Copyright Infringement

August 14, 2015

Introduction to Criminal Copyright Infringement – Second Element: Infringement

The second element of a criminal prosecution for copyright infringement requires that the government prove that the defendant infringed upon the holder’s rights in its copyrighted intellectual property. Although the term “infringement” itself is not specifically defined in the copyright statute, 17 U.S.C. § 501(a) provides that: “[a]nyone who violates any of the exclusive rights of the copyright owner as provided by [17 U.S.C. §§ 106 to 118] . . . is an infringer of the copyright.” Thus, the concept of infringement is defined by reference to the exclusive rights conferred on a copyright owner by 17 U.S.C. § 106. Those exclusive rights include the right to display or perform the work publicly, as set forth in 17 U.S.C. § 106(4)-(5), along with the right to reproduce and distribute copies of the work, as set forth in 17 U.S.C. § 106(1) and (3). The unauthorized exercise of these rights will constitute an act of infringement and will give rise to a civil infringement claim by the copyright holder and perhaps prosecution by the government.

Generally, infringement is established by evidence of copying. However, because copying often cannot be directly attributed to the defendant, copying can be established indirectly through evidence that the defendant had access to the original copyrighted work, and that the defendant’s work is substantially similar to it.

With regard to prosecution for alleged infringement of copyrighted computer programs, a court must also decide separately whether or not the copies at issue were lawfully made under 17 U.S.C. § 117, which authorizes such duplication in certain circumstances. Thus, unlike copies of other types of copyrighted works, copies of computer programs are not automatically presumed to be unauthorized.

August 11, 2015

Indiana Copyright Litigation: Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Richard N. Bell of McCordsville, Indiana, who is both an Indiana copyright attorney and a professional photographer, filed a lawsuit alleging copyright infringement in the Southern District of Indiana. Bell claims that Indiana Procurement Technical Assistance Center of Indianapolis, Indiana infringed his copyrighted “Indianapolis Skyline” photo, U.S. Copyright Registration No. VA0001785115, which has been registered with the U.S. Copyright Office.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Indiana Procurement Technical Assistance Center, a governmental unit of the state of Indiana, is accused of creating “a website to promote and advertise its own business” and displaying Bell’s copyrighted photo on that website. Bell further claims that this government entity “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos” contained on its website, http://www.indianaptac.com/, including Bell’s photo of Indianapolis.

In this single-defendant lawsuit, Bell contends that “as a direct and proximate result of their wrongful conduct, Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” The acts in question are alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.

In this federal complaint, which copyright lawyer Bell filed on his own behalf, counts of copyright infringement and unfair competition are asserted. Bell asks for an accounting of all “gains, profits and advantages derived by Defendants [sic]” as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.

Practice Tip #1:

Bell will have to contend with the doctrine of sovereign immunity as an initial hurdle to proceeding with this copyright litigation. Sovereign immunity, as a general rule, bars lawsuits such as this one against states. Sovereign immunity may be waived by a state for a particular type of lawsuit. The federal government may also abrogate states’ sovereign immunity with respect to certain types of claims.

In 1990, Congress passed the Copyright Remedy Clarification Act. Under 17 U.S.C. § 511(a), “[a]ny State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the… doctrine of sovereign immunity, from suit in Federal court…for a violation of any of the exclusive rights of a copyright owner….”

On the surface, this language appears to constitute an abrogation of states’ sovereign immunity regarding copyright infringement. However, the U.S. Supreme Court has held that “Congress may not abrogate state sovereign immunity pursuant to its Article I powers.” Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S 627, 636 (1999).

However, it appears that the Copyright Remedy Clarification Act has attempted to do just that. According to at least one recent decision out of a federal district court in Lexington, Kentucky, Article I is indeed what Congress relied upon to authorize the passage of the Act purporting to abrogate states’ rights with respect to copyright infringement lawsuits. This, the court held, rendered the attempted abrogation invalid. That litigation was consequently dismissed by the court as barred by the doctrine of sovereign immunity.

Practice Tip #2: Richard Bell has sued hundreds of defendants for copyright infringement in Indiana’s federal courts. Previous blog posts regarding his litigation include:

• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

August 7, 2015

Introduction to Criminal Copyright Infringement – First Element: Existence of a Valid Copyright

By Overhauser Law Offices, LLC

The first element of a criminal prosecution for copyright infringement under 17 U.S.C. § 506(a) requires proof that the copyright at issue is a valid copyright. This may be established by demonstrating that the formal requirements of copyright registration have been satisfied. Although registration of a copyrighted work is not necessary to obtain copyright protection, it is usually required before prosecuting a copyright defendant in criminal court.

Registration of a copyright is typically proven by obtaining a certificate of registration from the Register of Copyrights. Under 17 U.S.C. § 410(c), a certificate of registration “made before or within five years after the first publication of the work shall constitute prima facie evidence of the validity of the copyright. . . .” If the defendant contests the validity of the copyright at issue as a defense in a criminal prosecution, the government would need to make an independent evidentiary showing that the copyright is valid. This would involve showing that the copyright was not obtained by fraud and the registration certificate is genuine.

July 2, 2015

Indiana Copyright Litigation: Bell Rings in the Holiday Weekend with a New Copyright Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright lawyer and professional photographer Richard Bell of McCordsville, Indiana filed a federal intellectual property lawsuit in the Southern District of Indiana. He alleges copyright infringement by Randolph Ventures, LLC of Peoria, Illinois. At issue is a copyrighted photo of the Indianapolis skyline taken by Bell that has been registered by the U.S. Copyright Office.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this Indiana complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.

In this Indiana lawsuit for copyright infringement, Bell asserts that Defendant Randolph Ventures used Bell’s copyrighted image without permission when it displayed the photo to advertise its business on the Internet at http://webdesign309.com/indianapolis/. Bell claims that the limited liability company that he sued “willfully and recklessly falsely claimed that he owned the copyrights of all images and photos” contained on that website, including Bell’s photo of Indianapolis. Bell asserts that Defendant has thus profited from the use of the copyrighted photo.

In this single-defendant lawsuit, Bell contends that “as a direct and proximate result of their wrongful conduct, Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” The acts in question are alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.

In this federal complaint, which copyright attorney Bell filed on his own behalf, counts of copyright infringement and unfair competition are asserted. Bell asks for an accounting of all gains, profits and advantages derived by Defendant Randolph Ventures as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.

Practice Tip: Richard Bell has sued hundreds of defendants for copyright infringement in the Indiana federal courts. Previous blog posts regarding his litigation include:

• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

June 26, 2015

Indiana Copyright Litigation: Bell Files New Copyright Infringement Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright attorney and professional photographer Richard N. Bell of McCordsville, Indiana has sued PROACT Search LLC of Wilmette, Illinois in the Southern District of Indiana on allegations of copyright infringement. At issue is a copyrighted photo of the Indianapolis skyline taken by Bell that has been registered by the U.S. Copyright Office.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this Indiana complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.

PROACT Search, which does business on the Internet at www.proactsearch.com, advertises itself as a national executive search firm that assists school districts to fill leadership-level job vacancies.

In this Indiana copyright lawsuit, Bell contends that PROACT Search used his copyrighted image without permission when it used Bell’s photo in promotional material that announced that “Indianapolis Public Schools hires PROACT Search to find a new Deputy Superintendent.” Bell claims that Defendant “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos contained in the advertising piece,” including Bell’s photo of Indianapolis.

Bell asserts that PROACT Search has thus profited from the use of the copyrighted photo. This use is alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.

In this federal complaint, which Plaintiff Bell filed on his own behalf, Bell asserts claims of copyright infringement and unfair competition. He asks for an accounting of all gains, profits and advantages derived by Defendant as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.

Practice Tip: Richard Bell has been a prolific copyright plaintiff in the Indiana federal courts. Some previous blog posts regarding his litigation include:

June 24, 2015

Indiana Copyright Litigation: Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana attorney Richard N. Bell of McCordsville, Indiana filed an

intellectual property lawsuit in the Southern District of Indiana alleging that Find Tickets, LLC of Alpharetta, Georgia infringed the copyright of a photo of the Indianapolis skyline taken by Bell.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.

Find Tickets, LLC, which does business at the website www.findticketsfast.com, has been accused of infringing the copyright of this photo. In this single-defendant complaint, Bell contends that Find Tickets used his copyrighted image without permission and that, moreover, “each Defendant willfully and recklessly falsely claimed that it owned the copyrights of all images and photos contained in the Defendant’s website,” including Bell’s photo of Indianapolis. Consequently, alleges Bell, “Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” Defendant Find Tickets is accused of “willfully and deliberately” engaging in copyright infringement “with oppression, fraud, and malice.”

In this federal complaint, copyright lawyer Bell makes claims of copyright infringement and unfair competition. Plaintiff asserts that he has suffered irreparable injury as a result of the alleged infringement of his copyrighted photo. Bell asks the court to declare that Find Tickets’ use of the photo violates Bell’s rights under the Copyright Act and to enjoin further infringing uses of his photo. He asks for an accounting of all gains, profits and advantages derived by Defendant as a result of the alleged infringement and for statutory and/or actual damages for each violation. Plaintiff also seeks reimbursement of costs and reasonable attorneys’ fees.

June 17, 2015

Indiana Copyright Litigation: Richard Bell Files Two New Copyright Infringement Lawsuits

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana attorney Richard Bell of McCordsville, Indiana filed two new lawsuits alleging copyright infringement in the Southern District of Indiana. The Defendants in the first lawsuit are WRTV of Indianapolis, Indiana, and DISH Network Corporation of Englewood, Colorado. The Defendant in the second copyright complaint is Larry Turner of Indianapolis, Indiana.

In two similar intellectual property complaints, Bell, an Indiana copyright lawyer and professional photographer, alleged infringement of a copyrighted photo of Indianapolis. This photo, Registration Number VA0001785115, has been registered by the U.S. Copyright Office. Bell claims that he owns the intellectual property rights to the photo.

In two separate lawsuits, filed in an Indiana federal court, Bell asserts that the Defendants used his copyrighted photo without having purchased a license. Each complaint lists one count, “Copyright Infringement and Unfair Competition.” Bell asks for injunctive relief; actual and/or statutory damages; and reimbursement of litigation costs, including attorneys’ fees.

June 16, 2015

Indiana Copyright Law: Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff and Indiana copyright attorney Richard Bell of McCordsville, Indiana was ordered by Judge Tanya Walton Pratt of the Southern District of Indiana to pay almost $34,000 in attorney’s fees and costs to Defendant Charles Lantz, whom Bell had sued on unsupported allegations of copyright infringement.

Indiana copyright attorney Richard Bell, who is also a professional photographer, has sued hundreds for copyright infringement. The lawsuits began in 2011. At issue in Bell’s spate of litigation were allegations of unauthorized use of his copyrighted photograph of the Indianapolis skyline, which had been registered at the U.S. Copyright Office. The ongoing saga of this multiplicity of copyright lawsuits took an interesting, if unsurprising, turn last week.

According to an article in The Indiana Lawyer, Bell has said that most Defendants whom he has sued have settled early. Acknowledging the expense of litigation – and the relative ease of escaping litigation by simply paying a settlement without any finding of liability – Bell said, “A responsible lawyer and their clients, they obviously know it’s going to be far more expensive to try it.”

A current copyright-infringement lawsuit, filed January 8, 2013 by Bell, named forty-seven Defendants. Forty-six of those Defendants were dismissed from the lawsuit, including some who settled and some against whom a default judgment was issued. Default judgments of $2,500 were awarded in this litigation.

One Defendant, Charles Lantz, refused to pay for copyright infringement that he had not committed and hired Indiana intellectual property attorney Paul Overhauser (publisher of this blog) to defend him. In December 2014, Lantz’s perseverance paid off and the court granted an unopposed motion for voluntary dismissal of the litigation against Lantz. Last week, Lantz’s perseverance paid off again when Overhauser, on behalf of Lantz, sought and was awarded $33,974.65 in attorney’s fees and costs from Plaintiff Bell.

The court explained that, because Bell’s copyright litigation against Lantz had been dismissed with prejudice, Lantz became the “prevailing party” under the Copyright Act. Under 17 U.S.C. § 505, in any civil copyright action, the district court may award litigation costs, including attorney’s fees, to the prevailing party.

In evaluating whether to exercise its discretion to award such costs to Lantz, the court stated, “Defendants who defeat a copyright infringement action are entitled to a strong presumption in favor of a grant of fees.” The court looked to the Fogerty factors, which are so named after Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), a U.S. Supreme Court case involving the shifting of costs in copyright litigation. These factors are nonexclusive and include: “(1) the frivolousness of the action; (2) the losing party’s motivation for filing or contesting the action; (3) the objective unreasonableness of the action; and (4) the need to advance considerations of compensation and deterrence.”

The court found that each of these factors weighed against Bell. It stated that Bell had possessed no evidence against Lantz that would prove either a conversion or a copyright claim. It also characterized Bell’s motivation for filing the lawsuit as “questionable,” noting that Bell had attempted to save himself “extensive filing fees” by improperly joining defendants and had “sued forty-seven defendants and then quickly offered settlements to defendants who were unwilling to pay for a legal defense.”

Regarding the third and fourth factors, the court held that the litigation was objectively unreasonable, given that Lantz had been sued “without any evidence to support the claims.” The court then turned to the last of the Fogerty factors, the need to advance considerations of compensation and deterrence. It noted that Bell had leveraged his status as a practicing attorney “to file meritless suits and to attempt to outmaneuver the legal system” (which was perhaps a hat tip to the now-famous opinion written by Judge Otis D. Wright III, who employed similar language against another copyright plaintiff widely regarded as a copyright troll).

Finally, the court was not swayed by Bell’s assertions that Lantz had failed to inform Bell that the wrong defendant had been sued and that Lantz had incurred unnecessary attorney’s fees. In response to these claims, the court noted that Lantz had “denied liability at his first opportunity.” The court also opined that, while defense counsel is not required to take the most economical defense strategy in defending a copyright lawsuit, it appeared that the “most economical approach feasible” may have been taken.

With all Fogerty factors weighing against Bell and no viable opposition permitting either an escape from fees and costs or a lessening of the amount, the court awarded to Defendant Lantz $33,974.65, the full amount requested.

Practice Tip: The Indiana Lawyer wrote an interesting piece regarding Judge Pratt’s order. That article may be viewed here.

June 10, 2015

Indiana Intellectual Property Litigation: DISH Network Accuses Indiana Resident of Piracy

By Overhauser Law Offices, LLC

New Albany, Indiana – Intellectual property attorneys for DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar L.L.C., all of Englewood, Colorado (collectively, “DISH Network”), filed a lawsuit in the Southern District of Indiana alleging that Danny Abner of Paris Crossing, Indiana illegally intercepted, decrypted and viewed DISH Network satellite programming.

Defendant Abner has been accused by DISH Network of “circumventing DISH Network’s security system and receiving DISH Network’s satellite broadcasts of copyrighted television programming without payment of the required subscription fee.” This intellectual property lawsuit, brought in the Southern District of Indiana, claims Abner violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq., the Federal Communications Act, 47 U.S.C. § 605 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2511 et seq.

According to DISH Network, Abner’s piracy occurred via the use of Nfusion Private Server (“NFPS”), a television-pirating service. Francis Philip, a/k/a Vgiddy, sold subscriptions to the NFPS service. Philip provided DISH Network with copies of his business records pertaining to Abner, which showed that Abner had purchased one or more subscriptions to the piracy service in 2012.

Through the NFPS piracy service, Abner allegedly obtained DISH Network’s digital “keys,” which he used to decrypt and view DISH Network programming. The type of piracy of which Abner is accused, Internet key sharing, is still possible despite DISH Network’s latest generation of security technology.

In the complaint, filed by intellectual property lawyers for DISH Network, the following counts are alleged:

• Count I: Circumventing an Access Control Measure in Violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1)
• Count II: Receiving Satellite Signals Without Authorization in Violation of the Federal Communications Act, 47 U.S.C. § 605(a)

• Count III: Intercepting Satellite Signals in Violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520

DISH Network seeks injunctive relief, compensatory damages, punitive damages, and reimbursement for DISH Network’s costs, attorneys’ fees, and investigative expenses.

May 28, 2015

New EFF “404” Report Shows How Restrictive Copyright Policies Stifle Online Speech Worldwide

By Overhauser Law Offices, LLC

San Francisco, California – Overly-broad intellectual property (“IP”) laws in Russia, Colombia, and Pakistan – which U.S. trade regulators say aren’t tough enough – stifle access to innovation and threaten artists, students, and creators around the globe with prison, censorship, and state prosecution, the Electronic Frontier Foundation (“EFF”) said in a new report released recently.

EFF’s “Special 404 Report” is a response to the “Special 301 Report.” The latter report, which EFF called biased and “a deeply flawed annual assessment of international intellectual property rights policies,” was released in April by the Office of the U.S. Trade Representative (“USTR”). The Special 301 Report is used to pressure countries to adopt IP laws supported by some powerful business interests.

In a first-of-its-kind analysis countering what EFF called the USTR’s “name and shame” tactics, EFF argues that the Special 301 Report paints a one-sided picture of IP rights and fails to disclose the damaging results of draconian IP policies. Examples include a human rights activist in Russia who was targeted by prosecutors using criminal copyright law, a biologist in Colombia who faces prison for sharing research, and students in Pakistan who struggle to exercise their rights under local law to study academic papers.