Paul Andrew Mitchell, B.A., M.S.
c/o Dr. John C. Alden, M.D.
350 – 30th Street,
Suite 444
Oakland 94609‑3426
CALIFORNIA, USA
tel: (510) 452‑2020
fax: (510) 832‑8507
In Propria Persona
All Rights Reserved
without Prejudice
United States Court of Appeals
Ninth Circuit
Paul Andrew
Mitchell, ) Appeal No. 02‑15269 and
)
372(c) No. 02‑89005
Plaintiff/Appellant, )
v.
) APPELLANT’S BRIEF IN REPLY
TO
)
UNIVERSITY APPELLEES.
AOL Time Warner, Inc. et
al., )
)
Defendants/Appellees.)
_______________________________)
COMES NOW Paul Andrew Mitchell, Appellant in the
above entitled case, to reply
to the UNIVERSITY APPELLEES’ BRIEF (hereinafter “Pillsbury’s BRIEF”).
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 Messrs. Benjamin L. Webster and Wesley C.J. Ehlers (“Pillsbury”) have also failed to produce valid licenses to practice law in the State of California, with oaths of office properly indorsed upon same, as required by § 6067 of the California Business and Professions Code (“CBPC”).
Like Latham’s and Ropers’ BRIEFS before it, Pillsbury’s BRIEF should be stricken and completely disregarded, for this reason alone.
Moreover, having failed to produce any evidence whatsoever that they have indorsed the prescribed oaths, Pillsbury are now in violation of Local Rules 83‑180(a) (“signing the prescribed oath”) and 83‑180(d) (complying with Standards of Professional Conduct).
If counsel for any named Defendants must insist on strict adherence to said Local Rules, it is an invited error for them to violate said Local Rules so stubbornly.
Their failure to produce the requisite licenses to practice law, with oaths of office properly indorsed upon same, is conduct that degrades and impugns the integrity of this Court and interferes with the administration of justice in the instant case.
INCORPORATION OF
372(c) COMPLAINT
Appellant
hereby incorporates in full and by reference Appellant’s COMPLAINT OF JUDICIAL MISCONDUCT against Mr.
Dale A. Drozd, and all other evidence filed to date, in Clerk’s Docket No. 02‑89005, as if set forth fully here.
AOL TIME WARNER, INC. AND INDIVIDUAL AOL DEFENDANTS
Appellant also incorporates by reference His previously filed APPELLANT’S BRIEF IN REPLY TO APPELLEES AOL TIME WARNER, INC., STEVE CASE, LENNERT LEADER, RANDALL J. BOE AND JAMES R. BRAMSON; REQUEST FOR PRELIMINARY INJUNCTIONS AND LEAVE TO FILE ENLARGED BRIEF (“Latham’s BRIEF”), as if set forth fully here.
If a matter in Pillsbury’s BRIEF has already been adequately covered in Latham’s BRIEF, Appellant will endeavor briefly to indicate as much in what follows.
APPELLEE CARNEGIE MELLON UNIVERSITY
Appellant also incorporates by reference His previously filed APPELLANT’S BRIEF IN REPLY TO APPELLEE CARNEGIE MELLON UNIVERSITY (“Ropers’ BRIEF”), as if set forth fully here.
If a matter in Pillsbury’s BRIEF has already been adequately covered in Ropers’ BRIEF, Appellant will endeavor briefly to indicate as much in what follows.
Appellant will now address Pillsbury’s BRIEF by taking issue with its many errors in the order of their appearance.
INTRODUCTION
Appellant did not fail to register the work (already covered in other BRIEFS).
The copyright claim is not barred by any statutes of limitation or accrual (already covered).
The University Appellees are not immune under the DMCA, in part because their misconduct predates the DMCA; in part because they have defaulted in the face of Appellant’s NOTICES AND DEMANDS FOR AUTHORIZATION (see Exhibit “K”); and in part because they have failed to honor timely served and valid SUBPOENAS for their computer activity logs, and the identities of their subscribers suspected of infringing Appellant’s exclusive copyright.
The modifications to the subject book were highly significant (already covered). Shareware terms and conditions were deleted.
