Heralds of the Gospel file Complaint in Federal Court to stop incriminating videos. Alfonso Beccar Varela Answers.

On June 19 2017, Heralds of the Gospel Foundation, Inc and Associacao Arautos do Evangelho do Brasil, filed a complaint in Federal Court, Southern District of Florida, against Alfonso Beccar Varela and two other unknown defendants. A copy of that complaint can be seen by clicking below:

https://drive.google.com/file/d/0B1gO2vsvJ8RjYzZZZGdZS21Kanc/view?usp=sharing

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Below the Answer to the complaint, filed by Alfonso Beccar Varela who is conducting a por se defense:

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 17-cv-22281  / CIV - COOKE/GOODMAN

                                                                                                        

           

HERALDS OF THE GOSPEL

FOUNDATION, INC, et al.

Plaintiffs,                                                                                                                                

vs.

ALFONSO BECCAR VARELA, et al.

Defendant

                                                                   

ANSWER TO THE COMPLAINT

I, Alfonso Beccar Varela, defendant in the above styled cause, in answering the allegations of the Complaint on file herein, affirm, deny and allege as follows:

ANSWER TO THE ALLEGATIONS OF THE COMPLAINT

I deny all allegations in the Complaint, except those specifically affirmed.

AS TO THE ALLEGATIONS CONCERNING THE NATURE OF THE COMPLAINT

1.      Answering the allegations in Paragraph 1:  I deny that I acquired illegally any videos or images belonging to the plaintiff and that are the subject of this Complaint that are enclosed as Exhibit A (the “Videos”). They were provided to me voluntarily by sources that I had no reason to suspect that were not in legitimate possession of this material.

2.      I deny that the Videos constitute “research, development and performance of healing prayers and healing rituals” as it is clear from its content. 

3.      I lack knowledge or information sufficient to form a belief about the truth of the allegation that this supposed research and development was performed in a private setting. The presence of several dozen people in each of these Videos would seem to indicate otherwise. 

4.      I lack knowledge or information sufficient to form a belief about the truth of the allegation that a contractual obligation existed at the time of the videos were delivered to me. As shown in Exhibit B, the message that enclosed the first release doesn’t mention anything about confidentiality or about copyright protection. 

5.      I deny that I engaged in a calculated and relentless attempt to damage the Plaintiff’s goodwill and reputation. It is strange that the Plaintiff states that the mere disclosure of a supposed “prayer” or the discussion of a committee looking to “improve the efficiency of the services that the Association provides to the Catholic Church” or the “mental health” of the persons involved in the cases that were discussed, could result in an “irreparable damage” to their reputation. As it will be clear from the content of the Videos, these are not “trade secrets” or discussions to “assist in the potential development of a unique protocol for treating these cases, in part, through the use of healing prayers and/or healing rituals”. They reveal beliefs held by the organization that run counter to their public image. For example, how can it be considered a “healing ritual” statements expressing a wish for the death of the Pope?

6.      I don’t deny that I made available these videos to the public but it was done with the expressed intention of denouncing the true nature of this organization that recruits adepts and solicits donations under the pretense of being just a devout Catholic association but that in fact has another concealed face.

7.      The so called "healing rituals" revealed in the videos are highly questionable "exorcisms" carried in quite a free manner, where Mr Joao Clá "exorcises" a young girl belonging to the female branch of the Heralds, sometimes hitting her with his own hands, while screaming words of malediction. All the while his helpers smile and laugh, and the "devil" utters scandalous words favorable to Joao Clá. The local Bishop of Bragança Paulista (where these "exorcisms" take place) indicated to the Heralds themselves that no one (including them) had permission to conduct exorcisms in his diocese (Exhibit C).

  

8.      Answering the allegations in Paragraph 2:  I lack knowledge or information sufficient to form a belief about the truth of the allegation that the Plaintiff has suffered immediate and irreparable injury. I deny that the publication of the Videos was in violation of the copyright laws and treaties signed by the United States. In any case the publication of the videos constitutes “fair use” of the material under Section 107 of the Copyright Act.

9.      I lack knowledge or information sufficient to form a belief about the truth of the allegation that there was a breach of contract for violation of one or more confidentiality agreements. In any case I deny that I was ever part to such agreements with the Heralds of the Gospel.

10.  As I lack knowledge of the confidentiality agreements at the moment that I received the videos I deny that I tortuously interfered with them.

11.  I deny that the Videos contain any trade secrets as it is essential to the definition of trade secrets that they describe a process to create something of economic value.

AS TO THE ALLEGATIONS CONCERNING THE JURISDICTION AND VENUE

12. Answering the allegations in Paragraph 7:  I deny that the subject matter of this Claim is about copyright infringement or violation of trade secrets. In truth is an attempt to silence critics to the organization that have raised the alarm to the Catholic Authorities and to the Public about matters of religious relevance.

