REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Michael O. Stevens, OSB No. 095198 

michael@hillsborofirm.com

STEVENS & LEGAL, LLC

3699 NE John Olsen Avenue

Hillsboro, OR 97124

Tel: (971) 533-6178

Fax: (971) 228-2608

J. Curtis Edmondson, CASB No. 236105 (pro hac vice)

jcedmondson@edmolaw.com

Kiren Rockenstein, OSB No. 175638

kirenr@edmolaw.com

EDMONDSON IP LAW

3699 NE John Olsen Avenue

Hillsboro, OR 97124

Tel: (503) 336-3749

Fax: (503) 482-7418

David H. Madden, OSB No. 080396 

dhm@mersenne.com

MERSENNE LAW LLC

9600 SW Oak Street, Suite 500

Tigard, OR 97223

Tel: (503) 679-1671

Fax: (503) 512-6113

Attorneys for Defendant JOHN HUSZAR 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DALLAS BUYERS CLUB, LLC, 

Plaintiff,

v.

JOHN HUSZAR,

Defendant.

Case No.: 3:15-cv-0907-AC

DEFENDANT’S REPLY IN SUPPORT OF 

DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT

FRCP 56

ORAL ARGUMENT REQUESTED

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REPLY

I. INTRODUCTION

Defendant John Huszar (“Huszar”) moved this Court for an order granting summary 

judgment under three alternate grounds: (1) atatutory immunity under 17 U.S.C 512(a) and (b) due 

the installation of Tor on his computer system; (2) a lack of admissible depository copy of the 

work, establishing that Defendant Dallas Buyers Club, LLC (“DBC”) cannot present its case in 

chief; (3) the inadmissibility of the MaverickMonitor data in view of the testimony of DBC’s 

30(b)(6) designee, Robert Young. DBC timely filed their opposition on each point. 

Huszar contends the use of Tor provides absolute immunity under 17 U.S.C 512, even in 

view of the Requests for Admissions (“RFAs”). Also, DBC never produced, or even argued, that 

a valid depository copy was turned over at the close of discovery, thus they cannot present their 

case in chief. Lastly, Bunting’s “report” should not be used to rebut Huszar’s contentions on MSJ 

as it relies on data that should have been produced in discovery. If the Court agrees on any one of 

these points, then summary judgement should be granted in favor of Huszar.

II. ARGUMENT

A. HUSZAR’S ALLEGEDLY “DEEMED ADMITTED” RFA’S DO NOT NEGATE

THE STATUTORY IMMUNITY UNDER 17 U.S.C. §§ 512(A) AND 512(B) AS A

CONSEQUENCE OF HIS INSTALLATION OF TOR

DBC does not dispute the hardware installed on Huszar’s server rack participated in / 

served as part of the Tor Network, since these facts are undisputed. 

This Court made the following factual findings earlier in the case in which both parties can 

rely: 

On the Infringing Machine, Defendant installed Tor Network software and 

created a “Tor Node,” which facilitates use of the Tor Network by end users by 

routing information through Defendant’s machine. Also on this machine were 

VMs for two email servers. The Infringing Machine had two hard drives, which 

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were mirrored. Defendant did not use the Infringing Machine as a personal 

computer and did not attach any personal computer to this machine. The 

Infringing Machine was located on a server rack.

(Order on February 6, 2017; Docket 95, page 5)

As there is a factual finding about Tor, this leads to the next question – what effect does

the Tor software have on the underlying computer system? 

Tor creates an anonymous network through which any two users may communicate. (See 

Docket 138-8, Page 4, “Onion routing is an approach to low-latency anonymous communication 

on public networks.”; See also https://en.wikipedia.org/wiki/Tor_(anonymity_network). Tor, from 

a technical perspective, anonymizes the underlying computer data and permits participating 

computers, or “nodes,” to provide an anonymous network through which third parties can transmit 

data. This fact is undisputed. How Tor works has been cited by a number of appellate courts,

mostly in a negative light, but the technology is obviously content neutral, just as the Internet itself 

is content neutral. (See United States v. Horton, 863 F.3d 1041, 1045 (8th Cir., 2017); United 

States v. Levin, 874 F.3d 316 (1st Cir., 2017); describing the Tor technical features in connection 

with Operation Playpen).

DBC claims the RFAs should trump this factual finding to negate the statutory immunity. 

