Shell v. Ohio Family Rights et al

Filing 144

Memorandum and Order granting in part and denying in part 138 Plaintiff's Motion for partial summary judgment. Magistrate Judge David A. Ruiz on 10/31/2017. (G,W)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SUZANNE SHELL,
Plaintiff,
v.
RAY R. LAUTENSCHLAGER,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 1:15CV1757
Magistrate Judge David A. Ruiz

MEMORANDUM
AND ORDER

The pro se plaintiff Suzanne Shell filed suit in this court against pro se defendant Ray R.
Lautenschlager, as well as against several parties who have since been dismissed. Shell filed her
original complaint in this court on August 31, 2015. (R. 1.) With leave of court, Shell
subsequently filed an amended complaint on January 19, 2016, alleging copyright infringement
against the defendant concerning three works with copyrights allegedly registered and owned by
Shell. (R. 15, Am. Compl.) Defendant Lautenschlager filed an Answer on April 13, 2016. (R.
40.)
Currently before the court is plaintiff Shell’s Motion for Partial Summary Judgment. (R.
138.) Although Shell’s motion was filed before the close of discovery, discovery has since
closed, and the dispositive motion deadline, which had been extended to June 30, 2017, has
passed. (R. 139, PageID #: 1536.) Shell did not supplement her motion, and no other dispositive

motions were filed. Therefore, defendant’s response to Shell’s motion was due on June 1, 2017.
See, e.g., R. 143, PageID #: 1545. Lautenschlager has not filed a brief in opposition to the
motion, thus the motion is ripe for decision.

I. SUMMARY JUDGMENT
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Non-moving parties may rest neither upon the mere allegations of their
pleadings nor upon general allegations that issues of fact may exist. See Bryant v.
Commonwealth of Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974). The Supreme Court held that:
. . . Rule 56(c) 1 mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The evidence need not be in a form
admissible at trial in order to avoid summary judgment, but Rule 56(e) requires the opposing
party:
to go beyond the pleadings and by [his] own affidavits, or by the “depositions, answers to
interrogatories, and admissions on file,” designate “specific facts showing that there is a
genuine issue for trial.”
Id. at 324.
The Sixth Circuit in Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989), has
interpreted Celotex and two related cases, Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),

1

Now Rule 56(a).

2

and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio, 475 U.S. 574 (1986), as establishing
a “new era” of favorable regard for summary judgment motions. Street points out that the
movant has the initial burden of showing “the absence of a genuine issue of material fact” as to
an essential element of the non-movant’s case. This burden may be met by pointing out to the
court that the respondent, having had sufficient opportunity for discovery, has no evidence to
support an essential element of his or her case. Street, 886 F.2d at 1479.
The respondent cannot rely on the hope that the trier of fact will disbelieve the movant’s
denial of a disputed fact, but must “present affirmative evidence in order to defeat a properly
supported motion for summary judgment.” Id. In ruling on a motion for summary judgment, the
court must construe the evidence, as well as any inferences to be drawn from it, in the light most
favorable to the party opposing the motion. Kraus v. Sobel Corrugated Containers, Inc., 915
F.2d 227, 229 (6th Cir. 1990).
The standard is slightly different for a plaintiff-movant, who would bear the burden of
proof at trial. Shell must present evidence that would entitle her to a directed verdict if that
evidence were not controverted at trial. If the defendant responds to the motion with
controverting evidence, which demonstrates a genuine issue of material fact, Shell’s motion must
be denied. However, if, after analyzing the combined body of evidence presented by both
parties, the evidence is such that no reasonable jury could find in favor of the defendant, then
summary judgment will be entered on behalf of the plaintiff-movant. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). See also Saab Cars USA, Inc. v. United States, 434
F.3d 1359, 1368-1369 (Fed. Cir. 2006); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.
1986) (movant must establish all essential elements of claim or defense); Orozco v. County of
3

Yolo, 814 F.Supp. 885, 890 (E.D. Cal. 1993); McGrath v. City of Philadelphia, 864 F.Supp. 466,
473 (E.D. Pa. 1994) (citing National State Bank v. Federal Reserve Bank of N.Y., 979 F.2d 1579,
1582 (3d Cir. 1992)).
Ordinarily, documents submitted to support a summary judgment motion must be
attached to an affidavit that both identifies and authenticates each document. Carmona v.
Toledo, 215 F.3d 124, 131 (1st Cir. 2000) (citing cases); Wiley v. United States, 20 F.3d 222, 226
(6th Cir. 1994); Klein v. Manor Healthcare Corp., 19 F.3d 1433, 1994 WL 91786, at *6 (6th Cir.
1994) (TABLE, text in WESTLAW); see generally Fed. R. Civ. P. 56(c)(1)(A), (c)(4). The
exhibits in support of the motion provided by the pro se plaintiff here have not been
authenticated in the proper manner. See generally R. 138. However, when a party fails to object
to the evidentiary materials submitted by the other party in support of its motion, any objections
to the court’s consideration of the materials is waived. Ford v. Securitas Sec. Servs. USA, Inc.,
No. 08-1262, 2009 WL 2031868, at *3-*4 (6th Cir. July 14, 2009) (citing Wiley, 20 F.3d at 226;
Powers v. Hamilton County Pub. Defender Comm'n, 501 F.3d 592, 613 n. 3 (6th Cir.2007)).
Lautenschlager has not filed an opposition to the motion for partial summary judgment, nor has
he filed any other form of objection to Shell’s exhibits, thus any objections to her exhibits have
been waived.