Joined to His proper and sufficient allegations of copyright and trademark infringements, Appellant’s claim under the California Unfair Competition Act is not fatally vague (already covered).
(This topic has already been thoroughly discussed.)
1. The United States District Court did not, and could not, properly grant any motion(s) by the University Appellees to dismiss the instant case for lack of subject matter jurisdiction.
2. The United States District Court did not, and could not, properly grant any motion(s) by the University Appellees to dismiss the instant case for failure to state a claim.
3. The United States District Court did not make any proper determinations concerning the requisite licenses of attorneys and the requisite commissions of Messrs. Shubb and Drozd.
4. The United States District Court did not make any proper determinations concerning Appellant’s refusal to consent to civil jurisdiction by any U.S. Magistrate Judges.
5. The United States District Court did not make any proper determinations concerning the all important distinction between “District Courts of the United States” and “United States District Courts”.
STATEMENT OF
THE CASE
A. Appellant’s Complaint
It is not entirely correct to state that portions of Appellant’s book were posted at different locations on the Internet by various “unknown persons” [sic].
In many instances, the infringements of Appellant’s copyrights by the University Appellees are correctly attributed to named students, faculty, staff and other affiliated individuals.
In other instances, the responsible parties remain “unknown” chiefly because the University Appellees have failed to obey SUBPOENAS for their identities, properly and timely served under authority of the federal statute at 17 U.S.C. 512(h). Respondeat superior.
Once again, changes to the book were not confined to italics, bolding, underlining and capitalization [sic].
This is another telltale error in Pillsbury’s BRIEF, because those terms should have been formatted as follows: italics, bolding, underlining, and Capitalization [sic]. Appellant’s SHAREWARE POLICY expressly prohibited the very kinds of changes that are obviously evident in Pillsbury’s BRIEF!
The limited knowledge of copyright violations that Appellant acquired in October 1997 was not sufficient to activate the statute of limitations, mainly because at that time He did not have the requisite knowledge or expertise to identify and notify the responsible contacts at each Internet domain suspected of harboring those violations.
The matter was not correctly assigned to Mr. Drozd pursuant to Local Rule 72-302(c)(21). (This matter has already been covered.)
Appellant did file opposition to the alleged motions to dismiss (already covered).
Appellant did object timely and thoroughly to the so-called FINDINGS AND RECOMMENDATIONS filed in error by Mr. Drozd (already covered). There were (and still are) unexplained delays in the delivery of Appellant’s first class and legal U.S. Mail.
It was not a fatal error for Appellant to omit notices of hearing dates and times from His various motions to the DCUS (already covered). This minor omission could, and should, have been cured by routine actions by the Clerk of Court.
Pillsbury’s BRIEF openly admits that Appellant refused to consent to civil jurisdiction by any U.S. Magistrate Judges (already covered). Appellant continues to argue correctly that adverse substantive consequences resulted from all ultra vires actions by Mr. Drozd, who proceeded coram non judice.
Appellant did not violate any laws or rules by informing certain named Defendants that the attorneys they had retained did not appear to have the credentials required by California State law (already covered). Appellant cannot be compelled into complicity with their fraud upon the district courts and this honorable Court.
Since Mr. Drozd enjoyed no civil jurisdiction over the instant case, and since Mr. Drozd has now failed to produce the credentials required by federal and State laws, Appellant was in no way legally obligated to obey any instructions or “orders” issued by Mr. Drozd.
A. The USDC erred by granting the University Appellees’ motion to dismiss for lack of subject matter jurisdiction.
1.
Appellant did register His copyright (already covered).
Both Mr. Drozd and Pillsbury’s BRIEF are both fond of citing this Court’s holding in Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998). Here is the pertinent paragraph from that published opinion:
In order to obtain a copyright registration, an applicant must deposit as part of his application a “copy” or “copies” of the work. 17 U.S.C. 408(b)(1) and (2). We have stated that the registration deposit requirement permits “bona fide copies of the original work only ....” citing Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1322 (9th Cir. 1986). We have not expressly defined the characteristics of “bona fide copies,” but have distinguished them from “reconstructions.” Id.
