1 MEMO 2 3 TO: Jon Mummolo 4 Washington Square News 5 [email protected] 6 7 FROM: Paul Andrew Mitchell 8 Private Attorney General 9 10 DATE: November 9, 2002 A.D. 11 12 SUBJECT: answers to your 2 questions 13 14 Greetings Jon, 15 16 I appreciate this opportunity to respond to your excellent questions. 17 18 Let me begin by laying a summary legal and historical foundation, so 19 that you will be in a much better position to apply the pertinent laws 20 to the relevant facts of my case against AOL Time Warner, Inc. et al. 21 22 A correct historical perspective will divide this case into 3 distinct 23 periods of time: 24 25 (1) the period prior to enactment of the Anticounterfeiting 26 Consumer Protection Act of 1996 (“ACPA”); 27 28 (2) the period between enactments of the ACPA and the Digital 29 Millennium Copyright Act of 1998(“DMCA”); and, 30 31 (3) the period after enactment of the DMCA. 32 33 This approach is necessary, because the U.S. Constitution prohibits ex 34 post facto legislation, even in civil matters, and most definitely in 35 criminal matters. See Article I, Section 9, Clause 3. 36 37 For your information, we have used the ex post facto Clause to prove 38 that, in 1946 A.D. the Lanham Act conferred original jurisdiction on 39 the constitutional Article III District Court of the United States, 40 and not on the legislative Article IV United States District Court. 41 This tough jurisdictional question necessitated a lot of additional 42 pleadings on my part. I mention this because my case is not simply a 43 copyright infringement case; it is also a trademark infringement case 44 under the Lanham Act; and much more (see COUNT’s ONE thru FIVE). 45 46 47 Period 1: prior to ACPA 48 49 The ACPA was enacted in July of 1996, in part to stem the flood of 50 copyright complaints and requests for prompt remedial legislation that 51 reached the Congress in response to the release of Netscape Navigator. 52 53 You may recall that Microsoft Corporation had delayed their entry into 54 Internet software market, because Bill Gates had not fully appreciated

1 Letter to Jon Mummolo, Washington Square News: Page 1 of 9 1 the technological significance of the Internet until after Netscape 2 took off and became the darling of Wall Street. 3 4 The ACPA is significant because of its clear legislative intent. See: 5 6 http://www.supremelaw.org/copyrite/statutes/anticounterfeiting.htm 7 8 Prior to these statutory amendments, the applicable laws were the 9 Copyright Act of 1976 and the Lanham Act, but criminal copyright 10 infringement was not also deemed a racketeering (“RICO”) predicate act 11 until July of 1996. It was still a serious federal offense, however, 12 for violating 17 U.S.C. 506 and 18 U.S.C. 2319 (see COUNT ONE): 13 14 http://www.law.cornell.edu/uscode/17/506.html 15 http://www.law.cornell.edu/uscode/18/2319.html 16 17 Because the 1976 Copyright Act was written at a time when the Internet 18 did not exist, there were no provisions in that Act for immunizing 19 Internet Service Providers (“ISP’s”) from the criminal conduct of 20 their subscribers. ISP’s did not even exist at that time either! 21 22 Our investigation began quite informally in December of 1995, as 23 Netscape began to proliferate. Later our investigation escalated with 24 formal notices to AOL and a few other violators in the Fall of 1997. 25 So, some of the evidence we acquired is dated prior to the ACPA, and 26 most of it is dated after the ACPA was enacted in 1996. 27 28 It remains to be seen what the federal courts will do to apply the 29 facts of my case, as they existed prior to July of 1996, to the laws 30 that existed at that time. 31 32 Most importantly, strictly applying the 1976 Copyright Act, a 3-year 33 civil statute of limitations is in force prior to August 1, 1998, 34 because I did not file my case until August 1, 2001 A.D. 35 36 On the other hand, there are also laws which govern the legal concepts 37 of “accrual” and “tolling”. The statute of limitations is “tolled” 38 (or suspended), for reasons such as fraudulent concealment, which have 39 already been thoroughly documented in my OPENING BRIEF: 40 41 http://www.supremelaw.org/cc/aol/opening.htm 42 43 Just to illustrate, fraudulent concealment is one of the reasons why 44 the courts have allowed the statute of limitations to be tolled in 45 copyright infringement cases. Clearly, the act of obstructing 46 discovery of computer activity logs and the identities of subscribers 47 suspected of infringing my exclusive copyrights is tantamount to 48 fraudulent concealment, tolling the statute of limitations. 49 50 Thus, I believe the sheer weight of the facts and applicable laws 51 prior to August 1, 1998, weighs strongly in favor of admitting 52 evidence of Copyright and Lanham Act violations prior to that date. 53 As you will see below, it was never my legal obligation to police the 54 Internet all by myself. California law imposes no such obligation.

