- 1 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

John Mansfield, OSB No. 055390

john@harrisbricken.com

Megan Vaniman, OSB No. 124845

megan@harrisbricken.com

HARRIS BRICKEN

511 SE 11th Ave., Ste. 201

Portland, OR 97214

503-207-7313

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

DALLAS BUYERS CLUB, LLC,

Plaintiff, 

v. 

JOHN HUSZAR,

Defendant.

Case No.: 3:15-cv-00907-AC

PLAINTIFF’S OPPOSITION TO 

DEFENDANT’S CROSS-MOTION FOR 

SUMMARY JUDGMENT

Case 3:15-cv-00907-AC Document 144 Filed 04/09/18 Page 1 of 12
- 2 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In November 2017, Plaintiff moved for summary judgment (“MSJ,” Dkt. 122) on its 

claims that Defendant infringed its Dallas Buyers Club copyright, and that Defendant’s

infringement was willful. Plaintiff’s MSJ relies on Defendant’s admissions of liability in 

responses to requests for admissions, which the Court ruled are admitted after Defendant and his 

counsel were given many chances to answer them. Defendant’s conclusive admissions “go[] 

beyond being mere evidence” that can be rebutted by other evidence. Vincent v. C.O.M. House, 

No. 07CV632A, 2009 U.S. Dist. LEXIS 80776, 8 (W.D.N.Y. Sept. 4, 2009). The fact finder in 

this case “must treat [admitted] facts as having been proved.” Ninth Cir. Model Jury Instruction 

2.12, Use of Requests for Admission. Despite these admissions, Defendant’s opposition simply 

attempted to raise disputed factual issues.

Defendant’s cross-motion for summary judgment (“XMSJ”, Dkt. 138) is just more of the 

same kind of arguments he made in his opposition to Plaintiff’s MSJ. First, Defendant raises a 

new statutory defense for system caching under the Digital Millennium Copyright Act

(“DMCA”) that was never pleaded or disclosed in discovery. This is precluded by Defendant’s 

binding admissions. Even without the admissions, Defendant has not shown any facts showing 

that the defense is available. Second, Defendant attempts to raise a challenge to his admission 

that he infringed Defendant’s copyright by claiming that Plaintiff must now produce a 

“depository copy” of the copyrighted work to prevail. This cannot rebut his admission of 

liability. Third, Defendant tries to raise an issue of fact as to infringement by submitting expert 

opinion about Plaintiff’s use of evidence provided from the Maverick monitoring software. This 

effort also fails because of Defendant’s admission of liability. Moreover, Plaintiff submits its 

own expert opinion about the operation of the Maverick software, which directly contradicts 

Defendant’s expert opinions and raises disputed material facts.

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- 3 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

II. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED.

A. Defendant cannot rely on the DMCA system caching defense of 17 U.S.C.

§ 512(b).

Defendant has admitted that he “copied and distributed at least portions of the motion 

picture Dallas Buyers Club through a public BitTorrent network,” and that he “has used the 

BitTorrent protocol for the exchange of files in violation of U.S. Copyright law.” RFAs 7, 5, 

attached as Exhibit 1 to Plaintiff’s MSJ. Request for admission number 5 asks Defendant to 

admit the fact of copying and for the application of this fact to his liability under U.S. Copyright 

law. See Fed. R. Civ. Proc. 36(a)(1)(A). Because this Court ordered that “Plaintiff’s request for 

admissions is deemed fully admitted based on the lack of any response by Defendant Huszar” 

(Dkt. No. 84), liability is admitted, Fed. R. Civ. Proc. 36(a)(3), and any objections are waived, 

see id. Defendant, who was represented by counsel when Plaintiff moved to compel responses to 

the RFAs, had the opportunity to respond to the RFAs in response to Plaintiff’s motion, but 

declined to do so. Defendant may not now make objections or answer to these RFAs.