(Opposition, Docket 144, pages 3-5). Assuming for the purposes of this motion that RFAs 5 & 7

are deemed admitted, Huszar still prevails under statutory defense of 17 U.S.C. 512(a) and (b)

since every ISP and communications company (such as Comcast, AT&T, etc.) relies on that 

defense.

Everyday, huge volumes of non-infringing and infringing material flow between computer 

systems using the Internet. A good description can be found at U.S. Telecom Ass'n v. Fed. 

Commc'ns Comm'n, 825 F.3d 674,689 (D.C. Cir., 2016) stating: 

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To bring this all together, when an end user wishes to check last night's 

baseball scores on ESPN.com, his computer sends a signal to his broadband 

provider, which in turn transmits it across the backbone to ESPN's 

broadband provider, which transmits the signal to ESPN's computer. 

Having received the signal, ESPN's computer breaks the scores into packets 

of information which travel back across ESPN's broadband provider 

network to the backbone and then across the end user's broadband provider 

network to the end user, who will then know that the Nats won 5 to 3.

In that example, once can replace, ESPN.com, with any provider of data. Thus, the internet

backbone is a mere conduit – it does not differentiate between infringing and non-infringing data. 

Huszar, like the internet providers, is not the “end user” of the data, due to his installation 

of Tor. Tor makes his computer part of the “broadband provider network” and is just a conduit of 

data for the end-user. Huszar, by virtue of installing Tor, is a mere conduit for other users as he 

just routes their requests. As part of the “provider network”, Huszar should be given the same 

statutory immunities under 17 U.S.C. § 512(a) and § 512(b). 

This issue seems to be one of first impression for the Federal Courts. It has been addressed 

very well academically, see Notes and Comments, Northwestern School of Law, Vol 106, No. 2, 

by Nassim Nazemi, DMCA § 512 SAFE HARBOR FOR ANONYMITY NETWORKS AMID A 

CYBER-DEMOCRATIC STORM: LESSONS FROM THE 2009 IRANIAN UPRISING, attached as 

Exhibit 1. 

Like an oracle, Ms. Nazemi predicted that: “...Because the Digital Millennium Copyright 

Act (DMCA)12 was not drafted with Tor in mind and because no anonymity network operator has 

yet faced secondary liability in a copyright infringement action, it is unclear whether Tor’s 

volunteer operators will be exempt from liability under DMCA § 512(a), a provision giving safe 

harbor to transitory digital network communication providers....” Ms. Nazemi also predicted in 

her article: “...Thus, Tor operators may soon find themselves in court facing damages of up to 

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$150,000 per illegally copied movie.” (Id. at 873) and “...Exit node operators face the greatest 

risk of liability because all Tor users take on the IP address of their exit node operator. In other 

words,” and “...[w]hen someone does something improper via Tor, the exit node operator often 

gets blamed...”. (Id. at 875). Ms. Nazemi opines that a Tor operator should be immune under 17 

U.S.C. § 512(a). 

In conclusion, even if we accept the RFAs are deemed admitted, there is no legal liability 

due to Huszar’s operation of Tor. Like the UPS, FedEx, or the Post Office, Huszar should not be 

held liable for just delivering a copy of Dallas Buyers Club to an end-user. 

Huszar respectfully requests that this Court grant summary judgment in his favor in view 

of the statutory immunities provided under the DMCA.

B. DBC’S FAILURE TO PRODUCE THE DEPOSITORY COPY OF THE MOVIE 

BY THE CLOSE OF DISCOVERY PREVENTS THEM FROM PRESENTING 

THEIR CASE IN CHIEF

DBC confuses legal title to a work with the work itself. See Fathers & Daughters Nev., 

LLC v. Zhang 3:16-cv-1443-SI (D. Or., 2018) for a more than thorough analysis on the effect 

agreements on the issue of title and standing. At issue here is not clear title, as in in Fathers, but 

what physical evidence can DBC introduce at trial, such evidence being the foundation of their 

copyright claim e.g. the motion picture Dallas Buyers Club. 

At trial, DBC will have to admit at least two pieces of evidence – the movie for which a 

records custodian can lay the foundation, and records that establish title. DBC will first lay the 

foundation for the title of the work (the copyright certificate). DBC claims the copyright certificate 

establishes clear title. For the purposes of this MSJ, that is undisputed. Then, DBC will have to 

introduce the underlying work itself, the film Dallas Buyers Club, along with the proper

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foundation. The jury will then examine what portions DBC alleges Huszar infringed (arguably 

reconstructed from a PCAP) and make a determination on infringement. 