13. Answering the allegations in Paragraph 8:  I affirm the fact that the parties have diverse citizenship, but I deny that there were any damages to the Plaintiffs, let alone $75,000 or more. As we will state later, the fact that these are works not registered in the United States prevent the Plaintiffs from even claiming attorney fees and statutory damages.

14. Answering the allegations in Paragraph 9:  I deny the claim contained in paragraph 9.

15. Answering the allegations in Paragraph 10:  I deny that the Court has personal jurisdiction over the me as 28 U.S. Code § 1400 establishes that: “Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.” I deny that I was present in Florida at any time during the past 10 years. I deny that I conducted any effort to disseminate the Videos specifically in the State of Florida.

16. Answering the allegations in Paragraph 11:  For reasons that I explain below, I deny that the venue is appropriate in the Southern District of Florida.

CONCERNING GENERAL ALLEGATIONS

17. Answering the allegations in Paragraph 12:  I affirm the statements contained in paragraph 12.

18. Answering the allegations in Paragraph 13: I deny that the description of the activities of the members is accurate, because it does not make reference to those revealed in the Videos. Defendant does not deny that the priests that are members of the Heralds of the Gospel perform acts of charity by praying the Mass, attending confessions, helping the sick, preaching the faith and other common activities to all priests. Defendant has pointed to those less common activities that the Heralds unduly call "Trade Secrets" or "Private Rituals".

19. Answering the allegations in Paragraph 14: I lack knowledge or information sufficient to form a belief about the truth of the allegation that the communities in Miami and Greater Houston areas are familiar with all of the activities of the Heralds, particularly those revealed in the Videos. The Herald's own allegation about losing membership because of the disclosing of the Videos proves that this "familiarity" is limited to certain activities only.

20.  Answering the allegations in Paragraph 15:  I affirm the statements contained in paragraph 15.

21. Answering the allegations in Paragraph 16:  I affirm the statement regarding the charitable and volunteer work of the Heralds. But as supported by the Videos, I deny that this charitable and volunteer work is all that is to be said about the organization, which in fact has other goals, such as the cult to the personality of the Founders (João Clá Dias and Plinio Corrêa de Oliveira) and the expectation of a complete takeover of the world with Joao Cla Dias as the “eternal” Pontiff and the ruler of all things spiritual and temporal.  This may sound strange, but it is only a matter of watching the videos to support these allegations.

22. Answering the allegations in Paragraph 17: I lack knowledge or information sufficient to form a belief about the number of supporters that the Heralds have either in Florida, in the United States or in the rest of the World. I lack knowledge or information sufficient to form a belief about the number of donors in the state of Florida, whether they are "thousands" or not. I lack knowledge or information sufficient to form a belief about the truth of the allegation that the funds obtained both by the Heralds and its civil entity Mary Queen "are used to fund their work in the community" (meaning the community where these donors live, that is Florida). On the contrary, I have strong reasons to suspect that a portion of those funds are used to fund activities outside the Florida community, including those recorded in the videos. 

23. Answering the allegations in Paragraph 18: I deny that the videos were created by the Association. As stated in paragraph 19 of the Complaint, Plaintiff states that the Videos were created not by the Association but by Fr. Jonas Venero Sananes, who later assigned the rights to the Association.   

24. Answering the allegations in Paragraph 19: I lack knowledge or information sufficient to form a belief about the "private and confidential" character of the events recorded in the Videos. On the contrary, the large number of people present in the events recorded, most of them priests, members of an officially approved institution, cast strong doubts on the truth of the allegation about their "privacy" and "confidentiality".  

25. Answering the allegations in Paragraphs 20 and 21: I deny all the allegations contained in Paragraphs 20 and 21. From simply watching the Videos it is clear that these paragraphs do not describe the discussions correctly. The words “mental illness” are never even pronounced or implied. The Videos show that there was not an appropriate environment even to raise the idea of mental illness as the possible origin of the fantastic ramblings heard in the "Ritual Performing" videos, or read in the "Committee Meeting" Videos. There is never a discussion about the development of any type of treatment or "unique" protocol for these cases. In fact, the word "unique" is used with the failed purpose of trying to fit the recorded meetings into the definition of a "trade secret", while, by simply watching them, it is clear that there is no discussion of any protocol, whether of a unique nature, or of a common one. On the other hand, it is widely known that the "common" catholic protocol in cases of suspected devilish possession includes a consultation with the local Bishop, who must start by investigating if it is a case of mental illness before authorizing any exorcism. The Plaintiffs do not explain how they establish if they are witnessing a mental illness case or, on the contrary, whether their rituals actually cause mental disorders on their subjects.  No discussion about the development of “healing rituals” is ever undertaken. Nothing in the videos support the statement that the goals are to contribute to the “spiritual wellbeing of persons seeking help and guidance” and even less to “improve the efficiency of the services that the Association provides to the Catholic Church” (unless wishing the death of the Pope meets that standard). It is very clear that the main purpose of the events recorded in the videos is to satisfy the curiosity of what the supposed "devil" is willing to say about the Heralds themselves and about their leaders. 