Even if a challenge were permissible despite his admissions, Defendant has not come 

close to making even an initial showing that the “system caching” liability limitation defense of 

17 U.S.C. § 512(b) applies here. As shown in Exhibit A to this brief, Title 17, Section 512(b) is a 

complicated statute that contains eight numbered subdivisions (some with additional 

subdivisions) 1 which Defendant must prove in order to be eligible for the limitation, as made 

clear by the language of the statute. For example, subsection (1) of section 512(b) provides that 

“a service provider shall not be liable...for infringement of copyright by reason of the 

intermediate and temporal storage of material on a system or network controlled or operated by 

 1 17 U.S.C. §§ (b)(1)(A); (b)(1)(B); (b)(1)(C); (b)(2)(A); (b)(2)(B); (b)(2)(C); (b)(2)(D); 

(b)(2)(E). See generally Exhibit A.

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CROSS-MOTION FOR SUMMARY JUDGMENT

or for the service provider in a case in which,” followed by subsections (1)(A)-(C) (emphasis 

added). This “preamble” requires Defendant to show facts:

• that he is a “service provider” as defined by 17 USC § 512(k)(1)(B);

• that the storage of material on the system or network was “intermediate and 

temporal.”

Next, Defendant needs to prove that he meets subsections (1)(A)-(C), followed by the 

“conditions” of subsection (2)(A)-(E), including sub-subsections in (C) and (E). Defendant, 

however, provides no evidence or analysis showing that he meets any of the requirements of 

section 512(b)(1) or (2). Instead, Defendant makes an argument based on the following 

propositions: (1) anyone using a TOR router is entitled to the section 512(b) defense, and (2) 

Defendant was using a TOR router. Defendant has not brought forth facts supporting either 

premise. 

First, Defendant claims that “Tor (The Onion Router) is open source software to 

configure their computer to serve as an ‘exit point’ for internet browsing for any other computer 

on the internet.” XMSJ, p. 7. Defendant points to his counsel Edmondson’s Declaration at 

Exhibits 4 and 5 as his sole factual support. These exhibits, however, are just two technical 

journal articles about TOR generally (not about Defendant’s system at issue here) which 

Defendant appears to have proffered as “expert opinion” about how his system works. But Mr. 

Edmondson is not the author of either paper, and there is nothing in the record that would permit 

these papers to be considered as expert opinions on any question before this Court in this motion.

Moreover, Defendant’s brief completely fails to give any analysis based on these articles.

Defendant’s brief fails to “cit[e] to particular parts” of these materials as required by Fed. R. Civ. 

Proc. 56(c)(1)(A), or to comply with the requirement that the “party's factual positions must be 

Case 3:15-cv-00907-AC Document 144 Filed 04/09/18 Page 4 of 12
- 5 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

supported by citations, by page and line as appropriate, to the particular parts of materials in the 

record,” as required by LR 56-1. See also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 

(9th Cir. 2010) (Courts considering summary judgment motions have “no independent duty ‘to 

scour the record in search of a genuine issue of triable fact.’”). Even if admissible or competent, 

nothing in the two articles attached to Defendant’s counsel’s declaration shows that Defendant

used a TOR router, or that any of the opinions in the articles apply to Defendant’s system in this 

case. Nor do these articles provide any opinions that anyone using a TOR router is entitled to the 

section 512(b) defense.

Defendant goes on to argue that “Plaintiff has made no allegations, nor produced any 

evidence, that would support its claims that Huszar did anything besides run an ISP.” XMSJ, 

p. 8. But it is not Plaintiff’s burden to show that Defendant “did anything besides run an ISP.” If 

Defendant wants to rely on the DMCA system caching defense, he must come forward with 

evidence showing that he has met the statutory requirements. Defendant also claims that at some 

unspecified portion of Defendant’s deposition “there was no dispute a Tor node was used.” Id.

Defendant has again failed to provide any “citations, by page and line as appropriate, to the 

particular parts of materials in the record.” At any rate it is difficult to imagine how a deposition 

of Defendant could prove “that there was no dispute a Tor node was used.”

