January 12, 2001
Hendrickson vs eBay
GOES TO TRIAL!
Final Pre-trial
Conference set for March 4, 2002 at
10:a.m. before the Honorable Judge Robert J. Kelleher
"eBay Wins Infringement
Case" ....internetnews.com
"eBay not liable for auction of
pirated movie" ....usatoday.com
"eBay Cleared in Copyright and
Trademark Suit" ....thestandard.com
"eBay ESCAPES PIRATE'S
LIABILITY" ....weblaw.co.uk
"eBay wins copyright case"
....canoe.ca
"eBay Not Liable For Copyright
Infringement For Items" ....findlaw.com
And the list of
"professionals" commenting on the legal meaning of the
District Court's September 4, 2001 Order goes on and on and on. Just
go to the internet's favorite search engine, yahoo.com, type in the
words Hendrickson eBay and click, most of the articles are based upon
Brian Bergstein's September 6, 2001 Associated Press world news report
entitled "eBay gets important Court Victory in Copyright Lawsuit."
If you at least read a few of the
articles listed on yaboo.com, your logical impression will be that
eBay is done, "off the hook" and dismissed from the case,
but that would only mean that YOU were bamboozled, as was most every
lawyer claiming to be an "attorney at law."
In his recent November 19, 2001
Minute Order, District Court Judge Robert J, Kelleher made it most
clear that:
"The Court declined to sign
eBay's proposed judgment because it t fails to meet the standard
for a final judgment as to fewer than all of the parties In a
multi-party action," and the Judge refers to "See
Fed. R. Civ. P. 54(b)."
Federal Rules of Civil Procedure,
Rule 54(b) makes clear that:
"Any order or other form of
decision, however designated, which adjudicates fewer than all the
parties shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is
subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all
the parties."
Now, before you go running to unload
your eBay stock, carefully read what is really going on in the
Hendrickson vs. eBay saga.
FIRST, because eBay fought
for and was granted a consolidation of three cases into one, there now
exists a multi-party action preventing a final judgment before all
parties have a say in the matter.
SECOND, because eBay's summary
judgment respecting Its liability was granted in a
"multi-party" case, said judgment may be revised at any time
and especially upon the discovery and presentation of newly found
evidence or more recent case law decisions, before any final judgment
is made regarding all of the parties.
THIRD, while the reality of eBay's
blunder (showing its hand before the final call) may or may not effect
the final outcome of the case, it surely provides Hendrickson with an
upper hand, as far as knowing which cards to play and which cards to
discard.
FORTH, in the meantime, on November
7, 2001, US District Court Judge Jeremy Fogel issued a
"published" Order granting yahoo! Inc. a Final summary
judgment in the French case regarding Nazi Items for sale on yahoo's
auction website. This becomes ULTRA significant because Judge Fogel
established by law that Internet auction listings are considered
expressions of "free speech" protected by the First
Amendment to the Constitution.
FIFTH, although Judge Fogel's
decision has not been affirmed by the appellate court, "Lynette
Alice Fromme vs. Robert Hendrickson and Tobann International" in
matters regarding the MANSON movie and its advertisements being
protected expressions of "free speech", has been.
SIXTH, remembering back to Judge
Kelleher's Findings (Re: Hendrickson vs. eBay Court Order) that among
other things:
a) The copyright infringement
regarding the sale and distribution of "counterfeit" MANSON
DVD's actually occurred "offline", and
b) That Hendrickson refused to
identify, in a sworn statement under penalty of perjury, the exact
eBay auction Item numbers that infringe upon his copyright in MANSON.
c) The Digital Millennium Copyright
Act (DMCA) to which the Court refers and under which eBay seeks
"safe harbor'' from liability, requires the copyright owner to
swear, under penalty of perjury, that the material (auction listing)
posted on the internet (eBay's website) infringes upon his copyright,
and that the material (expression of free speech) must be removed.
Now, pretend that you are a lawyer
and try to figure out what the above mentioned clues all add up to. In
case you are an actual "attorney at law" and need some more
clues, here you are.
1) If a copyright owner swears under
oath that a specific eBay auction listing is infringing upon his
copyright and that it must be removed, when the actual infringement
does N0T even occur, if at all, until sometime later
"offline", then the copyright owner has just committed
perjury, and subjected himself to liability for damages.
2) If on the other hand, the DMCA (a
law) authorizes eBay to remove or disable access to an auction listing
(expression of free speech) merely because it refers to a possible
copyright infringement that may or may not occur sometime in the
future, then the DMCA authorizes "prior restraint" in
violation of the First Amendment.
3) If the DMCA does NOT authorize
removal of auction listings (expressions of free speech) that, in and
of themselves, do NOT infringe upon a copyright, then the service
provider is NOT
immune from liability pursuant to the "safe harbor"
provisions of the DMCA.
Fortunately for us, the above should
not affect our right to take advantage of the Court's Order regarding
equal protection with respect to copyright infringements that actually
occur "online", such as a performance or display of a
copyrighted movie that might be programmed into our website
unlawfully.
We hope that you can now understand
what is going on in the new and improved "Napster" case,
(Hendrickson vs. eBay, et al) but what has become even more
significant here is the fact that not one attorney reviewing Judge
Kelleher's eBay Findings has realized that Federal Rule 54(b)
prevented a Final Judgment on the matter.
The actual Order, on pages 5 and 6,
under "II PROCEDURAL BACKGROUND", makes clear that three
lawsuits consisting of several defendants each, were consolidated
"for all purposes" into one multi-party action. HOW UTTERLY
EMBARRASSING and isn't this precisely what the Exclusive Film Network
has been warning?
Please read the very first paragraph
under our logo on the Home page and even dwell upon "sense of
truth not available through any other media.'' If you have the time,
read as many of the several hundred news articles (RE: Hendrickson vs.
eBay) posted on the web and see if ANY communicate the truth as is set
forth above.
"THE WAR ON TERRORISM"
Because, just as we expected, so
many have made complete fools of themselves spouting off
Constitutional Amendments, ethical and moral codes and the like,
regarding such things as, should there be military tribunals for the
"evil doers", we have abstained, but maybe now we should
inform you of the LAW.
The LAW makes clear that, under the
circumstances, the 19 year old Marine, who for an instance, holds the
enemy in his sights, shall determine what, if any, consequences will
be visited upon such an enemy. That Marine and all other uniformed
soldiers are authorized by OUR military laws to make a full and
complete lawful decision regarding that enemies fate.
While legal pundits masturbate over
which form of trial best suits the "wrongdoers", comrades in
arms decide whether there will be any trials, at all.
FOR A THOUSAND YEARS,
NOTHING HAS REALLY CHANGED.
THERE ARE THOSE WHO
TALK THE TALK AND THOSE WHO WALK THE WALK!