26. I enclose as Exhibit D a description of the Videos done by Andrea Tornielli, a well-known author of the Vatican Insider blog that belongs to the prestigious Italian newspaper “La Stampa”. Here are some extracts that will illustrate my point: 

a.      From afterlife, Plinio Corrêa de Oliveira, while sitting next to the Virgin Mary, is also regulating climate change and working in favor of Pope Francis' soon death. Absurdities supported by the leaders of the Heralds of the Gospel. It was evident to many that, at the origin of the Vatican's decision to conduct a thorough investigation on the Herald's there were more than solid reasons.

[…]

b.      Among the reasons for the investigation is what the sociologist Massimo Introvigne calls "a sort of secret and extravagant cult to a kind of trinity composed of Plinio Correa de Oliveira, his mother Donna Lucilia, and Monsignor Clá Días himself."

[…]

c.       What makes things even more complicated are some recently recorded videos, from which emerges that Scognamiglio Clá Dias, the Herald's founder, and his priests use self-made exorcist rituals, believing ineffective those of the Catholic Church approved by the Holy See. And not only: the video also confirms the extravagant nature of Dr. Plinio and his mother Lucilia’s cult, as well as the fact that the now former superior of the Heralds gives credit to delusional theories, convincing his priests to do likewise. But who is the source of these pseudo-revelations? The devil himself, during one of the frequent exorcisms that the Heralds of the Gospel’s priests perform using formulas that do not have ecclesiastical approval. To prove it is a video that you can view here.  

[...]

d.      The video – which was certainly not "stolen" given the steadiness of the image and the fact that at the beginning there is footage showing the whole room - shows Scognamiglio Clá Dias while talking to about sixty of his priests. The video was shot during a recent papal journey and most certainly dates after February 2016, as one of the participants cites Francis' pilgrimage to Mexico. Bishop Clá hands over to Father Beccari, who is standing next to him, some sheets of paper containing the transcript of a question-and-answer dialogue between a priest and the devil during an exorcism. The content of this delirious speech is read without the superior or the participants objecting anything. Indeed, everything is endorsed, and it is also understood, from a priest's request to the devil, that all the questions were asked "by Bishop Clá's order" and serve only "to confirm" what the Heralds already believe.  

[…]

e.       The priest practices the exorcism on the possessed person, who is never named, with the formula: "May the curse of Monsignor João fall on your head!" The devil reveals that "Our Lady is working for the members of the group (the Heralds, e.d) to commit themselves to serve Monsignor João, renouncing their will to do that of the Monsignor." Plinio Correa "sits on the right of the Virgin, on a throne and has all the power. Donna Lucilia stands on his left, just a little further down and collaborates with everything that her son Plinio does." Plinio Correa holds "control over the world because he is the order of the universe." All the present priests cry excited: "Awesome! Impressive, "while the Founding Monsignor nods, confirming. The devil also reveals that Donna Lucilia usually talks from afterlife with Monsignor João, who also nods in agreement. 

[…]

f.        During the exorcism, the alleged devil, titillated by the priest's curiosity answers to questions asked on behalf of Monsignor João, delivering various "revelations". The devil says that "Plinio is breaking people's computers so that they can’t go on the Internet." Moreover, Correa de Oliveira, sitting on the throne to the right of the Virgin Mary, is also "changing the climate." He would therefore be the author of the "climate change, and the increase of heat. It is Plinio who does everything" assures the exorcised demon and then warns: "A meteorite will fall into the sea in front of the United States, in the Atlantic Ocean, and North America will disappear." Monsignor João listens delighted. 

[…]

g.      But the utmost enthusiasm of Monsignor João and his fascinated priestly audience comes when the alleged devil speaks of the current Pope. "The Vatican? It's mine, mine! (The Pope, e.d) does whatever I want, he's stupid!" Everyone cheerfully laughs and nods in agreement. "He obeys me in everything," the devil continues, "He is my glory, he is willing to do everything for me. He serves me. " To confirm the authority of the source and thus the pseudo-revelations, Monsignor João comments: "This is the most capable devil ever seen among us." The enjoyment of the Herald of the Gospel's priests continues as the exorcised devil explains that "the Pope will die falling," but at the Vatican, not during a journey as hoped by the participants, for at that time Francis was on one of his pilgrimages. The devil explains that "Dr. Plinio is encouraging the death of the Pope," that is to try to shorten his life. There is also talk of "the next pope being good" and that the devil is working to "kill the man whom God calls, Cardinal Rodé, the next pope." The Slovene cardinal Franc Rodé, formerly Prefect of the Congregation for Religious, is considered a friend of the Heralds of the Gospel. Finally, it is also said that the devil has no power over the Heralds of the Gospel because they are consecrated to Plinio Correa de Oliveira: "Plans depend on God and Dr. Plinio."

