UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

BRETT KIMBERLIN, Plaintiff v. ANONYMOUS BLOGGER KIMBERLIN UNMASKED, Defendant Case No. RWT 13 CV2580

AMICUS AARON J. WALKER, ESQ.’S MOTION TO DISMISS COMES NOW Aaron J. Walker, Esq., as an Amicus Curiae and offers this Motion to Dismiss for failure to serve the Defendant and under Fed. R. Civ. P. 12(b)(6) and states the following: 1. On or about September 5, 2013, the Plaintiff instituted the instant suit with a Complaint.

ECF No. 1. The Plaintiff knew on that date that he was suing an anonymous writer or writers on the internet that he could not yet identify. Compl. ¶ 2. In the same document, he admitted he did not know where the Defendant(s) resided. Compl. ¶ 2 (“[b]ecause Defendant is anonymous, he may or may not reside in the [sic] District”). 2. On or about October 15, 2013, the Plaintiff filed a “Motion for Extension of Time to

Serve Defendant.” ECF No. 4. That motion was based on the fact that the Plaintiff did not know who the Defendant(s) were, and therefore needed time to identify him/her/them. 3. On or about October 17, 2013, this court granted the Plaintiff an extension until February

14, 2014, to account for that difficulty. 4. That deadline passed more than a week ago. I. THIS CASE SHOULD BE DISMISSED UNDER FED. R. CIV. P. 4(M) 5. Federal Rule of Civil Procedure 4(m) provides that

If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. The Plaintiff, recognizing that service would be difficult wisely moved for an extension of time for service of process, in a motion entitled “Motion for Extension of Time to Serve Defendant” (“Pl’s MFE,” ECF No. 4). The primary thrust of his argument was that such an extension was justified while the Plaintiff attempted to identify and locate the person or persons he is suing. 6. This court reasonably granted the Plaintiff until February 14, 2014, to serve the

Defendant(s). Given the circumstances, it is reasonable to believe that this court granted this extension specifically to account for the Plaintiff’s difficulty in identifying the Defendant or Defendants. 7. 8. That deadline has passed more than a week ago. But rather than seeking a second extension, the Plaintiff has filed a “Verified Motion to

Find That Defendant KimberlinUnmasked Has Been Served Under Federal Rule Of Civil Procedure 4(e)(1) and Maryland Rule of Civil Procdure [sic] 2-121.”1 In it, the Plaintiff doesn’t allege that he has actually met the requirements of these rules, but rather claims that non-compliant service is close enough

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Explain about the lack of ECF. 2

and to declare the Defendant retroactively served. Amicus has filed an opposition to that motion2 urging this court to reject this reasoning, leaving the Defendant or Defendants un-served. 9. With the Plaintiff having failed to meet even this extended deadline, this court should

dismiss the case under Fed. R. Civ. P. 4(m). The Plaintiff has, at best, narrowed the list of possible defendants to approximately half the human population on Earth (since he apparently believes the Defendant or Defendants are men), and doesn’t otherwise seem to be an inch closer to actually identifying the Defendant or Defendants. The Plaintiff claims that he has an outstanding motion to compel Kimberlin Unmasked’s attorney to give this information, but that would require the disclosure of confidential communication—in essence, he is asking an attorney to tell him which of his clients has said, “I am Kimberlin Unmasked”—and black letter law states that this information is protected by attorney-client privilege. 10. The Plaintiff is evidently obsessed with determining the identity of the Defendant or

Defendants, but how much longer should this court leave this matter unresolved while the Plaintiff pursues his “white whale”? In all bluntness, enough is enough, and this court should, therefore, dismiss the suit for failure to serve the Defendant or Defendants. II. THIS CASE SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM 11. While the errors contained in the Plaintiff’s complaint are legion, Amicus will focus on

the most glaring problem in the complaint: the failure to even claim he owns the copyrights that are allegedly being infringed.

Amicus Opposition of Aaron J. Walker, Esq. to Plaintiff’s Motion to Find Kimberlin Unmasked has been Served (Amicus Opp.). 3

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12.

It is fundamental to any claim for copyright violation that the party actually own the

copyright in question. See, e.g., Data Gen. Corp. v. Grumman Systems Support Corp., 36 F. 3d 1147, 1160 n. 19 (1st Cir 1994) (“[t]o demonstrate copyright infringement, DG had the burden of demonstrating (1) that it owns a valid copyright in the versions of ADEX alleged to have been copied”). 13. Incredibly, the Complaint (ECF No. 1) fails this most basic and logical requirement, the

