BACKGROUND FACTS

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" [sic], abbreviated "The Federal Zone" [sic] (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.

The first edition was printed and bound in a quantity of five hundred (500) books.  The second edition was printed and bound in a quantity of two thousand (2,000) books.

In the summer of 1993, the bank account which Plaintiff used to deposit funds for all prepaid orders was levied without the warrant of distraint (court order) required by the holding in U.S. v. O'Dell, reducing the balance on deposit to zero dollars ($0.00).

Subsequently, Plaintiff was reduced to selling the electronic third and fourth editions on standard 1.44 megabyte (million character) 3.5-inch floppy computer disks.

Each Chapter and each Appendix of these editions was stored in a separate computer file, with a separate Preface, Introduction, thirteen (13) numbered Chapters, Conclusions, and twenty-six (26) Appendices lettered A thru Z, for a total of forty-two (42) separate and discrete computer files.

The Preface in the electronic third (3rd) and fourth (4th) 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, bold, italics, and underlines 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."

The Preface in the electronic 3rd and 4th 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-42 and incorporated by reference as if set forth fully herein.

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 recently acquired by Defendant AOL.

Also in December of 1995, Plaintiff discovered a modified, derivative copy of the electronic fourth (4th) edition of the subject book at the Internet address http://www.deoxy.org (hereinafter "Domain DEOXY.ORG"), with all component chapters and appendices 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. 

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.

At that point in time (December 1995), Plaintiff did not have the time, nor the requisite expertise, to determine exactly what 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. 

This Internet consultant provided Plaintiff with technical instructions which enabled Plaintiff to determine that Domain DEOXY.ORG was most probably being hosted by Defendant AOL.

Over a period of several months, Plaintiff surveyed the entire Internet, using the Alta Vista software developed by Digital Equipment Corporation (now owned by Compaq Corporation).

During October of 1997, Plaintiff produced a summary of initial survey findings in a private Internet file named TFZLINKS at Domain SUPREMELAW.COM.  A true and correct hard-copy of the TFZLINKS file is attached as Exhibit D-1 and incorporated by reference as if set forth fully herein.

At entry number three (3) in TFZLINKS, the Internet URL http://www.deoxy.org/fz/fedzone.htm was reported to have a creation date of May 13, 1997, and "AOL" was listed as the "Name Server" [sic] for said URL.

Also during October of 1997, Plaintiff began to transmit a series of electronic and printed ("hard-copy") messages directed to Defendants Steve Case (stevecase@aol.com), Lennert Leader (stevecase@aol.com), and Defendant AOL's legal department (psyberman@aol.com), informing them of the ongoing copyright violations at Domain DEOXY.ORG, and demanding immediate removal of all component files of the subject book.  Defendants Case and Leader failed to comply with Plaintiff's demands.

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,” 4th 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.

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 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 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 servers were listed in the following order:

 

DNS01.WEB.AOL.COM

DNS02.WEB.AOL.COM

152.163.212.26

152.163.212.27

 

As of that date (12/17/97), the above data were last updated on "05-Jun-97";  the database record containing these data for Domain DEOXY.ORG was first created on "30-May-96".

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 which is attached as Exhibit D-6 and incorporated by reference as if set forth fully herein.

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:

legal0023@aol.com

psyberman@aol.com

webmaster@aol.com

abuse@aol.com

techprob@aol.com

 

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 which Plaintiff had previously published in the Supreme Law Forum ("Forum"), at the following URL's:

 

http://supremelaw.com/wwwboard/messages/1181.html

http://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, respectively, and incorporated by reference as if set forth fully herein.

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://supremelaw.com/wwwboard/messages/1319.html

A true and correct copy of said NOTICE 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 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, derivative files as Exhibits D-14, D-15, D-16, D-17, D-18, and D-19, respectively, and incorporates same by reference as if all were 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 in 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, after suffering protracted criminal retaliation for His extensive judicial activism and repeated federal testimony, in violation of 18 U.S.C. §§ 241, 242, 371, 1512 and 1513, Plaintiff was permitted to take advantage of the modern computer facilities at the Southwest Texas State University ("SWT") in San Marcos, Texas.

Plaintiff's purpose at SWT was to conduct systematic and comprehensive enforcement of Plaintiff's exclusive Rights in all extant copies and versions of the subject book, both printed and electronic, whether derivative or not, with emphasis on all Internet copies known to violate either the fidelity requirement or the payment requirement.

In addition to the network of computers owned and operated by Defendant AOL, Plaintiff was thereby able to confirm that separate criminal copyright violations were then in progress at approximately one hundred fifty (150) additional discrete Internet domains.  See the recent legislative histories of 18 U.S.C. 1512, 1513, 2319, and also unnamed Does 1 thru 500 on the caption page supra to incorporate, among others, all contacts listed as such in the InterNIC WHOIS database on the Internet.  The WHOIS database lists technical, administrative, and billing contacts for all Internet domains.  See Internet URL:

 

http://rs.internic.net/cgi-bin/whois

Plaintiff also confirmed that the modified, derivative copies recently hosted by Defendant AOL had moved several times, from one Internet domain to another, beginning on May 20, 1995.  A subset of said domains were likewise hosted by Defendant AOL at one time or another.  The following is a sample of these several different domains and corresponding Internet URL's:

 

Domain     URL

 

INTAC.COM  http://www.intac.com/~dimitri/dh/fz/fedzone.html

LEVITY.COM http://www.levity.com/deoxy/fz/fedzone.htm

DEOXY.ORG  http://www.deoxy.org/fz/fedzone.htm

MIXI.NET   http://www.feustel.mixi.net/fedzone/fedzone.html

AOL.COM    http://www.members.aol.com/astrology/fedzone/fedzone.htm

BAYON.NET  http://www.bayon.net/federalzone/fedzone.htm

L0PHT.COM  http://www3.l0pht.com/pub/blackcrwl/patriot/the_federal_zone.txt

CORNELL.EDU http://cybernews.comm.cornell.edu/pub/usa/patriot/fedzone.txt

 

It was not until March 17, 1999, when Plaintiff first discovered that all derivative files itemized above had finally been removed from the Domain DEOXY.ORG hosted by Defendant AOL (see Paragraph [A] above).

Thus, the duration of Defendants' uninterrupted violation of Plaintiff's exclusive copyrights in the subject book lasted at least from May 20, 1995, through and including March 16, 1999, for a total of forty-five and one-half (45.5) consecutive months.  Other domain violations continued after March 16, 1999.

During those same 45.5 months, Plaintiff's gross revenues from sales of the subject book amounted to less than one thousand dollars ($1,000.00) total, or $1,000.00 / 45.5 = $21.98 per month.  The market had been saturated with “free” copies.

Using the recent activity rate at Plaintiff's own Internet Web site as a baseline (on the theory that this rate is an excellent empirical measure of the general public's interest in Plaintiff's published writings), an estimated 45.5 months x 52,117 "hits" per month = 2,371,324 copies of one or more component files of the subject book were obtained unlawfully, and without any payments whatsoever, from Defendant AOL's network of computers, in direct or indirect infringement of Plaintiff's exclusive copyrights in said book.

This rate of violations is roughly equivalent to a minimum of 52,117 "hits" per month / 42 "hits" per Internet user = 1,241 Internet users per month, assuming all 42 component files were downloaded by each user.  This latter assumption is Plaintiff's good faith attempt to estimate an absolute lower bound for the number of Internet users per month who obtained all, or part, of the subject book from Defendant AOL's network of computers.