This story has been picked up by other media organizations around the world. I enclose a sample of some news articles as Exhibit E

27. As we can see, the Videos consist of a series of bizarre statements allegedly pronounced by “possessed” individuals where the supposed “demons” praise the founders of the Heralds (Joao Cla Dias and Dr. Plinio Corrêa de Oliveira) and provide supposed predictions about future events, including the death of the Pope  (this prediction is met with cries of joy by the present), the future role of Joao Cla Dias as new “eternal” Pope and ruler of the World and the disappearance of the United States, just to mention a few. The utterly bizarre nature of these encounters explains the desperate effort of the Heralds to silence me and make the Videos disappear from the public eye.  It is very likely that most of the “thousands” of donors knew about these beliefs. It is thus fair to ask ourselves if the donations obtained prior to the release of these videos were not done under false pretenses.

28. Answering the allegations in Paragraph 22: I deny the accuracy of the allegation of Paragraph 22. The five videos of the “Committee Meetings” show that it is not true that the "types of conditions" discussed in them include the possibility of mental illnesses. For the same reason, I deny that the four videos depict the "types of conditions" described by Plaintiffs. I lack knowledge or information sufficient to form a belief about the identity of the person that recorded those four videos.   

29. Answering the allegations in Paragraph 23: I affirm the first part of the allegation contained in Paragraph 23 as of the country of the recording. I lack knowledge or information sufficient to form a belief about the nature of the audience, about the copyright and about the validity of the assignment. I lack knowledge or information sufficient to form a belief about the veracity of the statement about the supposed "private setting" and about the supposed "limited number" of members being present. On the contrary, the four videos show large gatherings in vast spaces being filmed from different angles, all of them circumstances that do not fit well with privacy.

    

30. Answering the allegations in Paragraph 24: I lack knowledge or information sufficient to form a belief about the validity of the copyright of the Videos under Brazilian law. It is good to note that no registration either in Brazil or in the United States was enclosed to the Complaint.  Should the Heralds not follow the local Brazilian laws for copyright protection they would lack standing to sue in the US. In any case we must stress that even if it was registered in Brazil but not registered in the US, unregistered foreign works are not eligible for statutory damages and attorney's fees under 17 USC §4 12. 2. Section (1) of the Berne Convention protects the "production" of a "Literary and Artistic Work". When the matter protected are recordings it is important to distinguish between the recordings themselves and the matters recorded. A journalist video recording the speech of a politician in a convention, or a street demonstration or a ballet in a theater owns his own work of recording, even more if afterwards edits it for better viewing. But this journalist did not have any part in the production of the recorded events, and therefore does not "own" the copyright of the speech of the politician or of the street demonstration or even less the ballet in the theater. In the particular case of the nine Videos, Plaintiffs deliberately ignore the difference between recordings and events recorded, because otherwise they would have to admit that the supposed "exorcisms" are artistic productions, with some actors playing the role of "possessed" persons and others playing the role of "exorcists". One can imagine this "production" involving rehearsals, amendments and improvements, as is normal in the performing arts. Unfortunately for the Heralds, they do not claim such thing. According to their statements in paragraph 19 and 22, the "production" in all of the nine videos was limited to installing a video camera in order to record supposedly "non-produced" events. According to this logic the voice heard and the statements read in the videos belong to a third party that is the real "owner" of the whole affair. This fact demonstrates that by divulging these videos Defendant acted for the benefit of the public in general and of the Heralds public in particular. These were acts of journalism of the most loyal and necessary kind. Defendant could not cooperate in concealing these events, once an internal source decided that he/she had enough and sent the videos. Going back to the example of the journalist, let us imagine the images recorded show a politician saying things that may substantially alter the opinion his followers have on him. The non-produced matter recorded supersedes the "produced" recording.

               

31. Answering the allegations in Paragraph 25: I affirm the allegation of Paragraph 25.

32. Answering the allegations in Paragraph 26: As stated above, I lack knowledge or information sufficient to form a belief about the validity of the copyright of the Videos under Brazilian law.

33. Answering the allegations in Paragraph 27: I lack knowledge or information sufficient to form a belief about the veracity of the statements made in Paragraph 27. Anyway, these statements fail to demonstrate that these videos were "limited". The videos "depicting the administration of the (supposed) Private Rituals" show quite large gatherings; the Meetings to read the "testimonials" of the Rituals involve an acknowledged number of 60 priests; the dissemination to "few" other members across 78 countries adds another number of people; the Heralds also acknowledge to be at a loss to find out who provided the videos to the Defendant. None of these facts are typical of a "limited" event.  

