Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 1 of 16 Page ID #:104 1 2 3 4 Matthew Storman Pro Se 1601 E. Ruddock St. Covina, CA 91724 Phone: 626-833-6327 Email admin@romuniverse.com 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 18 NINTENDO OF AMERICA INC, a Washington corporation Plaintiff 19 vs. 17 20 21 22 MATTHEW STORMAN, an individual, Defendant Case No.: 2:19-CV-07818 CBM(RA0x) MEMORANDUM IN SUPPORT OF PRETRIAL MOTION TO DISMISS 23 24 25 26 27 28 -1MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 2 of 16 Page ID #:105 1 I. SUMMARY 2 Plaintiff has filed suit against Matthew Storman, Service Provider (SP) of 3 websites ndsuniverse.com and romuniverse.com for Copyright Infringement, 4 Trademark Infringement and Unfair Competition. Plaintiff’s claims are solely 5 based on digital material on these websites. 17 U.S. Code § 512 provides SP with 6 liability protection and limits relief for the Plaintiff to only injunctive relief. The 7 plaintiff has previously recognized Defendant's right to infringement liability 8 protections under DMCA (codified 17 U.S. Code § 512). Furthermore, the copies 9 and trademarks on the websites were previously sold by the Plaintiff and under the 10 First Sale Doctrine, the plaintiff has no rights to these copies or 11 trademarks. Competition cannot be unfair since the copies have already been sold 12 by the Plaintiff to owners and under the First Sale Doctrine the owners may 13 dispose of the copies as they see fit. The Defendant is not selling the copies or 14 trademarks. 15 The defendant prays the court to Dismiss the suit based on legal, procedural, and 16 common law considerations or Sua Sponte. 17 18 II. FACTS/DEFENSES IN SUPPORT OF MOTION TO DISMISS. 19 Plaintiff has been in communication with Service Provider (SP1) 20 admin@romuniverse.com11 of the websites ndsuniverse.com, and 21 romuniverse.com for years. 22 23 III. DEFENDANT LIABILITY PROTECTION 24 The Digital Millennium Copyright Act (DMCA2) codified as 17 U.S. Code § 512 25 protects SPs from liability when potentially infringing material is on websites. 26 DMCA is also known as Ocilla, Safe Harbor, etc. 27 Essential to protection are2: 28 -2MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 3 of 16 Page ID #:106 1 a. Providing copyright owners inspection access to websites, and 2 b. Requires owners to properly request the removal of material if the owner 3 has a good faith belief it is infringing 4 c. The request for removal must be proper9. 5 d. The material is removed. 6 7 Plaintiff has recognized Defendants rights under DMCA by sending requests11 to 8 remove potentially infringing material from Website. These requests were honored 9 by Defendant 10 11 IV. COPY OWNERSHIP 12 Copies on a website of potentially infringing materials may be owned by 13 “persons” who legally acquired a copy, multiple copies, or collections of the 14 Copyrighted material 5 (known as First Sale Doctrine). The copies do not belong 15 to the plaintiff. 16 These (First sale doctrine5) copies may be sold, destroyed, lost, or given away for 17 free by the owner. The number of copies not owned by the plaintiff is equal at 18 least to the number of copies sold or given away by the Plaintiff, his distributors, 19 or suppliers. The first sale or exhaustion doctrines also apply to trade marks8 . 20 There are other copies that may not be infringing2,3 including fair use, expired, 21 uses for education, research, storage, lost, damaged, exemptions from anti- 22 circumvention, and those beyond a statute of limitations, etc. 23 24 The Plaintiff has not properly requested any of the copies referred to in the 25 complaints be properly removed as is required under DMCA9. Especially 26 regarding specificity, timeliness and penalty of perjury. 27 Basis of Plaintiff’s complaints is only the digital content of websites. 28 -3MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 4 of 16 Page ID #:107 1 V. PLAINTIFF FAILURES 2 Plaintiff’s complaint obfuscates and makes no mention of the DMCA, 3 Plaintiff’s complaints offer no claim or proof of ownership of the copies on the 4 websites. 5 Plaintiff offers no complete and full description of Copyright Registrations content 6 necessary for bringing complaint7 7 Plaintiff offers no accurate and complete description of copy contents for defense. 8 Plaintiff may have violated Copyright Law by not fully and completely describing 9 the contents of Copyright and copies. 