Copyright Infringement

May 15, 2014

Indiana Copyright Litigation – Malibu Media Sues Alleging Infringement of 43 Copyrighted Works

Indianapolis, Indiana – A copyright attorney for Malibu Media, LLC of Los Angeles, California d/b/a X-Art.com filed a copyright infringement lawsuit in the Southern District of Indiana alleging that an anonymous defendant (“John Doe”), asserted to be an Indiana resident, infringed 43 copyrighted works to which Malibu Media claims ownership.

Malibu Media contends that infringement by John Doe of the works, which include multiple pornographic movies, began on September 14, 2013. Currently, the defendant is identifiable by Malibu Media only by his or her internet protocol address (“IP address”). Malibu Media asserts that it used “geolocation” technology to ensure that the anonymous defendant’s alleged acts of copyright infringement occurred using an IP address that could be traced to a physical address within Indiana.

Malibu Media has accused the defendant of a single count of “Direct Infringement” encompassing all 43 copyrighted works. It seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of the defendant; an award of statutory damages pursuant to 17 U.S.C. § 504(a) and (c) and reasonable attorneys’ fees and costs.

Practice Tip:

It has been estimated that over 200,000 users of various peer-to-peer file-sharing protocols, usually users of BitTorrent, have been sued for copyright infringement. Instead of a thorough investigation, followed by a lawsuit, these plaintiffs — usually holders of a copyright to a work of adult entertainment — gather the IP addresses of many potential/presumed infringers and then sue multiple defendants.

These suits used to involve tens, hundreds or even thousands of defendants joined in a single suit. The problem of these cases of mass joinder of largely unrelated defendants became sufficiently widespread that it garnered attention from mainstream press (see, e.g., here).

The problem also caused considerable strain on the federal judiciary, leading one judge to deny joinder as serving no legitimate purpose in such cases once IPSs have been put on notice to preserve identifying information for particular IP addresses and to opine that it is “difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.” Many other courts also denied joinder, often on the theory that, while doing so does not solve the problem of trolling for copyright damages within the federal judiciary it, at least, makes pursuing such abusive litigation much less profitable.

As a result of such rulings, copyright attorneys such as Paul Nicoletti have modified their practices and now have shifted to filing more single-defendant copyright infringement complaints. While this may solve the earlier problem of mass misjoinder, many other contentious issues inherent in copyright trolling – including proper identification of the alleged infringer – remain.

May 14, 2014

Internet Policy Task Force to Host Series of Roundtables on Copyright Internet Policy Topics

By Overhauser Law Offices, LLC

Washington, D.C. – Public meetings called for in U.S. Commerce Department’s Green Paper on “Copyright Policy, Creativity, and Innovation in the Digital Economy” will be held in Tennessee, Massachusetts and California.

The U.S. Department of Commerce’s Internet Policy Task Force will host roundtable discussions in cities around the country on several copyright Internet policy topics, as part of the work envisioned in the Green Paper. The purpose of the roundtables is to engage further with members of the public on the following issues: (1) the legal framework for the creation of remixes; (2) the relevance and scope of the first sale doctrine in the digital environment; and (3) the appropriate calibration of statutory damages in the contexts of individual file sharers and of secondary liability for large-scale infringement.

The roundtables, which will be led by the U.S. Patent and Trademark Office (“USPTO”) and the National Telecommunications and Information Administration (NTIA), will be held in Nashville, Tennessee on May 21, 2014, Cambridge, Massachusetts on June 25, 2014, Los Angeles, California on July 29, 2014, and Berkeley, California on July 30, 2014.

May 12, 2014

Malibu Media Sues “John Doe” for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Malibu Media, LLC d/b/a X-Art.com of Los Angeles, California has sued an unidentified Indiana resident, “John Doe,” for copyright infringement in the Southern District of Indiana.

Copyright lawyer Paul Nicoletti is again in federal court on behalf of Malibu Media. The “John Doe” defendant in this copyright infringement lawsuit allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material. Malibu Media has also claimed that the defendant is a “persistent online infringer.” It claims that “John Doe” has infringed 67 separate copyrighted works owned by Malibu Media.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of the defendant; an award of statutory damages pursuant to 17 U.S.C. § 504(a) and (c) and reasonable attorneys’ fees and costs.

Practice Tip #1:

The actions of companies such as Patrick Collins and Malibu Media have been called “extortionate” and, in at least one case, a class action suit has been filed against these “copyright trolls.”