By the close of discovery, DBC failed to produce the depository copy of the work. (See 

Docket 118). In DBC’s opposition to this motion, there was no argument on what evidence was 

produced in discovery and how proper foundation is laid. When the movant presents evidence, it 

is up to the non-moving party to present evidence to create a triable issue of fact. See Guarino v. 

Brookfield Tp. Trustees, 980 F.2d 399,403 (6th Cir., 1992); In re Caneva, 550 F.3d 755 , 761 (9th 

Cir., 2008). When the non-moving party does not present such evidence, the Court can correctly 

assume that no such evidence exists. 

DBC did not produce or point to any evidence in their opposition brief regarding the work 

itself. DBC did not produce a declaration from a records custodian at either DBC or Universal of 

what portions of the films are identical or not identical. 

In order to satisfy one of the elements of infringement, namely copying, DBC must 

produce evidence to demonstrate copying. See 9th Circuit Model Jury Instructions 17.5: 

“...Anyone who copies original expression from a copyrighted work during 

the term of the copyright without the owner’s permission infringes the 

copyright. On the plaintiff’s copyright infringement claim, the plaintiff has 

the burden of proving by a preponderance of the evidence that: 1. the 

plaintiff is the owner of a valid copyright; and 2. the defendant copied 

original expression from the copyrighted work. If you find that the 

plaintiff has proved both of these elements, your verdict should be for the 

plaintiff. If, on the other hand, you find that the plaintiff has failed to prove 

either of these elements, your verdict should be for the defendant..” 

(emphasis added). 

It is not Huszar’s burden to produce the evidence needed to prove DBC’s case in chief. 

The expense of a trial is not warranted when the result will simply be a JMOL. (See Antonick v. 

Elec. Arts, Inc., 841 F.3d 1062, 1066 (9th Cir., 2016) entry of JMOL due to lack of the underlying 

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work not being in evidence.) 

Huszar respectfully requests this Court enter summary judgment in his favor as DBC did 

not produce an admissible depository copy of the film Dallas Buyers Club by the close of 

discovery. 

C. DBC’S BUNTING RELIED ON EVIDENCE REQUESTED IN DISCOVERY BY 

DEFENDANT BUT NEVER PRODUCED BY PLAINTIFF 

In support of DBCs opposition to rebut the expert testimony of Dr. Kal Toth, DBC has 

submitted an “expert report” from Stephen Bunting which was prepared for a completely 

difference case. (Docket 145-1). Mr. Bunting’s report relies on test data and test scripts that were

not provided to Huszar’s counsel by the close of discovery. See Objections to Evidence infra.

Before the close of discovery, Huszar requested DBC produce a copy of the source code, 

documentation, test data, etc. that was used to validate and verify Huszar’s IP address. (See Exhibit 

2, Huszar’s RPD Set 2). DBC objected to the production of the source code, but this Court entered

a protective order. (Docket 116). The protective order was later modified. (Docket 137). 

In their opposition, DBC produced a declaration from Bunting (Docket 145) that relies on 

test data that should have been produced by the close of discovery. Further, there is no evidence 

that Bunting prepared this declaration for this case, rather it was prepared for another case in the 

U.S. District Court for the Western District of Washington (WDWA). Bunting’s conclusion is 

MaverickMonitor system “works”. But Bunting’s expert report is based on information from Ben 

Perino. Ben Perino has been disqualified as an expert by Judge Zilly in the WDWA finding that 

Ben Perino is unqualified as an expert and his testimony is unbelievable. Judge Zilly stated: 

(3) In response to the Minute Order entered November 3, 2017 (see, e.g., 

C17-988, docket no. 27), requiring plaintiff to provide an offer of proof, 

plaintiff has filed a declaration by Benjamin Perino, Chief Executive 

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Officer of GuardaLey LTD, a German company. In such declaration, Perino 

asserts that he created the surveillance software at issue, which is licensed 

by GuardaLey to MaverickEye UG, also a German company. Perino Decl. 

at ¶¶ 5 & 11 (see, e.g., C17-988, docket no. 29). Perino has been proffered 

as an expert, but his qualifications consist of a technical high school 

education and work experience unrelated to the peer-to-peer file-sharing 

technology known as BitTorrent. Id. at ¶¶ 6-10. According to Perino, the 

infringement detection system at issue “cannot yield a false positive.” Id. at 

¶ 37. Perino does not have the qualifications necessary to be considered an 

expert in the field in question, and his opinion that the surveillance program 

is incapable of error is both contrary to common sense and inconsistent with 

plaintiff’s counsel’s conduct in other matters in this district. Plaintiff has 

not submitted an adequate offer of proof.