In July 2001 A.D., Appellant did deposit bona fide copies of the best edition of the subject book with the Register of Copyrights; Appellant did not deposit “reconstructions” of the subject book.
The Register of Copyrights later issued a Certificate of Copyright Registration effective July 23, 2001 A.D. This effective date occurred at least one week before Appellant filed the Initial COMPLAINT, on August 1, 2001 A.D. (Other details of registration have already been thoroughly covered.)
More to the matter at hand, on April 3, 2002 A.D. Appellant served Pillsbury’s attorneys with a copy of His MEMO to the General Counsel in the U.S. Copyright Office. That MEMO specifically referred to “Certificate of Registration No. TX 5‑436‑561, effective 7/23/01.”
Pillsbury has shown painfully bad faith by failing even to mention said MEMO to the General Counsel.
2. The district courts do have subject matter jurisdiction generally as to the State University Appellees.
The State University Appellees are not immune to the legal requirements imposed by the SUBPOENAS served upon them for the computer activity logs and identities of their subscribers suspected of infringing Appellant’s exclusive copyrights. See 17 U.S.C. 512(h).
Cases supporting their sovereign immunity under the Eleventh Amendment in the U.S. Constitution also lacked original jurisdiction over Lanham Act claims, because they were uniformly brought to the USDC, and not to the DCUS. See 60 Stat. 440 (already covered in great detail).
The Eleventh Amendment does not mention the legislative Power of the United States. See 17 U.S.C. 512(h).
Constitutional courts are barred from creating and issuing judge-made doctrines.
B. The USDC erred by
dismissing for failure to state a claim.
1. COUNT ONE did not fail to
state a claim.
a. COUNT ONE is not barred by
the statute of limitations.
Appellant’s copyright infringement claims against all University Appellees accrued on or after August 2, 1998 A.D., at which time they all failed to provide any certified answers to Appellant’s NOTICES AND DEMANDS for their authorization (if any) to promote stolen counterfeit copies of the subject book. See Exhibit “K” in chief.
Furthermore, Appellant’s Initial COMPLAINT adequately implicated all University Appellees in a continuing wrong due to fraudulent concealment, which tolls all pertinent statutes of limitation (already covered in some detail).
b. Appellant can use civil discovery to establish probable cause for
criminal charges.
(This matter has already been discussed in detail.)
c. University Appellees are
not immune under the DMCA.
Certain University Appellees defaulted on August 2, 1998 A.D., almost three (3) months prior to enactment of the DMCA on 10/28/1998. The DMCA cannot be enforced prior to the date of its enactment because the U.S. Constitution expressly prohibits ex post facto legislation. See Article I, Section 9, Clause 3 (“1:9:3”).
More to the verified facts in the official record before this Court, if the University Appellees did anything at all in response to Appellant’s NOTICES AND DEMANDS FOR AUTHORIZATION, they responded by informing Appellant that the violations in question had been removed. See Exhibit “K”.
This was an open admission that: (1) copyright infringements had been occurring on computers they owned and/or operated; (2) those copyright infringements needed to be removed because the University Appellees never had the Author’s consent to host counterfeit copies of the subject book on their Internet file servers, in the first place; and (3) the University Appellees’ silence on this point constituted proof they never had permission.
Last but not least, the University Appellees are now implicated in hindering the apprehension of individual violators, and also obstruction of justice, by refusing to disclose their identities and the precise details stored in computer logs of their infringing activities. This obstruction is particularly offensive, occurring as it did after the DMCA was enacted. See 17 U.S.C. 512(h).
This Court’s holdings in the Napster case make it very clear that Internet Service Providers have a responsibility to police their systems. In this case, the University Appellees obviously failed to police their systems.
2. COUNT TWO did not fail to state a claim.
Once again, Pillsbury’s BRIEF errs seriously by attempting to sustain the fiction that “only minor, non-substantive formatting‑type changes” were made to all modified derivatives of the subject book.
Pillsbury’s BRIEF actually misleads this Court by falsely alleging that Appellant has admitted that the proven violations at domain DEOXY.ORG “faithfully reproduced all but one of the Book’s 43 discrete electronic files.” This is a false statement, at best.