The issue of intellectual property “trolls” has also caught the attention of several U.S. lawmakers, including Senator Charles Schumer. Senator Schumer has proposed legislation wherein the U.S. Patent and Trademark Office would review patent infringement suits before they could be filed in court. Of course, such legislation is not directly relevant to actions sounding in copyright, such as the multiplicity of lawsuits filed by Malibu Media and Patrick Collins. It may, however, sound a warning bell that tolerance of the questionable activities of intellectual-property trolls of all varieties is wearing thin.

Practice Tip #2:

We have previously blogged about Malibu Media’s previous attempts to sue unrelated defendants en masse (see also here), as well as some responses of various Indiana courts (see also here and here).

April 23, 2014

Indiana Copyright Litigation: Transcultural C.A.R.E. Sues Evansville Vanderburgh School Corporation

By Overhauser Law Offices, LLC

Evansville, Indiana – A copyright attorney for Dr. Josepha A. Campinha-Bacote d/b/a Transcultural C.A.R.E. Associates of Cincinnati, Ohio filed a copyright infringement lawsuit in the Southern District of Indiana alleging that Evansville Vanderburgh School Corporation of Evansville, Indiana (“EVSC”) and Dionne Blue and Deborah Hartz, both of Indiana, infringed the copyrighted work “Cultural Competency in Healthcare Delivery: Have I ‘ASKED’ Myself the Right Questions?” (the “ASKED” model). This work was registered by the U.S. Copyright Office.

Plaintiff Campinha-Bacote is the President and sole proprietrix of Transcultural C.A.R.E. Associates, which provides education regarding transcultural issues in health care to improve awareness and sensitivity to cultural concerns among healthcare professionals and others. In 2002, Dr. Campinha-Bacote developed the ASKED mnemonic model of cultural competence. The work was registered by the U.S. Copyright Office in 2003.

Defendants are accused of unlawfully reproducing, copying, publishing and displaying the ASKED model in a PowerPoint presentation titled “Culturally Competent Classroom Management.” Defendant EVSC is being sued directly as well as vicariously for the actions of Defendants Blue and Hartz.

In her complaint, filed by an Ohio trial lawyer, Plaintiff asserts willful copyright infringement. She asks for injunctive relief, statutory damages, a declaration that Defendants’ actions be declared willful, attorney’s fees, costs and pre- and post-judgment interest.

Practice Tip:

Lawsuits against government entities often differ from those against private defendants. For example, when seeking to sue in federal court, litigators must evaluate whether the 11th Amendment, which generally prevents federal-court actions seeking damages from a state, will hamper their efforts.

Congress may waive states’ sovereign immunity in some cases, provided that it does so with explicit language. In 1990, Congress amended the Copyright Act in an attempt to limit sovereign immunity for lawsuits under the Copyright Act. Section 501(a), which deﬁnes copyright infringers, was modified to include as a potential defendant “any State, any instrumentality of a State, and any ofﬁcer or employee of a State acting in his or her ofﬁcial capacity.” A new section, §511, was also added. It provides that states, state instrumentalities and their employees “shall not be immune, under the Eleventh Amendment of the Constitution of the United States or any other doctrine of sovereign immunity” from suit in a federal court for copyright infringement.

The United States Supreme Court has evaluated similar attempts to waive sovereign immunity under the Commerce Clause, the Patent Clause and the Fourteenth Amendment of the Constitution. The Court held that in federal-court lawsuits for damages for patent or trademark infringement, Congress lacked the constitutional authority to abrogate the sovereign immunity of the states. Subsequent decisions by federal district courts and federal appellate courts have extended this decision to actions for copyright infringement.

April 18, 2014

Indiana Copyright Litigation: BMI Sues The Irish Exit for Copyright Infringement

By Overhauser Law Offices, LLC

New Albany, Indiana – An Indiana copyright attorney for Broadcast Music, Inc. of New York, New York (“BMI”), Sony/ATV Songs LLC, Fall Out Boy, Inc. d/b/a Chicago X Softcore Songs, Beechwood Music Corporation, and Universal Music-Z Tunes LLC d/b/a Universal Music Z Songs sued in the Southern District of Indiana alleging that The Irish Exit, LLC d/b/a The Irish Exit and Matthew McMahan, both of New Albany, Indiana, committed willful copyright infringement. All copyrights-in-suit have been registered by the U.S. Copyright Office.

In its complaint, BMI states that it has been granted the right to license the public performance rights of more than eight million copyrighted musical compositions, including the compositions at issue. The other plaintiffs are the publishers of the copyrighted music that was allegedly infringed.

The lawsuit, brought under The Copyright Act, alleges that the defendants infringed multiple songs in BMI’s repertoire by performing those copyrighted songs without authorization and/or causing the copyrighted songs to be performed publically in The Irish Exit without authorization. BMI alleges that there were three instances of infringement, with each publisher-plaintiff having at least one copyrighted song infringed by the defendants.

BMI contends that The Irish Exit, LLC (the legal entity) has a direct financial interest in The Irish Exit (the business establishment), as does Matthew McMahan. Further, it is alleged that Matthew McMahan is a member of The Irish Exit, LLC, with responsibility for the operation, management and supervision of the activities of LLC and the business establishment.

The plaintiffs claim that they have suffered great and incalculable damage as a result of the defendants’ actions and that further acts of infringement will injure them irreparably. They ask that the court enjoin the defendant from committing further acts of infringement. The plaintiffs also seek statutory damages pursuant to 17 U.S.C. §504(c) and costs, including reasonable attorneys’ fees.

Practice Tip:

The Copyright Act empowers a plaintiff to elect to receive an award of statutory damages between $750 and $30,000 per infringement in lieu of an award representing the plaintiffs’ actual damages and/or the defendants’ profits. In a case where the copyright owner proves that infringement was committed willfully, the court may increase the award of statutory damages to as much as $150,000 per infringed work. A finding of willful infringement will also support an award of attorney’s fees.

Furthermore, not only is the performer liable for infringement, but so is anyone who sponsors an infringing performance. A corporate officer will be found jointly and severally liable with his corporation for copyright infringement if he (1) had the right and ability to supervise the infringing activity, and (2) has a direct financial interest in such activities.

April 9, 2014

Indiana Copyright Litigation: Richard Bell Files Another Copyright Infringement Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Richard Bell, an Indiana copyright attorney, filed a lawsuit in the Southern District of Indiana alleging copyright infringement by numerous Defendants. The Defendants are: Diversified Vehicle Services of Marion County, Indiana; Cameron Taylor and Taylor Computer Solutions of Indianapolis, Indiana; Rhonda Williams of Indianapolis, Indiana; Forensic Solutions, Inc. of Waterford, New York; Heath Garrett of Nashville, Tennessee; CREstacom, Inc. of Fishers, Indiana; American Traveler Service Corp LLC, location unknown;
Mike Cowper of Martinsville, Indiana; Kimberly Hinds of Indianapolis, Indiana; Rensselaer Polytechnic Institute of Troy, New York; EasyStreet Realty of Indianapolis, Indiana; Drohan Management of Reston, Virginia; Metal Markets of Indianapolis, Indiana; Mattison Corporation of Indianapolis, Indiana; Industrial Heating Equipment Association of Taylor Mill, Kentucky; Junk Dawgs of Indianapolis, Indiana and WRTV of Indianapolis, Indiana. Mr. Bell is both the copyright lawyer and Plaintiff in this lawsuit.

Bell is a copyright attorney and a professional photographer. He contends that he is the owner of two copyrighted photographs of Indianapolis taken in March 2000. The photos have been registered with the U.S. Copyright Office.

Bell alleges that each Defendant, independent of each other Defendant, “created their individual website to promote and market their business” and placed the Plaintiff’s copyrighted photo on each of the Defendants’ respective websites. It is alleged that no Defendant had obtained the right to publish either photo but that each falsely represented otherwise to the world. Bell asserts that, as a result, Defendants have “realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” Each Defendant is accused of “willfully and deliberately” engaging in copyright infringement “with oppression, fraud, and malice.”

In his complaint, Bell lists the following claims:

• Count I: Copyright Infringement and Unfair Competition
• Count II: Theft

Bell asserts that he has already suffered, and is continuing to suffer, irreparable injury as a result of the alleged infringement of his copyrighted photos. Bell asks the court to declare that the Defendants’ conduct in using his photos violates his rights under Indiana law and the Copyright Act and asks the court to enjoin further infringing uses of his photos. Among other remedies, he seeks treble damages under Indiana statutory authority. He also asks for an accounting of all gains, profits and advantages derived by Defendants as a result of the alleged infringement and for the maximum allowable statutory and/or actual damages for each violation. Plaintiff also seeks reimbursement of costs and reasonable attorneys’ fees.

Practice Tip #1: The claims of this case appear calculated to trigger the “advertising injury” clause of many general business liability insurance policies. If a defendant has applicable business insurance, this may allow Mr. Bell to negotiate quicker settlements. Overhauser Law Offices, publisher of this Site, counsels clients on insurance coverage for insurance claims.