10 Copy right law is inadequate as a means of protecting digital matter, as it does not 11 depict the contents of the digital material to the human senses. 12 Plaintiff fails to disclose where the original copyrights are registered. It is unclear 13 where the copyrights originated or are based in Japan, or Germany or USA. 14 15 16 VI. BASIS OF MOTION TO DISMISS 17 F.R.C.P 12 18 (1) lack of subject-matter jurisdiction; The court does not have jurisdiction over 19 this matter because of liability immunity and proof ownership of copies has not 20 been claimed. Plaintiff is a Japanese or German Company. 21 (2) lack of personal jurisdiction; Defendant is not an individual (Matthew 22 Storman) but rather an SP (admin@romuniverse.com) who is not part of the 23 required forum. The court does not have personal jurisdiction because SP is 24 protected under DMCA, and potential involvement of international actors. The 25 Plaintiff is a German company. Plaintiff may have violated Defendant’s privacy 26 rights or by using unlawful means. 27 28 -4MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 5 of 16 Page ID #:108 1 (3) improper venue; Owners of copies may be international; the Plaintiff is a 2 German or Japanese company. 3 (4) insufficient process; Process is insufficient because it not based on DMCA 4 violations. 5 (5) insufficient service of process; service is insufficient because it does not timely 6 serve, essential actors, such as owners of copies, suppliers, distributors, and 7 copyright owners. 8 (6) failure to state a claim upon which relief can be granted. Complaints do not 9 include any required DMCA violation, or ownership of copies. Fails to identify 10 essential owners of copies.; and 11 (7) failure to join a party under Rule 19. The plaintiff has failed to join the true 12 and essential owners of the copies known only to Plaintiff, or unknown 13 14 VII. EXHAUSTION NON-JUDICIAL REMEDIES.9 15 DMCA provides the Plaintiff with administrative(non-judicial) processes9 to have 16 SP remove potentially infringing copies and obtain injunctive relief for the 17 Plaintiff. The Plaintiff is in effect asking the court to do what the Plaintiff can do 18 non-judicially and thereby causing unnecessary expenditure of time and resource 19 of the court, the defendant, and the Plaintiff. Troubling is the fact the Plaintiff has 20 previously and successfully requested9 the SP remove website copies and SP 21 complied. 22 The arrangement in these previous communications are an implied contract that 23 any copies challenged by Plaintiff will not result in further legal action. Quote 24 from Plaintiff 11 25 “Therefore I request you to take immediate action to remove or disable access to 26 unauthorised copies of the Nintendo Game listed at the URLs below and in order 27 to prevent further legal actions against your company.” This also implies copies 28 -5MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 6 of 16 Page ID #:109 1 not challenged by the Plaintiff are permitted on the website until challenged by the 2 Plaintiff. 3 4 The Plaintiff receives unpaid advertising on the websites in return. 5 6 Due Process – basic fairness. It is unfair for Plaintiff to not adhere to DMCA 7 protections for defendant. 8 9 VIII. 1. ARGUMENT DMCA is an integral part of Copyright Law and covers digital material 10 on websites and therefore must be adhered to in any copyright complaint - the 11 Plaintiff has not. The First Sale Doctrine permits non-copyright or trademark 12 owner to dispose of their copies as they see fit. The Plaintiff does not own copies 13 on websites. 14 15 2. Since DMCA protects SP from any liability, and only limits Plaintiff 16 to only injunctive relief, the Plaintiff complaints are without basis and potentially 17 an abuse of process. 18 19 3. Plaintiff’s Complaints are a direct violation of DMCA, in that each of 20 the complaints are based on liability protected material in the ndsuniverse.com and 21 romuniverse.com websites. 22 23 4. Furthermore, the Plaintiff has not offered any proof, that the copies in 24 the websites are the property of the Plaintiff. There are no serial numbers, dates, 25 origin, etc. and who owns the copy. The plaintiff sells, donates, gives away, copies 26 of the copy righted material to copy owners. A non-Plaintiff copy owner has the 27 right to sell, destroy, or give away copies. The owner may own several copies, or 28 -6MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 7 of 16 Page ID #:110 1 collections. Furthermore, use of a copy is permissible for education, research, 2 reverse engineering, and other purposes. 