Case 4:19-cv-00711 Document 1 Filed 02/08/19 Page 1 of 6

Marc J. Randazza (CA SBN 269535)

1
Alex Shepard (CA SBN 29058)
2 RANDAZZA LEGAL GROUP, PLLC
2764 Lake Sahara Drive, Suite 109
3 Las Vegas, NV 89117
4 Telephone: 702-420-2001
Fax: 305-437-7662
5 ecf@randazza.com

6 Attorney for Plaintiff

Free Speech Systems LLC
7
8
IN THE UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
10

11
FREE SPEECH SYSTEMS, LLC, a Texas Case №.: _________________________
12 limited liability company,
28 U.S.C. § 2201 COMPLAINT FOR
13 Plaintiff, DECLARATORY RELIEF
14
vs.
15
PETER MENZEL, an individual,
16
17 Defendant.

18 Plaintiff Free Speech Systems, LLC (“FSS”) hereby complains against

19 Defendant Peter Menzel as follows:
20 PARTIES, JURISDICTION, AND VENUE
21 1. Plaintiff FSS is a Texas limited liability company with its principal place
22 of business in Austin, Texas.
23 2. Upon information and belief, Defendant Peter Menzel is an individual
24 residing and working in Napa, California.
25 3. This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331
26 and 1338, as this case arises under the U.S. Copyright Act.
27
28 -1-
Complaint
 Case 4:19-cv-00711 Document 1 Filed 02/08/19 Page 2 of 6

1 4. This Court has personal jurisdiction over Defendant Menzel because

2 he is a resident of this judicial district and regularly conducts business within this
3 judicial district.
4 5. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) & (c).
5 ALLEGATIONS COMMON TO ALL CLAIMS
6 6. Plaintiff FSS is the owner and operator of Infowars, a news and opinion
7 website located on the World Wide Web at <infowars.com> (“Infowars”).
8 7. On or about April 30, 2012, a news article entitled Amazing Photos
9 Show What the World Really Eats (the “Article”) appeared on the Infowars
10 website. (See Anthony Gucciardi, Amazing Photos Show What the World Really

11 Eats, INFOWARS.COM (April 30, 2012), available at <infowars.com/amazing-photos-

12 show-what-the-world-really-eats>, attached hereto as Exhibit 1.)
13 8. The Article contained descriptions, insights, and commentary
14 regarding the average family’s weekly diet in the United States, Mexico, Canada,
15 Italy, China, Chad, Japan, Germany, and Great Britain. Each country’s mention
16 was associated with a photograph of a family from that country and a week’s
17 worth of food.

18 9. The Article covered and promoted a book entitled Hungry Planet:

19 What the World Really Eats, indicated that the images were from that book, and
20 provided a hyperlink where Infowars users could purchase the book from
21 Amazon.
22 10. While the images referenced in the Article appeared to have been
23 displayed on the Infowars website, they were not stored on servers owned or
24 controlled by Plaintiff FSS. Rather, the Infowars website provided links that directed
25 its users’ browsers to a third party’s computer where the images had already been
26 uploaded and stored, a process known as in-line hyperlinking. Accordingly, FSS
27
28 -2-
Complaint
 Case 4:19-cv-00711 Document 1 Filed 02/08/19 Page 3 of 6

1 never transmitted, copied, distributed, displayed, or stored any of the images

2 associated with the Article.
3 11. From April 30, 2012 until December 26, 2018, the Article remained on
4 the Infowars site without incident or controversy. However, on or about December
5 26, 2018, Plaintiff FSS received a demand letter from counsel for Defendant Peter
6 Menzel. (See Demand Letter dated December 26, 2018, attached hereto as
7 Exhibit 2.)
8 12. The demand letter alleged that Mr. Menzel was the photographer for
9 each of the seven photographs in the Article and stated that FSS’s “publication
10 of Mr. Menzel’s content without his permission is a violation of the [United States]

11 Copyright Act.” (See id.)

12 13. On January 10, 2019, counsel for FSS responded, demonstrating that
13 the allegations of Mr. Menzel’s demand letter were meritless. (See Response Letter
14 dated January 10, 2019, attached hereto as Exhibit 3.)
15 14. Specifically, FSS’s response stated that the three-year statute of
16 limitations on copyright claims barred any claims that Mr. Menzel might have had;
17 that FSS’s use of the photographs was a fair use; and that FSS’s use of the