34. Answering the allegations in Paragraph 28: I lack knowledge or information sufficient to form a belief about the veracity of the statements made in Paragraph 28.

35. Answering the allegations in Paragraphs 29 and 30: I lack knowledge or information sufficient to form a belief about the veracity of the statements made in Paragraph 29 and 30. They acknowledge that the Videos were shown to people not party to the NDA, but under a supposed “general obligation of secrecy” regarding activities within the House. It is possible then that the person who provided the Videos was actually under the alleged “general obligation of secrecy” but not a signer of the NDA.  On a side note, one wonders why an organization that portrays itself as dedicated to pious and charitable work would require a “general obligation of secrecy”. Where does this “general obligation” arise from? This is not a typical standard for organizations that survive from soliciting donations from the public.  The only explanation that comes to mind is that they are conscious that there is something that needs to be hidden under the veil of secrecy.  And if they do, it is in the public interest to uncover the aspects that can be determinant factors for the decisions of “thousands of donors” and potential recruits.

36. Answering the allegations in Paragraphs 31 and 32: I partially affirm the statement contained in Paragraphs 31 and 32. I did publish the Videos that were provided to me by people that I didn’t have any reason to believe that were not in legitimate possession of them. In any case, I reaffirm the public interest of the publication as it concerns facts that can uncover activities that while not illicit per se, can be important to paint an accurate picture of the Heralds facing their donors and potential recruits. I took extreme care of not altering the content so it could not be construed as an effort to distort reality and to paint them in an unnecessary negative light. I let the Videos speak for themselves. From their own admission, I was not mistaken about the importance of the Videos: Upon watching them, the Vatican didn’t think that the meetings were efforts to “improve the efficiency of the services that the Association provides to the Catholic Church” or that were internal consultations to cater to the mental and spiritual wellbeing of their flock. If the description provided by the Plaintiff of the Videos is accurate, why would the Vatican be so concerned as to open an investigation (a fact that is highly unusual)? Wouldn’t the Church authorities be pleased and do the opposite of starting an investigation?

37. I affirm what is transcribed in the paragraph, except that the word "comprometedor" does not simply mean "sensitive", as if it was just a matter of importance; the word also refers to actions that are not right and that once known may "compromise" the doer. The real reason that the Heralds have initiated this Complaint is not to protect their copyrights or trade secrets. It is because they want to silence internal and external opposition and suppress the truth.

38. Answering the allegations in Paragraph 33: I lack knowledge or information sufficient to form a belief about the fact that NDAs were signed by all people with access to the Videos or that they were signed upon delivery of the same. I deny that the Videos were posted unlawfully.

39. Answering the allegations in Paragraph 34: I partially affirm the statements in Paragraph 34 as to the veracity of the attempts done by the Plaintiff of removing the Videos by submitting take down notices in accordance with DMCA. I lack knowledge or information sufficient to form a belief about who the operator of the video equipment was or his place of residence or about the validity of the copyright and assignment.

40. Answering the allegations in Paragraphs 35 to 41: I partially affirm the statements contained in Paragraphs 35 to 41. I deny efforts to harm the Plaintiff or that the Videos are private, or that they are "infringing", or that they are "illegal". I deny inciting others to carry out any unlawful actions.

41. Answering the allegations in Paragraph 42: I deny that I want to harm the Plaintiffs, but on the contrary, give an opportunity to many of the excellent people that have donated to them or joined their ranks to put pressure on the “small group” (by their own admission) that leads the organization, to abandon the bizarre beliefs depicted in the Videos and return to the stated goals that are the ones that attracted them in the first place. I think that the Vatican, (who is the authority that provided the “seal of approval” to the organization as a Catholic group) has the right to know the truth and hopefully intervene to redress the situation. I am a Catholic and I believe that these practices harm the image of the whole Catholic Church. I believe that it is our duty as Catholics to be vigilant and protect our Religion from “false prophets” (in this case quite literally. 

42. Answering the allegations in Paragraph 43: I emphatically deny the allegation contained in Paragraph 43.  In their effort to discredit the effort undertaken by me and others, they are mischaracterizing an exchange of emails that I had around the date that is mentioned with a Spanish attorney (Mr. Millan).  In response to a not too subtle threat from Mr. Millan that I should “think of my family”, I responded with a sarcastic comment that the best way to think of my family would be if I had money. This was not a demand for payment and I did not have any intention to collect any amount. Proof of that is the fact that Mr. Millan replied by trying to pursue this avenue and attempted to start a negotiation by offering to explore the possibility of some kind of payment.  I didn’t even respond to this, as it was not in my mind trying to monetize my efforts. I never had an economic motivation for the publishing of the Videos. The instance that is mentioned was the only occasion that this type of comment was ever made and it is clear from the context that I was only trying to make a point by being sarcastic. Should I had been seriously pursuing an amount of money, wouldn’t I had negotiated? Insisted on the supposed demand? Looked for alternative channels to obtain benefits?