The proven violations at domain DEOXY.ORG did not faithfully reproduce all but one of the book’s 43 discrete electronic files! On the contrary, there were numerous violations of Appellant’s stated fidelity requirement in all of those electronic files.
More importantly, the one missing file at DEOXY.ORG was the README file containing Appellant’s SHAREWARE POLICY. That file was the only place where the terms and conditions of that policy were itemized.
Consequently, removing those terms and conditions resulted in falsely representing Appellant as the sole author responsible for authorizing the publication, and maintaining the availability, of the subject book for free on the Internet’s World Wide Web!
Certainly, this false representation of facts is a Lanham Act violation, if ever there was one.
Not only was removal of the SHAREWARE POLICY likely to mislead others, to cause confusion and mistake, and to deceive others; its removal was specifically intended to do all these things in order also to make the subject book appear free to the entire world, via standard Internet browsers like Netscape Navigator!
Surely, this is also a violation of § 43(a) of the Lanham Act, if ever there was one. The pertinent case law also supports Appellant’s Lanham Act claims.
Generally, this Court of Appeals favors remand to the district court for determination of the likelihood of confusion as a question of fact, rather than deciding the likelihood of confusion as a matter of law. Alpha Industries, Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F.2d 440 (9th Cir. 1986).
The clearly erroneous standard is applied in reviewing a trial court’s determination concerning the likelihood of confusion. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352 (9th Cir. 1985).
All one needs to show for the district court to have jurisdiction of a trademark infringement claim is that the infringing mark has been used in commerce which Congress can regulate. Drop Dead Co. v. S.C. Johnson & Son, Inc., 326 F.2d 87 (9th Cir. 1963).
The grant of jurisdiction to a federal court carried with it an obligation for the court to exercise jurisdiction and to act when proper facts were brought before it. Merrick v. Sharp & Dohme, Inc., 84 F.Supp. 1008, 82 USPQ 4 (D.C. Ill. 1949).
3. COUNTS THREE and FOUR were
not properly dismissed.
(This subject has already been thoroughly discussed.)
4. COUNT FIVE can be
maintained.
Appellant’s State law claim is not fatally vague and conclusory, because it is joined to substantial claims of copyright infringement under COUNT ONE, and of trademark infringement under COUNT TWO. See 28 U.S.C. 1338(b), in chief.
Appellant had always anticipated amending the Initial COMPLAINT, at least once, after preliminary litigation helped to identify any errors and omissions that can be easily corrected with leave of the DCUS.
Simple and effective amendments have already been identified elsewhere in the record now before this Court, such as alleging acts of false advertising, omission of material facts, dilution, and violations of Appellant’s common law rights of publicity, in addition to bolstering proof of other State law violations. See 28 U.S.C. 1652 in conjunction with California Civil Code § 22.2.
To constitute false advertising, a statement in an advertisement not only must be false, it must be “material” in that “it is likely to influence purchase decisions” [or decisions not to purchase a published book because an electronic version, posted on the Internet without the author’s permission, is made to appear free of charge by unlawful acts of the Appellees]. See National Basketball Association v. Motorola, Inc., 105 F.3d 841, 855 (2nd Cir. 1997).
Dilution has already been alleged in Plaintiff’s Initial COMPLAINT at COUNT ONE, Page 28 of 43, lines 19-23 (“... Defendants’ coordinated actions jointly and severally saturated the market for the subject book ... by effecting diluting to zero the real economic demand for authentic editions of the subject book”).
C. Dismissal was improper for
additional procedural reasons.
1. Appellant did file
opposition to the University Appellees’ motion to dismiss.
(This subject has already been covered elsewhere.)
a. Appellant’s arguments
regarding attorneys’ licenses are not frivolous.
The pertinent California State laws are quite clear in requiring that a certificate of oath shall be indorsed upon an attorney’s license to practice law in the State of California.
The painful truth in the record now before this Court demonstrates, beyond any doubt, that the attorneys who were hired by the University Appellees have stubbornly refused to produce certificates of oath properly indorsed upon licenses to practice law. Similarly, neither the State Bar of California, nor the Clerk of the California Supreme Court, has produced any such certificate(s) either.
