TO: Jon Mummolo
Washington Square News
FROM: Paul Andrew Mitchell
DATE: November 9, 2002 A.D.
SUBJECT: answers to your 2 questions
I appreciate this opportunity to respond to your excellent questions.
Let me begin by laying a summary legal and historical foundation, so that you will be in a much better position to apply the pertinent laws to the relevant facts of my case against AOL Time Warner, Inc. et al.
A correct historical perspective will divide this case into 3 distinct periods of time:
(1) the period prior to enactment of the Anticounterfeiting Consumer Protection Act of 1996 (“ACPA”);
(2) the period between enactments of the ACPA and the Digital Millennium Copyright Act of 1998(“DMCA”); and,
(3) the period after enactment of the DMCA.
For your information, we have used the ex post facto Clause to prove that, in 1946 A.D. the Lanham Act conferred original jurisdiction on the constitutional Article III District Court of the United States, and not on the legislative Article IV United States District Court. This tough jurisdictional question necessitated a lot of additional pleadings on my part. I mention this because my case is not simply a copyright infringement case; it is also a trademark infringement case under the Lanham Act; and much more (see COUNT’s ONE thru FIVE).
The ACPA was enacted in July of 1996, in part to stem the flood of copyright complaints and requests for prompt remedial legislation that reached the Congress in response to the release of Netscape Navigator.
You may recall that Microsoft Corporation had delayed their entry into Internet software market, because Bill Gates had not fully appreciated the technological significance of the Internet until after Netscape took off and became the darling of Wall Street.
The ACPA is significant because of its clear legislative intent. See:
Prior to these statutory amendments, the applicable laws were the Copyright Act of 1976 and the Lanham Act, but criminal copyright infringement was not also deemed a racketeering (“RICO”) predicate act until July of 1996. It was still a serious federal offense, however, for violating 17 U.S.C. 506 and 18 U.S.C. 2319 (see COUNT ONE):
Because the 1976 Copyright Act was written at a time when the Internet did not exist, there were no provisions in that Act for immunizing Internet Service Providers (“ISP’s”) from the criminal conduct of their subscribers. ISP’s did not even exist at that time either!
Our investigation began quite informally in December of 1995, as Netscape began to proliferate. Later our investigation escalated with formal notices to AOL and a few other violators in the Fall of 1997. So, some of the evidence we acquired is dated prior to the ACPA, and most of it is dated after the ACPA was enacted in 1996.
It remains to be seen what the federal courts will do to apply the facts of my case, as they existed prior to July of 1996, to the laws that existed at that time.
Most importantly, strictly applying the 1976 Copyright Act, a 3-year civil statute of limitations is in force prior to August 1, 1998, because I did not file my case until August 1, 2001 A.D.
On the other hand, there are also laws which govern the legal concepts of “accrual” and “tolling”. The statute of limitations is “tolled” (or suspended), for reasons such as fraudulent concealment, which have already been thoroughly documented in my OPENING BRIEF:
Just to illustrate, fraudulent concealment is one of the reasons why the courts have allowed the statute of limitations to be tolled in copyright infringement cases. Clearly, the act of obstructing discovery of computer activity logs and the identities of subscribers suspected of infringing my exclusive copyrights is tantamount to fraudulent concealment, tolling the statute of limitations.
Thus, I believe the sheer weight of the facts and applicable laws prior to August 1, 1998, weighs strongly in favor of admitting evidence of Copyright and Lanham Act violations prior to that date. As you will see below, it was never my legal obligation to police the Internet all by myself. California law imposes no such obligation.
And, the sheer preponderance of facts and applicable laws also weighs strongly in favor of holding the responsible parties specifically liable for all those copyright and trademark infringements, even if some do happen to have started more than 3 years before August 1, 2001 (the date I filed the suit). See discussion of continuing wrongs in my OPENING BRIEF to the U.S. Court of Appeals for the Ninth Circuit (abbreviated “Ninth Circuit”).
This is a most interesting phase in our evidence against all named Defendants. First of all, in the ACPA Congress elevated criminal copyright infringement to the level of a RICO predicate act. See the list of predicate acts itemized at 18 U.S.C. 1961(1)(B).
“Pattern of racketeering activity” had already been defined by Congress to mean and include only two (2) predicate acts during any given ten (10) year period. Obviously, we are dealing with literally thousands, if not millions, of such discrete acts, now that criminal copyright infringement has been added to that list.
Moreover, the legislative intent of the RICO laws is that they should be liberally construed, not strictly construed. This legislative intent was never codified in Title 18 of the United States Code, however; one must find the original Statutes at Large, to confirm this liberal construction rule. I have now confirmed this difference.