43. That said, it is clear that all this matter has taken a heavy toll as I am dedicating a lot of time which detracts from my other activities and puts me in a dire financial risk as this Complaint is an example and proof.  Although I have not until now seek any financial benefits from the Plaintiffs, I will require to be made whole for their efforts to silence and discredit as they are generating irreparable damages, moral distress and anguish.

44. Answering the allegations in Paragraphs 44 and 45: I deny that my motivation is "purely financial" and that I "undoubtedly profit personally". I did seek help to sustain the effort as described therein. If soliciting donations is a sign of financial interest, shouldn’t this standard be also applied to the Heralds, which do a much larger and sustained effort in that regard? Obviously, this was not an effort to benefit financially, but simply to cover some operational costs. I was extremely transparent with the use of the proceeds of the donations received (which amounted to a few hundred dollars) by publishing a detailed explanation in the blog a few days later of how much money had been received and how it was used (Exhibit F). This is more than the Heralds can say about their transparency with the substantial amounts that they receive in donations. I deny that their description of costs is accurate.

45. Answering the allegations in Paragraph 46: I deny the allegation that the Plaintiffs suffered any harm as a consequence of my actions. In particular it is interesting to see that they consider a Vatican investigation as an irreparable harm. One would say that if the Heralds didn’t do anything wrong, they should welcome such investigation to clear any misunderstanding that the Videos may have caused. Certainly, I see it as a good outcome to my efforts.  I lack knowledge or information sufficient to form a belief about the fact that they lost thousands of donors and the support of their own members. But should this be the case, I cannot help to think that if when the people learnt the contents of the Videos changed their minds about the Heralds, it is proof that the information contained therein was important to be known. Note that the Heralds don’t allege anywhere in this Complaint (or anywhere else to my knowledge) that the videos are false, or that they were unduly manipulated to misrepresent their content. Thus, it is clear that are not my actions the ones that caused the irreparable damages that they allege, but their own words and beliefs.

AS TO THE ALLEGATIONS CONCERNING MISSAPROPRIATION OF TRADE SECRETS UNDER FEDERAL LAW

46.  Answering the allegation in Paragraphs 49, 50 and 51: I deny the allegations contained in these paragraphs. In particular, I deny that I obtained access to the Videos by improper means. I deny that what the Plaintiff describes as “private rituals” constitute “Trade Secret Information”. The Uniform Trade Secrets Act ("UTSA") defines a trade secret as:

a.      information, including a formula, pattern, compilation, program, device, method, technique, or process,

b.      that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and

c.       is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

47.  The Videos don’t contain any formula, pattern, compilation, program, device, method, technique or process. They don’t have independent economic value, actual or potential. The item that could be applicable is the obvious efforts that the Heralds are undertaking to keep them secret. But not every “secret” is a “trade secret”.

48.  Answering the allegations in Paragraph 52: I deny that what I have disseminated constitute “trade secrets” as defined by the law.

49.  Answering the allegations in Paragraph 53: I deny that I am misappropriating anything and that in any case I am drawing any advantage from it. Far from it, as this Complaint illustrates, the opposite of “drawing advantage” is closer to the truth.

50.  Answering the allegations in Paragraph 54: I deny violating the Defend Trade Secrets Act of 2016, 18 U.S.C. §1836(b)(1).

51.  Answering the allegations in Paragraph 55: I deny that any of my actions have resulted in “substantial damages” to the Plaintiff.

52.  Answering the allegations in Paragraphs 56 to 58: I deny all allegations contained in these Paragraphs.

AS TO THE ALLEGATIONS CONCERNING MISSAPROPRIATION OF TRADE SECRETS UNDER FLORIDA LAW

53.  Answering the allegations in Paragraphs 59 to 69: I deny all allegations contained in this Paragraphs in similar terms to the allegations done about the Federal “Defend of Trade Secrets Act” in paragraphs 48 to 58.

AS TO THE ALLEGATIONS CONCERNING COPYRIGHT INFRINGEMENT

54.  Answering the allegations on Paragraphs 70 to 79: I deny all statements contained in these paragraphs, unless specifically affirmed herein. It is interesting to note that when some of the videos were published in YouTube and Vimeo, multiple DMCA takedown notices were sent to those web companies by multiple parties. Based on those DMCA takedown notices the defendant had no means to establish with any certainty if there was a correct claimant of the copyright (Exhibit G). In principle, nobody owns something that many people claim. Furthermore:

First Amendment Protection

55.  In Bartnicki v. Vopper, 532 US 514 - Supreme Court 2001 was confronted with a similar situation and they stated: “The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know—or at least had reason to know—that the interception *518 was unlawful. Accordingly, these cases present a conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech. The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment's application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment.”

