2before me – one for termination due to discovery abuse, and another for summary judgment – witha cross-motion for summary judgment from the Defendants.
cross-motion forsummary judgment argues that they are entitled to the safe harbor protections of § 512(c) of theDigital Millennium Copyright Act (“DMCA”). All parties filed numerous additional
motions toexclude certain testimony, as well as voluminous evidentiary objections. Plaintiffs opine that theirmotion for terminating sanctions alleges discovery abuse sufficient to require that I
strike theDefendants’ answer and enter a default judgment in their favor (“Terminating Sanctions Motion”).For the reasons set forth below, Plaintiffs’ Terminating Sanctions Motion is granted to the extentdiscussed in this opinion, though not in its entirety; Plaintiffs’ motion for summary judgment isgranted with respect to all claims; and Defendants’ motion for summary judgment is dismissed asmoot.
I. FACTUAL BACKGROUNDA. The USENET and How It Works
The USENET network, created over twenty years ago, is a global system of online bulletinboards on which users (or “subscribers”) may post their own messages or read messages posted byothers. Defendants’ Statement of Undisputed Facts (“Defs.’ SUF”) 1. To obtain access to theUSENET, a user must gain access through a commercial USENET provider, such as DefendantUCI, or an internet service provider.
Memorandum Opinion & Order, dated January 26, 2009(“Sanctions Order”) at 3. Messages posted to the USENET are commonly known as “articles.”
Articles, in turn, are posted to bulletin boards called “newsgroups.”
Newsgroups often areorganized according to a specific topic or subject matter, and are oftentimes named according tothe subject matter to which the articles posted to the newsgroup relate. Defs.’ SUF 2. TheUSENET is divided into nine major subject headings known as “hierarchies,” one of which is the
hierarchy. Defs.’ SUF 3-4. Content files known as binaries, which represent computer filessuch as images, videos, sounds, computer programs and text, are found in the
hierarchy.Defs.’ SUF 5. These binary files are encoded in text form for storage and processing, and requirea software program to convert the text into a content file such as an image or music file.
On May 21, 2009, Sierra filed a Suggestion of Bankruptcy in this matter advising the Court that it has filed a petitionpursuant to chapter 7 of the Bankruptcy Code in the District of North Dakota. Pursuant to 11 U.S.C. § 362, anautomatic stay is therefore in place with respect to Sierra, and it is not subject to the Court’s Order and Opinion. Forease of reference, and because the majority of Plaintiffs’ allegations are directed equally to all Defendants, thisOpinion will, for the most part, refer to the “Defendants” in the collective. However, the Court is fully aware that noorder shall affect the rights of Defendant-Debtor Sierra.
Case 1:07-cv-08822-HB-THK Document 240 Filed 06/30/2009 Page 2 of 38