II. COPYRIGHT INFRINGEMENT
The amended complaint alleges three counts of copyright infringement. See generally R.
15, Am.Compl., PageID #: 186-192; see also R. 138, PageID #: 1406-1422. In a copyright
infringement action, the plaintiff must establish “(1) ownership of a valid copyright; and (2)
4

copying of constituent elements of the work that are original.” Stromback v. New Line Cinema,
384 F.3d 283, 293 (6th Cir. 2004) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 361 (1991)); Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003).
A registration of copyright creates a presumption of the copyright’s validity. Lexmark
Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 2004); Hi-Tech Video
Prods., Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995) (citing 17 U.S.C.A. §
410(c)). Although the presumption may be rebutted, it is the burden of the party challenging the
copyright to do so. Hi-Tech Video, 58 F.3d at 1095. Lautenschlager has not filed an opposition
to Shell’s motion, nor has he filed any other document which rebuts the presumption of the
validity of the copyrights at issue here.
Not all copying amounts to copyright infringement: “it is a constitutional requirement
that a plaintiff bringing an infringement claim must prove ‘copying of constituent elements of the
work that are original.’” Kohus, 328 F.3d at 853 (quoting Feist, 499 U.S. at 361). The Supreme
Court has noted “. . . originality is not a stringent standard; it does not require that facts be
presented in an innovative or surprising way. It is equally true, however, that the selection and
arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever.
The standard of originality is low, but it does exist.” Feist, 499 U.S. at 362. Stated another way:
“To qualify for copyright protection, a work must be original to its author.
Original, as the term is used in copyright, means only that the work was
independently created by the author (as opposed to copied from other works), and
that it possesses at least some minimal degree of creativity. To be sure, the
requisite level of creativity is extremely low; even a slight amount will suffice.”
Second, only the expression of ideas, not the ideas themselves, are protectable.

5

Ross, Brovins & Oehmke, P.C. v. Lexis/Nexis, 348 F. Supp. 2d 845, 853 (E.D. Mich. 2004), aff’d,
463 F.3d 478 (6th Cir. 2006) (quoting Feist, 499 U.S. at 345).
In assessing the infringement claim(s) then, the court must first “filter out the unoriginal,
unprotectible elements” – elements that were not independently created by the copyright holder,
and that possess no minimal degree of creativity. Stromback, 384 F.3d at 294 (quoting Kohus,
328 F.3d at 855). The second step is “to determine whether the allegedly infringing work is
substantially similar to the protectible elements of the original.” Kohus, 328 F.3d at 856.
A general claim of copyright infringement is based on strict liability. King Records, Inc.
v. Bennett, 438 F. Supp. 2d 812, 852 (M.D. Tenn. 2006). However, damages may be increased if
the plaintiff proves that the infringement was willful. Princeton Univ. Press v. Michigan
Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996), cert. denied, 520 U.S. 1156 (1997)
(citing 17 U.S.C. § 504(c)(2)); King Records, 438 F. Supp. 2d at 852. “Willful” means “with
knowledge that the defendant’s conduct constitutes copyright infringement.” Princeton, 99 F.3d
at 1392 (quoting 3 Nimmer on Copyright § 14.04[B][3] (1996).)
A defendant’s continued infringement after notice of the infringement is probative
evidence of willfulness. International Korwin Corp. v. Kowalczyk, 855 F.2d 375, 380-381 (7th
Cir. 1988) (citing cases); Microsoft Corp. v. McGee, 490 F. Supp. 2d 874, 880 (S.D. Ohio 2007)
(citing cases); see also Ford Motor Co. v. Cross, 441 F. Supp. 2d 837, 852 (E.D. Mich. 2006)
(trademark).
A. Previous Litigation
In his Answer, Lautenschlager characterizes Shell’s allegations as “misleading and false
claims.” (R. 40, ¶1, PageID #: 321.) Lautenschlager contends that “the issues of ownership of
6

these alleged documents was and has been previously decided in Shell v. AFRA 2.” (R. 40, ¶1,
PageID #: 321, citing “Shell v. AFRA United State[s] District Court, District of Colorado,
09v00309;” see also R. 40, ¶ 87.)
The case which Lautenschlager cites involved “extensive proceedings,” Shell v.
Henderson, Civ. No. 09-CV-00309, 2014 WL 3716165, at *1 (D. Colo. July 28, 2014), in a suit
alleging copyright infringement and other claims brought in the District of Colorado by Shell
against several defendants. See generally Shell v. American Family Rights Ass’n, 899 F.Supp.2d
1035 (D. Colo. 2012). Lautenschlager does not cite the specific ruling or decision which he
alleges is dispositive of copyright ownership. See generally R. 40, ¶1, PageID #: 321.
Reviewing several decisions in that litigation sua sponte, there is no indication that the
Colorado district court issued an adverse ruling on the merits as to Shell’s allegations that she
held enforceable copyrights. See generally Shell v. Swallow, No. 16-1150, 671 Fed. Appx. 1028
(10th Cir. Nov. 23, 2016); Shell v. Henderson, No. 14-1330, 622 Fed. Appx. 730 (10th Cir. Aug.
7, 2015); Shell v. Swallow, Civ. No. 09-CV-00309, 2016 WL 183631 (D. Colo. Jan. 15, 2016);
Shell v. Henderson, 2014 WL 3716165; Shell v. AFRA, 899 F.Supp.2d 1035 (D. Colo. 2012).
There is also no indication that Lautenschlager was a party in any of those actions. Id. Thus,
this court cannot find that the issue of copyright ownership has been previously adjudicated
against Shell. Lautenschlager’s unsupported assertion is not sufficient to rebut the presumption
of the validity of the copyrights at issue here.