Finally, Defendant cites Judge Simon’s order sanctioning Defendant (Dkt. 95) as support 

for his claim that “Huszar was running a Tor Service as a Service Provider,” again without 

providing a pin cite. This finding (found on pages 7-8 of Docket 95) is simply background for 

Judge Simon’s decision regarding Defendant’s intent in overwriting hard drives. It does not find 

as a fact whether or not Defendant was using The Onion Router in the context of Defendant’s 

XMSJ.

Case 3:15-cv-00907-AC Document 144 Filed 04/09/18 Page 5 of 12
- 6 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

B. Defendant cannot show that there are no disputed facts that Plaintiff is not 

the owner of the copyright in suit.

Defendant claims that he is entitled to summary judgment that Plaintiff cannot show that 

it owns the copyright to Dallas Buyers Club. Although Defendant effectively concedes that the 

copyright certificate produced by Plaintiff is prima facie evidence that Plaintiff owns the 

copyright, see, e.g., Lamp’s Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d. 1140, 144 (9th

Cir. 2003), Defendant’s conclusive admissions in this case establish that Plaintiff owns the 

copyright to Dallas Buyer’s Club:

• [1. P]laintiff’s motion picture, Dallas Buyers Club, contains original material that 

is copyrightable subject matter under the laws of the United States.

• [2. P]laintiff’s motion picture, Dallas Buyers Club, is currently offered for sale in 

commerce.

• [3. P]laintiff’s motion picture, Dallas Buyers Club, is easily discernable as a 

professional work as it was created using professional performers, directors, 

cinematographers, lighting technicians, and set designers. RFAs 1-3.

Because Defendant has admitted three times that Dallas Buyers Club is “Plaintiff’s 

motion picture,” he is now estopped from denying the truth of these admissions. See 

International Carbonic Engineering Co. v. Natural Carbonic Products, 57 F. Supp. 248, 253 

(S.D. Cal. 1944). It follows that Defendant cannot establish that there is no disputed fact 

supporting his claim that Plaintiff does not own the copyright to the Dallas Buyers Club work.

C. Because Plaintiff does not rely on Maverick software evidence to prove 

infringement, admissibility of this evidence is not a material fact on which 

summary judgment can be granted.

Defendant’s final argument is yet another effort to put forward facts to prove the opposite 

of what Defendant has already admitted to: he copied Plaintiff’s copyrighted material in 

Case 3:15-cv-00907-AC Document 144 Filed 04/09/18 Page 6 of 12
- 7 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

violation of the Copyright Act. Regardless of these admissions, Plaintiff presents expert opinion 

that contradicts the testimony of Defendant’s expert, Dr. Kal Toth, thus raising disputed material 

facts requiring denial of Defendant’s XMSJ.

As cited in Defendant’s XMSJ, Dr. Toth makes the following arguments about the 

MaverickMonitor software produced by the German company MaverickEye: 

1. Reliability of MaverickMonitor cannot be determined absent evidence that 

necessary software patches were installed;

2. The size of the MaverickMonitor code base means that the number of latent

defects could be large, without evidence of testing;

3. He had seen no evidence of effective testing. Defendant’s XMSJ, p. 11.

Dr. Toth concludes: “In the absence of verifiable evidence, an objective software 

professional cannot conclude that MaverickMonitor detects the IP addresses of infringing 

BitTorrent users correctly, consistently and reliably.” Id. Based on this testimony, Defendant 

argues that “An expert cannot ‘create’ reliable data from an ‘unreliable’ computer system,” in 

effect arguing that such testimony would be inadmissible. Id. at p. 12. 

As is often the case, however, there is another expert opinion in this case, which disputes 

Dr. Toth’s opinions. Attached as Exhibit 1 to the Mansfield Declaration is the expert report of 

Plaintiff’s expert Mr. Stephen M. Bunting. As shown by his CV and declaration paragraphs 2-14, 

Mr. Bunting is a highly experienced computer forensics expert with extensive experience in 

peer-to-peer sharing on networks.

Starting with paragraph 17 of his declaration, Mr. Bunting describes in detail his testing 

of the Maverick software to determine its accuracy “as to its ability to detect an infringing 

party’s IP address, identifying metadata (client software and version used by infringer), and 

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- 8 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

identifying the known test files distributed on the torrent network.” Bunting Decl., ¶ 20. Mr. 