So, even though the DMCA had not yet been enacted, and can not be enforced retroactively, the period between July 1996 and October 1998 is rather crucial in light of the comprehensive copyright enforcement which I performed during the Summer of 1998, using the generous computer facilities provided to me by the main librarians at Southwest Texas State University (“SWT”). They were a Godsend, indeed!
You will note, from the Background Facts in the Initial COMPLAINT, that I used a systematic email methodology to disseminate a NOTICE AND DEMAND that all responsible ISP’s produce a certified copy of my authorization (if any) to promote a stolen and modified electronic copy of “The Federal Zone” on their Internet server computers.
Then, following closely on the heels of this NOTICE AND DEMAND FOR AUTHORIZATION, I also posted on the Internet the following PUBLIC NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE:
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.
The stated deadline for their specific performance was July 31, 1998 A.D. This turns out to be a pivotal date in the context of this case.
Of course, I had never authorized anyone to steal and then modify any electronic versions of the book, or any components thereof.
Every single ISP who received these NOTICES AND DEMANDS then failed to produce any certified authorization(s). Some of them simply removed the offending files; some of them did not remove the offending files. Some of them were presented with evidence of wholesale counterfeits; others were presented only with evidence of hyperlinks to stolen copies and/or modified counterfeits. A New York federal court has already decided that hyperlinks to stolen intellectual property are also copyright infringements. See Exhibit L‑5.
My point here is two-fold: (1) the DMCA’s “take-down” procedure did not yet exist at that time (Summer of 1998), so I had to invent my own notification procedure, and (2) we did not regard any ISP’s as liable at that time, as long as they ended up removing the violations in question, and even if they failed to produce any purported “authorization” from me (because no such authorizations truly existed, in point of fact).
However, our ultimate purpose in confronting ISP’s, even after they removed the violations in question, was to obtain the identities of specific subscribers suspected of violating my exclusive copyrights. My reasons for doing so are fully explained in one of the numerous DEMANDS FOR SUBSCRIBER IDENTITY that we later mailed to these ISP’s. For example, the one we mailed to Carnegie Mellon University is at Internet URL:
Here, I felt we were on very solid legal ground to enforce the principle of vicarious liability aka respondeat superior (in Latin). This legal theory is applicable to RICO violations as well as Lanham Act violations. Understanding this theory is akin to graduate level mathematics, however. Allow me to recommend that you do your own research on vicarious liability aka respondeat superior.
Even if we could not go back 10 years prior to July 1996, because of the ex post facto Clause, it was certainly the case that copyright infringements had become RICO predicate acts as of that date. Thus, the evidence acquired during the Summer of 1998 became rather pivotal in our decision formally to name and prosecute all of the specific Defendants that we eventually did name in my Initial COMPLAINT and 3 SUPPLEMENT’s. See the Table of Contents at Internet URL:
Moreover, the specific misconduct of ISP’s after July 31, 1998 A.D., became even more important, and even more compelling, in part because the Copyright Act has a 3-year statute of limitations.
If ISP’s refused to disclose the identities of any of their subscribers whom we suspected ‑‑ from certified empirical evidence ‑‑ of criminal copyright infringement, we then felt quite confident that those ISP’s would ultimately be liable under a theory of vicarious liability, in addition to hindering apprehension and prosecution. Here is the crucial paragraph from a typical NOTICE AND DEMAND FOR SUBSCRIBER IDENTITY, which explains our reasoning in this regard:
For all the reasons stated herein, we conclude that Internet Service Providers should be held liable for any acts which conceal the identities, or hinder the apprehension and prosecution, of subscribers (or customers) engaged in any copyright infringements, Lanham Act violations, or patterns of racketeering activity. See 18 U.S.C. §§ 1961(1)(B) and 2319.
Clearly, the operative terms here are “concealing identities” and “hindering apprehension and prosecution”, both of which have been actionable for many years in American courts, under both State and federal laws. Remember, there are 3 other COUNT’s in addition to copyright and trademark infringements, e.g. unfair competition.
Thus, when many ISP’s defaulted at the end of July 1998, we were also quite confident that we would succeed in holding every single ISP liable that had failed to remove the violations in question. AOL is in this group, because the confirmed violations on their Internet servers continued there for another 8 months after July 31, 1998! This much should be plainly obvious to any competent federal judge.