Bunting cannot rely on expert testimony from an unqualified expert, Ben Perino. 

More importantly, after many discovery meetings, DBC’s designated and produced their 

fact and expert witness, Robert Young. Robert Young testified that he never installed or executed

the MaverickMonitor software on any server despite being designated by DBC as its 30(b)(6) 

designee on software. (See Exhibit 2 of MSJ, Dckt 138-2; Young Deposition, p. 106:15-18). DBC 

is bound by Young’s 30(b)(6) testimony. Nowhere does Bunting rely on the evidence produced 

by Robert Young or testified about in his 30(b)(6) deposition. 

Bunting does not recognize or address the architectural problems inherent in BitTorrent in 

conjunction with Tor. As documented in the article, “BITSTALKER: ACCURATELY AND 

EFFICIENTLY MONITORING BITTORRENT TRAFFIC” by Bauer, et. al (Edmondson Decl, 

Ex. 50, page 4, the problem with Tor false positives is clearly described in the article as follows: 

However, the active probing approach is not entirely immune from the 

possibility of false positive identification. For example, peers using an 

anonymizing network such as Tor [10] may produce false positives, since 

the last Tor router on the client’s path of Tor routers (called a Tor exit 

router) would be implicated in the file sharing. In fact, a recent study has 

found that BitTorrent is among the most common applications used with 

Tor [11].

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The Bauer article demonstrates Tor creates false positives in the context of bitTorrent use. 

This is exactly the scenario that Huszar’s computer was experiencing. When Carl Crowell, the 

first of now four attorneys for DBC, demanded Huszar stop using Tor, Huszar complied. There is 

no evidence after that demand that the IP address continued to infringe the DBC work. 

In conclusion, DBC should not be able to using Bunting’s report, which relies on 

undisclosed evidence to support an opposition to Huszar’s MSJ. Huszar respectfully requests this 

Court ignore the evidence proffered by Bunting and grant Huszar’s motion for summary judgment.

D. OBJECTIONS TO EVIDENCE 

Huszar, pursuant to LR 56-1, notes this evidentiary objections to DBC’s evidence

presented in its Response in Opposition to Defendant’s motion for summary judgment.

Specifically, the Report of Stephen Bunting (“Bunting Report”) attached as Exhibit 1 to Docket 

145. The following objections apply to the Bunting Report:

o Objection: Lacks Foundation. The Bunting Report relies on evidence and 

documents not included with the report, namely a report by Benjamin 

Perino which was not included as part of the Bunting Report. Further, the 

report was authored to support another case and it is not clear if the same 

system was used on both cases. It also relies upon documents and evidence 

requested in discovery by Huszar, but not produced by DBC prior to the 

close of discovery.

o Objection: Hearsay. The Bunting Report relies upon out of court testimony, 

namely phone conversations from Ben Perino, as the basis for the truth of 

the matter asserted therein, namely that the MaverickMonitor system is 

reliable.

o Objection: Lacks Personal Knowledge. The Bunting Report does not 

provide a computation of the false positive rate of the Maverick Monitor 

system, and therefore Mr. Bunting cannot testify as to that rate.

III. CONCLUSION

In view of the arguments and evidence presented above, as well as the evidence and 

arguments outlined in the moving papers, Huszar respectfully requests this Court grant his motion 

for summary judgment on the issue of infringement of the movie, Dallas Buyers Club. In the 

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alternative, Huszar respectfully requests the Court deny DBC’s motion for summary judgment, as 

triable issues of material fact remain as to the contentions in DBC’s motion for summary judgment.

DATED: April 30, 2018 Respectfully submitted,

STEVENS & LEGAL, LLC

/s/ Michael O. Stevens

Michael O. Stevens, OSB No. 095198

michael@hillsborofirm.com

Attorney for Defendant

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