18 photographs did not affect the market value of the photographs. (See id.)
19 15. FSS’s response additionally indicated that the Article attributed the
20 photographs to the Hungry Planet book in which they appeared and included a
21 hyperlink to purchase the book at Amazon. (See id.)
22 16. The response finally demonstrated that myriad other news outlets
23 had also covered the Hungry Planet book, including Time Magazine, NPR, the
24 Daily Mail, ActivistPost, FStoppers, TruthTheory, Wake-UpWorld, and LipstickAlley.
25 (See id.) In fact, Time Magazine’s coverage of the book included twenty-seven
26 photographs from the book.
27
28 -3-
Complaint
 Case 4:19-cv-00711 Document 1 Filed 02/08/19 Page 4 of 6

1 17. On January 16, 2019, Mr. Menzel’s counsel responded to FSS’s

2 January 10, 2019 letter, stating that Mr. Menzel “disagree[d] with [FSS’s] analysis”
3 and would “proceed to litigation.” (See Email Correspondence, attached hereto
4 as Exhibit 4.)
5 18. After the parties’ lawyers exchanged additional emails, Mr. Menzel’s
6 counsel sent a second demand letter on January 22, 2019. (See Demand Letter
7 dated January 22, 2019, attached hereto as Exhibit 5.) That letter again explicitly
8 accused FSS of copyright infringement, informed FSS that Mr. Menzel was going
9 to file suit against it and demanded that FSS pay $175,000 to Mr. Menzel for the
10 alleged breach.

11 CLAIMS FOR RELIEF

12 FIRST CLAIM FOR RELIEF
(Declaratory Relief – 28 U.S.C. § 2201)
13
19. Plaintiff FSS incorporates each of the preceding paragraphs as if set
14
forth fully herein.
15
20. Defendant Menzel has accused Plaintiff FSS of copyright
16
infringement for publishing the photographs accompanying the Article and has
17
expressly informed Plaintiff FSS that he was going to file a lawsuit against it.
18
21. Therefore, a case of actual controversy exists between Plaintiff FSS
19
and Defendant Menzel regarding whether FSS's actions infringed upon the
20
intellectual property rights of Mr. Menzel.
21
22. Plaintiff FSS reasonably believes that its use of Mr. Menzel’s
22
photographs was and is lawful under the U.S. Copyright Act.
23
23. In the absence of a declaration from the Court, Mr. Menzel will file
24
affirmative claims against FSS for copyright infringement.
25
26
27
28 -4-
Complaint
 Case 4:19-cv-00711 Document 1 Filed 02/08/19 Page 5 of 6

1 24. Plaintiff FSS seeks a declaration of its rights from this Court that it has
2 not directly, contributorily, or vicariously infringed upon Defendant Menzel’s
3 copyrights for myriad reasons, including but not limited to:
4 a. FSS’s servers did not host the photographs. Rather, the servers of a
5 third party had already been hosting them, and FSS merely
6 directed users’ browsers to them via in-line hyperlinking;
7 b. FSS engaged in a fair use of Mr. Menzel’s photographs; and
8 c. The three-year statute of limitations for asserting a claim for
9 copyright infringement had passed well before Mr. Menzel sent his
10 demand letter to FSS.

11 PRAYER FOR RELIEF

12 WHEREFORE, Plaintiff FSS requests judgment against Defendant Peter
13 Menzel as follows:
14 A. A declaration from this Court, pursuant to 28 U.S.C. § 2201, that
15 Plaintiff’s use of Defendant’s photographs was and is lawful and proper and does
16 not infringe upon any right Defendant Menzel may claim in the photographs;
17 B. A declaration from the Court that the three-year statute of limitations

18 for filing copyright actions has expired in the instant matter;

19 C. An award of FSS’s reasonable costs and expenses, including its
20 reasonable attorneys’ fees pursuant to 17 U.S.C. § 505; and
21 D. For such other and further relief as the Court deems just and proper.
22
23
24
25
26
27
28 -5-
Complaint
 Case 4:19-cv-00711 Document 1 Filed 02/08/19 Page 6 of 6

Dated: February 8, 2019 Respectfully submitted,

1
/s/ Alex J. Shepard
2 Marc J. Randazza (CA SBN 269535)
3 Alex J. Shepard (CA SBN 295058)

4 RANDAZZA LEGAL GROUP, PLLC

2764 Lake Sahara Drive, Suite 109
5
Las Vegas, NV 89117
6 Telephone: 702-420-2001
Fax: 305-437-7662
7 ecf@randazza.com
8 Attorney for Plaintiff
Free Speech Systems LLC
9
10

11
12
13
14
15
16
17

18
19
20
21
22
23
24
25
26
27
28 -6-
Complaint