2

“AFRA” is the American Family Rights Association.

7

B. Parents’ Guide to the System
The first count of copyright infringement concerns the alleged infringement of a work
entitled “Parents’ Guide to the System.” (R. 15, Am.Compl., ¶¶ 84-87, PageID #: 186-187.)
Shell alleges that she registered the original work, a collection of proprietary unpublished
documents which formed the basis of the derivative work entitled “Parents’ Guide to the
System,” with the U.S. Copyright Office on October 23, 2008, registration number
TXu001588498. (R. 15, ¶ 23, PageID #: 175; see also R. 15, Exh. C, PageID #: 220-224; R.
138, PageID #: 1408.)
Shell asserts that she discovered the “Parents’ Guide” on the website
“www.ohiofamilyrights.info” on August 9, 2015. (R. 138, ¶ 34.a., PageID #: 1411; R. 15, ¶ 86,
PageID #: 186; see R. 138-3, Exh. 4-5, PageID #: 1461-1484.) Shell contends that
Lautenschlager owned the website “ohiofamilyrights.info” at the time of the infringement and
was the web master for that site. (R. 138, PageID #: 1410.) In support of her assertion that
Lautenschlager owned the website, Shell references an email stream that Lautenschlager
incorporated into his Answer, wherein he writes that “the person that you would need to address
about content on the Ohio Family Rights website would be me...” (R. 138, PageID #: 1410 n.6;
R. 40, PageID #: 342, 345.)
Shell also relies on uncontested requests for admissions. Shell notes that she served
Requests for Admissions on Lautenschlager on May 28, 2016, and on December 20, 2016, and
that he did not respond to them, nor did he timely object to them. (R. 138, ¶¶ 7-8, PageID #:
1406.)

8

A party must respond to each matter of which an admission is requested within thirty (30)
days after service of the request, or else that matter is considered admitted. Walsh v. McCain
Foods Ltd., 81 F.3d 722, 726 (7th Cir. 1996); Rudder v. Rashid, 68 F.Supp.2d 813, 816 (E.D.
Mich. 1999); Chicago Dist. Council of Carpenters Pension Fund v. P.M.Q.T., Inc., 169 F.R.D.
336, 340-341 (N.D. Ill. 1996) (citing Fed. R. Civ. P. 36(a)). Unanswered requests for admission
are automatically deemed admitted under Rule 36(a); no motion to establish or affirm the
admissions is required. Goodson v. Brennan, No. 16-5023, 2017 WL 1857270, at *2 (6th Cir.
May 8, 2017); American Tech. Corp. v. Mah, 174 F.R.D. 687, 689-690 (D. Nev. 1997).

A

district court is empowered to grant summary judgment in a case in which requests for
admissions determine dispositive facts. Elie v. United States, No. C81-923, 1982 WL 1595, at
*2 (N.D. Ohio Jan. 27, 1982) (citing Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d Cir.
1966)). Matters that are deemed admitted because of a party’s failure to respond to a request for
admissions can form the basis for a grant of summary judgment. Conlon v. United States, 474
F.3d 616, 621 (9th Cir. 2007); Lovejoy v. Owens, 86 F.3d 1156, 1996 WL 287261 (6th Cir. 1996)
(TABLE, text in WESTLAW) (per curiam); Rudder, 68 F.Supp.2d at 816; Chicago Dist.
Council, 169 F.R.D. at 340 (citing United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir.
1987)); E.E.O.C. v. Baby Prod. Co., Inc., 89 F.R.D. 129, 131 (E.D. Mich. 1981).
Lautenschlager failed to respond to the requests for admissions in a timely manner, and
thus the matters for which requests for admissions were served are deemed admitted under Rule
36(a). The court must then examine whether those admissions are dispositive of the relevant
issues in the motion for summary judgment. The requests for admissions relevant to the first
claim are as follows:
9

9. The attached document labeled as Exhibit 4 is a true and correct copy of
selected content that was published as a link by you on ohiofamilyrights.info at
the URL www.ohiofamilyrights.info/cps/parents_guide_to_the_system.htm and
that this [sic] clicking on this link caused the user to download a copy of the
document labeled as Exhibit 5.
10. The attached document labeled as Exhibit 5 is a true and correct copy of
selected content that was published as a link by you on ohiofamilyrights.info at
the URL the complete file was published and accessible at
www.ohiofamilyrights.info/cps/parents guide to the system-how to protect your
children and rights from government intrusion.pdf.
11. You did not author the content contained in Exhibit 5.
12. You did not attempt to locate the copyright owner of the content contained in
Exhibit 5.
13. You did not obtain permission from the copyright owner of the content
contained in Exhibit 5 before causing or permitting that content to be published at
ohiofamilyrights.info/cps/reverse_miranda_letter.htm.
(R. 138-3, ¶¶ 9-13, PageID #: 1453.)
Shell has established ownership of a valid copyright to the work entitled “Parents’ Guide
to the System.” She registered this work with the U.S. Copyright Office on October 23, 2008 (R.
138, PageID #: 1408; R. 15, Exh. C, PageID #: 220-224), creating a presumption of the
copyright’s validity, which Lautenschlager has not rebutted. Lexmark, 387 F.3d at 534; Hi-Tech
Video, 58 F.3d at 1095 (citing 17 U.S.C.A. § 410(c)).
Through the uncontested requests for admissions, Shell has established that
Lautenschlager caused the entire work to be published on the Ohio Family Rights website,
without permission to do so. See generally Gershwin Pub. Corp. v. Columbia Artists Mgmt.,
Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (liability for one who causes or materially contributes
to the infringing conduct of another, as a ‘contributory’ infringer); see generally Sony Corp. of

