3:17-cv-157-AC PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE 

TO DEFENDANT’S SUPPLEMENTAL BRIEFING REGARDING DEFENDANT’S 

SUMMARY JUDGMENT MOTION

Page 1 

WENDY LYON, OSB No.: 162408

WLyon@FoxRothschild.com 

FOX ROTHSCHILD LLP 

1001 4th Avenue, Suite 4500 

Seattle, WA 98154 

Telephone: 206-389-1667 

Facsimile: 206-389-1708 

LINCOLN BANDLOW – Admitted Pro Hac Vice

Lincoln@BandlowLaw.com 

LAW OFFICES OF LINCOLN BANDLOW, PC 

1801 Century Park East, Suite 2400 

Los Angeles, CA 90067 

Telephone: 310-556-9680 

Facsimile: 310-861-5550 

Attorneys for Plaintiff,

Dallas Buyers Club, LLC. 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

DALLAS BUYERS CLUB, LLC

Plaintiff, 

v. 

JOHN HUSZAR

Defendant. 

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

PLAINTIFF’S MEMORANDUM OF 

POINTS AND AUTHORITIES IN 

RESPONSE TO DEFENDANT’S 

SUPPLEMENTAL BRIEFING 

REGARDING DEFENDANT’S 

SUMMARY JUDGMENT MOTION 

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3:17-cv-157-AC PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE 

TO DEFENDANT’S SUPPLEMENTAL BRIEFING REGARDING DEFENDANT’S 

SUMMARY JUDGMENT MOTION

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MEMORANDUM OF POINTS AND AUTHORITIES 

In his Supplemental Brief Regarding Summary Judgment (“Supplemental 

Brief”), Defendant John Huszar (“Defendant” or “Huszar”) argues that as a result 

of recent Ninth Circuit precedent, Ventura Content v. Motherless, 885 F.3d 597 (9th

Cir. 2018) (“Ventura Content”), Defendant’s use of a Tor router means that he, as a 

matter of law, fits within the DMCA statutory safe harbor of 17 USC § 512(c) 

(“Sect. 512(c)”). That contention is incorrect. 

As a starting point, Defendant did not even move for summary judgment 

claiming safe harbor protection under Sect. 512(c). To the contrary, Defendant 

sought summary judgment on the ground that he has copyright infringement 

immunity under Sect. 512(a) and (b), two related, but different safe harbor 

provisions. Dkt. No. 138. Having previously failed to move for summary 

judgment under Sect. 512(c), Defendant cannot now, in a sur-reply, attempt to 

surreptitiously expand the scope of his motion and seek summary judgment under 

new theories that have never before been presented. 

Even if the Court decides to reach the merits of Defendant’s new Sect. 

512(c) argument, it is clear that neither the statute, nor the Ventura Content case 

that Defendant cites, support Defendant’s argument that use of a Tor router 

insulates him from liability and that summary judgment should be granted in his 

favor. To the contrary, Sect. 512(c) lists several elements that must be established 

to take advantage of the statutory safe harbor from copyright infringement claims. 

As the Court in Ventura Content put it: 

[F]or a service provider to get safe harbor protection 

despite its infringement, it must not know of the 

infringement, and the infringement cannot be apparent. 

It must also take down or prevent access to the infringing 

material as soon as it learns about it or receives a DMCA 

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3:17-cv-157-AC PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE 

TO DEFENDANT’S SUPPLEMENTAL BRIEFING REGARDING DEFENDANT’S 

SUMMARY JUDGMENT MOTION

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notice. And it must not directly benefit financially from 

the infringement in situations when it can control the 

activity. 

Ventura Content v. Motherless, 885 F.3d 597, 604 (9th Cir., 2018). On top of that, 

the service provider must have a policy to terminate users who repeatedly engage 

in infringing activity. 17 USC § 512(i). This is a fact-dependent inquiry that 

cannot be resolved simply by reference to the type of internet network being 

utilized, as Defendant suggests. 

To be clear, the Ventura Content case did not in any way involve a Tor user. 

Rather, it involved a website that allowed for the posting of user-generated content. 

In that case, the plaintiff copyright holder sued that website, which hosted adult 

photos and videos uploaded by individual users, when it appeared clear that users 

were, in fact, uploading content owned by plaintiff. Both the trial court and the 

Ninth Circuit found that the defendant website fit within the statutory safe harbor 

under Sect. 512(c). The defendant had no actual knowledge that content infringing 

the plaintiff’s copyrights had been posted on the defendant’s website, particularly 

considering the defendant had not been served with DMCA takedown notices by 

the plaintiff. The defendant also did not have any apparent knowledge of 

infringement, as the plaintiff’s videos were not marked as copyrighted and were 

not sufficiently current and well-known for the copyright implications of sharing 

the videos to be objectively obvious. Id. at 611 (citing Columbia Pictures 

Industries, Inc. v. Fung, 710 F. 3d 1020 (9th Cir. 2013)). Finally, the courts found 

that the defendant did not benefit financially from the infringement and worked 

expeditiously to take down infringing material when informed. 