When I use the term “violation” here, bear in mind that our NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE did separately itemize all wholesale copies, all counterfeits aka modified derivatives, all hyperlinks to wholesale copies and/or counterfeits, and all pointers to wholesale copies or counterfeits that might still persist in the index databases of common Internet search engines, like Alta Vista and Excite.
If ISP’s removed anything at all, they typically removed the wholesale copies and counterfeits. Fewer of them removed the hyperlinks of which we also complained. And, hardly any ISP’s bothered to clean out the index databases of common Internet search engines, probably because the ISP’s did not know how to do this particular task easily.
To summarize, a unique period existed between July 1996 and October 1998, one in which the ACPA could be enforced to elevate criminal copyright infringement to the level of a RICO predicate act, but only if I chose, at some point, to add COUNT SIX: Civil RICO to my case.
I have reserved my right to amend my Initial COMPLAINT, so COUNT SIX: Civil RICO remains a very viable and very probable option. If the federal courts continue to show signs of scuttling my federal case, as has already happened, I plan to file COUNT SIX: Civil RICO in the Superior Court of California, because State courts have concurrent jurisdiction of Civil RICO claims. See the case of Tafflin v. Levitt on this issue of concurrent State jurisdiction of Civil RICO claims; the Ninth Circuit has also agreed in Lou v. Belzberg.
This Act was signed into law by President Clinton on October 28, 1998. There was no grace period in this Act, so its provisions went into effect immediately.
The most important aspects of this law, as far as your questions are concerned, are the DMCA’s ISP immunity provisions, and the SUBPOENA authority for subscribers’ identities. See 17 U.S.C. 512 in toto:
Clearly, I concur that Congress did a good thing by giving ISP’s a way to remain justly immune from unnecessary liabilities. But in order to remain immune, they are required by the DMCA to do at least 3 things:
(1) register an Agent for Notification of Copyright Infringement Claims at the website of the U.S. Copyright Office in Washington, D.C.;
(2) remove proven violations promptly, or “expeditiously” as the law is written, upon receipt of proper notification; and,
(3) respond to SUBPOENA’s served upon them for the identities of subscribers suspected of infringing an author’s exclusive copyrights (a MOTION TO QUASH would be one form of answer).
Thus, my reading of the DMCA infers that an ISP continues to be liable for the copyright infringements of its subscribers if (1) it fails to register an Agent for Notification of Copyright Infringement Claims at the Copyright Office website, also if (2) upon receiving proper notification, it fails to remove the violation(s) expeditiously, and also if (3) it fails to answer a lawful SUBPOENA served upon it pursuant to 17 U.S.C. 512(h).
All named Defendants have now been served, via U.S. Mail, with proper notification that conforms to the requirements of the DMCA. See:
So, even if ISP’s have posted Registered Agents at the Copyright Office website, they are still liable if they do not expedite the removal of proven violations from the computers they own and operate, and they are still liable if they do not answer proper and lawful SUBPOENA’s served upon them for their computer activity logs and for the identities of subscribers suspected of infringing this author’s exclusive copyrights. The logs should reveal those subscribers.
Happily, the DMCA now supports entirely my assertion that ISP’s should be held liable, even prior to its enactment, for concealing the identities, and hindering the apprehension and prosecution, of subscribers suspected of infringing my exclusive copyrights. The same is true for their infringements of my trademarks, jointly and severally.
Consequently, the important questions I believe you should be asking, at this point in time, are these:
(1) How many colleges and universities were served with SUBPOENA’s pursuant to 17 U.S.C. 512(h)?
(2) How many of those colleges and universities have failed to answer those lawful SUBPOENA’s?
(3) How many colleges and universities were served with my NOTICE AND DEMAND FOR SUBSCRIBER IDENTITIES, prior to receiving SUBPOENA’s?
(4) How many of those colleges and universities have failed to answer my NOTICE AND DEMAND FOR SUBSCRIBER IDENTITIES, prior to receiving SUBPOENA’s?
(5) How many colleges and universities have failed timely to register an Agent for Notification of Copyright Infringement Claims at the website of the U.S. Copyright Office?
(6) How many colleges and universities have failed to obey my NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE by July 31, 1998?
(7) How many colleges and universities have failed to remove wholesale copies and/or modified counterfeits, after receiving proper notices from me?
(8) How many colleges and universities have failed to remove hyperlinks to wholesale copies and/or modified counterfeits, after receiving proper notices from me?
(9) How many colleges and universities have failed to remove pointers to proven violations on their servers, after those pointers were confirmed to exist in the index databases of popular Internet search engines like Alta Vista and Excite?