1 Letter to Jon Mummolo, Washington Square News: Page 2 of 9 1 And, the sheer preponderance of facts and applicable laws also weighs 2 strongly in favor of holding the responsible parties specifically 3 liable for all those copyright and trademark infringements, even if 4 some do happen to have started more than 3 years before August 1, 2001 5 (the date I filed the suit). See discussion of continuing wrongs in 6 my OPENING BRIEF to the U.S. Court of Appeals for the Ninth Circuit 7 (abbreviated “Ninth Circuit”). 8 9 10 Period 2: period between ACPA and DMCA 11 12 This is a most interesting phase in our evidence against all named 13 Defendants. First of all, in the ACPA Congress elevated criminal 14 copyright infringement to the level of a RICO predicate act. See the 15 list of predicate acts itemized at 18 U.S.C. 1961(1)(B). 16 17 “Pattern of racketeering activity” had already been defined by Congress 18 to mean and include only two (2) predicate acts during any given ten 19 (10) year period. Obviously, we are dealing with literally thousands, 20 if not millions, of such discrete acts, now that criminal copyright 21 infringement has been added to that list. 22 23 Moreover, the legislative intent of the RICO laws is that they should 24 be liberally construed, not strictly construed. This legislative 25 intent was never codified in Title 18 of the United States Code, 26 however; one must find the original Statutes at Large, to confirm 27 this liberal construction rule. I have now confirmed this difference. 28 29 So, even though the DMCA had not yet been enacted, and can not be 30 enforced retroactively, the period between July 1996 and October 1998 31 is rather crucial in light of the comprehensive copyright enforcement 32 which I performed during the Summer of 1998, using the generous 33 computer facilities provided to me by the main librarians at Southwest 34 Texas State University (“SWT”). They were a Godsend, indeed! 35 36 You will note, from the Background Facts in the Initial COMPLAINT, 37 that I used a systematic email methodology to disseminate a NOTICE AND 38 DEMAND that all responsible ISP’s produce a certified copy of my 39 authorization (if any) to promote a stolen and modified electronic 40 copy of “The Federal Zone” on their Internet server computers. 41 42 Then, following closely on the heels of this NOTICE AND DEMAND FOR 43 AUTHORIZATION, I also posted on the Internet the following PUBLIC 44 NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE: 45 46 Formal DEMAND is hereby made of you to delete ALL extant copies 47 of component electronic files in "The Federal Zone: Cracking the 48 Code of Internal Revenue," all editions, and ALL hypertext links 49 to extant copies, whether such links are now valid or not, and 50 ALL pointers to same which now exist in the index databases of 51 all Internet search engines, and to do so on all computers now in 52 your possession or control, and all computers to which you have 53 any write access whatsoever. 54

1 Letter to Jon Mummolo, Washington Square News: Page 3 of 9 1 The stated deadline for their specific performance was July 31, 1998 2 A.D. This turns out to be a pivotal date in the context of this case. 3 4 Of course, I had never authorized anyone to steal and then modify any 5 electronic versions of the book, or any components thereof. 6 7 Every single ISP who received these NOTICES AND DEMANDS then failed to 8 produce any certified authorization(s). Some of them simply removed 9 the offending files; some of them did not remove the offending files. 10 Some of them were presented with evidence of wholesale counterfeits; 11 others were presented only with evidence of hyperlinks to stolen 12 copies and/or modified counterfeits. A New York federal court has 13 already decided that hyperlinks to stolen intellectual property are 14 also copyright infringements. See Exhibit L -5. 