Thus, Pillsbury’s claim to having any right to represent
the University Defendants assumes facts that are not in evidence now, and never
have been in evidence, before this Court or the district courts below.
Appellant has correctly cited California court cases which have decided the applicability, and legislative intent, of California Business and Professions Code § 6067. The existence (or absence) of powers of attorney is a matter that can be decided summarily by this honorable Court.
Mr. Drozd had no civil jurisdiction whatsoever to “deny” Appellant’s proper and timely MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS. Mr. Drozd is not an Article III judge.
In this particular context, see also the AUTHOR’S AFFIDAVIT CONTESTING DECLARATION OF WESLEY C.J. EHLERS.
The latter AFFIDAVIT was verified under penalty of perjury, pursuant to 28 U.S.C. 1746(1) and has remained unrebutted by Mr. Ehlers. (Further detailed discussions are found elsewhere on these points.)
To repeat, see U.S. v. High Country Broadcasting Co., 3 F.3d 1244 (9th Cir. 1993), in which this Court has held that entry of a default judgment was appropriate when an unlicensed corporate president attempted to represent his corporation in court. Appellant continues to argue that this authority is dispositive, in the present context.
b. Appellant’s
refusal to consent to civil jurisdiction by any U.S. Magistrate Judge did
affect entry of judgment.
Dismissal with prejudice and without leave to amend is, without question, an adverse substantive consequence to which Mr. Drozd contributed in numerous substantial ways, and for which he is now personally liable to Appellant. The precise details of his errors are quite well documented elsewhere in the record now before this Court.
Notably, Mr. Drozd is not an Article III judge, and no actions or inactions by any litigant can cure a lack of original jurisdiction; jurisdiction simply cannot be waived.
The Local Rules in question do not bind litigants in the DCUS, if Appellant’s construction of the Rules Enabling Act is correct, and if Appellant’s challenge to the constitutionality of the Abrogation Clause in that Act is also correct. Mr. Drozd flatly usurped the judicial Power of the United States, conferred by Article III, by attempting to issue “orders” ultra vires and coram non judice.
Finally, judgment was not entered by the DCUS, nor by any qualified judicial officer duly presiding on the DCUS. (See other BRIEFS for further detailed elaboration of this very important point.)
c. Appellant
did successfully distinguish between the USDC and the DCUS, in several
consistent ways.
Pillsbury’s BRIEF errs seriously by citing DeVries v. McDonald, a USDC case which is diametrically opposed to high Court rulings on the point at hand. Pillsbury needs to be reminded here that decisions by the U.S. Supreme Court are binding on all lower federal courts.
Appellant has shown abundant good faith by continuing to investigate the wealth of applicable case law and other relevant historical evidence which supports the all important distinction between the Article III DCUS and the Article IV USDC.
Most recently, Appellant has reviewed and studied a district court’s erudite opinion in the case of U.S. v. King, 119 F.Supp. 398, 14 Alaska 500, headnote 8 (1954). Before Alaska joined the Union, that territorial court found as follows:
... “the term ‘district court of the United States’ standing alone includes only the constitutional courts.” Such words describe courts created under Article III of the Constitution. The Alaska court, of course, is not a constitutional, but a legislative court. McAllister v. U.S., 141 U.S. 174, 11 S.Ct. 949, 35 L.Ed. 693 (1891). According to Ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411, 73 L.Ed. 789, the test is the particular power under which the court was created and its jurisdiction conferred. If created under section 2 of Article III of the Constitution, it is a constitutional court. Territorial courts are not created under that power, but by virtue of the plenary municipal authority that Congress possesses over territories, or under the constitutional clause permitting the making of needful rules and regulations as to territories, Article IV, section 3 of the Constitution.
[U.S. v. King, 119 F.Supp. 398, 14 Alaska 500 (1954)]
[headnote 8, page 401, bold emphasis added]
Here, that territorial court demonstrated a keen and correct grasp of the all important distinctions between Articles III and IV, and between constitutional courts and legislative courts.
