http://randazza.files.wordpress.com/2008/05/ak47-memo-in-support-and-sugg-of-dismissal1.pdf

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769248)

GTO writes super long and verbose motions.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769277)

lulz. titcr. with lots of overheated rhetoric about the critical first amendment right to post racial slurs on the internet anonymously.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769308)

http://www.johnrwilliams.com/Attorneys.shtml/3043214_1

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769321)

28 usc 1367(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769350)

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

So 1367c doesn't come into play until 1367a is satisfied. also, no need to be rude about it.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769394)

if on date X i post something tortious about you having an STD it is not factually related to another person posting a picture of you on date X + 1.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769454)

EDIT: it IS shocking that he never cited 1367(c)(2), (4), though.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769471)

EDIT: and a good enough one that i'm starting an appellate clerkship in a matter of weeks. i plan to completely rewrite the SMJ law.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769515)

i don't much care. i just remember you saying something insulting about me in the past for no particular reason, noted that you said something that appeared patently stupid on this thread, and so it seemed like an opportune moment for the question. (i actually am still curious as to the answer.)

"i plan to completely rewrite the SMJ law."

good luck with that. coa doesn't exactly mean that you're destined to change the legal world.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769547)

do you think that 1367a is obviously satisfied w/r/t all the defendants?

i'm not going to say where i go to school.

and, yes, it was a joke.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769572)

He's just being a dick.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771817)

"If in fact this were a mere typographical error, one might suppose the plaintiffs would have corrected it when the error was brought to their attention; but the error was brought to their attention repeatedly before the recent oral argument and no effort was made to change the express, but now admittedly inaccurate, allegation of the complaint."

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769478)

The plaintiffs and their attorneys first

were notified of this issue in an AutoAdmit thread on June 12, 2007. See

WSJ BLOG HAS THE COMPLAINT!!!!!

. The plaintiffs have submitted to this court several other posts from that

same thread on that very same day, so their awareness of these warnings is

indisputable.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769257)

Edit: I get it now. *taks a bow*

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771843)

The Doe has the right to exert her copyright rights. Whether or not she has a mixed motive to also use this as a jurisdictional hook is irrelevant.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769421)

"[b]y mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable."

1) It isn't binding precedent (obviously). Indeed the quoted passage merely states an opinion that something is undesirable, not that any court has ever held it to be improper.

2) The complaint here contains bona fide copyright claims. I'd like to know which claims Williams thinks are tort claims mischaracterized as copyright claims.

3) If they had to, the does would simply argue that the present set of circumstances can be distinguished from those at the heart of this quote.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769482)

1) If Doe doesn't own the copyright, she has no "bonafide" copyright claim.

2) Copyright is intended to further the "progress of science" by incentivizing authors to create. Suing for copyright infringement of a photograph that an author has no intention of economically exploiting is pretextual.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769511)

2) Again - a copyright owner is entitled to exercise her rights. It is irrelevant that she has a mixed motive. Part of the litigation game is finding ways to get the most favorable forum, choice of law, etc.

3) Your silence on this one is noted.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769536)

Whether or not the plaintiff's registration is or is not valid is itself a matter of federal copyright law.

If I file a suit for patent infringement against you, I can bring it in federal court because a suit for patent infringement is a case or controversy under federal law.

If your defense is that I don't have a valid patent, the case is still going to be tried in federal court.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769599)

"Federal district courts possess only limited jurisdiction, which Congress regulates by statute...In a copyright action, a district court initially derives its jurisdiction from two sources: 28 U.S.C. §§ 1331 and 1338... Congress may supplement or limit these basic provisions with additional requirements "expressed in a separate statutory section from jurisdictional grants." Section 411(a)... provides that "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."

Whether this requirement is jurisdictional is not up for debate in this Circuit. On two recent occasions, we have squarely held that it is. See Well-Made Toy Mfg. Corp. v. Goffa Int'l Corp., 354 F.3d 112, 114, 115 (2d Cir. 2003) (affirming dismissal for lack of "subject matter jurisdiction" because section 411(a)'s "registration requirement is jurisdictional"); Morris v. Business Concepts, Inc., 259 F.3d 65, 72, 73 (2d Cir. 2001) (holding "that subject matter jurisdiction was lacking because the registration requirement of section 411(a) was not satisfied" and affirming dismissal "for lack of subject matter jurisdiction").

We are far from alone in this regard; there is widespread agreement among the circuits that section 411(a) is jurisdictional. See La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200 (10th Cir. 2005) ("Section 411(a) is the jurisdictional lynchpin to copyright infringement actions[.]"); Positive Black Talk Inc. [*122] v. Cash Money Records Inc., 394 F.3d 357, 365 (5th Cir. 2004) [**14] (noting that section 411(a) "supplement[s]" the "broad underlying" jurisdictional grants in 28 U.S.C. §§ 1331, 1338 and acts as an additional "jurisdictional prerequisite"); Xoom, Inc. v. Imageline, Inc., 323 F.3d 279, 283 (4th Cir. 2003) ("Copyright registration is a jurisdictional prerequisite to bringing an action for infringement under the Copyright Act."); Murray Hill Publ'ns, Inc. v. ABC Commc'ns, Inc., 264 F.3d 622, 630 n.1 (6th Cir. 2001) (noting that while copyright protection exists prior to registration, "[t]he registration requirement under section 411[a] is a jurisdictional prerequisite to the right of the holder to enforce the copyright in federal court"); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir. 2000) ("It is well settled in this Court that the registration requirement is a jurisdictional prerequisite to an infringement suit." (internal quotation marks omitted and alterations incorporated)); Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1163 (1st Cir. 1994) (describing registration under section 411(a) as a "jurisdictional requirement")...