15 16 My point here is two-fold: (1) the DMCA’s “take-down” procedure did 17 not yet exist at that time (Summer of 1998), so I had to invent my own 18 notification procedure, and (2) we did not regard any ISP’s as liable 19 at that time, as long as they ended up removing the violations in 20 question, and even if they failed to produce any purported 21 “authorization” from me (because no such authorizations truly existed, 22 in point of fact). 23 24 However, our ultimate purpose in confronting ISP’s, even after they 25 removed the violations in question, was to obtain the identities of 26 specific subscribers suspected of violating my exclusive copyrights. 27 My reasons for doing so are fully explained in one of the numerous 28 DEMANDS FOR SUBSCRIBER IDENTITY that we later mailed to these ISP’s. 29 For example, the one we mailed to Carnegie Mellon University is at 30 Internet URL: 31 32 http://www.supremelaw.org/copyrite/cmu.edu/subid2.htm 33 34 Here, I felt we were on very solid legal ground to enforce the 35 principle of vicarious liability aka respondeat superior (in Latin). 36 This legal theory is applicable to RICO violations as well as Lanham 37 Act violations. Understanding this theory is akin to graduate level 38 mathematics, however. Allow me to recommend that you do your own 39 research on vicarious liability aka respondeat superior. 40 41 Even if we could not go back 10 years prior to July 1996, because of 42 the ex post facto Clause, it was certainly the case that copyright 43 infringements had become RICO predicate acts as of that date. Thus, 44 the evidence acquired during the Summer of 1998 became rather pivotal 45 in our decision formally to name and prosecute all of the specific 46 Defendants that we eventually did name in my Initial COMPLAINT and 3 47 SUPPLEMENT’s. See the Table of Contents at Internet URL: 48 49 http://www.supremelaw.org/cc/aol/index.htm 50 51 Moreover, the specific misconduct of ISP’s after July 31, 1998 A.D., 52 became even more important, and even more compelling, in part because 53 the Copyright Act has a 3-year statute of limitations. 54

1 Letter to Jon Mummolo, Washington Square News: Page 4 of 9 1 If ISP’s refused to disclose the identities of any of their 2 subscribers whom we suspected -- from certified empirical evidence -- 3 of criminal copyright infringement, we then felt quite confident that 4 those ISP’s would ultimately be liable under a theory of vicarious 5 liability, in addition to hindering apprehension and prosecution. 6 Here is the crucial paragraph from a typical NOTICE AND DEMAND FOR 7 SUBSCRIBER IDENTITY, which explains our reasoning in this regard: 8 9 For all the reasons stated herein, we conclude that Internet 10 Service Providers should be held liable for any acts which 11 conceal the identities, or hinder the apprehension and 12 prosecution, of subscribers (or customers) engaged in any 13 copyright infringements, Lanham Act violations, or patterns of 14 racketeering activity. See 18 U.S.C. §§ 1961(1)(B) and 2319. 15 16 Clearly, the operative terms here are “concealing identities” and 17 “hindering apprehension and prosecution”, both of which have been 18 actionable for many years in American courts, under both State and 19 federal laws. Remember, there are 3 other COUNT’s in addition to 20 copyright and trademark infringements, e.g. unfair competition. 21 22 Thus, when many ISP’s defaulted at the end of July 1998, we were also 23 quite confident that we would succeed in holding every single ISP 24 liable that had failed to remove the violations in question. AOL is 25 in this group, because the confirmed violations on their Internet 26 servers continued there for another 8 months after July 31, 1998! 27 This much should be plainly obvious to any competent federal judge. 28 29 When I use the term “violation” here, bear in mind that our NOTICE AND 30 DEMAND FOR SPECIFIC PERFORMANCE did separately itemize all wholesale 31 copies, all counterfeits aka modified derivatives, all hyperlinks to 32 wholesale copies and/or counterfeits, and all pointers to wholesale 33 copies or counterfeits that might still persist in the index databases 34 of common Internet search engines, like Alta Vista and Excite. 