That court also did well to cite the McAllister case, which summarizes cases comprising the relevant judicial history between 1828 and 1879 A.D., a period spanning 50 years: see American Insurance Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828); Benner v. Porter, 50 U.S. 235, 242‑243 (1850); Clinton v. Englebrecht, 80 U.S. 434, 447 (1871); Hornbuckle v. Toombs, 85 U.S. 648, 655 (1873); Good v. Martin, 95 U.S. 90. 98 (1877); Reynolds v. U.S., 98 U.S. 145, 154 (1878); and The City of Panama, 101 U.S. 453, 460 (1879).
Equally important and compelling in this context is the King court’s careful comparison of the statutory terms “district court” and “district court of the United States”. The holdings in King fully support Appellant’s argument here that these terms are not synonymous, but rather they exhibit a hierarchical relationship to one another.
Specifically, the plural term “district courts” embraces both constitutional courts and legislative courts, whereas the term “district courts of the United States” refers only to constitutional courts, and the term “United States District Court” refers to a legislative court. Here are the pertinent paragraphs from the King decision which clearly support this proposition:
... [T]he question for determination is whether, in the context of the particular legislation, the words “district court” are used to describe courts which exercise the jurisdiction of district courts, or whether they are meant to be confined to constitutional courts. In reaching such a determination, the purpose, or policy of the particular statute is of paramount importance. ...
In the [1948] revision, the United States district courts in Hawaii and Puerto Rico are included in the term “district courts” as used throughout the bill. This results from the definition of “district court” contained in section 451.
... [T]he words “district court”, as employed in section 1346(a) of Title 28, U.S.C., were not intended to be confined to constitutional courts and those constituted by Chapter 5 of the Judiciary and Judicial Procedure Act, but ... they were also meant to apply to courts which exercise the jurisdiction of such courts, including the District Court for the Territory of Alaska.
[U.S. v. King, 119 F.Supp. 398, 14 Alaska 500 (1954)]
[pages 403-404, bold emphasis added]
This Court is reminded that the definition of “district court” at 28 U.S.C. 451 applies throughout Title 28 of the United States Code, because it begins with the phrase “As used in this title”. And, Alaska was still a federal Territory in the year that case was decided (1954). The specific language of headnote 6 in the King case makes this point with even greater clarity:
Words “district court” ... were not intended to be confined in their application to constitutional courts, but were also meant to apply to courts which exercised jurisdiction of such courts, including the District Court for the Territory of Alaska.
[U.S. v. King, 119 F.Supp. 398, 14 Alaska 500 (1954)]
[headnote 6, bold emphasis added]
Appellant continues to argue that the policy of 28 U.S.C. 132 is of paramount importance, because it attempted fraudulently to broadcast the USDC ‑‑ a legislative court created under Article IV ‑‑ into the several States under a false and rebuttable premise, namely, that those States and their “residents” could be legally treated as inhabitants of the federal Territories.
Moreover, the creation of the USDC inside those States was accomplished without expressly abolishing the constitutional DCUS that previously had existed inside those States for almost 160 years.
A careful reading of the Act of June 25, 1948, particularly the miscellaneous provisions at the end of that Act, leaves room for no other correct or defensible constructions.
Further dramatic support for this construction can be found in the discussion of “Constitutional courts” in the second edition of American Jurisprudence:
Among the constitutional courts are the District Courts of the United States, including the United States District Court in Puerto Rico, the United States Courts of Appeals, the United States Supreme Court, the Court of International Trade, and the District of Columbia courts having jurisdiction over cases arising under federal statutes of nationwide application, such as the United States District Courts in the District of Columbia. Citing Mookini v. U.S., 303 U.S. 201; Old Colony Trust Co. v. C.I.R., 279 U.S. 716, 724 [circuit courts of appeal are constitutional courts]; and O’Donoghue v. U.S., 289 U.S. 516.
[32 Am Jur 2d, § 5, page 327]
The reader here will please take special note of the fact that the United States District Courts convened inside the several States are not even mentioned in this list of constitutional courts. On this theme, compare also the related discussion of “Legislative courts” at 32 Am Jur 2d, § 6. 28 U.S.C. 132 does not mention Article III.
