- 1 - PLAINTIFF’S REPLY IN SUPPORT OF ITS 

MOTION FOR PARTIAL 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 REPLY IN SUPPORT OF 

ITS MOTION FOR PARTIAL 

SUMMARY JUDGMENT

Plaintiff moves for summary judgment relying primarily on defendant’s own admissions 

of liability in requests for admission and pleadings. In an effort to muddy the water, defendant’s 

latest three lawyers have put together a blunderbuss of documents, which were never produced in 

this case or made the basis of a motion to compel, and ask this Court to throw the whole mess in 

Case 3:15-cv-00907-AC Document 134 Filed 02/12/18 Page 1 of 6
- 2 - PLAINTIFF’S REPLY IN SUPPORT OF ITS 

MOTION FOR PARTIAL SUMMARY JUDGMENT

the air and hope that a disputed fact sticks. This Court should disregard defendant’s efforts and 

grant summary judgment on liability willfulness.

I. DEFENDANT CANNOT SHOW ANY DISPUTED FACTS ON LIABILITY

A. Defendant has admitted liability for copyright infringement.

To show copyright infringement, plaintiff needs to prove that (1) it “is the owner of a 

valid copyright; and (2) the defendant copied original expression from the copyrighted work.” 

Ninth Cir. Model Jury Instructions, § 17.5 Copyright Infringement Elements. Here, defendant 

failed to provide any substantive responses to plaintiff’s requests for admission (“RFAs”), even 

in the face of plaintiff’s motion to compel responses or have them admitted. [ECF 77]. 

Accordingly, in October 2016, the Court ordered that these admissions are “deemed fully 

admitted based on the lack of any response by Defendant Huszar.” [ECF 84]. Neither defendant

nor any of his lawyers have made any legal challenge to this Court about these admissions until 

the opposition to plaintiff’s motion for summary judgment. 

Defendant has admitted “plaintiff’s motion picture, Dallas Buyers Club, contains original 

material that is copyrightable subject matter under the laws of the United States.” RFA 1, Ex. 1 

to Pls. Mot. for Sum. Judg. This admission conclusively proves element 1 of the copyright

infringement jury instruction, admitting that it is plaintiff who owns the copyrighted film, and 

that the movie contains original and thus copyrightable subject matter under U.S. law.

Defendant has also admitted that “John Huszar, without permission or consent of plaintiff 

copied and distributed at least portions of the motion picture Dallas Buyers Club through a 

public BitTorrent network.” Id. at RFA 7. Copying and distribution are two of the bundle of 

rights owned by a copyright holder as set out in the Copyright Act. Range Rd. Music, Inc. v. E. 

Coast Foods, Inc., 668 F.3d 1148, 1153 (9th Cir.2012) (Ninth Circuit considers the word 

"copying" as "shorthand" for the various activities that may infringe a copyright owner’s six 

exclusive rights described at 17 U.S.C. § 106). This admission conclusively proves element 2 of 

the copyright infringement jury instruction. 

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- 3 - PLAINTIFF’S REPLY IN SUPPORT OF ITS 

MOTION FOR PARTIAL SUMMARY JUDGMENT

B. Defendant’s efforts to raise disputed issues of fact are unsuccessful.

Defendant’s strategy is to treat these conclusive admissions as merely prima facie 

evidence, that can now be rebutted by pointing to supposed facts that allegedly contradict the 

admissions. But an admission “goes 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). A request, if admitted, “is conclusive of the matter and avoids the 

need for proof [of that matter] at trial.” Id. The Ninth Circuit Model Jury Instructions instruct the 

jury that it “must treat [admitted] facts as having been proved.” Ninth Cir. Model Jury 

Instruction 2.12, Use of Requests for Admission.

Defendant’s claims that infringement is not established by the requests because they are 

“overly broad and do not address originality” are mistaken. First, any objections that defendant 

now wants to raise are waived. Defendant failed to timely respond to the RFAs and even failed 

to respond once plaintiff moved to have the RFAs deemed admitted. 

Defendant also attempts to claim that the RFAs in question do not actually establish the 

elements of copyright infringement of plaintiff’s original work. In particular, defendant asserts

that RFA 7 does not specify intent, “proximity to the copying,” and the “actual thing being 

copied and distributed.” Defendant cites no authority supporting his claim that “intent” is an 

element of copyright liability, because it is not. Gener-Villar v. Adcom Group, Inc., 509 

F.Supp.2d 117, 125-26 (D.P.R., 2007). Whatever defendant means by “proximity to copying,”

there is again no authority showing that this is an element that must be proven by plaintiff. Even 

if it were required, RFA 7 admits that “John Huszar....copied and distributed” the copyrighted 

work. Defendant was not just proximate to the copying, but was the actual copier. 