10

Am. v. Universal City Studios, Inc., 464 U.S. 417, 435 (1984) (contributory infringement).
Copying the entire work satisfies the requirement that Shell prove copying of constituent
elements of the work that are original. See generally Kohus, 328 F.3d at 853, 856.
Concerning the issue of willfulness, Shell alleged that she sent a copyright infringement
notice in an August 9, 2015, email to the ICANN contact address provided for the website
“ohiofamilyrights.info” at the time of the infringement, that Lautenschlager responded, and
refused to remove the infringing content after being advised of Shell’s copyright. (R. 15, ¶¶ 8695; see also R. 138, ¶¶ 34.c.-f., PageID #: 1411-1412.) Lautenschlager incorporated the emails
into his Answer. (R. 40, PageID #: 342-345; see also R. 138, PageID #: 1410 n.6.) Defendant’s
continued infringement after notice of the infringement is evidence of willfulness. International
Korwin, 855 F.2d at 380-381; Microsoft, 490 F. Supp. 2d at 880.
Shell has presented evidence supporting the elements of her infringement claim that
would entitle her to a directed verdict if that evidence were not controverted at trial, and
defendant Lautenschlager has not responded to the motion with controverting evidence which
would demonstrate a genuine issue of material fact. Summary judgment is granted to Shell as to
the first claim of willful copyright infringement.
C. Letter to School
The second and third counts of copyright infringement concern the alleged infringement
of a work entitled “Letter to School.” (R. 15, Am.Compl., ¶¶ 98-119, 120-137, PageID #: 187190, 190-192.) Shell alleges that this work was first published in the book Profane Justice: A
Comprehensive Guide to Asserting Your Parental Rights (2nd ed.) (“Profane Justice”), which
was registered with the U.S. Copyright Office on December 2, 2002, registration number TX511

677-193. (R. 15,¶ 20, PageID #: 175; see also R. 15, Exh. A, PageID #: 203-204, 206; R. 138,
PageID #: 1409.) A revised version of “Letter to School” (“Letter to School [2d version]”) was
published on Shell’s website, www.profane-justice.org, and registered with the U.S. Copyright
Office on March 15, 2004, registration number TX5-907-307. (R. 15, Am.Compl., ¶ 21, PageID
#: 175; see also R. 15, Exh. B, PageID #: 207-214; R. 138, PageID #: 1409.)
In the second count, Shell claims that she discovered the “Letter to School,” published as
“the Hatch Letter,” on the AFRA Facebook page on July 9, 2014. (R. 138, ¶ 36.b., PageID #:
1413; R. 15, ¶ 104, PageID #: 188; see R. 138-3, Exh. 7, PageID #: 1486-1487.) Shell contends
that Lautenschlager was an administrator of the AFRA Facebook page with the authority to
monitor, approve, or remove any posts to the page at the time of the infringement. (R. 138,
PageID #: 1413; R. 15, ¶ 102, PageID #: 187-188.)
In the third count, Shell asserts that she discovered a verbatim copy of “Letter to School,”
under the title, “Reverse Miranda Letter,” on the website “www.ohiofamilyrights.info” on
August 17, 2015. (R. 138, ¶ 38.a., PageID #: 1414; R. 15, ¶ 122, PageID #: 190; see R. 138-3,
Exh. 1, PageID #: 1456.) Shell contends that Lautenschlager owned the website
“ohiofamilyrights.info” and was the web master for that site. (R. 138, PageID #: 1410.)
Shell also relies on uncontested requests for admissions. Shell notes that she served
Requests for Admissions on Lautenschlager, which he did not respond to, nor did he timely
object to them. (R. 138, ¶¶ 7-8, PageID #: 1406.) Unanswered requests for admission are
automatically deemed admitted under Rule 36(a), as explained above. Goodson, 2017 WL
1857270, at *2; American Tech. Corp., 174 F.R.D. at 689-690. Matters that are deemed
admitted because of a party’s failure to respond to a request for admissions can form the basis for
12

summary judgment. Conlon, 474 F.3d at 621; Lovejoy, 1996 WL 287261; Rudder, 68 F.Supp.2d
at 816; E.E.O.C. v. Baby Prod. Co, 89 F.R.D. at 131.
Lautenschlager failed to respond to the request for admissions in a timely manner, and
thus the matters for which requests for admissions were served are deemed admitted under Rule
36(a). The court must then examine whether those admissions are dispositive of the relevant
issues in the motion for summary judgment. The requests for admissions arguably relevant to
the second and third claims are as follows:
1. The attached document labeled as Exhibit 1 is a true and correct copy of
selected content that was published by you on ohiofamilyrights.info at the URL
ohiofamilyrights.info/cps/reverse_miranda_letter.htm.
2. You did not author the content contained in Exhibit 1.
3. You did not attempt to locate the copyright owner of the content contained in
Exhibit 1.
4. You did not obtain permission from the copyright owner of the content
contained in Exhibit 1 before causing or permitting that content to be published at
ohiofamilyrights.info/cps/reverse_miranda_letter.htm.
******
15. The attached document labeled as Exhibit 7 is a true and correct copy of
selected content that was published on the AFR Facebook page at
www.facebook.com/notes/american-family-rights-association/hatch-lettersamples/10151753932613224.
16. The attached document labeled as Exhibit 8 is a true and correct copy of the
copyright notice you published pertaining to your copyrighted content.
17. You have not registered any copyrights.
18. You understand that even though an author has not registered a copyright,
copyright exists at the time a work is created.