Bunting tested Maverick software with four different video files, all identified by unique hash 

marks, with four different computers each with a different operating system. Id. at ¶ 22. Mr. 

Bunting then used Wireshark, a software tool that captures network packets (containing the files 

or their component pieces) transmitted over a network, to determine which files were 

downloaded. Id. at ¶ 23. 

After completing several more testing steps described in paragraphs 24-29, Mr. Bunting 

finds:

30. For all four files, the [Maverick software system] captured the public, 

internet-routable IP address for the source of the test or known files that I was 

sharing on the bit torrent network. I knew exactly what the IP addresses were, as I 

had recorded them before and after the downloads. The IP addresses involved were 

dynamic IP addresses and thus time sensitive. The ISP’s for those IP addresses 

maintain logs that record which subscriber or user is assigned a particular IP address 

at a particular time. Had a subpoena been served on either of the two different ISP’s 

used in this test, I would have been correctly identified as the responsible subscriber 

user at those exact times for those involved IP addresses.

31. Further, the [Maverick software system] correctly captured the exact 

name of the bit torrent client and version numbers that were in use by each test 

computer. This capture is possible because when the [Maverick software system] 

connects to the computer hosting a file to be shared on the bit torrent network, a 

handshake occurs. Each machine’s bit torrent client sends a packet to the other 

stating, among other things, their peer ID. Part of the peer ID is the name of the bit 

Case 3:15-cv-00907-AC Document 144 Filed 04/09/18 Page 8 of 12
- 9 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

torrent client followed by its version number. Id. at ¶¶ 30-31 (emphasis added).

Mr. Bunting also provides the following helpful explanation about how BitTorrent works 

and why it is so easy to determine the identity of illegal downloaders using the Maverick 

software:

44. When a user adds a torrent file for a file that they want to 

download, the “Trackers” that are included in the torrent file actively work to 

connect torrent clients that have either all or parts of a requested file with those 

seeking those files. In doing so, the IP addresses and port numbers, along with 

other metadata are shared, visible, and otherwise made public within that ‘swarm’ 

of torrent users. It is by this mechanism of identifying each computer in the 

swarm by its IP address and port number that computers in the swarm can connect 

directly to one another and share parts of the file. It is also by this mechanism that 

[Maverick software system] can see the public IP addresses and port numbers of 

copyright infringers and connect directly with them to download files and capture 

evidence of copyright infringement. Such a process is akin to going to a coffee 

shop and asking if anyone in the room has sugar on their table, as you do not. 

Perhaps you want 6 packets of sugar and you need a packet or two from several 

tables to get your 6 packets. The conversations that take place during this 

discovery and sharing process are very much out in the public for all in the coffee 

shop to hear. There is no expectation of privacy when such a request is made. 

Anyone in the coffee shop can see who you are and hear what it is that you are 

requesting. ... The simple fact is that if you wish to join a peer-to-peer, filesharing network, you have to share your IP address and port with those in that 

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CROSS-MOTION FOR SUMMARY JUDGMENT

public pool of persons doing likewise. You are agreeing to and consenting to 

allowing others to connect to your computer in order that you can exchange files. 

As with asking for a packet of sugar in a crowded coffee shop, those in a swarm 

will hear your request and know who you are by your public routable IP address.

Id. at ¶ 44 (emphasis added).

Mr. Bunting concludes that he is “of the opinion that [the Maverick system] was designed 

to maintain the accuracy and integrity of the evidence throughout. Id. at ¶ 37. This opinion 

directly contradicts the opinion of Defendant’s expert Dr. Toth. If this case were to go to trial, 

this conflict would be for the trier of fact to determine. Because there are disputed issues of 

material facts, Defendant’s XMSJ must be denied.

III. CONCLUSION

In this case the admissibility of Defendant’s admissions that he illegally copied is all that 

is necessary to show infringement. Because these admissions are conclusive, and for the other 

reasons set out above, this Court should grant Plaintiff’s MSJ and deny Defendant’s XMSJ. 