56.  As I stated above, I deny that the videos were obtained unlawfully by the person that gave them to me. Even if were true that DOE acted unlawfully, I didn’t have or couldn’t have no knowledge of that fact. Furthermore, in any case, even if that would have been the case (which I deny) I would still fall under the protection of the First Amendment.  As proven by the effects of its dissemination the matter at hand is important as a public issue.  By the Plaintiff’s admission, the publications of the Videos have triggered an inquiry from the Vatican and was regarded as important information by “thousands of donors” and by their “own members” in many countries.  Thus, we clearly fall within the protection of the First Amendment as determined by the Supreme Court.

Fair Use

57. The Copyright Act establishes four criteria to establish fair use:

a.      the purpose and character of the use for non-profit educational purposes: As established above, I had no profit motivation.  Furthermore, the publication of the videos was transformative because it was done within a context of analysis of the Plaintiff’s activities with the express purpose to inform the public about the true nature of the Heralds of the Gospel as this would be relevant information for the people considering making donations of time or money;

b.      The nature of the work: As stated in paragraph 30 above, the nature of the Videos is not what the Plaintiff claims. The law “recognizes that there is a hierarchy of copyright protection in which original creative works are afforded greater protections than derivative works or factual compilations” Suntrust, 268 F3d at 1271. “In evaluating this factor, courts consider (1) whether the work has been previously published and (2) whether the work is primarily creative or factual. See Harper & Row Publishers Inc. v. Nations Enters, 471 US 539, 563-64, 105 S. Ct. 2218, 2232 (1985). In this case the work had not been previously published, and it does not constitute creative work, as it is just the recording of a regular meeting where some reports are read and some comments are exchanged without any particularly creative effort.

c.       The amount and substantiality of the portion used in relation to the copyrighted work as a whole: As stated by the 11th Circuit (Katz v. Google Inc., (11th Cir. 2015) “Thought ten blog posts reproduced the Photo in its entirety and without alteration, to copy any less of the image “would have made the picture useless to [Chevaldina’s] story” that Katz is a predatory commercial landlord”. See Nunez v. Caribbean Int’l News Corp., 235 F3d 18, 24 (1st Cir. 2000).  In the same fashion, the reproduction of anything less than the entirety of the Video would have left the door open to accusations that the extracts were “taken out of context” and that they didn’t convey the adequate meaning of what the Heralds believed. Thus, providing full context was essential to substantiate the point of the stories: that the Heralds of the Gospel harbor beliefs that are not compatible with their carefully maintained public image.  Besides, the Plaintiffs have acknowledged that the videos are just a small sample of their work as a whole. They have admitted that the "healing prayers" and "private rituals" of the four videos are commonly performed and that the Committee Meetings of the five videos are regularly held. They are also concerned because defendant reported having many more videos of the same "work". All of those "rituals" and "meetings" are also "copyrighted" matter, whether recorded or not. The nine videos disclosed therefore meet the "portion" standard for "Fair Use".     

d.      The effect on the potential market for or value of the copyrighted work: In this case the law seeks to preserve the potential economic value of the works for the benefit of the copyright holder. As it is clear through this Complaint, the Plaintiff does not intend to make money from the publication of the Videos. On the contrary, they are going at great lengths to suppress them. Thus, the publication doesn’t affect the economic value because they were never meant for to be sold to anyone.

The Videos are not registered in the US

58.  As stated above, I lack knowledge or information sufficient to form a belief about the protection of the Videos under Brazilian law.  In any case, unregistered Berne Convention works are not eligible for statutory damages and attorneys' fees under 17 USC §4 12. 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, §7.16(c)(1), 7-183 (2006) (the loss of remedies under Section 412 due to failure to register is applicable to works of foreign origin as well as to domestic works). (Ray Dowd at “Copyright Litigation Blog”, Saturday, December 01, 2007).

59.  This means that the only possible claims available to the Plaintiff is to (U.S. Code › Title 17 › Chapter 5 › § 504) are “the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection”.  Since I didn’t have any profits from the reproduction of the Videos this avenue is also closed as a potential remedy.

AS TO THE ALLEGATIONS CONCERNING BREACH OF CONFIDENTIALITY AGREEMENT

60.  Answering the allegations in Paragraphs 80 to 84: The allegations contained herein are against DOE Defendants and don’t affect me directly. In any case, I lack knowledge or information sufficient to form a belief about the truth of any of the statements.