13

19. You understand that a copyright owner has the exclusive right to license his
work to others.
20. You understand that under copyright law that nobody can create a derivative
work of someone else’s copyrighted content without the copyright owner’s
permission.
21. You have no evidence to disprove Plaintiff’s claim to copyright ownership of
any of the documents attached as Exhibits 1, 2, 3 & 5.
22. On and as much as a year before July 9, 2015, you held two administrator
positions for American Family Rights (AFR) Facebook page under two Facebook
accounts.
23. These administrator positions gave you the authority to approve or remove
membership on and content posted to the AFR Facebook page.
24. You have exercised your authority as an AFR Facebook administrator on at
least one occasion.
25. The plaintiff was denied membership and access to the AFR Facebook page.
26. At some point after Plaintiff discovered the infringement on AFR Facebook
page, membership was purged of anyone suspected of being the Plaintiff or
informing Plaintiff of activities on that page.
(R. 138-3, ¶¶ 1-4, 15-26, PageID #: 1452, 1453-1454.)
Shell has established ownership of a valid copyright to the work entitled “Letter to
School,” both as a separate work (“Letter to School [2d version]”) on her website, which was
registered with the U.S. Copyright Office on March 15, 2004, and as part of the book Profane
Justice, which was registered with the U.S. Copyright Office on December 2, 2002. (R. 15,
Am.Compl., ¶¶ 20-21, PageID #: 175; see also R. 15, Exh. B, PageID #: 207-214; Exh. A,
PageID #: 203-204, 206; R. 138, PageID #: 1409.) Lautenschlager has not rebutted the
presumption of the copyrights’ validity. Lexmark, 387 F.3d at 534; Hi-Tech Video, 58 F.3d at
1095 (citing 17 U.S.C.A. § 410(c)).

14

Through the uncontested requests for admissions, Shell has established that
Lautenschlager caused the work to be published on the AFRA Facebook page, and on the Ohio
Family Rights website, without permission to do so. See generally Gershwin, 443 F.2d at 1162.
Copying the entire letter satisfies the requirement that Shell prove copying of constituent
elements of the work that are original. See generally Kohus, 328 F.3d at 853, 856.
Concerning the issue of willfulness on the second count, Shell alleged that she sent a
copyright infringement notice concerning the AFRA Facebook page in a July 9, 2014, email to
former defendants Henderson, Tower, Miller, and McAllister. (R. 15, ¶¶ 104, 107-108, 110,
112-115.) Although count two alleges infringement by Lautenschlager (R. 15, ¶ 99), Shell
provides no evidence to establish the element of willfulness, namely, that Lautenschlager
received notice of copyright infringement by the AFRA Facebook page, and refused to remove
the infringing content. See generally R. 15, ¶¶ 107 (email to Henderson, Tower, Miller, and
McAllister), 112-115 (McAllister responsibility for AFRA).
Concerning the issue of willfulness on the third count, Shell alleged that she sent a
copyright infringement notice in an August 17, 2015, email to Lautenschlager at the ICANN
contact address provided for the website “ohiofamilyrights.info” at the time of the infringement,
and that Lautenschlager refused to remove the infringing content after being advised of Shell’s
copyright. (R. 15, ¶¶ 122-123, 125-126, 128, 130; see also R. 138, ¶¶ 38.c.-g., PageID #: 1414.)
However, Shell provides no evidence to establish the element of willfulness, namely, evidence
that Lautenschlager received notice of copyright infringement. Shell refers to the uncontested
request for admission #14, which simply states that the Letter was published on the Ohio Family
Rights website, not that any notice of copyright infringement was sent or received concerning
15

that particular work. (R. 138, ¶49, PageID #: 1417, citing R. 138-3, ¶ 14 (“...replacing the
content that was previously removed in response...”).) Shell also refers to the Answer, (R. 138,
¶49, PageID #: 1417, citing R. 40, ¶ 86), in which Lautenschlager refers to Shell “receiving a
cease and desist from direct contact.” Neither of these references provide evidentiary support for
Shell’s allegation that she sent a copyright infringement notice to Lautenschlager concerning the
work at issue in the third count. See generally International Korwin, 855 F.2d at 380 (record
contained ample evidence of eight contacts by mail); Fontenot, 780 F.2d at 1194 (plaintiffmovant must establish all essential elements of claim); Microsoft, 490 F. Supp. 2d at 880
(plaintiff submitted evidence that it sent letters to defendant).
Shell has presented evidence of copyright infringement that would entitle her to a
directed verdict on the second and third counts if that evidence were not controverted at trial, and
defendant Lautenschlager has not responded to the motion with controverting evidence which
would demonstrate a genuine issue of material fact. Summary judgment is granted to Shell as to
the second and third claims of copyright infringement, although summary judgment is denied on
those claims as to willfulness.
III. ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION
The fourth count of the amended complaint alleges that Lautenschlager 3 altered or
removed copyright management information (“CMI”) when publishing the copyrighted works, in
violation of the Digital Millennium Copyright Act (“DMCA”),

3

The fourth count in the amended complaint does not specifically name Lautenschlager,
but asserts the claim against the “Defendants.” See, e.g., R. 15, ¶ 139, PageID #: 192. As stated
earlier, Lautenschlager is the sole remaining defendant.
16

17 U.S.C. § 1202. (R. 15, ¶¶ 138-153, PageID #: 192-195.)
In his Answer, Lautenschlager responds to the allegations contained in paragraphs 138
through 153 as follows, “. . . this Defendant shall remain mute on [them] as [these] do not
directly apply to me, other than paragraph 151 . . .” (R. 40, ¶ 87, PageID #: 347.) Shell argues
that Lautenschlager has thus admitted all the allegations of the DMCA claims. (R. 138, ¶ 54,
PageID #: 1422.)
Civil Rule 8 requires a party to “admit or deny the allegations asserted against it by an
opposing party.” Fed. R. Civ. P. 8(b)(1)(B). Lautenschlager implicitly denies that these
allegations are asserted against him. See generally Haines v. Kerner, 404 U.S. 519 (1972) (per
curiam) (pro se pleadings are liberally construed). Therefore, Lautenschlager has denied the
allegations because the court will not deem these allegations to be admitted simply on the basis
of Lautenschlager’s answer.
Section 1202(a) provides that no person “shall knowingly and with the intent to induce,
enable, facilitate or conceal infringement” provide CMI that is false. 17 U.S.C. § 1202(a)(1).
Section 1202(b) provides that no person, without permission to do so, shall “intentionally
remove or alter any copyright management information.” 17 U.S.C. § 1202(b)(1). The statute
defines the phrase “copyright management information” to mean, in relevant part,
. . . any of the following information conveyed in connection with copies or
phonorecords of a work or performances or displays of a work, including in
digital form, . . .
(1) The title and other information identifying the work, including the information
set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.

17

(3) The name of, and other identifying information about, the copyright owner of
a work, including the information set forth on a notice of copyright.
*****
(6) Terms and conditions for use of the work.
17 U.S.C. § 1202(c)(1)-(3), (6).
A cause of action under Section 1202 potentially lies whenever the type of information
listed in Section 1202(c) is falsified or removed, regardless of the form in which that information
is conveyed. Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 305 (3d Cir. 2011). Federal
courts have held that a defendant must remove the CMI from the “body,” or the “area around”
the work to violate the DMCA. Personal Keepsakes, Inc. v. Personalizationmall.com, Inc., 975
F. Supp. 2d 920, 929 (N.D. Ill. 2013) (citing cases); see also Drauglis v. Kappa Map Grp., LLC,
128 F. Supp. 3d 46, 60 (D.D.C. 2015) (copyright notice must be “close to” the work) (citing
cases). For example, in Kelly v. Arriba Soft Corp.,
. . . the court held that CMI was not removed from a picture on a website when
“the only CMI available appeared on the website in the surrounding text but not in
the images themselves.” The court went on to state “[b]ased on the language and
structure of the statute, the Court holds this provision applies only to the removal
of copyright management information on a plaintiff's product or original work” –
in other words, not simply printed somewhere on the website.
Personal Keepsakes, 975 F. Supp. 2d at 929 (discussing Kelly v. Arriba Soft Corp., 77 F.Supp.2d
1116, 1122 (C.D.Cal.1999)).
Simply demonstrating copyright infringement does not in and of itself prove that a
defendant has removed CMI from a work. See, e.g., Frost-Tsuji Architects v. Highway Inn, Inc.,
No. CIV. 13-00496 SOM, 2014 WL 5798282, at *5 (D. Haw. Nov. 7, 2014) (reliance on
another’s work alone is insufficient to support claim of removal of CIM). “An action for

18

removal of copyright management information requires the information to be removed from a
plaintiff's product or original work.” Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp.
2d 1352, 1359 (N.D. Fla. 2010) (citing cases). In Faulkner Press, the court found that no CMI
was removed from the plaintiff’s copyrighted works where information was allegedly copied into
a different printed format. Faulkner Press, 756 F. Supp. 2d at 1359. See also Frost-Tsuji
Architects, 2014 WL 5798282, at *5 (virtually identical floor plans could have been created by
re-drawing the plaintiff’s work, and not including plaintiff’s CMI, but that would not involve any
removal of CMI from the original work).
A. Letter to School
The complaint alleges that defendant “knew Plaintiff claimed copyright ownership of the
content contained in Letter to School under this title.” (R. 15, ¶ 143, PageID #: 192.) Plaintiff
further alleges that defendant changed the title of “Letter to School” to “Reverse Miranda Letter”
when it was published on the Ohio Family Rights website. (R. 15, ¶ 144, PageID #: 192.)
“Plaintiff’s web site Letter to School and/or CPS page” displayed a copyright notice with
CMI, according to the complaint. (R. 15, ¶ 146-147, PageID #: 193.) The complaint also alleges
that the book, Profane Justice, was published with a copyright notice and CMI on the copyright
page. (R. 15, ¶ 146-147, PageID #: 193.) The aforementioned CMI, plaintiff alleges, was
published as part of the original documents, but the CMI was not displayed on the Ohio Family
Rights website in conjunction with the publication there of the “Letter to School” under the title
“Reverse Miranda Letter.” (R. 15, ¶ 148, PageID #: 193.) In addition, the complaint alleges the
CMI was part of the original documents, but was not displayed on the AFRA Facebook page

19

with the publication there of the “Letter to School” under the title “Hatch Letter.” (R. 15, ¶ 149,
PageID #: 193-194.)
The first issue is whether the allegedly infringed works displayed CMI in the body of, in
the “area around,” or “close to” the allegedly infringed work. See Drauglis, 128 F. Supp. 3d at
60; Personal Keepsakes, 975 F. Supp. 2d at 929. Shell includes exhibits of her copyrighted
works with the complaint. See generally R. 15. The exhibits attached to the motion for partial
judgment, on the other hand, show the alleged infringements. See generally R. 138.
1. 2002 Letter
Shell alleges that “Letter to School” was first published in the book Profane Justice,
copyright registration number TX5-677-193, and that Exhibit A is the relevant excerpt. (R. 15,¶
20, PageID #: 175; see also R. 15, Exh. A, PageID #: 203-204, 206.) However, the allegedly
infringed work in Exhibit A does not convey any copyright management information in the body
of, in the “area around,” or “close to” the allegedly infringed work. (R. 15, Exh. A, PageID #:
206.) Lautenschlager cannot be liable for removing CMI where none was displayed in the
original work.
In addition, although Shell alleges that Lautenschlager published this work under a
different title than the original (“Letter to School”) (R. 15, ¶¶ 148-149, 153, PageID #: 193-195),
the allegedly infringed work in Exhibit A has no title. (R. 15, Exh. A, PageID #: 206.)
Lautenschlager cannot be liable for altering CMI by changing the title where no title was
displayed in the original work.

20

2. 2004 Revised Letter
The complaint also alleges that a revised version of “Letter to School” (“Letter to School
[2d version]”) was published on Shell’s website, www.profane-justice.org, registration number
TX5-907-307, and that Exhibit B contains the relevant excerpt. (R. 15, Am.Compl., ¶ 21,
PageID #: 175; see also R. 15, Exh. B, PageID #: 207-214; R. 138, PageID #: 1409.)
The allegedly infringed work in Exhibit B, entitled “Letter to School and/or CPS
Agency,” contains a “Copyright Notice” in the “area around,” or “close to” the allegedly
infringed work, specifically, at the bottom of the web page. (R. 15, Exh. B, PageID #: 210, 213.)
In the third count, Shell asserts that she discovered a verbatim copy of that work, with a changed
title, “Reverse Miranda Letter,” on the website “www.ohiofamilyrights.info.” (R. 138, ¶ 38.a.,
PageID #: 1414; R. 15, ¶ 122, PageID #: 190; see R. 138-3, Exh. 1, PageID #: 1456.)
Lautenschlager owned the website “ohiofamilyrights.info” and was the web master for that site.
(R. 138, PageID #: 1410.) Thus, Shell has established, without opposition, that Lautenschlager
removed CMI from her copyrighted work entitled “Letter to School and/or CPS Agency.”
B. Letter to Lawyer
The complaint states that “Plaintiff incorporates paragraphs 148-155, 157-158 as equally
applying to Plaintiff’s Letter to Your Attorney that was published on ohiofamilyrights.info
pertaining to the copyright management information originally published with this document by
Plaintiff on her web site.” (R. 15, Am.Compl., ¶ 150, PageID #: 194.) The specific paragraph
numbers referenced appear to be incorrect, as these paragraphs in the amended complaint span
several different topics, and incorporate by reference paragraphs that are pled later in the

21

complaint. 4 Applying a liberal construction to the complaint, see generally Haines, 404 U.S.
519, the court concludes that Shell intended to repeat her allegations concerning the Letter to
School to the Letter to Your Attorney.
Shell alleges that this latter work was published on her website, www.profane-justice.org,
registered with the U.S. Copyright Office on March 15, 2004, registration number TX5-907-307,
and that Exhibit B contains the relevant excerpt. (R. 15, Am.Compl., ¶ 22, PageID #: 175; see
also R. 15, Exh. B, PageID #: 207-209, 215-219; R. 138, PageID #: 1409-1410.) However, the
work in Exhibit B does not convey any copyright management information in the body of, in the
“area around,” or “close to” the allegedly infringed work. (R. 15, Exh. B, PageID #: 215-219.)
Lautenschlager cannot be liable for removing or altering CMI when none was displayed in the
original work.
C. Parents’ Guide to the System
Shell alleges that the original work, a collection of proprietary unpublished documents
which formed the basis of the derivative work entitled “Parents’ Guide to the System,” was
registered with the U.S. Copyright Office, registration number TXu001588498, and that Exhibit
C is the first page of the deposit excerpt. (R. 15, ¶ 23, PageID #: 175; see also R. 15, Exh. C,
PageID #: 220-224; R. 138, PageID #: 1408.) Exhibit C evidences the CMI which Shell asserts
over the derivative work. (R. 15, Exh. C, PageID #: 224.) Shell has established, without
opposition, that the “Parents’ Guide” displayed CMI.

