DEFENDANT’S SUPPLEMENTAL BRIEF

Page 1

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

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 SUPPLEMENTAL 

BRIEF RE SUMMARY JUDGMENT

ORAL ARGUMENT REQUESTED

Defendant John Huszar (“Huszar” of “Defendant”) provides the following supplemental 

Case 3:15-cv-00907-AC Document 170 Filed 06/07/19 Page 1 of 4
DEFENDANT’S SUPPLEMENTAL BRIEF

Page 2

briefing on the pending cross motions for summary judgments pursuant to the Court’s Scheduling 

Order of May 8, 2019. (See Dkt 165). Defendant requests the Court grant summary judgment in 

favor of Defendant, and deny Plaintiff Dallas Buyers Club, LLC’s (“DBC”) motion for summary 

judgment.

INTRODUCTION

This case involves the alleged infringement of the movie “Dallas Buyers Club” by Huszar. 

The Court asked for supplemental briefing on the pending motions for summary judgment. 

This case involves the unusual situation of Huszar hosting a “Tor exit node” 

(www.torproject.org). DBC decided to pursue this case with despite knowing early on that Huszar 

had no way of knowing what content passed through his “Tor exit node”. Huszar raised three 

grounds for Summary Judgment in his favor: 

• Huszar has statutory copyright infringement immunity under 17 U.S.C. §§ 512(a) and 

512(b) for an ISP (internet service provider), as he operated as an ISP with a Tor server; 

and/or

• DBC cannot “prove up” its case as DBC has failed to produce a true and correct “depository 

copy” by the close of discovery. This precludes DBC from satisfying an essential element 

of infringement; and/or

• Any data generated from the “MaverickMonitor” torrent monitoring system cannot be 

relied upon for the purposes of proving any “infringement”. The software was built without 

any formal specifications, has no documentation, has never been tested, and has no reports 

on error rates. 

Defendant is limiting arguments to new cases that have been decided prior to these pending 

summary judgment motions. On these three points, only the first point has relevant new case law. 

This argument is intended to supplement the arguments already made in Huszar’s motion for 

summary judgment. 

Case 3:15-cv-00907-AC Document 170 Filed 06/07/19 Page 2 of 4
DEFENDANT’S SUPPLEMENTAL BRIEF

Page 3

ARGUMENT

I. HUSZAR IS NOT LIABLE FOR INFRINGEMENT BY HAVING A TOR 

SERVER INSTALLED

In a case decided last year in this Circuit, a website operator was sued for copyright 

infringement. Ventura Content v. Motherless, 885 F.3d 597 (9th Cir., 2018). In that case, 

Motherless’ website allowed individuals to register accounts and upload content. Id. at 602, “Eight 

Users Uploaded 33 infringing clips”. When Motherless was given notice of the infringement1

, the 

infringing clips were removed. Id. at 614 “...removed them on the day that Ventura gave 

Motherless enough information to do so..”. The Court in Ventura granted summary judgment to 

the defendant under the “safe harbor provisions” of 17 U.S.C. § 512(c) since Motherless satisfied 

the tripartite requirements of ‘safe harbor”. Here, Huszar’s operation of the Tor Server satisfies 

the tripartite test.

First, Huszar did not know of the infringement of DBC by the user having a Tor Brower. 

Ventura at 604. This is clear from his declaration at Docket 39-1 where he declared he used a Tor 

Exit Node. The technical details of the operation of Tor have been detailed in numerous court 

proceedings involving use of Tor Browsers to mask user identities. See United States v. Jean, 207 

F.Supp.3d 920, 924 (W.D. Ark., 2016). 

Second, Huszar “took down” the material in the sense that the material was simply routed 

through his server. There is no allegation that DBC observed that the movie was “posted” on 

Huszar’s website. (Docket 63). The allegation is that only transactions passed through Huszar’s 

website. However, every ISP, like Motherless, potentially has infringing content passing through 

the website. 

 1 Motherless, like Huszar, was not sent any DMCA notices of infringement.

Case 3:15-cv-00907-AC Document 170 Filed 06/07/19 Page 3 of 4
DEFENDANT’S SUPPLEMENTAL BRIEF

Page 4

Third, Huszar did not benefit directly, indirectly, or at all from the activity. Ventura at 604. 

There is nothing in the record that shows Huszar had advertisements, charged a subscription, etc.

for the DBC transactions passing through his Tor Server. 

Therefore, under Ventura, Huszar is not liable as an infringer for implementation of a Tor 

Relay Node. 

CONCLUSION

The Tor Project has many good uses (free speech against dictators) and many bad uses 

(dark web), but the operators of Tor Exit Nodes, which simply route transactions, do not know 

what content passes through their servers. As such, like any router on the internet, Huszar is 

statutorily immune from a claim of copyright infringement. Ventura, and the Ninth Circuit, simply 

reconfirmed that fact. Thus, Defendant’s motion for summary judgment should be granted.

DATED: June 7, 2019 Respectfully submitted,

STEVENS & LEGAL, LLC

/s/ Michael O. Stevens

Michael O. Stevens, OSB No. 095198

michael@hillsborofirm.com

Attorney for Defendant

Case 3:15-cv-00907-AC Document 170 Filed 06/07/19 Page 4 of 4