35 36 If ISP’s removed anything at all, they typically removed the wholesale 37 copies and counterfeits. Fewer of them removed the hyperlinks of 38 which we also complained. And, hardly any ISP’s bothered to clean out 39 the index databases of common Internet search engines, probably 40 because the ISP’s did not know how to do this particular task easily. 41 42 To summarize, a unique period existed between July 1996 and October 43 1998, one in which the ACPA could be enforced to elevate criminal 44 copyright infringement to the level of a RICO predicate act, but only 45 if I chose, at some point, to add COUNT SIX: Civil RICO to my case. 46 47 I have reserved my right to amend my Initial COMPLAINT, so COUNT SIX: 48 Civil RICO remains a very viable and very probable option. If the 49 federal courts continue to show signs of scuttling my federal case, as 50 has already happened, I plan to file COUNT SIX: Civil RICO in the 51 Superior Court of California, because State courts have concurrent 52 jurisdiction of Civil RICO claims. See the case of Tafflin v. Levitt 53 on this issue of concurrent State jurisdiction of Civil RICO claims; 54 the Ninth Circuit has also agreed in Lou v. Belzberg.

1 Letter to Jon Mummolo, Washington Square News: Page 5 of 9 1 Period 3: after enactment of the DMCA 2 3 This Act was signed into law by President Clinton on October 28, 1998. 4 There was no grace period in this Act, so its provisions went into 5 effect immediately. 6 7 The most important aspects of this law, as far as your questions are 8 concerned, are the DMCA’s ISP immunity provisions, and the SUBPOENA 9 authority for subscribers’ identities. See 17 U.S.C. 512 in toto: 10 11 http://www.law.cornell.edu/uscode/17/512.html 12 13 Clearly, I concur that Congress did a good thing by giving ISP’s a way 14 to remain justly immune from unnecessary liabilities. But in order to 15 remain immune, they are required by the DMCA to do at least 3 things: 16 17 (1) register an Agent for Notification of Copyright Infringement 18 Claims at the website of the U.S. Copyright Office in 19 Washington, D.C.; 20 21 (2) remove proven violations promptly, or “expeditiously” as the 22 law is written, upon receipt of proper notification; and, 23 24 (3) respond to SUBPOENA’s served upon them for the identities of 25 subscribers suspected of infringing an author’s exclusive 26 copyrights (a MOTION TO QUASH would be one form of answer). 27 28 Thus, my reading of the DMCA infers that an ISP continues to be liable 29 for the copyright infringements of its subscribers if (1) it fails to 30 register an Agent for Notification of Copyright Infringement Claims at 31 the Copyright Office website, also if (2) upon receiving proper 32 notification, it fails to remove the violation(s) expeditiously, and 33 also if (3) it fails to answer a lawful SUBPOENA served upon it 34 pursuant to 17 U.S.C. 512(h). 35 36 All named Defendants have now been served, via U.S. Mail, with proper 37 notification that conforms to the requirements of the DMCA. See: 38 39 http://www.supremelaw.org/copyrite/corres/notification.2001-03-01.htm 40 41 So, even if ISP’s have posted Registered Agents at the Copyright 42 Office website, they are still liable if they do not expedite the 43 removal of proven violations from the computers they own and operate, 44 and they are still liable if they do not answer proper and lawful 45 SUBPOENA’s served upon them for their computer activity logs and for 46 the identities of subscribers suspected of infringing this author’s 47 exclusive copyrights. The logs should reveal those subscribers. 48 49 Happily, the DMCA now supports entirely my assertion that ISP’s should 50 be held liable, even prior to its enactment, for concealing the 51 identities, and hindering the apprehension and prosecution, of 52 subscribers suspected of infringing my exclusive copyrights. The same 53 is true for their infringements of my trademarks, jointly and 54 severally.