4

It is unusual, for example, for paragraph 150 of Count Four, as here, to incorporate a
subsequent paragraph 158, which is found in the middle of Count Six.
22

Shell asserts that she discovered the entire content of “Parents’ Guide” reproduced via a
link on the website, owned by Lautenschlager, “www.ohiofamilyrights.info” on August 9, 2015.
(R. 138, ¶¶ 27, 34.a., PageID #: 1410-1411; R. 15, ¶ 86, PageID #: 186; see R. 138-3, Exh. 4-5,
PageID #: 1461-1484.) Shell’s CMI does not appear with the work on the link from the Ohio
Family Rights website. See R. 138 ¶ 57, PageID #: 1423; R. 138-3, Exh. 4-5, PageID #: 14611484; R. 40, PageID #: 345 (reproducing Shell email of August 9, 2015, asserting copyright
infringement). Thus, Shell has established, without opposition, that Lautenschlager removed the
CMI from her copyrighted work entitled “Parents’ Guide to the System.”
D. Summary of Count Four
Summary judgment is granted in part and denied in part as to the fourth claim alleging
violations of DMCA. Shell has not presented evidence supporting the elements of her DMCA
claim that would entitle her to a directed verdict if that evidence were not controverted at trial, as
to the “Letter to School” published in the book Profane Justice, and as to the “Letter to Your
Attorney.” The motion for summary judgment on the DMCA claim regarding these works is
denied.
Shell has presented evidence supporting the elements of her DMCA claims concerning
her copyrighted work, “Letter to School and/or CPS Agency,” published on Shell’s website,
www.profane-justice.org, and concerning the “Parents’ Guide to the System.” The evidence
would entitle Shell to a directed verdict if that evidence were not controverted at trial, and
defendant Lautenschlager has not responded to the motion with controverting evidence that
would demonstrate a genuine issue of material fact. The motion for summary judgment on the
DMCA claim regarding these works is granted.
23

IV. COUNT FIVE
The fifth count of the amended complaint alleges a violation of the DMCA, 17 U.S.C. §
1201(a)(1)(A), regarding the password protection on Shell’s website for the work, Letter to Your
Attorney. (R. 15, ¶ 155, PageID #: 196.) Shell alleges that access to the document online was
password-protected and required agreement to terms of use in order to access that document.
Shell alleges that: “Anti-copy protections on this document had to be circumvented to obtain and
publish a copy of this document in violation of 17 U.S.C. § 1201(a)(1)(A).” (R. 15, ¶ 155,
PageID #: 196; see also R. 138, ¶ 65, PageID #: 1425.) Shell provides no evidence in support of
this claim, other than to assert that Lautenschlager “made no response to this averment in his
Answer [R. 40], and has therefore admitted these facts.” (R. 138, ¶ 64, PageID #: 1425.)
Shell is correct that Lautenschlager’s answer provides no response to this allegation. See
generally R. 40, ¶¶ 86-91, PageID #: 346-348 (addressing ¶¶ 120-137, 138-153, 157-172, 173179, and 180-187 of the amended complaint, but not addressing ¶ 155). Civil Rule 8 provides, in
relevant part: “An allegation – other than one relating to the amount of damages – is admitted if
a responsive pleading is required and the allegation is not denied.” Fed. R. Civ. P. 8(b)(6).
Lautenschlager’s responsive pleading provided no specific or general denial of the averments in
Count Five of the Amended Complaint. The averments in Count Five are thus deemed admitted,
and summary judgment is granted on this claim.

24

V. COUNT SIX
Count Six applied only to defendant 1&1 Internet Inc., which has been dismissed. (R.
31.)

VI. COUNT SEVEN
Count Seven applied only to defendant Rosalind McAllister, who has been dismissed. (R.
83.)

VIII. CONCLUSION
The motion for partial summary judgment (R. 138) is GRANTED in part, and DENIED
in part. Regarding the first three counts alleging copyright infringement, Shell has presented
evidence supporting the elements of her claims that would entitle her to a directed verdict at trial,
and defendant Lautenschlager has not responded to the motion with controverting evidence that
would demonstrate a genuine issue of material fact. Summary judgment is granted to Shell
regarding those first three claims. Summary judgment is granted to Shell on the first claim of
willful infringement, but denied regarding the willfulness claims in connection with counts two
and three.
Summary judgment is granted in part and denied in part regarding count four alleging
violations of DMCA. Shell has not presented sufficient evidence supporting the elements of the
DMCA claim and summary judgment is denied regarding the “Letter to School” published in the
book Profane Justice, and the “Letter to Your Attorney.” Shell has presented evidence
supporting the elements of her DMCA claims concerning the copyrighted work, “Letter to
25

School and/or CPS Agency,” published on Shell’s website, www.profane-justice.org, and
concerning the “Parents’ Guide to the System,” that would entitle her to a directed verdict, and
defendant Lautenschlager has not responded to the motion with controverting evidence that
would demonstrate a genuine issue of material fact. The motion for summary judgment on the
DMCA claim is granted regarding these two works.
Count Five is deemed admitted, and summary judgment is granted to Shell on this claim.
Count Six applied only to defendant 1&1 Internet Inc., which has been dismissed. (R. 31.)
Count Seven applied only to defendant Rosalind McAllister, who has been dismissed. (R. 83.)
The motion for partial summary judgment (R. 138) is GRANTED in part, and DENIED
in part, as set forth above.
s/ David A. Ruiz
David A. Ruiz
United States Magistrate Judge

Date: October 31, 2017

26