***

For these reasons, we conclude that § 1367(a) did not provide the District Court with jurisdiction over the claims arising from the alleged infringement of unregistered copyrights."

Muchnick v. Thomson Corp. (In re: Literary Works in Elec. Databas..., 509 F.3d 116 (2nd Cir. 2007)

HTMFH

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769656)

i can't wait until i get to do this shit in court for realz

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769671)

*waits for NYBEG to ignore this new set of pwnage*

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769773)

If I am not mistaken the cases you cited involved situations in which the plaintiff did not even allege that they had filed for copyright registration before their complaint was filed.

If the issue here centers on whether or not the registration is defective, or whether or not the plaintiff has a valid copyright in the first place, then that is not at all the same thing.

The plaintiff will say "here's my copyright, he infringed it". It is then a defense to say that there is no valid copyright, but that doesn't mean that subject matter jurisdiction is lost. It is a defense only and has to be sorted out through litigation.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769848)

If Doe 1 is bringing a copyright infringement case and the copyright office has not received her app for registration, then many courts would say there is no jurisdiction.

However, some courts say that you *can* sue for injunctive relief on a copyright claim without registration. That would seem to be ridiculous here where there is no claim of ongoing infringement as far as I know.

I know of at least one other court that has said "sure, you didn't file for registration til after filing the complaint, but as a matter of judicial economy, we won't make you re-file an amended complaint now that you have filed for registration"

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771939)

I think we all agree that you have to have a copyright registration (or the copyright office has to have received for registration application--there is a circuit split on that issue) to sue for copyright infringement.

But if you've got the registration (I understand that one of the Ps does), the argument that the registration is invalid doesn't affect the jurisdiction issue.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771920)

The Court may find that you don't own the copyright, but that's another issue.

Now, if the D could argue that insufficient facts were plead to make out a claim of copyright ownership, that might work. But with notice pleading, that's sort of an uphill battle. A motion for more specific pleading might get you where you want to go.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771904)

Registration is prima facie evidence of valid copyright ownership if registered within 5 years of publication (I think) of the work. (maybe it's creation, I forget right now).

Whether she *actually* owns any copyright interest in the photographs is another issue that Ds would have to rebut (given a registration in her name). Whether she owns any copyright interest in the photos depends on whether she contributed any original expression to the photo (maybe creative posing, or other contributions?)

Not sure if it would work, but Ds could file a motion for more definite statement/clarificatino of complaint (I forget what this is called, but I think it's a 12(b) motion) asking that they more clearly state the facts giving rise to their copyright complaint (including ownership facts), but I'm not sure if this would be successful if they just allege ownership of a registration.

Of course, they managed to screw that part up from what I understand.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9772285)

2) trying to get in an ideal forum is part of the game, but the courts limit how you can play it. the point isn't that she isn't entitled to exercise rights under copyright law; the point is that a trumped up copyright claim shouldn't be the backdoor to federal court for the Does tort claims.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769563)

First of all there is a difference between "trumped up" and "validly exerted for the mere purposes of getting SMJ".

Second, you can make the argument to the judge but at the end of the day the judge still has discretion to hear the pendant claims together. This "shouldn't" is a plea to the judge, not a mandate that binds the judge's hands.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769622)

never thought otherwise. but as my good friend DeanRobbins333334 above took pains to reiterate to me, 1367(c) is a mandate to kick certain suits out of the fed courts, even when pendent jurisdiction exists.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769630)

But you're right it's all in the judge's discretion. He has enough to go on to do whatever he wants here.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769643)

That quote appears to have been in reference to some claims that were actually tort claims but which were mischaracterized as copyright claims. That isn't true here. There are bona fide copyright claims. Do you know what "characterization" means as a legal term of art as it applies to claims?

And again - if he really had to he could simply distinguish the cases.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769569)

Just finishing up 1L eh?

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769632)

Any contention otherwise is, at best, facetious.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771780)

That sort of depends on your definition of "bona fide." You could probably argue successfully that, at this point, the copyright claims shouldn't be dismissed, but not really sure.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771884)

again, i think it puts KVN's brief to shame, but i feel like it's not all that great. but so it goes with pro boner work.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769446)

Why does the Keker brief refer to teh AT & T privacy policy? Wasn't AK47 using AOL ?

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769330)

Also, isn't Williams going to get slapped for using the word "Heller" in his brief?

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769353)

dunno what the rules are when a party is allowed to proceed anonymously.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769382)

you'll be pleasantly surprised and amused.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769368)

this would of course mean all the other Ds wouldnt be on the hook aynmore.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9769359)

one thread went something like this:

"all girls named XXXXX need to be raped"

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9770141)

I've never fired one, that's for sure

Edit: Oh. The gun the US Army passed over in favor of the AR15 that real men shoot. Sorry bout your tiny pink... oh too easy never mind

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771854)

The reason I'm asking is that Radazza's blog says something like "the judge took the step of appointing pro bono counsel" - making it sound like this was something unusual.

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771148)

I know Atty. Williams, and this case is right up his alley. Kudos to him for picking up on the SMJ issue when AK47 wasn't smart enough to

(https://xoxohth.com/thread.php?thread_id=812353&forum_id=2#9771244)