1 Letter to Jon Mummolo, Washington Square News: Page 6 of 9 1 Consequently, the important questions I believe you should be asking, 2 at this point in time, are these: 3 4 (1) How many colleges and universities were served with SUBPOENA’s 5 pursuant to 17 U.S.C. 512(h)? 6 7 (2) How many of those colleges and universities have failed to 8 answer those lawful SUBPOENA’s? 9 10 (3) How many colleges and universities were served with my NOTICE 11 AND DEMAND FOR SUBSCRIBER IDENTITIES, prior to receiving 12 SUBPOENA’s? 13 14 (4) How many of those colleges and universities have failed to 15 answer my NOTICE AND DEMAND FOR SUBSCRIBER IDENTITIES, prior 16 to receiving SUBPOENA’s? 17 18 (5) How many colleges and universities have failed timely to 19 register an Agent for Notification of Copyright Infringement 20 Claims at the website of the U.S. Copyright Office? 21 22 (6) How many colleges and universities have failed to obey my 23 NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE by July 31, 1998? 24 25 (7) How many colleges and universities have failed to remove 26 wholesale copies and/or modified counterfeits, after receiving 27 proper notices from me? 28 29 (8) How many colleges and universities have failed to remove 30 hyperlinks to wholesale copies and/or modified counterfeits, 31 after receiving proper notices from me? 32 33 (9) How many colleges and universities have failed to remove 34 pointers to proven violations on their servers, after those 35 pointers were confirmed to exist in the index databases of 36 popular Internet search engines like Alta Vista and Excite? 37 38 (10) And, how many colleges and universities failed to answer my 39 REQUEST FOR WAIVER OF SERVICE OF SUMMONS, the formal SUMMONS 40 and the Initial COMPLAINT? 41 42 I can assure you that our legal research has confirmed a recent 43 important shift in the decisions of many State and federal courts: 44 efforts to stall or obstruct discovery of relevant admissible evidence 45 are being met with increasingly harsh sanctions. Please remember that 46 my case has not even gone to trial yet! 47 48 Now, add to all the above our findings that all colleges and all 49 universities who attempted to appear -- to defend themselves against 50 the charges found in my Initial COMPLAINT -- did so by means of 51 attorneys who did not have the requisite credentials required by 52 California State laws. 53

1 Letter to Jon Mummolo, Washington Square News: Page 7 of 9 1 Specifically, section 6067 of the California Business and Professions 2 Code mandates that all California State Bar members must have a 3 license to practice law, and a certificate of oath must be indorsed 4 upon that license. That oath binds them to uphold the U.S. 5 Constitution and the California State Constitution. 6 7 If you will locate the High Country cite in my OPENING BRIEF to the 8 Ninth Circuit, you will find that entry of default judgment was proper 9 when an unlicensed corporate officer attempted to appear on behalf of 10 his corporation. That corporate officer was not an attorney duly 11 licensed to practice law; thus, his corporation failed to appear 12 (hence the default judgment)! 13 14 Well, that case is directly relevant to our case against AOL et al. 15 Many colleges and universities never even bothered to answer my 16 Initial COMPLAINT after receiving two (2) copies, a formal request for 17 waiver of service of the SUMMONS, and eventually the formal SUMMONS; 18 clearly, all such defendants have defaulted -- for failing to answer. 19 20 Moreover, colleges and universities that did attempt to appear by 21 means of one or another California attorney have also defaulted, 22 because the attorneys they hired -- without exception -- failed to 23 produce valid licenses to practice law that conform to section 6067 of 24 the California Business and Professions Code. 25 26 I emphasize this point, because we went to the trouble of issuing 27 additional SUBPOENA’s to those attorneys, commanding them to produce 28 their licenses; those SUBPOENA’s were also ignored by every single 29 attorney who attempted to represent certain colleges and universities! 