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- 4 - PLAINTIFF’S REPLY IN SUPPORT OF ITS 

MOTION FOR PARTIAL SUMMARY JUDGMENT

Finally, defendant attempts to thread the needle to claim that RFA 7 could hypothetically 

apply to scenarios where defendant only copied “unoriginal” material, e.g., the black screen in 

the credits. Again, defendant has admitted that the work is original and copyrightable, and that he 

copied at least portions of it. The RFA establishes the elements of copyright infringement and it 

is too late for defendant to claim that the facts are different than what he has admitted. In any 

event, defendant has also admitted that he has destroyed “all records in his possession of any 

activity occurring through IP address 173.11.1.241, including the deletion and over-write of both 

the hard drive of the computer in use and the backup....” RFA 8, 9-10, Ex. 1 to Pls. Mot. for 

Sum. Judg. This spoliation led the Court to enter the following adverse inference sanction: 

“Defendant John Huszar has failed to preserve computer hard drives that may have contained 

evidence relevant to this case. You may presume that the lost evidence was favorable to Plaintiff. 

Whether this finding is important to you in reaching a verdict in this case is for you to decide.” 

Defendant cannot rebut this evidence at trial, and it is the only evidence that could possibly 

prove his hypothetical. Sanctions Order, at 10. [ECF 95]. 

C. Defendant’s efforts to raise disputed issues of fact about ownership are 

beside the point.

Defendant has also attached sheaves of paper from other jurisdictions attempting to show 

that plaintiff does not own the copyright to the subject film. Included in these documents is a 

document apparently downloaded from the internet that purports to be some papers from an 

Australian case addressing ownership under Australian copyright law. None of these documents 

are self-authenticating or subject to judicial notice. Even if they were, they could not be used to 

raise a disputed issue of fact that is contrary to what defendant has already admitted: Dallas 

Buyer’s club, is owned by plaintiff, and is copyrightable under U.S. law.

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- 5 - PLAINTIFF’S REPLY IN SUPPORT OF ITS 

MOTION FOR PARTIAL SUMMARY JUDGMENT

II. DEFENDANT CANNOT SHOW DISPUTED FACTS ON WILLFULNESS

Plaintiff has also moved for summary judgment that defendant’s infringement was 

willful, requiring that he show there is no disputed issue of fact that either “defendant was aware 

of the infringing activity,” or that defendant acted with reckless disregard or willful blindness”

for the copyright holder’s rights. Louis Vuitton Malletier v. Akanoc, 658 F.3d 936, 944 (9th Cir. 

2011). 

Here, defendant has admitted that he has “used the BitTorrent protocol for the exchange 

of files with others in violation of U.S. copyright law, RFA 4, “ was familiar with the use of 

BitTorrent for the downloading of media,” RFA 5, “willfully copied and distributed multiple 

copyrighted files through a public peer-to-peer network, RFA 6, and that he “distributed at least 

portions of the motion picture Dallas Buyers Club through a public BitTorrent network.” These 

admissions irrefutably establish both that defendant “was aware” of his infringement, or that he 

stuck his head in the sand in reckless disregard or willful blindness to plaintiff’s rights. Evidence 

that is contrary to defendant’s own admissions cannot be considered. 

Defendant claims that willfulness is not appropriate for summary judgment or cannot be 

decided as a question of law. But determining which issues are factually undisputed and thus can 

be decided as a matter of law is what summary judgment is for. This is a classic case for 

summary judgment. Defendant brought no disputed facts on willfulness in this case before the 

Court, other than a speculative and general discussion of open Wi-Fi and the Tor network which 

is unsupported by any evidence at all, much less any evidence applying to this case. This Court 

should find that defendant’s infringement was willful.

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MOTION FOR PARTIAL SUMMARY JUDGMENT

III. CONCLUSION: DEFENDANT’S OWN ADMISSIONS SHOW THAT 

SUMMARY JUDGMENT SHOULD BE ENTERED

Defendant has admitted liability and willfulness. Despite having at least seven lawyers 

over the course of this case, defendant has never moved or taken any other action to respond to 

these admissions until his opposition to summary judgment, comprising several hundred pages of 

documents in an attempt to show that somewhere there must be some disputed facts. But the 

reason Rule 36 admissions exist is so that parties can cut to the chase and focus the litigation on 

disputed claims. Now, 16 months after the Court ordered these admissions, is simply too late to 

claim that these issues are disputed. Plaintiff respectfully asks this Court to enter summary 

judgment on infringement and willfulness.

DATED: February 12, 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

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