Doe v. Geller et al

Filing 33

Reply to Opposition re 24 MOTION to Dismiss for Lack of Jurisdiction filed byUri Geller, Explorologist Ltd.. (Attachments: # 1 Exhibit Exhibits 1 & 2)(Winelander, Richard) (Filed on 11/26/2007)

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Case 3:07-cv-02478-VRW Document 33-2 Filed 11/26/2007 Page 1 of 6 EXHIBIT 1 Case 3:07-cv-02478-VRW Document 33-2 Filed 11/26/2007 Page 2 of 6 Case 3:07-cv-02478-VRW Document 33-2 Filed 11/26/2007 Page 3 of 6 Case 3:07-cv-02478-VRW Document 33-2 Filed 11/26/2007 Page 4 of 6 RICHARD WINELANDER Attorney and Counselor at Law URL: www.rightverdict.com Telephone: 410-576-7980 Fax: 410-385-2023 Toll Free: 1-800-757-2878 1005 North Calvert Street Baltimore, Maryland 21202-3823 E-mail: rw@rightverdict.com May 4, 2007 Marcia Hofmann, Staff Attorney Electronic Frontier Foundation 1875 Connecticut Ave. NW, Suite 650 Washington, DC 20009 RE: Brian "Sapient" Dear Ms. Hofmann: Thank you for your prompt reply identifying March 2007 as time frame of the removal of the video clip entitled "James Randi exposes Uri Geller and Peter Popoff" (http://www.youtube.com/watch?v=M9w7jHYriFo) from YouTube. With that information I believe I have determined what happened. On March 23, 2007, Shimshon (Shipi) Shtrang faxed a three month old (December 28, 2006) YouTube DCMA form to YouTube. Next he immediately sent the following e-mail from his home in the United Kingdom: From: "uri Geller" <uri@urigeller.com> Subject: RE: [#93788937] http://www.youtube.com/watch?v=K_Mkxl6ubaA Date: Fri, 23 Mar 2007 09:30:52 -0000 Hi Justin, I faxed the DMCA form... These clip http://www.youtube.com/watch?v=M9w7jHYriFo and http://www.youtube.com/watch?v=jBQD2uunYYY was removed by you previously and was put on right back. In it there are several scenes and photos that the copy right belong to us. There is an English Dr. who introduces Uri which is a copyright infringement and some scenes from a documentary we did and the usage of the Carson clip is without our consent... Thanks for your help. Regards, Shipi It appears that everything Mr. Shtrang said is true and correct. As you can see from the attached statement from Dr. Hughes, Mr. Shtrang actually shot the video in which Dr. Hughes appeared. Thus he owned the copyright pursuant to the Copyright Act 19561. Mr. Sapient did 1 This United Kingdom statute is applicable in accordance with the Berne Convention. The Supreme Court of the United States; The United States Court of Appeals for the 3rd, 4th and DC Circuits; The United States Court of International Trade; The United States District Court for The Districts of MD & DC; The Court of Appeals of Maryland and DC Bar admissions: EXHIBIT 2 Case 3:07-cv-02478-VRW Document 33-2 Filed 11/26/2007 Page 5 of 6 2 Richard Winelander Esq. May 4, 2007 _______________________________ _______________________________ not have authorization from Mr. Shtrang, Explorologist, Ltd., or from the owners of the other portions of the clip to exhibit their works. Clearly Mr. Shtrang did not make a material misrepresentation. From the document, you sent me; I can see that YouTube did an independent evaluation on March 27, 2007 after which they apparently made an independent determination to take down the video clip. Whether this takedown was based on Mr. Shtrang's complaints about the Dr. Hughes segment, which would be a DMCA takedown, or his complaint that Mr. Sapient did not have permission to use the Johnny Carson segment, which would constitute a terms of use2 takedown, is unknown. As far as YouTube goes, if YouTube erred in taking down the clip pursuant to the DMCA that error would be its failure to require each notification to be made in conformance with 17 U.S.C. 512(c)(3)(A)(vi). Under no circumstances should it up have allowed, non pro tunc, the (December 28, 2006) YouTube DCMA form to be used in March 2007. Your client's suspension was based in part on other misconduct in his part. In a recent video clip he admits as much. See, http://www.youtube.com/watch?v=Lp_nboO9WVI. It is also clear that you do not have subject matter jurisdiction over Mr. Shtrang's act of sending an e-mail to YouTube from the UK. It is well settled that the Copyright Act does not apply extraterritorially, United Dictionary Co. v. G. & C. Merriam Co., 208 U.S. 260 (1908); Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657, 662 (2d Cir.1955); Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088 (9th Cir.1994). As the Court, in Subafilms, pointed out: "an extension of the extraterritorial reach of the Copyright Act by the courts would in all likelihood disrupt the international regime for protecting intellectual property." Id at 1098. Since the Berne Convention specifies that domestic law governs a work's protection in its country of origin, see, Berne Conv. Art. V(3), the distinction I mentioned in my e-mail between our concept of "fair use" and the UK concept of "fair dealing" with respect to copyright law comes into play. See, Copyright, Designs and Patents Act of 1988 30(1). Applying the "fair dealing" concept to Mr. Shtrang, as well as Explorologist, Ltd. as licensee, were well within their rights to complain to YouTube for a video clip accessible in the UK and not containing the proper "acknowledgement." In conclusion is quite clear that Mr. Shtrang, individually or on behalf of Explorologist, Ltd., did not knowingly misrepresent himself as required by 17 U.S.C. 512(f). In fact his conduct may have been appropriate under the Copyright, Designs and Patents Act of 1988. Moreover, "In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein..."Terms of Use .5.B. User Submissions. 2 Case 3:07-cv-02478-VRW Document 33-2 Filed 11/26/2007 Page 6 of 6 3 Richard Winelander Esq. May 4, 2007 _______________________________ _______________________________ the takedown of the clip could have been a result of your client's violation of YouTube's terms of use. Assuming arguendo, that his actions were somehow inappropriate, I find it hard to see how there would be a good faith basis for asserting either personal, International Shoe Co. v. Washington, 326 U.S. 310 (1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) or subject matter jurisdiction Subafilms, supra, to pursue a case in the United States. Now, that I have advised you of my the findings and opinions, I hope you will agree that the litigation you have been threatening is based on factual contentions that lack evidentiary support and that the extraterritorial application of the US Copyright Act under these circumstances is not warranted by existing law. Very truly yours, Richard Winelander Esq.

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