Plaintiff writing in paragraph 7 that “[a]ll of Plaintiff’s music is copyrighted by Plaintiff. All of the videos created from those songs are copyrighted either by Plaintiff individually or by Justice Through Music, which he directs.” But the Plaintiff never claims that the Defendant is unlawfully copying his music, but rather that the Defendant or Defendants took still images from the videos and other photographs (whose ownership is not alleged at all) and then manipulated them in a way that offends the Plaintiff. 14. There are two reasons why it is important that the Plaintiff to plead specifically which

photographs and which videos he owns. First, the Plaintiff is only suing in his personal capacity. He is not suing on behalf of his corporation, the Justice Through Music Project (“JTMP”). The Plaintiff cannot assert JTMP’s rights before this court—especially not pro se. See D. Md. local rule 101.1(a) (reserving the right to represent oneself to individuals, while artificial persons (such as corporations) are required to obtain counsel). Therefore, all claims that the Defendant or Defendants have violated JTMP’s copyright must be dismissed, but this court cannot dismiss solely the JTMP copyright claims because the Plaintiff has not specified who owns which copyrighted material. Therefore, all claims must be dismissed. 15. The second reason why it is important for the Plaintiff to plead specifically who owns

which copyright is because on the face of his own complaint the Plaintiff has pled all the facts necessary 4

to make out a claim for fair use. Specifically in paragraph 8 of the Complaint, the Plaintiff writes that: Kimberlin Unmasked alters these photographs by superimposing Plaintiff’s face on to other backgrounds, for example in a Nazi uniform. Others he makes into collages using copyrighted photos to create an impression not intended by the original copyrighted photo. Putting aside the fact that photographs, being inanimate objects, cannot have intention and assuming he meant that the intention of the photographer, what the Plaintiff has described is classic fair use. 16. It hardly needs belaboring that under 17 U.S.C. § 107 copyrighted work can be used by

people who do not own the original copyright, “for purposes such as criticism, comment, [and] news reporting.” The Supreme Court had interpreted that language to allow for satirical criticism. See, e.g. Campbell v. Acuff-Rose Music, Inc., 510 U.S 569, 583 (1994) (holding that the rap group 2Live Crew’s extensive use of material from Roy Orbison’s song “Oh, Pretty Woman” is fair use because it was “a comment on the naivete of the original”). Imagining the Plaintiff—who has an extensive criminal record3 and recently has been accused of attempting to suppress freedom of speech4—as a Nazi5 is

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The Plaintiff is an infamous terrorist known as the Speedway Bomber. The Sixth Circuit summed up the worst of his extensive criminal history as follows: Kimberlin was convicted as the so-called “Speedway Bomber,” who terrorized the city of Speedway, Indiana, by detonating a series of explosives in early September 1978. In the worst incident, Kimberlin placed one of his bombs in a gym bag, and left it in a parking lot outside Speedway High School. Carl Delong was leaving the high school football game with his wife when he attempted to pick up the bag and it exploded. The blast tore off his lower right leg and two fingers, and embedded bomb fragments in his wife’s leg. He was hospitalized for six weeks, during which he was forced to undergo nine operations to complete the amputation of his leg, reattach two fingers, repair damage to his inner ear, and remove bomb fragments from his stomach, chest, and arm. In February 1983, he committed suicide.

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clearly criticism of the Plaintiff. This is plainly covered by the fair use doctrine.6

Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993). 4 It is not altogether unfair to liken the Plainitiff to a Nazi. Before and after World War II, Nazis were known not only for their violence, but for their lack of respect for freedom of expression. And many writers attentive to free speech issues have taken Kimberlin to task for improperly using the courts as a weapon against his critics, a technique that they call “lawfare.” E.g., Ken White, Brett Kimberlin and Aaron Worthing-Censorship and Retaliation Through Lawfare, POPEHAT, May 29, 2012 (available at http://www.popehat.com/2012/05/29/brett-kimberlin-and-aaron-worthing-censorship-and-retaliationthrough-lawfare/) visited February 23, 2014; Eugene Volokh, Aaron Walker, Brett Kimberlin, and the Fog of Litigation, VOLOKH CONSPIRACY, May 29, 2012 (available at http://www.volokh.com/2012/05/ 29/aaron-walker-brett-kimberlin-and-the-fog-of-litigation/) visited February 29, 2014; Bennett, Kimberlin v. Internet: Not a Partisan Issue, DEFENDING PEOPLE, May 31, 2012, available at http://blog. bennettandbennett.com/2012/05/kimberlin-v-internet-not-a-partisan-issue.html) visited February 23, 2014; Greenfield, Fighting Lawfare and Unintended Consequences, SIMPLE JUSTICE, May 30, 2012, (available at http://blog.simplejustice.us/2012/05/30/fighting-lawfare-and-unintended-consequences/) visited February 23, 2014. So, while jarring, the comparison of the instant Plaintiff to a Nazi is not without cause. 5 This is true even if this court thinks that the comparison of the Plaintiff to a Nazi is unfair or over-thetop, because the tastefulness of the criticism is irrelevant to the inquiry as to whether it constitutes fair use. See Campbell, 510 U.S. at 583 (“[w]hether, going beyond that, parody is in good taste or bad does not and should not matter to fair use”); cf U.S. v. Cassidy, 814 F.Supp.2d 574 (2011) (holding that the First Amendment protects even highly offensive speech online). Truly if poor taste didn’t harm the rap group 2Live Crew, it shouldn’t harm any defendant in a copyright suit. 6 The Plaintiff is also plainly a public figure appropriately the subject of public criticism. Aside from the fact he achieved infamy by terrorizing an entire town with bombs, he also attempted to sway the course of a Presidential election by accusing then-Vice-Presidential-candidate Dan Quayle of purchasing drugs from him. Kimberlin v. Quinlan, 6 F.3d 789, 791 (D.C. Cir. 1993). He has further attempted to raise his profile by helping Mark Singer write an authorized biography of him (Mark Singer, CITIZEN K: THE DEEPLY WEIRD AMERICAN JOURNEY OF BRETT KIMBERLIN (1996)), making music videos, and voluntarily appearing in numerous articles (Jason Vest, Arts and Entertainment: Music Review, WASHINGTON CITY PAPER, February 23, 1996 (available at http://www.washingtoncitypaper.com/articles/9854/jailbird-rock and Arlette Saenz, Senator Asks DOJ to Investigate SWAT-ting Attacks on Conservative Bloggers, ABC NEWS, Jun. 6, 2012 (available at http://abcnews.go.com/blogs/politics/2012/06/senator-asks-doj-to-investigate-swat-ting-attacks-onconservative-bloggers/) visited December 15, 2013) visited December 14, 2013), even when the subject 6

17.

Therefore, the Plaintiff has failed to plead, in even a most basic way, a cause of action for

a violation of a copyright that he personally owns, justifying dismissal of the complaint under Fed. R. Civ. P. 12(b)(6). 18. Further, such dismissal should be with prejudice. As this court noted in Bhari Info. Tech.

Sys. Private, Ltd. v. Sriram, 2013 U.S. Dist. LEXIS 169622, *13 n.2 (D. Md. 2013), “[t]he determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court.” When determining whether to dismiss a claim with prejudice, “courts apply the same standard as if a motion for leave to amend [had] been filed.” Loren Data Corp. v. GXS, Inc. (D. Md. August 30, 2011) case number DKC 10-3474 (internal quotation marks omitted). Accordingly, just as leave to amend should be denied when a Plaintiff has demonstrated bad faith, Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006), a motion to dismiss with prejudice should be granted when bad faith is shown, 180S, INC. v. Gordini USA, Inc., 602 F.Supp.2d 635, 639 (D. Md. 2009). Not only has this court previously found this same Plaintiff to have acted in bad faith,7 but as demonstrated in the Amicus Opp. he has engaged in bad faith in the instant case by attempting to present a forged document in support of his Mot. to Declare KU Served. Therefore, this bad faith Plaintiff should be dismissed and told never to

of the article was ostensibly the achievements of his daughter (Monica Hesse, A Little Surprise For the Prize-Giver, WASHINGTON POST, November 8, 2007 (available at http://www.washingtonpost.com/wpdyn/content/article/2007/11/07/AR2007110702898.html) visited December 7, 2013 and Cara Hedgepeth, Video from local singer Kelsie Kimberlin surpasses 50,000 views on YouTube, BETHESDA GAZETTE, Aug. 28, 2013 (available at http://www.gazette.net/article/20130828/ENTERTAINMENT/ 130829064/1032/video-from-local-singer-kelsie-kimberlin-surpasses-50000-viewson&template=gazette) visited December 15, 2013). 7 See Kimberlin v. Dewalt, 12 F.Supp.2d 487, 494, 495 (D. Md 1998) (stating that Kimberlin’s “settlement offers were not undertaken in good faith” and “that [d]espite his high earnings, [Kimberlin] failed to show any good faith by paying his crime victim”). 7

return with this claim again. CONCLUSION The instant case should be dismissed due to failure to serve the Defendant or Defendants under Fed. R. Civ. P. 4(m). Despite being previously given an extension of time in which to serve the Defendant, the Plaintiff still hasn’t successfully done so, and, therefore, this case should be dismissed for that reason alone. Alternatively, the Plaintiff has also failed to state a claim under Fed. R. Civ. P. 12(b)(6) by failing to claim that he actually, personally owned the copyrighted works with specificity. Further, because the Plaintiff has acted in bad faith, attempting to pass off forged documents as the real thing, that dismissal should be with prejudice.

Friday, February 28, 2014

Respectfully submitted,

Aaron J. Walker, Esq. Amicus Curiae [personal information and verification page redacted]

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