(10) And, how many colleges and universities failed to answer my REQUEST FOR WAIVER OF SERVICE OF SUMMONS, the formal SUMMONS and the Initial COMPLAINT?
I can assure you that our legal research has confirmed a recent important shift in the decisions of many State and federal courts: efforts to stall or obstruct discovery of relevant admissible evidence are being met with increasingly harsh sanctions. Please remember that my case has not even gone to trial yet!
Now, add to all the above our findings that all colleges and all universities who attempted to appear ‑‑ to defend themselves against the charges found in my Initial COMPLAINT ‑‑ did so by means of attorneys who did not have the requisite credentials required by California State laws.
Specifically, section 6067 of the California Business and Professions Code mandates that all California State Bar members must have a license to practice law, and a certificate of oath must be indorsed upon that license. That oath binds them to uphold the U.S. Constitution and the California State Constitution.
If you will locate the High Country cite in my OPENING BRIEF to the Ninth Circuit, you will find that entry of default judgment was proper when an unlicensed corporate officer attempted to appear on behalf of his corporation. That corporate officer was not an attorney duly licensed to practice law; thus, his corporation failed to appear (hence the default judgment)!
Well, that case is directly relevant to our case against AOL et al. Many colleges and universities never even bothered to answer my Initial COMPLAINT after receiving two (2) copies, a formal request for waiver of service of the SUMMONS, and eventually the formal SUMMONS; clearly, all such defendants have defaulted ‑‑ for failing to answer.
Moreover, colleges and universities that did attempt to appear by means of one or another California attorney have also defaulted, because the attorneys they hired ‑‑ without exception ‑‑ failed to produce valid licenses to practice law that conform to section 6067 of the California Business and Professions Code.
I emphasize this point, because we went to the trouble of issuing additional SUBPOENA’s to those attorneys, commanding them to produce their licenses; those SUBPOENA’s were also ignored by every single attorney who attempted to represent certain colleges and universities! One attorney, in particular, was retained by a group of 10 university Defendants; he also failed to produce his license, so all 10 of those universities have also failed to answer (read “default judgment”)!
Do you think that, just maybe, every one of those universities now has a legitimate claim against their attorneys, for fraud, for malpractice and for willful misrepresentation? I think so! Either that, or the university Defendants already knew about these missing credentials, and chose to do nothing about it. The latter is more probable, based upon the facts now on record at the Ninth Circuit.
Clearly, there has also been extensive obstruction of discovery, not only of computer activity logs and of the identities of subscribers suspected of infringing my exclusive copyrights, but also of the attorneys’ licenses to practice law as required by California State laws. Who is responsible for that obstruction, I ask you? I certainly am not.
Now, your second question appears to be a slightly more specific variation of your first question. Your second question is predicated on your belief that ISP’s are categorically not responsible for monitoring the web pages of individuals. The Ninth Circuit’s Napster decision does not support your belief, however. Please read it to confirm what I am about to say here. See Exhibit L‑11.
That published decision, which also happens to be a numbered Exhibit in my Initial COMPLAINT, held that ISP’s are responsible for policing their systems, and that authors are not responsible for policing the Internet all by themselves. Confer at “obligation” in the California Civil Code. So, this one recent, and arguably very controlling decision contradicts your major premise.
Yes, based on what I have explained above, particularly as regards the SUBPOENA’s authorized by 17 U.S.C. 512(h), ISP’s can be held liable for copyright infringements, even if they respond to each complaint in time, if they then turn around and refuse to obey a proper and lawful SUBPOENA for their computer activity logs and for the identities of their subscribers who were originally responsible for the copyright infringement(s) in question (hopefully revealed by those logs).
Moreover, the violations of which I have complained, with incredible detail, were also Lanham Act violations because those violations were also what I termed modified derivatives and what Congress has elected to call “counterfeits”. Not only does the Lanham Act authorize triple damages; the theory of vicarious liability aka respondeat superior (in Latin) can be also applied to hold these ISP’s liable for the Lanham Act violations of their subscribers [cite omitted here].
And, as of July 1996, another vicarious liability theory, and triple damage multiplier, can be imposed by the ACPA, particularly when ISP’s choose to obstruct discovery. Obstructing discovery is a specific variant of obstruction of justice, the latter of which is also a RICO predicate act. Again, see 18 U.S.C. 1961(1)(B).
I hope the details I have discussed above go a long way towards answering the 2 excellent questions you have asked.
If I can further elaborate on any of the points I have made above, please let me know which points need more explanation and I will do my very best to provide you with a prompt and professional reply.
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S.,
Damaged Party and Plaintiff/Appellant: