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by Tara Carreon
AMERICAN BUDDHA STRIKES ITS OWN BLOW FOR INTERNET FREE
SPEECH IN KATHLEEN PARKER DUST-UP (AMERICAN BUDDHA VS. CITY OF ASHLAND,
OREGON)
A. Modem Was Not Disabled
Due to Copyright Infringement Claim Because Kathleen Parker's Email Was
Not A Proper DMCA Notice
1. Wasn't signed under penalty of perjury
Richard Holbo Depo, pg. 31, lines
3-14 Q. You
are now -- you now know that Kathleen Parker's e-mail, Exhibit 2, is not
an adequate notice of copyright infringement under the DMCA?
A. Yes.
Q. Because why?
A. It's not the appropriate format.
Q. First, it's not under penalty of perjury; correct?
A. I don't know.
Q. Well, is it under penalty of perjury? Is there anything in there, in
Exhibit 2, that says, "Under penalty of perjury, I swear such-and-such"?
A. No. 2.
Doesn't assert that it was issued under the authority of the copyright
holder
Richard Holbo depo, pg. 31, lines 15-21
Q. Okay. Is there anything in
there that says that, "I am the holder of the copyright or am authorized
to act as the agent of the copyright holder"?
A. No.
Q. And is that a requirement under the DMCA, that it say that?
A. I believe it is.
3. Doesn't identify the infringing
material
Richard Holbo depo,
pg. 31, lines 22-pg.32, line 4:
Q. Is it also a requirement of the
DMCA that it identify the image by providing the URL for the image?
A. Actually, I believe it says the URL of the material.
Q. So you know that that is a requirement of the DMCA and, of course,
you can confirm for us that that doesn't appear for us in Exhibit 2;
correct?
A. Correct.
B. Defendant
Knew The Notice Was Defective, And Sought To Remedy It
Richard Holbo depo, pg. 6, lines
2-16 Q. So
how did you find that picture of Kathleen Parker?
A. I used Google.
Q. Google Search?
A. Yes.
Q. Did you see there on Google image search the allegedly doctored
photo?
A. Yes.
Q. Is that where she showed you the doctored photo?
A. She did not show me anything.
Q. Did she send you a link to anywhere?
A. She did not.
Q. Did you in any way independently verify that American-Buddha.com was
in fact hosting the image she claimed it was hosting?
A. Yes.
Richard Holbo depo, pg. 37, line 20 - pg. 38, line 22.
Q. Okay. You, first of all, for Ms.
Parker, you found the image at American-Buddha.com and you put the URL
in this Exhibit 3 e-mail; correct?
A. Yes, I did.
Q. All right. You looked at that image and you searched and you found
another image of Ms. Parker; correct?
A. Correct.
Q. You made a comparison of the two; correct?
A. I saw that they were similar.
Q. And you then wrote this paragraph that says the web site is American-Buddha.com
and the image at issue is, and then there's the URL of the image, "or
any other representation of Kathleen Parker that is based upon images
published by the Washington Post." Now, why does it say that?
A. I do not recall.
Q. Well, you have got this same thought process available to you, you
can just kind of try and remember why.
A. More than likely because I saw that in other things we had received
about copyright infringement.
Q. What do you mean, other things you had received?
A. I received numerous e-mails about copyright infringement.
Q. I understand. So -- and what does that have to do with what you wrote
here in the second paragraph of Exhibit 3?
A. What it probably means is I cut and pasted from another e-mail.
Richard Holbo depo, pg. 39, lines
9 - pg. 40, line 21
Q. Okay, great. Well, then, we can
move right ahead to asking why you say that this image is somehow
related to other images published by the Washington Post?
A. My recollection at this point, I think, is that I actually went to
the Washington Post and found that image on their web site.
Q. And what did that mean to you?
A. And I cut and pasted their copyright off the bottom of their page.
Q. So you concluded that because they had the image -- excuse me -- the
Washington Post had the image of Kathleen Parker, that it was their
property and that they were the copyright owners?
A. I made no assertions that anyone was the copyright owner, that I'm
aware of.
Q. So how could there be copyright infringement if you had no idea
whether the image was copyrighted or not?
A. My email says I received an infringement claim.
Q. Uh-huh. You didn't forward that, however; instead, you amplified;
correct? You added what was missing, you put in the URL of the image and
you attempted to come up with a copyright holder. You filled in two of
the blanks that are necessary in a DMCA notice; didn't you?
A. (Witness shrugs shoulders.)
Q. You improved on Ms. Parker's infringement notice; didn't you?
A. No.
Q. Well, you provided the URL. It was defective in that regard, so you
improved it in that regard; correct?
A. At the time, I was not aware that it was defective.
Q. Okay. But you -- in retrospect, you clearly did improve it by
deleting one defect; right?
A. I wanted to make it easy for InfoStructure to find the image.
Q. You improved the notice; correct?
A. Correct.
Q. You also attempted to identify a copyright holder, a matter that was
not done by Ms. Parker; correct?
A. Correct.
Q. And that was the Washington Post; right?
A. Correct.
C. Content-Based and Other
Reasons Given For Turning Off Modem Besides Copyright Infringement
1. Copyright infringement claim
Exhibit 3:
From: "Richard Holbo" holbor@ashlandfiber.net.
Subject: Copyright infringement claim against one of your customers
Date: Wed, August 2, 2006 6:54 am
To: abuse@mind.net
"I have received a copyright
infringement claim against a business customer of yours. The MAC of the
modem is 00:90:83:68:f6:39, and the DNS name is 17794.
The website is
www.american-buddha.com and the image at issue is
http://www.american-buddha.com/kathleenparkbigchoicemondo2_small.jpg
, or any other representation of Kathleen Parker that is based upon
images published by the Washington Post.
Please let me know as soon as
possible what the resolution to this issue is. Copyright infringement is
listed in AFN's Acceptable Use policy and can result in the service
being turned off.
http://www.ashlandfiber.net/acceptable.htm
Richard Holbo
AFN Network Operations
2. Image Was Pornographic
Richard Holbo depo, pg. 42, lines
6-21 Q. Who
called you?
A. No one.
Q. You called him?
A. I called him.
Q. Okay. Because -- why did you call him?
A. Because that is what we try to do in our policy.
Q. All right. And what did you tell him. Did you check and make sure
he'd gotten your e-mail?
A. Yes, I did.
Q. And then what did you tell him, in addition to what was in the
e-mail, in the phone call, to say more?
A. I said that I had spoken to Kathleen Parker.
Q. Okay.
A. And that she was upset because her kids were looking at the image on
the Internet.
3. Modem on Infostructure's "Disconnect" List
Richard Holbo depo, pg. 32, lines
17 - pg. 33, line 8
Q. What did you do on August 2? On
August 2, did you turn off the modem for American-Buddha.com?
A. Right.
Q. And why did you do that?
A. Because, in conversation with Mr. Dowd, he had said that American
Buddha was on a disconnect list.
Q. On a disconnect list?
A. Correct.
Q. And what did that mean to you?
A. That they were on a disconnect list.
Q. Help me out here. What is a disconnect list?
A. You'd have to ask Mr. Dowd.
Q. Based on a statement that you did not understand, you disconnected
the modem?
A. Based upon Mr. Dowd's assertion that we could turn the modem off, I
turned off the modem.
4. Combination "Disconnect"
List/Copyright Infringement Claim
Richard Holbo depo, pg. 45, line
16 - pg. 46, line 3
Q. The two of you made the
decision; correct?
A. We made the decision to --
Q. -- disable the modem.
A. Yes.
Q. And the reason for that was Kathleen Parker's call and email;
correct?
A. The reason for that was because Jon Dowd said that the customer was
on a disconnect list and that when the customer called, he would talk to
them about both issues.
Q. What are the two issues?
A. To the best of my knowledge, the customer being on a disconnect list
and the copyright infringement claim.
5. Rebuttal to Claim that Modem
Disabled Because It Was on "Disconnect" List
Richard Holbo depo, pg. 58, lines
3-15 Q. So
City of Ashland Fiber Net has direct control over all of the modems that
are servicing InfoStructure customers?
A. Yes.
Q. InfoStructure does not have that control itself, it does not have the
power to turn off the modem?
A. They do.
Q. They do? So did you tell Mr. Dowd to go ahead and turn it off
himself?
A. No.
Q. Why not?
A. Because that is not how we manage abuse issues at the time.
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