Karen O’Kasey, OSB No. 870696
HOFFMAN, HART & WAGNER, LLP
Twentieth Floor
1000 S.W. Broadway
Portland, Oregon 97205
Telephone: (503) 222-4499
Facsimile: (503) 222-2301
E-mail: kok@hhw.com
Of Attorneys for Defendant The City of Ashland
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMERICAN BUDDHA, an Oregon
Nonprofit Corporation,
Plaintiff,
v .
THE CITY OF ASHLAND AND THE
WASHINGTON POST COMPANY,
Defendants.
No. 06-CV-3054-PA
REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Defendant files the following reply in support of
its motion for summary judgment. This reply is based
on defendant’s response and objections to
Plaintiff’s Concise Statement of Facts, defendant’s
Motion to Strike Evidence offered by plaintiff in
support of its response, the legal argument set
forth below, and the pleadings on file herein.
INTRODUCTION
Plaintiff brought two claims against the City of
Ashland after the modem hosting its website was
disconnected by the City. This was done due to a
copyright infringement claim made against plaintiff
by a newspaper columnist, Kathleen Parker. Plaintiff
alleged that (1) the disconnection violated its
procedural due process rights; and (2) that the
disconnection violated its First Amendment rights
because the decision to disconnect was based on the
“content” of its website (Complaint, 12-14).
In its response, plaintiff makes no argument and
offers no evidence establishing that it had any
procedural due process rights entitling it notice or
a hearing prior to the modem being disconnected. The
only remaining issue for the court to decide is
whether the disconnection somehow violated the First
Amendment.
Plaintiff asserts for the first time in its response
that it has a “retaliation” claim under the First
Amendment. No such claim was brought by plaintiff in
the original complaint. [1] Aside from the fact that
plaintiff offers no factual evidence supporting this
claim, a motion for summary judgment cannot be
defeated by raising new claims in a response.
Schlacter-Jones v. Gen’l Tel. of Calif., 936 F.2d
435, 449 (9 Cir. 1991), overruled on other grounds,
Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9
Cir. 2001)(a motion for leave to amend is not a
vehicle to circumvent summary judgment); Coleman v.
Quaker Oats, 232 F.3d 1271, 1291-94 (9 Cir. 2000)
(motion to amend to add claim raised for first time
in response to summary judgment motion, after close
of discovery, not allowable); Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1314-15 (11 Cir.
2004)(a party cannot amend a complaint to add a new
claim through argument in brief opposing summary
judgment).
Plaintiff also makes various irrelevant arguments
about the Digital Millennium Copyright Act (“DMCA”).
As explained below, plaintiff has no cause of action
under that statute, and its arguments about the DMCA
have nothing to do with this case.
Plaintiff did not specifically deny any statements
in defendant’s Concise Statement of Facts, and
offered no contradictory factual evidence in its own
Concise Statement. There is no factual dispute that
the reason the modem was disconnected was because of
the copyright infringement claim made against
plaintiff by Kathleen Parker. There is also no
factual dispute that the disconnection was not due
to the nature of the content posted on plaintiff’s
website. Given these undisputed facts and applicable
First Amendment law, defendant is entitled to
summary judgment on the remaining claim.
LEGAL ARGUMENT
1. The Digital Millennium Copyright Act Has No
Application to this Case.
The Digital Millennium Copyright Act of 1998 was
enacted to grant copyright infringement “immunity”
to “innocent” service providers who could prove that
they had no knowledge of the claimed copyright
infringement. 17 U.S.C. § 512(c)(1); Perfect 10,
Inc. v. CCBill LLC, 340 340 F. Supp. 2d 1077 (C.D.
Cal. 2004)(purpose of the DMCA is to relieve
internet service providers of the duty of patrolling
the Internet for copyright infringements that are
not immediately apparent or of which they have no
actual knowledge); ALS Scan, Inc. v. RemarQ Cmtys.,
Inc. 239 F.3d 619, 625 (4 Cir. 2001) (The DMCA was
enacted to both th preserve copyright enforcement on
the Internet and to provide immunity from service
providers from copyright infringement liability for
“passive” or “automatic” actions in which a service
provider’s system engages through a technological
process initiated by another without the service
provider’s knowledge).
The DMCA does not provide any protections whatsoever
to individuals or websites accused of copyright
infringement (like American Buddha). It simply
provides a safe harbor for internet service
providers from claims brought by those claiming
copyright infringement (like Kathleen Parker).
Plaintiff’s reliance on Batzel v. Smith, 333 F.3d
1018 (9 Cir. 2003) in support th of its theory that
the DMCA somehow protects it is misplaced and does
not stand for the legal principal for which it is
cited.