AS TO THE ALLEGATIONS CONCERNING TORTIOUS INTERFERENCE

61.  Answering the allegations in Paragraphs 86 to 88: I deny the allegation that I had knowledge of a Non-Disclosure and Confidentiality agreement between DOE Defendant and the Heralds or anyone else. To prevail on the claim, plaintiff must prove four elements: (1) that a valid contract existed: I lack knowledge or information sufficient to form a belief about the existence of the NDA at the time that the video was distributed to DOE Defendant or that it was delivered to me, (2) that Defendant had knowledge of the contract: as stated above, I deny having knowledge of the NDA, (3) that defendant acted intentionally and improperly: I deny that I acted improperly, and (4) that plaintiff was injured by the defendant’s actions: I deny that the Plaintiff was injured by my actions. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812, 551 N.E.2d 20 n. 6 (Mass. 1990). 

AS TO THE RELEIF REQUESTED

62.  To the extent a response is necessary to Plaintiffs’ prayer for judgement, I deny that the Plaintiff is entitled to the judgement or relief requested in this Complaint or to any judgement or relief whatsoever.

Affirmative Defenses

63.  The Defendant now brings forth the following Affirmative Defenses:

Defense 1 - Improper Venue

64.  Defendant answering the Complaint herein alleges that the Southern District of Florida is not the correct venue. 28 U.S. Code § 1400 establishes that: “Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.”

65.  The Plaintiff has specifically recognized that I live in the State of Oregon. I don’t have any connection with the State of Florida.  As stated in Parkash v. Am. Univ.  to be consider a resident there are “two factors: physical presence in a state, and intent to remain there for an unspecified or indefinite period of time.” Prakash v. Am. Univ., 727 F.2d 1174, 1180 (D.C. Cir. 1984). I am physically in Oregon, I have lived here for the past 10 years and I intend to remain here indefinitely.

Dismissal of the Claim is the appropriate remedy

66.  The Plaintiffs should know that the venue for this Claim is governed by 28 U.S. Code § 1400.  Furthermore, 28 U.S.C. § 1406(a), provides: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”

67.  Thus, the Court has the option to either dismiss the case or transfer it to the Oregon District Court. We believe that dismissal is the proper remedy because it is appropriate for this Court to dismiss rather than transfer an action when a plaintiff has “committed an obvious error in filing [its] action in the wrong court, and thereby imposed substantial unnecessary costs on both the defendant and the judicial system.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1201 (4th Cir. 1993) (affirming a dismissal for lack of personal jurisdiction).  In such a circumstance, it would not serve the interests of justice and judicial economy “simply to transfer [the] action to the proper court, with no cost to” Plaintiffs or Plaintiffs’ counsel. Id.; Coté v. Wadel, 796 F.2d 981, 984-85 (7th Cir. 1986) (Posner, J.) “district courts often dismiss a case, rather than transfer it under Section 1406(a), if the plaintiff’s attorney reasonably could have foreseen that the forum in which the suit was filed was improper and … similar conduct should be discouraged.” 14D WRIGHT, MILLER & COOPER § 3827 & n.37.

68.  For these reasons, I respectfully request that the Court dismisses the Complaint in its entirety, or if this is not found appropriate, to transfer the Case to the Court of the District of Oregon where I reside. 

Defense 2 – Copyright Misuse

69.  As described, Plaintiffs’ claims are barred and unenforceable under the doctrine of copyright misuse.

Defense 3 – Political Question

70.  Plaintiffs’ claims are ultimately about religious issues and thus are barred and unenforceable under the doctrine of Political Question.

Defense 4 – Free Speech

71.  Plaintiffs’ claims are barred and unenforceable because they are asserted in violation to the First Amendment to the US Constitution. 

Defense 5 – Fair Use

72.  Plaintiffs’ claims are barred and unenforceable under the Fair Use doctrine.

Defense 6 – Lack of Standing

73.  Plaintiffs’ claims are barred to the extent that they are not in compliance with Brazilian or US copyright laws.

Defense 7 – Unclean Hands

74.  Plaintiffs’ claims are barred under the doctrine of Unclean Hands.

Defense 8 – Failure to Mitigate Damages

75.  Plaintiffs’ claims are barred by their failure to mitigate damages. This could have been easily achievable if they had acted transparently with their donors, members and recruits.

Defense 9 – Controversy is not of Legal Nature  

76.  Plaintiffs’ claims are barred because the controversy between the parties is of a Religious nature and are not of a character which admits of specific and conclusive relief by a Court.

77.  WHEREFORE, I respectfully request that the Court grant the Motion and enter an order dismissing the entirety of the Complaint due to Improper Venue.  In the alternative, transferring the Case to the District of Oregon.

78.  WHEREFORE, If the Court doesn’t grant the Motion to Dismiss (or Transfer) I pray that the Plaintiffs take nothing and that I have judgement against the Plaintiffs and recover the costs of suit herein and such other relief that the court may deem proper.

                                                                                    Respectfully submitted,

Dated: July 11, 2017                                   

            Alfonso Beccar Varela – pro se