UNITED STATES DISTRICT COURT
DISTRICT OF XXXX
____________________________________
XXXXXXXXXXX
Plaintiff
VS.
XXXXXXXXXXXXXXXXX
&
Numerous John Does
Defendants ____________________________________ |
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CIVIL ACTION No.
4:08-cv-02105
Answer
to 10/20/08 letter motion
by defendant XXXXXXXXXX |
I will attempt to respond to defendants' most pertinent accusations and contentions in order of their appearance
1. Defendant states:
"Mr. XXXXXX's lawsuit fails to contain a statement of facts"
Plaintiff response:
Consistent with the consistently reiterated standards of the Supreme Court, the plaintiff has provided the defendant and the court ample opportunity to understand the basics of the legal theory upon which this cause of action has been filed.
quoting from the complaint:
"Brief description of contextual facts: Both plaintiff and defendants have active accounts with youtube.com the most popular internet video display service. Defendants have produced numerous videos that use in various manifestations the video content produced by the plaintiff. Plaintiff believes the use constitutes malicious libel and defamation and falls outside any "fair use" exception to federal copyright protections. This action was initiated through filing of DMCA complaints in accordance with the youtube terms of service and enforcement policies."
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2. Defendant states:
The defendants named in this case have done no more than use short clips from Mr. XXXXXX's videos in the making of response videos on YouTube. This form of criticism is well-protected by the Fair Use provision of the DMCA.
Plaintiff response:
Stated simply all use is not fair use and it is the purpose of this litigation to determine if the defendants' particular use (malicious perversion) reasonably falls under the protections of fair use.
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3. Defendant states:
There is a lot of name-calling on YouTube, an internet website where people create anonymous accounts and understand they have a First Amendment right to speak anonymously.
...remarks do not rise to the level of defamation of character because they do not take place in the real world, where people's real reputations are at stake. They take place between anonymous or semi-anonymous accounts on a video-sharing website.
Plaintiff response:
the core of these contentions by the defendant are the "issues of fact" the plaintiff hopes to establish through this litigation. To say the least the issues are ripe for argument and no factual contention made by defendant has been even "summarily established" by any court of relevant jurisdiction.
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4. Defendant states:
"I believe his lawsuit is frivolous"
Plaintiff response:
the defendant has publicly repeated this assertion in the form of a factual accusation. When referenced in a legal context the word frivolous has a specific meaning. Consistent with the claims of this litigation defended request the opportunity to prove with decisive evidence that the defendant uses this type of false, reckless and/or malicious, rhetoric to create a deliberately false impression to deliberately malign, disparage, and damage the plaintiffs publicly perceived character.
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5. Defendant states:
"Mr. XXXXXX is well-known in the court system of New Jersey for filing frivolous court actions and has had 75 complaints dismissed in the last 6 years or so."
Plaintiff response:
ironically this claim by the defendant made in these serious legal filings provides substantial evidence of the disregard the defendant has for the truth. The claim of the defendant is nonsense and the plaintiff wishes opportunity to prove the dominant cause of its origin is malicious intent.
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6. Defendant states:
Gary XXXXXX is so disabled by psychiatric illness that he is unable to work or to function normally in society, and I would prefer to minimize contact with him because I have no way of knowing whether his mental instability represents a danger to me. As he has established in earlier court claims, he is rated 100% disabled by the Social Security Administration because of mental illness.
Plaintiff response:
while I might concede the defendant is entitled to this disparaging interpretation of my factual living circumstances. What is implied is offensive and beyond any reasonable proof. Regardless, I will consider it irrelevant, and beneath the dignity of response, unless the court determines otherwise.
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7. Defendant states:
Motion 1: I would ask the court to dismiss this lawsuit in its entirety for being an improper filing, in that it fails to provide a basic statement of facts, as required by law. Allegations that are so vague that defendants cannot defend themselves should be considered inadequate.
Plaintiff response:
The defendant has been given sufficient knowledge regarding the nature of the claims against him. I refer you to item one, and state for certain clarity that defendant is being sued for copyright violations and libel perpetrated through his activity (videos and comments) on the website youtube.com
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8. Defendant states:
Motion 2: I would ask the court to dismiss this lawsuit in its entirety for failure to state a claim for which relief could be granted. The plaintiff can demonstrate no loss of income or other harm or injury arising from alleged libel or copyright violations on YouTube, and there is no basis on which the court should award him damages or other enrichment. His claims ask the court to re-write the Digital Millenium Copyright Act, and to limit our free speech rights on the internet.
Plaintiff response:
The defendant's statement does nothing to clarify any factual or legal issue raised and certainly has not to any required standard demonstrated their to be no cause of action.
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9. Defendant states:
Motion 3: I would ask the court to dismiss this lawsuit in its entirety for failure to comply with the court's Order for Conference. As of October 20, 2008, Mr. XXXXXX has made no effort to contact me to confer as required by FRCP Rule 26(f). The court required that by that date, the plaintiff was to have filed a joint discovery/case management, which I presume he has not done since there has been no conference.
Plaintiff response:
ironically defendant states in his filing "I have no plan to make a settlement offer, and therefore a conference would be fruitless." yet wishes to contend that some harm to justice has been done. plaintiff would simply argue that considering the parties are not professionally represented unmediated contact would not be advisable.
.............................................Conclusion
Defendant's letter filing of 10/20/08 does not represent a paper coherent to any formal legal process (motion to dismiss? motion for summary judgment?) However, plaintiff claims no substantial harm to justice as long as no opportunity to rebuttal is obscured or denied. Plaintiff contends that he can and will prove his claims to the highest standard if provided fair opportunity to do so.
Date: June 26, 2008
Original +1: Clerk's Office
(1 copies) Clerk's Office
cc: None |
_________________________________
XXXXXXXXXX (Plaintiff Pro-Se)
xxxx xxxxxxxx
xxxxxxxxxxxx
[xxxxxxxxxxxx]
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