There is no question but that American constitutional literature is replete with references to constitutional courts and legislative courts. And, Congress knows how to identify courts as originating in Article III, whenever it wants and intends to do so.
Perhaps it is true that Appellant is one of the first to argue, and to prove with compelling evidence, that the United States District Courts inside the 50 States today are, in theory and in practice, actually legislative courts and not constitutional courts.
2. Appellant’s
motion to strike was timely.
(This has already been discussed in detail elsewhere.)
3. The DCUS does not lack
personal jurisdiction over the out‑of‑State Universities.
Federal courts have exclusive jurisdiction of copyright infringement claims. The main reason for this exclusivity is to ensure uniform national enforcement of all federal copyright laws.
The Internet has made it possible for computers owned and operated by the University Appellees to be accessed from anywhere in the world, by anyone with an Internet‑compatible computer.
Thus, their decision to implement advanced Internet technologies in their computer networks was tantamount to adopting a policy of enabling and facilitating minimum contacts with Internet users located in all other Union States, in addition to their home States.
Appellant obtained empirical electronic evidence of their copyright and trademark violations by consistently accessing their computers from out‑of‑State locations. So, His claims against the University Appellees did arise from activities related to California.
Pillsbury’s BRIEF also makes other weak points that are easily reduced to the absurd. If Appellant had been required to file separate federal cases in each separate State where the University Appellees are domiciled (about a dozen in number), the inevitable differences in as many different courts would have militated seriously against the stated federal policy of nationwide copyright uniformity.
Moreover, nothing would have prevented motions to change venue in all but the California case (except the exorbitant and prohibitive costs involved in filing separate actions in each different State).
4. The
action was brought in a proper venue.
Venue was properly invoked in Appellant’s Initial COMPLAINT, in part because the primary offender was initially discovered to be Defendant AOL Time Warner, Inc. ‑‑ a corporation that was duly registered with the California Secretary of State on August 1, 2001 A.D. as an active foreign corporation in good standing.
Appellant acquired the name and address of AOL’s registered agent for service of process upon that foreign corporation by accessing the on‑line record for AOL Time Warner, Inc. at the Internet website of the California Secretary of State.
Appellant’s incorporation of this Court’s published opinion in the Napster case provides an excellent analog: the federal district court in San Francisco exercised jurisdiction in a proper venue, even though the targets of its injunctions were spread all around the world. See Exhibit L‑11.
The rapidly developing technologies of the Internet may be straining the legal community to adapt timely, but venue considerations cannot be used to force unnecessary and extraordinary additional costs upon Appellant, out of a slavish adherence to rules made in and for a bygone era.
For all of the many reasons stated above and in the other BRIEFS previously filed by Appellant in this appeal, the judgment of the USDC should not be affirmed in this case.
REMEDIES
RECOMMENDED
On the basis of Appellant’s well documented arguments already made in those pleadings, Appellant now believes that the Remedies Requested and Recommended in His Initial COMPLAINT, in His INFORMAL OPENING BRIEF, and lastly in His REPLY to Latham’s BRIEF, do adequately itemize the judicial remedies that ought to be issued by this Court.
Accordingly, no additional remedies are being requested here.
Thank you all for your most professional consideration.
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: July ___,
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):
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
CALIFORNIA, USA
Latham & Watkins Ropers Majeski Kohn
& Bentley
633 West Fifth Street 1001 Marshall Street
Los Angeles 90071‑2007 Redwood City 94063
CALIFORNIA, USA CALIFORNIA, USA
Pillsbury Winthrop LLP Harvey Siskind Jacobs LLP
400 Capitol Mall, Suite 1700 3 Embarcadero Center, 10th Floor
Sacramento 95814 San Francisco 94111
CALIFORNIA, USA CALIFORNIA, USA
[Please see USPS Publication #221 for “addressing”
instructions.]
Dated: July ___,
2002 A.D.
Signed:
__________________________________________________
Printed: Paul
Andrew Mitchell, Appellant In Propria Persona