Subject:	 FW:	Case	3:15-cv-00866-ST	Cobbler	Nevada,	LLC	v.	Gonzales

From:	 Carl	D	Crowell	<carl@crowell-law.com>

Date:	 12/21/15,	3:11	PM

A1achments: 	Cob_15-00866_24_FAC.pdf	(114	KB),	 	Cob_15-00866_Consent	Jgmt.pdf	(70.0	KB)

CC:	 <drew@crowell-law.com>

To:	 David	Madden	<dhm@mersenne.com>

David,	

We	have	a	prior	offer	to	your	client	on	this	ma\er	agreeing	to	waive	all	costs,	fees	and	damages	with	the

agreement	to	comply	with	the	a\ached	consent	judgment.		See	a\ached	and	below.		However,	if	you	would	like	to

have	the	issue	of	sufficiency	of	the	pleadings	considered	by	the	court,	we	can	proceed	as	I	think	a	ruling	on	point

would	be	useful	in	future	cases.			The	current	offer	to	waive	costs,	fees	and	damages	would	be	withdrawn	with	any

mobons	pracbce.

As	to	the	requirement	for	financial	benefit,	this	is	not	required	for	contributory	infringement.		The	below	9th	Circuit

model	jury	instrucbon	for	your	considerabon.

Again,	I	am	fine	with	this	being	briefed	and	ruled	on.		With	400+	nobces	to	your	client	we	have	no	problem

proceeding	with	this	ma\er.

-carl	d.	crowell

17.21 DERIVATIVE LIABILITY—CONTRIBUTORY INFRINGEMENT

A defendant may be liable for copyright infringement engaged in by another if [he] [she] [it ] knew

or had reason to know of the infringing activity and intentionally [induces] [materially contributes

to] that infringing activity.

If you find that [name of direct infringer] infringed the plaintiff’s copyright in [allegedly infringed

work], you may proceed to consider the plaintiff’s claim that the defendant contributorily infringed

that copyright. To prove copyright infringement, the plaintiff must prove both of the following

elements by a preponderance of the evidence:

1. the defendant knew or had reason to known of the infringing activity of [name of direct

infringer]; and

2. the defendant intentionally [induced] [materially contributed to] [name of direct infringer’s]

infringing activity.

If you find that [name of direct infringer] infringed the plaintiff’s copyright and you also find that

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

other hand, the plaintiff has failed to prove either or both of these elements, your verdict should be

for the defendant.

Comment

FW: Case 3:15-cv-00866-ST Cobbler Nevada, LLC v. Gonzales

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Case 3:15-cv-00866-SB Document 50-1 Filed 08/17/16 Page 1 of 3
Theabove instruction is based on Fonovisa, Inc. v. Cherry Auction, Inc. 76 F.3d 259, 261-63 (9th

Cir.1996), and Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004). In Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764 (2005), the Supreme Court held that

one who distributes a device with the object of promoting its use to infringe a copyright may be

liable for the resulting acts of infringement by third parties, even if the device is capable of

substantial non-infringing use. Id. at 2780. The Court characterized this as the inducement rule. Id.

-	-

Carl	D.	Crowell

A\orney	at	Law

P.O.	Box	923

Salem,	OR	97308-0923

USA

Tel:	503.581.1240

www.crowell-law.com

Note:	If	you	have	received	this	communicabon	in	error,	please	nobfy	me	immediately.	

From:	Carl	D	Crowell	<carl@crowell-law.com>

Date:	Monday,	November	16,	2015	at	5:48	PM

To:	tom	gonzales	<gonzaleskey@yahoo.com>

Cc:	Drew	Taylor	<drew@crowell-law.com>

Subject:	Case	3:15-cv-00866-ST	Cobbler	Nevada,	LLC	v.	Gonzales

Mr.	Gonzales,	

Based	on	the	record	of	this	case	and	the	disregard	of	hundreds	of	nobces	of	BitTorrent	acbvity	over	the	last	few

years,	we	believe	that	you	are	properly	liable	for	the	infringing	acbvity	observed.			While	it	may	be	that	another	is

also	liable,	the	fact	that	this	acbvity	conbnued	for	so	long	aker	your	received	so	many	nobces	(400+)	places	you	in

a	posibon	of	willful	disregard.

However,	I	have	conferred	with	my	client	and	they	are	willing	to	waive	claims	for	damages	on	your	agreement	that

you	will	not	allow	this	to	conbnue.			To	that	end,	I	submit	the	a\ached	Complaint	and	Sbpulated	Consent	Judgment

that	fully	resolves	this	ma\er	without	any	assessment	of	costs,	fees	or	damages.

If	this	is	acceptable	you	may	sign	and	return	the	a\ached	proposed	Sbpulated	Consent	Judgment	and	we	will

consider	this	ma\er	resolved.	

I	advise	that	you	meet	with	counsel	and	have	this	reviewed	by	your	own	a\orney.		If	you	do	not	have	an	a\orney

you	may	obtain	a	referral	through	the	Oregon	State	Bar	at:		h\ps://www.osbar.org/public/ris/	

Sincerely,	

FW: Case 3:15-cv-00866-ST Cobbler Nevada, LLC v. Gonzales

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Case 3:15-cv-00866-SB Document 50-1 Filed 08/17/16 Page 2 of 3
Carl	D.	Crowell

-	-

Carl	D.	Crowell

A\orney	at	Law

P.O.	Box	923

Salem,	OR	97308-0923

USA

Tel:	503.581.1240

www.crowell-law.com

Note:	If	you	have	received	this	communicabon	in	error,	please	nobfy	me	immediately.	

FW: Case 3:15-cv-00866-ST Cobbler Nevada, LLC v. Gonzales

3 of 3 8/17/16, 2:31 PM

Case 3:15-cv-00866-SB Document 50-1 Filed 08/17/16 Page 3 of 3