Notably absent from this detailed, fact-specific inquiry, is any discussion of 

the type of router or network relied upon by the defendant. This simply did not 

enter the Court’s analysis, and its conclusion that the defendant fit within the Sect. 

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3:17-cv-157-AC PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE 

TO DEFENDANT’S SUPPLEMENTAL BRIEFING REGARDING DEFENDANT’S 

SUMMARY JUDGMENT MOTION

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512(c) safe harbor was based on other facts. 

Thus, contrary to Defendant’s argument in the Supplemental Brief, the 

Ventura Content case does not establish that a party’s operation of a Tor router 

ipso facto entitles that party to statutory immunity under Sect. 512(c), or any other 

statute. In the Ventura Content case, the Ninth Circuit took note of the fact that the 

defendant was not served with a DMCA takedown notice, timely removed the 

content infringing the Plaintiff’s copyright the same day it was pointed out, and 

otherwise worked expeditiously to remove infringing content. 

Did Defendant Huszar get any such notices, timely remove any content or 

infringing users, remove any infringing content? One can never truly know 

because Defendant acted contrary to a court directive and intentionally deleted the 

hard drive and backup RAID drive of the only computer known to have accessed 

the IP address at issue in this case, leading to a separate discovery sanction against 

him. DKt No. 95. Defendant now seeks to use his own spoliation as a shield and 

argues that because he used a Tor router, it is impossible to determine who is liable 

for the infringement and Defendant automatically qualifies for a DMCA safeharbor. However, this position is not supported by any case-law, including the 

Ventura Content case that Defendant misconstrues, and is directly contrary to 

Defendant’s own discovery conduct, including deleting a computer hard drive he 

had been ordered to turn over. 

Defendant’s reliance on Ventura Content and his alleged operation of a Tor 

site is a red herring. Defendant destroyed his hard drive and backup drive, but now 

wants to be protected from his alleged infringing acts by his assertion that he used 

Tor, the “safe haven for criminal activity, especially child pornography.”1 He 

1

See The Tor Network: A Global Inquiry into the Legal Status of Anonymity Networks, 11 Wash. 

U. Global Stud. L. Rev. 715, 723 (2012) (“Tor Network Inquiry”). 

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3:17-cv-157-AC PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE 

TO DEFENDANT’S SUPPLEMENTAL BRIEFING REGARDING DEFENDANT’S 

SUMMARY JUDGMENT MOTION

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seeks a safe harbor for his acts, but it has been noted that the use of Tor may 

violate Section 512(i) of the DMCA which mandates that all networks seeking 

DMCA immunity must not interfere with “standard technical measures” which are 

described as “technical measures that are used by copyright owners to identify or 

protect copyrighted works.” 17 U.S.C. § 512(i)(2). Thus, “[b]ecause the DMCA 

was not intended to cover and did not anticipate anonymity networks like Tor, it 

seems unlikely that a court would apply its provisions to Tor.” Tor Network 

Inquiry at 725; see also, An Onion a Day Keeps the NSA Away, 13 No. 11 J. 

Internet L. 22, 25-26 (2010) (noting many arguments “that could be used to argue 

that anonymity networks [such as Tor] do interfere with standard technical 

measures and, therefore, are not deserving of [DMCA] safe harbor protections” 

such as, for example, the fact that Tor “frustrates the copyright holder’s ability to 

discover a file’s true internet location” interfering with the “identification” of the 

file where the infringing material is stored and thus “Tor interferes with § 512(i)’s 

standard technical measures to identify copyrighted works and therefore is 

undeserving of DMCA safe harbor protection.”) 

The Court should ignore Defendant’s incorrect arguments in the 

Supplemental Brief and deny his motion for summary judgment.

June 20, 2019

LINCOLN BANDLOW – Admitted Pro Hac Vice

lincoln@bandlowlaw.com 

LAW OFFICES OF LINCOLN BANDLOW, P.C. 

1801 Century Park East, Suite 2400 

Los Angeles, CA 90067 

Telephone: 310-556-9680 / Facsimile: 310-861-0555 

WENDY LYON, OSB No.: 162408 

WLyon@FoxRothschild.com 

FOX ROTHSCHILD LLP 

1001 4th Avenue, Suite 4500 

Seattle, WA 98154 

Telephone: 206-389-1667 / Facsimile: 206-389-1708

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