3 4 5. Plaintiff has not properly requested, as required under DMCA, that 5 copies in complaint be removed from websites. The Plaintiff has not met the 6 requirements of DMCA; therefore, complaints are baseless or premature at best. 7 8 9 10 6. Cease and Desist. The plaintiff did not send Cease and Desist notices to Defendant; therefore, the defendant did not know of infringement prior to complaints. 11 12 13 7. Since, the Plaintiff is not the owner of the copies, the plaintiff is a third party to the action and has no standing to bring the action10. 14 15 8. Since, Plaintiff previous contacts were from Germany, and the copies 16 do not belong to Plaintiff, there are issues of ownership, insufficient process, 17 insufficient service, subject matter jurisdiction, personal jurisdiction, not joining 18 essential copy owners, and plaintiff’s unfounded complaints makes it impossible 19 for defendant to defend. 20 21 22 23 24 25 26 27 28 -7MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 8 of 16 Page ID #:111 1 CONCLUSION 2 3 For the reasons stated above, the Defendants Motion should be granted 4 5 DATED: 10/21/2019 6 7 ____________________________ 8 Matthew Storman 1601 E. Ruddock St Covina, CA 91724 In Pro Se 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 9 of 16 Page ID #:112 1 2 3 4 REFERENCES 1. The term “Service Provider” (SP) includes Online Service Provider (OSP) and Internet Service Provider (ISP). 2. The Digital Millennium Copyright Act (DMCA) Title II, the Online 5 Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe 6 harbor for online service providers (OSPs, including ISPs) against copyright 7 8 infringement liability, provided they meet specific requirements.[4] OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly 9 block access to alleged infringing material (or remove such material from their 10 systems) when they receive notification of an infringement claim from a copyright 11 holder or the copyright holder's agent. OCILLA also includes a counternotification 12 provision that offers OSPs a safe harbor from liability to their users when users 13 claim that the material in question is not, in fact, infringing. OCILLA also 14 facilitates issuing of subpoenas against OSPs to provide their users' identity. 15 Codified in 17 U.S. Code § 512. Limitations on liability relating to material online 16 17 18 19 20 21 22 23 24 25 26 27 (a)Transitory Digital Network Communications.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if— (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; 28 -9MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 10 of 16 Page ID #:113 1 (3) the service provider does not select the recipients of the material except as an 2 automatic response to the request of another person; 3 (4) no copy of the material made by the service provider in the course of such 4 intermediate or transient storage is maintained on the system or network in a 5 manner ordinarily accessible to anyone other than anticipated recipients, and no 6 such copy is maintained on the system or network in a manner ordinarily 7 accessible to such anticipated recipients for a longer period than is reasonably 8 necessary for the transmission, routing, or provision of connections; and 9 (5) the material is transmitted through the system or network without modification 10 11 12 of its content. 3. 17 U.S. Code §101 - §122, Limitations on exclusive rights including § 1201 Permissible uses 13 14 15 4. Cullins, Ashley Music Industry A-Listers Call on Congress to Reform Copyright Act Hollywood Reporter. April 5, 2016 16 17 5. 17 U.S. Code § 109. Limitations on exclusive rights: Effect of transfer 18 of particular copy or phonorecord 19 (a) Notwithstanding the provisions of section 106(3), the owner of a particular 20 copy or phonorecord lawfully made under this title, or any person authorized by 21 such owner, is entitled, without the authority of the copyright owner, to sell or 22 otherwise dispose of the possession of that copy or phonorecord. 