The issue in that case was whether the sponsor of a
website could be held vicariously liable for a
website operator’s posting of a defamatory email
authored by a third party. The third party, who was
sued for defamation in turn, claimed that the
website or its operators were liable to him for
sending the defamatory email out on a listserv
without his knowledge. Id. at 1021. The case
involved the application of Section 230 of the
Telecommunications Act of 1996, known as the
“Communications Decency Act of 1996.” In
interpreting that statute, the court held that its
intent was to immunize service providers and users
“who take some steps to edit” material posted. Id.
at 1031. The court, discussing the DMCA in a
footnote, did not hold that the Act in any way
protected alleged copyright violators, or original
authors of defamatory statements. The decision in no
way supports a theory that the DMCA somehow provides
“rights” to American Buddha, the alleged copyright
violator.
Further, there is no statutory compliance mandated
by the DMCA–it simply provides protection for an
internet service provider if it adopts a policy that
“provides for termination in appropriate
circumstances of subscribers and account holders of
the service provider’s system or network who are
repeat infringers.” Perfect 10, supra at 1086- 7.
The only result of not adopting such a policy is
exposure to claims from those alleging copyright
infringement. The alleged infringer has no rights
under the DMCA. The statute’s sole and exclusive
purpose is to provide immunity from vicarious
infringement claims if the statutory requirements
met. Hendrickson v. Amazon.Com, Inc., 298 F. Supp.2d
914, 915-16, (C.D. Cal. 2003). For these reasons,
plaintiff’s arguments regarding how the City handles
infringement claims, its DMCA policy, or lack
thereof, are wholly irrelevant to the First
Amendment claim before the court.
2. Plaintiff Has Not Raised Any Material Question
of Fact In Support of the First Amendment Claim.
A. There is No Evidence that the City Regulated
Plaintiff’s Website Based on Content.
Defendant is entitled to summary judgment because
plaintiff has failed to establish that the City took
any action based on content. In order for the First
Amendment to be invoked in the first place, there
must be some ordinance, regulation or policy enacted
by the City which limits speech based on its
content. Ellwest Stereo Theatres, Inc. v. Wenner,
681 F.2d 1243, 1246 (9th Cir. 1982) (city ordinance
which did not contain content- based restriction on
speech did not invoke First Amendment analysis).
The undisputed facts are that the modem was
disconnected by the City due to the copyright
infringement claim of Parker (Defendant’s Concise
Statement 7). Although plaintiff asserts that
“plaintiff’ s network was silenced in retaliation
for its publication of political speech”
(Plaintiff’s Memo in Opp., p. 10), plaintiff offers
no actual facts supporting this assertion.
Plaintiff’s claim that its publication of unpopular
speech “must” have been a substantial motivating
factor in the decision to disconnect is insufficient
to establish a material question of fact in the
absence of any underlying facts supporting the
assertion.
Legal memoranda and self-serving statements in
briefings are not “evidence” and do not, as a matter
of law, create issues of fact capable of defeating a
motion for summary judgment. Federal Trade
Commission v. Publishing Clearing House, 104 F.3d
1168, 1171 (9 Cir. 1996); th Long v. Bureau of
Economic Analysis, 646 F.2d 1310, 1321 (9 Cir.
1981). Since plaintiff offers th no evidence
contradicting the testimony of Holbo that the
copyright infringement claim led to the disconnect,
it has failed to create a triable issue on whether
the City violated the First Amendment by that
action.
Plaintiff also claims in a footnote that the Ashland
Free Press’s article criticizing the City’s decision
to hire Joe Franell may also have had an effect on
the City’s dealing with copyright infringement claim
(Plaintiff’s Memo in Opposition, p. 11). Putting
aside the fact that the Ashland Free Press is not
the plaintiff, there is absolutely no factual
evidence offered by plaintiff supporting this
speculation. As such, this statement cannot be a
basis to defeat summary judgment. Taylor v. List,
880 F.2d 1040, 1045 (9 Cir. 1989)(a summary judgment
motion cannot be defeated by relying on solely
conclusory allegations unsupported by factual data).
B. Plaintiff Has Not Established any Right to
Unfettered Free Speech on Its Website In Any Event.
Plaintiff states that the City has “elected to
operate an organ of speech” by operating a fiber
network (Plaintiff’s Memo in Opposition, p. 9). As
discussed in defendant’s original motion, no court
has yet held that a municipality doing so
establishes a “public forum” to which First
Amendment law even applies (Def. Memo in Support, p.
5). The cases decided to date addressing whether a
public forum is created when a governmental agency
provides an internet connection in public buildings
have consistently held that it does not. United
States v. American Library Association Inc., 539
U.S. 194, 205, 123 S. Ct. 2297, 156 L. Ed. 2d 221
(2003)(internet access provided in public libraries
not a public forum). Putnam Pit Inc. v. City of
Cookeville, Tennessee, 221 F.3d 834, 843 (6 Cir.
2000) city website nonpublic forum for First
Amendment purposes).
Plaintiff fails to explain, how, in light of these
cases, the City’s provision of the fiber network
only somehow creates a public forum for First
Amendment purposes. The plaintiff fails to explain
why this court should disregard United States
Supreme Court precedent that even when internet
access is provided in a public library, the
government is not creating a public forum under the
First Amendment.