DATED: April 9, 2018. HARRIS BRICKEN 

By: s/ John Mansfield

John Mansfield, OSB No. 055390

john@harrisbricken.com

Megan Vaniman, OSB No. 124845

megan@harrisbricken.com

511 SE 11th Ave., Ste. 201

Portland, OR 97214

503-207-7313

Attorneys for Plaintiff

Case 3:15-cv-00907-AC Document 144 Filed 04/09/18 Page 10 of 12
EXHIBIT A: 17 U.S.C. § 512(B)

(b) System Caching. 

(1) Limitation on liability. A service provider* shall not be liable for monetary 

relief...for infringement of copyright by reason of the intermediate and temporary storage 

of material on a system or network controlled or operated by or for the service provider in 

a case in which—

(A) the material is made available online by a person other than the service 

provider;

(B) the material is transmitted from the person described in subparagraph (A) 

through the system or network to a person other than the person described in 

subparagraph (A) at the direction of that other person; and

(C) the storage is carried out through an automatic technical process† for the

purpose of making the material available to users of the system or network who, 

after the material is transmitted as described in subparagraph (B), request access 

to the material from the person described in subparagraph (A),

if the conditions set forth in paragraph (2) are met.

(2) Conditions. The conditions referred to in paragraph (1) are that—

(A) the material described in paragraph (1) is transmitted to the subsequent users 

described in paragraph (1)(C) without modification to its content from the manner 

in which the material was transmitted from the person described in paragraph 

(1)(A);

(B) the service provider described in paragraph (1) complies with rules 

concerning the refreshing, reloading, or other updating of the material when 

specified by the person making the material available online in accordance with a 

generally accepted industry standard data communications protocol for the system 

or network through which that person makes the material available, except that 

this subparagraph applies only if those rules are not used by the person described 

in paragraph (1)(A) to prevent or unreasonably impair the intermediate storage to 

which this subsection applies;

(C) the service provider does not interfere with the ability of technology 

associated with the material to return to the person described in paragraph (1)(A) 

the information that would have been available to that person if the material had 

been obtained by the subsequent users described in paragraph (1)(C) directly from 

that person, except that this subparagraph applies only if that technology—

(i) does not significantly interfere with the performance of the provider’s 

system or network or with the intermediate storage of the material;

 * “As used in this section, other than subsection (a), the term “service provider” means a 

provider of online services or network access, or the operator of facilities therefor, and includes 

an entity described in subparagraph (A).” 17 USC § 512(k)(1)(B). † “A ‘device,’ ‘machine,’ or ‘process’ is one now known or later developed.” 17 USC 

§ 101.

Case 3:15-cv-00907-AC Document 144 Filed 04/09/18 Page 11 of 12
(ii) is consistent with generally accepted industry standard 

communications protocols; and

(iii) does not extract information from the provider’s system or network 

other than the information that would have been available to the person 

described in paragraph (1)(A) if the subsequent users had gained access to 

the material directly from that person;

(D) if the person described in paragraph (1)(A) has in effect a condition that a 

person must meet prior to having access to the material, such as a condition based 

on payment of a fee or provision of a password or other information, the service 

provider permits access to the stored material in significant part only to users of 

its system or network that have met those conditions and only in accordance with 

those conditions; and

(E) if the person described in paragraph (1)(A) makes that material available online 

without the authorization of the copyright owner of the material, the provider responds

expeditiously to remove, or disable access to, the material that is claimed to be infringing 

upon notification of claimed infringement as described in subsection (c)(3), except that 

this subparagraph applies only if—

(i) the material has previously been removed from the originating site or access to 

it has been disabled, or a court has ordered that the material be removed from the 

originating site or that access to the material on the originating site be disabled; 

and

(ii) the party giving the notification includes in the notification a statement 

confirming that the material has been removed from the originating site or access 

to it has been disabled or that a court has ordered that the material be removed 

from the originating site or that access to the material on the originating site be 

disabled.

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