23 24 25 6. US S.C Reed Elsevier v. Muchnick, Slip. Op., 559 U.S. ___ (March 2, 2010) 26 27 28 - 10 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 11 of 16 Page ID #:114 1 7. Section 411(a) of the Copyright Act (at 17 U.S.C. 411(a)) provides, 2 among other things, that “no civil action for infringement of the copyright in any 3 United States work shall be instituted until . . . registration of the copyright claim 4 has been made in accordance with this title.” 6 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 8. Polymer Technology Corporation, Plaintiff-appellant, v. Emile Mimran, -975 F.2d 58 (2d Cir. 1992) As a general rule, trademark law8 does not reach the sale of genuine goods bearing a true mark even though the sale is not authorized by the mark owner. NEC Electronics v. Cal Circuit Abco, 810 F.2d 1506, 1509 (9th Cir.), cert. denied, 484 U.S. 851, 108 S. Ct. 152, 98 L. Ed. 2d 108 (1987). Thus, a distributor who resells trademarked goods without change is not liable for trademark infringement. See 2 J. Thomas McCarthy, Trademarks and Unfair Competition, § 25:11 (2d ed. 1984) (citing Prestonettes, Inc. v. Coty, 264 U.S. 359, 44 S. Ct. 350, 68 L. Ed. 731 (1924) and Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 67 S. Ct. 1136, 91 L. Ed. 1386 (1947)). In addition, even repackaging of goods is not trademark infringement if it does not deceive the public or damage the mark owner's goodwill. See Prestonettes, 264 U.S. at 368, 44 S. Ct. at 351 (sale of repackaged cosmetics permitted provided statement disclosing origin is enclosed); Champion, 331 U.S. at 130, 67 S. Ct. at 1139 (sale of reconditioned spark plugs under original name permitted provided full disclosure made). 22 23 24 25 26 27 28 - 11 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 12 of 16 Page ID #:115 1 9. 17 U.S. Code § 512.(c)(3)Elements of notification.— 2 (A) To be effective under this subsection, a notification of claimed infringement 3 must be a written communication provided to the designated agent of a service 4 provider that includes substantially the following: 5 (i) A physical or electronic signature of a person authorized to act on behalf of the 6 owner of an exclusive right that is allegedly infringed. 7 (ii) Identification of the copyrighted work claimed to have been infringed, or, if 8 multiple copyrighted works at a single online site are covered by a single 9 notification, a representative list of such works at that site. 10 (iii) Identification of the material that is claimed to be infringing or to be the 11 subject of infringing activity and that is to be removed or access to which is to be 12 disabled, and information reasonably sufficient to permit the service provider to 13 locate the material. 14 (iv) Information reasonably sufficient to permit the service provider to contact the 15 complaining party, such as an address, telephone number, and, if available, an 16 electronic mail address at which the complaining party may be contacted. 17 (v) A statement that the complaining party has a good faith belief that use of the 18 material in the manner complained of is not authorized by the copyright owner, its 19 agent, or the law. 20 (vi) A statement that the information in the notification is accurate, and under 21 penalty of perjury, that the complaining party is authorized to act on behalf of the 22 owner of an exclusive right that is allegedly infringed. 23 (B) 24 (i) Subject to clause (ii), a notification from a copyright owner or from a person 25 authorized to act on behalf of the copyright owner that fails to comply 26 substantially with the provisions of subparagraph (A) shall not be considered 27 under paragraph (1)(A) in determining whether a service provider has actual 28 - 12 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 13 of 16 Page ID #:116 1 knowledge or is aware of facts or circumstances from which infringing activity is 2 apparent. 3 (ii) In a case in which the notification that is provided to the service provider’s 4 designated agent fails to comply substantially with all the provisions of 5 subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of 6 subparagraph (A), clause (i) of this subparagraph applies only if the service 7 provider promptly attempts to contact the person making the notification or takes 8 other reasonable steps to assist in the receipt of notification that substantially 9 complies with all the provisions of subparagraph (A). 10 11 10. Warth v. Seldin, 422 U.S. 490 (1975), was a United States Supreme 12 Court case in which the Court reviewed the concept of judicial standing and 13 affirmed that if the plaintiffs lacked standing, they could not maintain a case 14 against the defendants. The Court found that as none of the plaintiffs could 15 demonstrate any injury actually done to them by the defendants, the plaintiffs 16 were third parties to the issue and had no standing to sue 17 18 11. Example email from German Plaintiff - take down notice. 19 Take-down notice due to copyright infringement: Super Mario Odyssey (Switch) 20 Friday, November 09, 2018 06:35 PST 21 DMCA-notice@bertelsmann.de 22 To admin@romuniverse.com abuse@enom.com support@gumroad.com 23 Dear Sir or Madam, 24 we have detected unauthorised copies of the video game "Super Mario Odyssey 25 (Switch)" (the "Nintendo Game") hosted on your servers. The urls 26 concerned are listed below. 27 28 - 13 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 14 of 16 Page ID #:117 1 The copyright and other intellectual property rights in the Nintendo Game are 2 owned and/or controlled by Nintendo Co., Ltd. ("Nintendo") for the 3 world and any unauthorised use, including but not limited to any unauthorised 4 copying or communication to the public of the Nintendo Game is 5 therefore an infringement of copyright and/or other intellectual property rights. 6 I declare under penalty of perjury that this notice is true and correct, that I am 7 authorized to act on behalf of the intellectual property rights owner 8 Nintendo and that I have good faith and reasonable belief that neither Nintendo 9 nor any licensee of Nintendo has authorised you or any other third 10 party to copy or communicate the Nintendo Game to the public in the manner 11 described in this notice. I therefore have good faith belief that use of 12 the material in the manner complained of is not authorized by the copyright 13 owner, its agent, or the law. 14 Therefore I request you to take immediate action to remove or disable access to 15 unauthorised copies of the Nintendo Game listed at the URLs below 16 and in order to prevent further legal actions against your company. 17 linked from romuniverse.com: 18 linked from https://www.romuniverse.com/download/84925/super-mario-odyssey- 19 all-en-fr-de-es-it-nl-ru-ja-bigbluebox 20 1. 21 https://regular.romuniverse.com/roms/nintendoswitch/Super%20Mario%20Odysse 22 y%20(All)%20(En,%20Fr,%20De,%20Es,%20It,%20Nl,%20Ru,%20J 23 linked from https://www.romuniverse.com/download/85235/super-mario-odyssey- 24 v001-jpn-en-ja-fr-ge-es-it-nl-ru-jrp 25 1. 26 https://regular.romuniverse.com/roms/nintendoswitch/Super%20Mario%20Odysse 27 y%20v001%20(JPN)%20(En,%20Ja,%20Fr,%20Ge,%20Es,%20It,%2 28 - 14 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 15 of 16 Page ID #:118 1 linked from https://www.romuniverse.com/download/85291/0277-super-mario- 2 odyssey-world-en-ja-fr-de-es-it-nl-ru-rev-1-trimmed 3 1. https://regular.romuniverse.com/roms/nintendoswitchtrimmed/0277%20- 4 %20Super%20Mario%20Odyssey%20(World)%20(En,Ja,Fr,De,Es,It,Nl,Ru)%20( 5 Rev%201)%20[Trimmed].xci 6 linked from https://www.romuniverse.com/download/85530/0038-super-mario- 7 odyssey-world-en-ja-fr-de-es-it-nl-ru-trimmed 8 1. https://regular.romuniverse.com/roms/nintendoswitchtrimmed/0038%20- 9 %20Super%20Mario%20Odyssey%20(World)%20(En,Ja,Fr,De,Es,It,Nl,Ru)%20[ 10 Trimmed].xci 11 Best regards, 12 Thorsten Johanntoberens 13 Director IT & Development mbargo servies 14 -------------------------------------- 15 Sonopress GmbH 16 Carl-Bertelsmann-Str. 161 F 17 33332 Gütersloh 18 Germany 19 Phone: +49 (0) 5241 80-42457 20 E-Mail: thorsten.johanntoberens@bertelsmann.de 21 www.sonopress.de 22 --------------------------------------------------------------------------------------------------- 23 --------------------------------------------------- 24 Sitz Gütersloh Amtsgericht Gütersloh HRB 2034 Geschäftsführer Sven 25 Deutschmann, Jörg Dickenhorst 26 --------------------------------------------------------------------------------------------------- 27 --------------------------------------------------- 28 - 15 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 2:19-cv-07818-CBM-RAO Document 25-1 Filed 10/24/19 Page 16 of 16 Page ID #:119 1 Diese E-Mail und eventuelle Anlagen können vertrauliche und/oder rechtlich 2 geschützte Informationen enthalten. 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