30 One attorney, in particular, was retained by a group of 10 university 31 Defendants; he also failed to produce his license, so all 10 of those 32 universities have also failed to answer (read “default judgment”)! 33 34 Do you think that, just maybe, every one of those universities now has 35 a legitimate claim against their attorneys, for fraud, for malpractice 36 and for willful misrepresentation? I think so! Either that, or the 37 university Defendants already knew about these missing credentials, 38 and chose to do nothing about it. The latter is more probable, based 39 upon the facts now on record at the Ninth Circuit. 40 41 Clearly, there has also been extensive obstruction of discovery, not 42 only of computer activity logs and of the identities of subscribers 43 suspected of infringing my exclusive copyrights, but also of the 44 attorneys’ licenses to practice law as required by California State 45 laws. Who is responsible for that obstruction, I ask you? I 46 certainly am not. 47 48 49 Now, your second question appears to be a slightly more specific 50 variation of your first question. Your second question is predicated 51 on your belief that ISP’s are categorically not responsible for 52 monitoring the web pages of individuals. The Ninth Circuit’s Napster 53 decision does not support your belief, however. Please read it to 54 confirm what I am about to say here. See Exhibit L -11.

1 Letter to Jon Mummolo, Washington Square News: Page 8 of 9 1 That published decision, which also happens to be a numbered Exhibit 2 in my Initial COMPLAINT, held that ISP’s are responsible for policing 3 their systems, and that authors are not responsible for policing the 4 Internet all by themselves. Confer at “obligation” in the California 5 Civil Code. So, this one recent, and arguably very controlling 6 decision contradicts your major premise. 7 8 Yes, based on what I have explained above, particularly as regards the 9 SUBPOENA’s authorized by 17 U.S.C. 512(h), ISP’s can be held liable 10 for copyright infringements, even if they respond to each complaint in 11 time, if they then turn around and refuse to obey a proper and lawful 12 SUBPOENA for their computer activity logs and for the identities of 13 their subscribers who were originally responsible for the copyright 14 infringement(s) in question (hopefully revealed by those logs). 15 16 Moreover, the violations of which I have complained, with incredible 17 detail, were also Lanham Act violations because those violations were 18 also what I termed modified derivatives and what Congress has elected 19 to call “counterfeits”. Not only does the Lanham Act authorize triple 20 damages; the theory of vicarious liability aka respondeat superior 21 (in Latin) can be also applied to hold these ISP’s liable for the 22 Lanham Act violations of their subscribers [cite omitted here]. 23 24 And, as of July 1996, another vicarious liability theory, and triple 25 damage multiplier, can be imposed by the ACPA, particularly when ISP’s 26 choose to obstruct discovery. Obstructing discovery is a specific 27 variant of obstruction of justice, the latter of which is also a RICO 28 predicate act. Again, see 18 U.S.C. 1961(1)(B). 29 30 Combining the Lanham Act and the RICO Act at 18 U.S.C. 1964, total 31 damages can be multiplied six-fold (6x). 32 33 I hope the details I have discussed above go a long way towards 34 answering the 2 excellent questions you have asked. 35 36 If I can further elaborate on any of the points I have made above, 37 please let me know which points need more explanation and I will do my 38 very best to provide you with a prompt and professional reply. 39 40 41 Sincerely yours, 42 43 /s/ Paul Andrew Mitchell 44 45 Paul Andrew Mitchell, B.A., M.S., 46 Private Attorney General, Author, 47 Damaged Party and Plaintiff/Appellant: 48 Mitchell v. AOL Time Warner, Inc. et al.

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