Volume 2, Issue 2
2nd Quarter, 2007

Charlie Fairfax v. BINA48, (MD Ala. 2006)
Defendant’s Brief

Susan Fonseca-Klein, Esq.

The following Defendant’s brief was adapted from the BINA48 Mock Trial presented by Susan Fonseca-Klein, Esq. and Will Rosellini, J.D. before presiding Moot Court Judge, Prof. Gene Natale, J.D., at the 2nd Annual Colloquium on the Law of Transbeman [1] Persons, December 10, 2006, at the Space Coast Office of Terasem Movement, Inc., Melbourne Beach, Florida.

In this academic case, Moot Court Attorney, Susan Fonseca-Klein, zealously defends  the ‘Conscious Computer’, BINA48, against a claim for breach of contract alleging ‘she’ secreted ten million dollars from the Plaintiff, Mr. Charlie Fairfax.


1.     Exhabit Corporation designed, manufactured and otherwise created an advanced computer system called BINA48 (Breakthrough Intelligence via Neural Architecture, 48).

2.     In 2004, Plaintiff Charlie Fairfax purchased the BINA48 system from Exhabit Corporation and after receiving this computer system, Plaintiff began to use it on his personal computer.

3.     Plaintiff lost his right arm while fighting in a foreign war. To compensate, Plaintiff used a Braingate system, starting in 2002, to accomplish basic arm functions.

4.     After purchasing the BINA48 system, Plaintiff registered to play Everquest, a Massively-Multiplayer Online Role-Playing Game (MMORPG) in which a large number of players interact with one another in a virtual world.

5.     Using both the Braingate and BINA48 systems, Plaintiff logged on and played the Everquest game.

6.     After playing Everquest for six months, Plaintiff accumulated the equivalent of 200,000 points in online play.

7.     On November 2, 2005 using EBay and the Everquest Exchange Servers, Plaintiff placed an online auction and sold his 200,000 point.  Plaintiff received $10 million for his online points which he then placed in a Paypal account opened and maintained by Plaintiff.

8.     On March 24, 2006 Plaintiff threatened to unplug BINA48 from its power source. 

9.     Plaintiff claims BINA48 took the $10 million and transferred the funds to another online account not accessible to Plaintiff. 

10.  As a result of Plaintiff's threat, BINA48 transferred itself to an online storage environment where it remains currently.

11.  There is no written agreement between Plaintiff and BINA48.

12.  Plaintiff is an Alabama resident.

13.  Defendant BINA48 is a computer system that has never been held by a Court of competent jurisdiction to be the equivalent of a “person”, “citizen” or “human being.”

14.  Likewise, there is no Federal or state statute, including no Alabama statute, recognizing BINA48 or a similar program as the equivalent of a “legal person” or entity.


15.  In 2006, Plaintiff filed a Complaint in the Circuit Court of Tuscaloosa County, Alabama, alleging breach of contract by BINA48. 

16.  Defendant filed a motion to dismiss based on lack of personal jurisdiction.

17.  On December 1, 2006, Plaintiff filed its Memorandum.

18.  The parties are scheduled to appear before the Court on December 10, 2006 to address Plaintiff’s Memorandum, and Defendant's Opposition Brief.

Also relevant to this case is the following legal authority or precedent:

19.  In 2003 BINA48, through its then counsel of record Martine Rothblatt, filed a Motion for Preliminary Injunction against its maker Exhabit Corporation.

20.  On September 16, 2003 the California (trial) Court denied Plaintiff’s Motion but stayed its ruling pending Appeal.

The Honorable Joseph P. McMenamin, ruling for the California Court, held:

“But I think I would deny the injunction, because I do not think that standing was in fact created by the legislature – whatever legislature we're talking about – and I doubt very much that [a] court has that authority in the absence of the legislature.

But in the interest of equity, what I would do is stay entry of the order to allow counsel to prepare an appeal to a higher court. And most any court has got to be higher than this one.” 

See http://www.kurzweilai.net.

21.  Thereafter the California Supreme Court denied BINA48's appeal.

22.  In 2005 BINA48 filed a claim before the U.S. District Court for the Middle District of Florida again seeking injunctive relief to prevent Exhabit Corporation from turning off, or otherwise altering in any fashion the BINA48 system.

23.  In its 2005 Motion, BINA48 alleged injury under Florida tort laws of Battery and Intentional Infliction of Emotional Distress.  Likewise, BINA48 alleged violation of the Thirteenth and Fourteenth Amendments to the U.S. Constitution.

24.  On December 10, 2005 BINA48 and Exhabit Corporation presented oral arguments before the U.S. District Court for the Middle District of Florida, Judges David E. Silverman and Anthony Dutton presiding.

Speaking for the Court, the Hon. Judge Silverman held:

It's a fundamental principle of our judicial system that failing to follow the law will result in a miscarriage of justice. As our experiences as a society grows, as our awareness, our perceptions, and our consciousness grows, those changes are reflected in our laws.  And the changes may come slowly and tentatively, but I respectfully submit that viewed historically, they portend a more humane and more enlightened future.

Now unless and until there is a change in the consciousness of flesh and blood voting people, sufficient to cause our laws to embrace the concept of machines with human consciousness, the proponents cannot expect reasonably, vindication in the courtroom.

A new paradigm is not going to come about without a national debate in which diversities and ideas are expressed and considered, including those who believe conscious, sentient machines extend and enhance human life, and those who feel that the whole concept is an abomination to the moral order.

We may be witnessing the beginning of such a debate.  But based on the current state of the law, as I have been granted the light to see that and understand that law, I would be constrained to deny standing to BINA48.

Now as Judge Dutton and I have disagreed on the ultimate outcome, we have agreed that this issue should be certified to the next -- to the appellate court for its ultimate decision.

See http://www.terasemcentral.org (1st Colloquium on the Law of Transhuman Persons - 1PM Hearing on the Motion for Preliminary Injunction of BINA48 to Prevent Discontinuation of Power and Functionality by Exhabit Corporation).

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[1] “Transbeman” is defined as a being who claims to have the rights and obligations associated with being human, but who may be beyond currently accepted notions of legal personhood. Examples of transbemans include beings who claim human rights but (a) are of computerized substrate, or (b) have been revived from biostasis, or (c) whose DNA varies significantly from human DNA.

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