A governmental entity can go so far as to completely
ban speech in a non-public forum and is entitled to
regulate speech based on content, so long as the
regulation is viewpoint neutral (Defendant’s Memo in
Support, p. 6-7 and cases cited therein). There is
no obligation, in a nonpublic forum, for the
governmental agency to employ the “least intrusive
measures” in regulating speech as argued by
plaintiff. Instead, any restrictions need only be
reasonable in light of the function of the forum.
Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460
U.S. 37, 49, 103 S. Ct. 948, 74 L. Ed. 2d 794
(1983).
Since the modem was disconnected because of a
copyright infringement claim, the City’s actions
were reasonable, even if plaintiff disagrees
with the process that was followed in doing so.
Disconnection based on a claim of violation of
federal law is certainly reasonable for purposes of
nonpublic forum analysis. Plaintiff’s “unfettered
discretion” argument does not apply to free speech
limitations in nonpublic forums. Arkansas
Educational Television Comm. v. Forbes, 523 U.S.
666, 682, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998)
television station could exercise broad discretion
in excluding speech activities and speakers, so long
as exclusion was not viewpoint-based); Cogswell v.
City of Seattle, 347 F.3d 809, 818 (9 Cir. 2003)
(City could exclude certain types of “political
speech” in voter pamphlets; pamphlets were nonpublic
forums and city was not required to allow free
exchange of ideas).
As argued in defendant’s motion, (an argument
unanswered by plaintiff), even if the City of
Ashland has established a “forum” by providing fiber
to internet service providers, that forum is
nonpublic and the City could in fact, regulate
speech based on content. It has not done so–it has
only acted in the face of copyright infringement
claims. Under the “reasonableness” test applied to
nonpublic forum, these actions do not violate the
First Amendment.
C. Plaintiff Has No Claim for a “Failure to
Protect Constitutional Rights.”
In addition to the new “retaliation” claim,
plaintiff also for the first time asserts that the
City is liable under Section 1983 for “failing to
act to preserve constitutional rights.” [2] Aside
from its untimeliness, as a matter of law, plaintiff
has no such claim.
In order to impose liability on a local government
entity for failing to act to preserve constitutional
rights, a Section 1983 plaintiff must establish; (1)
that he possessed a constitutional right of which he
was deprived; (2) that the municipality had a
policy; (3) that this policy “amounts to deliberate
indifference” to the plaintiff’s constitutional
right; and (4) that the policy is the moving force
behind the constitutional violation. City of Canton
v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed.
2d 412 (1989).
Plaintiff cannot prove facts supporting even the
first element of this type of claim. Plaintiff has
no constitutional right to engage in copyright
infringement. Plaintiff has not established that it
has an unfettered right to free speech in any
“forum” established by the City in any event, or
that the City took any action against plaintiff
based on website content. Plaintiff has not shown
any facts supporting the conclusion that it (1) had
a constitutional right of which (2) it was deprived.
The decision in Oviatt v. Pearce, 954 F2d 1470 (9
Cir. 1992), on which plaintiff relies, hinged on the
fact that plaintiff established a liberty interest
under the Fourteenth Amendment which was deprived
when he was incarcerated without a prompt pretrial
court appearance. Id. at 1474-75. Without
establishing deprivation of an underlying
constitutional right, there can be no “failure to
act” claim under Section 1983. Plaintiff here has
not made that required showing. Its’ “failure to
act” theory should be rejected.
CONCLUSION
Plaintiff offered no arguments supporting its due
process claim. The City is entitled to summary
judgment on that claim. Plaintiff offers no facts
supporting its speculation that the reason the City
disconnected the modem serving its website was done
due to content. Plaintiff has not offered any
evidence of any policy enacted by the City which
regulates speech on websites based on content. Even
if the City has established a nonpublic forum by
providing a fiber network, its disconnection of a
modem due to a copyright infringement claim does not
violate the First Amendment. The City is entitled to
summary judgment on the First Amendment claim as
well.
DATED this 15 day of February, 2007
HOFFMAN, HART & WAGNER
By: /s/ Karen O’Kasey
Karen O’Kasey OSB # 870696
Of Attorneys for The City of Ashland
(503) 222-4499
CERTIFICATE OF SERVICE
I hereby certify that, on 15 day of February, 2007,
I served the foregoing REPLY IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT as follows:
Charles Carreon, Esq.
Online Media Law, PLLC
423 Gateway Drive, #64
Pacifica, CA 94044
Attorney for Plaintiff
by electronic means through the Court’s Case
Management/Electronic Case File system.
/s/ Karen O’Kasey
Karen O’Kasey
_______________
1. Plaintiff alleges that it
pled a viable claim for retaliation against the City
(Plaintiff’s Memo in Opposition, p. 10) Plaintiff
did not. Instead, plaintiff alleged that its website
was disabled based on a constitutionally improper
government scheme that (a) enabled the City to
engage in prior restraint of speech; (b) vested
discretion to silence speech in a public forum in a
single agency or individual; (c) permitted content
discrimination; (d) provided no notice; and (e)
caused disablement due to disagreement with content
(Complaint, 12).
2. For the same reasons that
the retaliation claim should be disregarded, so
should this claim.