows an infringement suit even if registration is refused:
As is evident, a party may now sue for infringement notwithstanding the refusal of the Register to register the claim to copyright. The only precondition is that notice [of the action] be served on the Register.
[Nova Stylings, Inc. v. Ladd]
[695 F.2d 1179 (9th Cir. 1983)]
[bold emphasis added]
Because the Register of Copyrights has not formally refused Appellant’s application for copyright registration, Appellant did not feel obliged to serve formal Notice of the instant lawsuit on the Register of Copyrights.
See also 17 U.S.C. 408(a); Washingtonian Publishing Co. v. Pearson, 306 U.S. 30 (1939) (mere delay in depositing copies will not destroy right to sue); Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384 (5th Cir. 1984) (proof of application, plus payment of fee and deposit of work are sufficient to give plaintiff standing to sue for copyright infringement).
REQUEST FOR MANDATORY JUDICIAL NOTICE
Pursuant to Rule 201(d) of the Federal Rules of Evidence (“FREv”), Appellant respectfully requests mandatory judicial notice by this honorable Court of Attachments “A” thru “H” infra, which are hereby incorporated by reference, as if set forth fully herein.
Pursuant
to FRAP Rule 8(a)(2), Appellant respectfully requests a routine ORDER from this
honorable Court, or from one of its judges, enjoining the Register of
Copyrights from any further inaction in the matter of Appellant’s Application
Form TX, for a Nondramatic Literary Work.
See 17 U.S.C.
411(a).
To
allow the Register of Copyrights an opportunity to respond, Appellant also
requests that this Court, or one of its judges, also order a routine stay in
the Briefing Schedule, pending entry of an appearance by the Register of
Copyrights within sixty (60) calendar days from issuance of the injunction
requested herein.
Even
if the instant MOTION should ultimately be denied, a routine stay in the
Briefing Schedule is recommended to ensure proper judicial review of this
MOTION, and to provide Appellant an opportunity to respond appropriately to
this Court’s ruling on same.
VERIFICATION
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: March 6,
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”)
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):
BY THE REGISTER OF
COPYRIGHTS:
FRAP Rule 8(a)(1)(C), 8(a)(2); FREv 201(d)
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 (5x)
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
CALIFORNIA, USA
Ropers, Majeski, Kohn & Bentley DeForest & Koscelnik
(failed to exhibit oaths) (failed to exhibit oath)
1001 Marshall Street 3000 Koppers Building
Redwood City 94063 436 Seventh Avenue
CALIFORNIA, USA Pittsburgh 15219
PENNSYLVANIA, USA
Murphy Austin Adams Schoenfeld LLP Pillsbury Winthrop LLP
(failed to exhibit oaths) (failed to exhibit oaths)
P.O. Box 1319 400 Capitol Mall, Suite
1700
Sacramento 95812-1319 Sacramento 95814-4419
CALIFORNIA, USA CALIFORNIA, USA
Curiale Dellaverson Hirschfeld Quinn Emanuel
Urquhart Oliver
Kraemer & Sloan, LLP & Hedges, LLP
(oaths requested) (oaths requested)
727 Sansome Street 201 Sansome Street, 6th
Floor
San Francisco 94111 San Francisco 94104
CALIFORNIA, USA CALIFORNIA, USA
Office of the General Counsel Paul
Southworth
University of California 2018 N. New Hampshire Ave.
1111 Franklin Street, 8th Floor Los Angeles 90027
Oakland 94607-5200 CALIFORNIA, USA
CALIFORNIA, USA
Karl Kleinpaste Ram Samudrala
P.O. Box 1551 UW Micro Box 357242
Beaver Falls 15010 Seattle 98195-7242
PENNSYLVANIA, USA WASHINGTON STATE, USA
Laskin & Guenard Rivkin Radler, LLP
1810 South Street 1330 N. Dutton Ave., #200
Sacramento 95814 Santa Rosa 95401-4646
CALIFORNIA, USA CALIFORNIA, USA
Harvey Siskind Jacobs LLP Office of Solicitor General
3 Embarcadero Center, Ste. 1060 950 Pennsylvania Ave., N.W.
San Francisco 94111 Room 5614
CALIFORNIA, USA Washington 20530-0001
DISTRICT OF
COLUMBIA, USA
Register of Copyrights Steinhart & Falconer LLP
Library of Congress 333 Market Street, 32nd
Floor
101 Independence Avenue, S.E. San Francisco 94105-2150
Washington 20559-6000 CALIFORNIA, USA
DISTRICT OF COLUMBIA, USA
Dated: March 7,
2002 A.D.
Signed: /s/ Paul
Andrew Mitchell
__________________________________________________
Printed: Paul
Andrew Mitchell, Appellant In
Propria Persona
(not
“Pro Se” [sic])
Appellant’s Completed Application Form TX
and Related Documents
Appellant’s NOTICE OF
COPYRIGHT REGISTRATION,
Dated: September 10,
2001 A.D.
USDC’s ORDER Adopting FINDINGS AND RECOMMENDATIONS
Filed January 25, 2002
Magistrate’s ORDER AND FINDINGS AND RECOMMENDATIONS
Filed December 31, 2001
(See pages 6 thru 8.)
Appellant’s MOTION TO
STRIKE ORDER AND
FINDINGS AND RECOMMENDATIONS OF MAGISTRATE
JUDGE --
(See Pages 12 of 42 thru 17 of 42.)
Appellant’s MOTION FOR RECONSIDERATION
OF
USDC’S ORDER FILED IN ERROR ON JANUARY 25, 2002 A.D.
(See Page 11 of 22, lines 13-16.)
USDC’s ORDER
Filed February 5, 2002
-and-
USDC’s MEMORANDUM AND ORDER
Filed February 22, 2002
Appellant’s Letter to the
Copyright Office
Requesting Copyright Registration Status
Dated: February 14,
2002 A.D.
(re-mailed on March 5, 2002 A.D.)