Practice Tip #2: This newest complaint initiates the latest of three ongoing cases filed by Mr. Bell asserting infringement of his photos. We have blogged about his copyright infringement litigation before. See here. The Indiana Lawyer also wrote today about Mr. Bell’s copyright infringement lawsuits. See here. The Indiana Business Journal ran a similar piece. Those articles include an interview with Paul Overhauser, Managing Partner of Overhauser Law Offices.

March 14, 2014

Meeting on Notice and Takedown System to be Held

By Overhauser Law Offices, LLC

Washington, D.C. – A public meeting to focus on improving the operation of the notice and takedown system under the DMCA will be held on March 20, 2014.

DOC Picture.jpg The U.S. Department of Commerce’s Internet Policy Task Force (“IPTF”) will hold the first meeting of the public multistakeholder forum on improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (“DMCA”) at the United States Patent and Trademark Office (“USPTO”) headquarters in Alexandria, Virginia. The meeting was called for in the Commerce Department’s Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy released last year. The IPTF is a joint effort between the USPTO and the National Telecommunications and Information Administration (“NTIA”).

The goal of the multistakeholder forum is to identify best practices and/or produce voluntary agreements for improving the operation of the DMCA notice and takedown system. The IPTF plans to hold several additional meetings throughout the year. The initial meeting will focus on identifying concrete topics to be addressed by participants, and to discuss and make decisions about the process for the forum’s ongoing work. The IPTF aims to have participation from a wide variety of the notice and takedown system’s current users, including right holders and individual creators, service providers, and any other stakeholders that are directly affected – such as consumer and public interest representatives, technical and engineering experts, and companies in the business of identifying infringing content.

March 7, 2014

Supreme Court Grants Review for Four Intellectual Property Lawsuits

By Overhauser Law Offices, LLC

Washington, D.C. – The Supreme Court of the United States agreed to review the judgments of several Courts of Appeals in four intellectual property disputes. The cases included two patent cases (regarding joint-infringement liability and indefiniteness invalidity), a copyright case (concerning public performances), and a case which may have implications under trademark law (whether a Lanham Act claim is barred by the Food Drug and Cosmetic Act).

Limelight Networks, Inc. v. Akamai Technologies, Inc., Docket No. 12-786, is a patent case involving technology for managing web images and video. Appellate attorneys for Limelight Networks brought the case to the Court after the U.S. Court of Appeals for the Federal Circuit held that, in the case of method patents, multiple parties could be found to jointly infringe on a patent. The Federal Circuit, sitting en banc, held by a 6-5 vote that “all the steps of a claimed method must be performed in order to find induced infringement, but that it is not necessary to prove that all the steps were committed by a single entity.”

The question raised for review by the Supreme Court is whether a defendant may be liable for inducing patent infringement under 35 U.S.C. § 271(b) even if none has committed direct infringement under § 271(a). Patent attorneys for technology companies including Google Inc., Cisco Systems, Inc., Oracle Corporation, Red Hat, Inc., and SAP America, Inc. filed a brief in support of Limelight.

February 24, 2014

Union Hospital Sues Attachmate Seeking a Declaration of Non-Infringement

By Overhauser Law Offices, LLC

Terre Haute, Indiana – Copyright attorneys for Union Hospital, Inc. of Terre Haute, Indiana filed an Indiana copyright lawsuit against Attachmate Corporation of Seattle, Washington in the Southern District of Indiana asking the court to declare that Union Hospital had not infringed either of two Attachmate software works titled “EXTRA!” and “Reflection”, Copyright Registration Nos. TX0005717997 and TX0007351951, which were issued by the U.S. Copyright Office.

Union Hospital, a not-for-profit regional hospital, provides healthcare to residents of the Wabash Valley community, regardless of their ability to pay. Attachmate is one of the largest software companies in the world, with 40 offices doing business in 145 countries.

Union Hospital states that, since at least 1997, it has been licensed to use Attachmate software for which it paid tens of thousands of dollars. In 2013, Attachmate conducted an audit of Union Hospital’s use of Attachmate software products. According to the complaint, as a result of this audit, Attachmate determined that Union Hospital had used the software beyond the terms of the licenses and demanded that Union Hospital pay Attachmate over $2,000,000 in license fees, interest and other charges. Union Hospital indicates Attachmate subsequently threatened to initiate copyright infringement litigation against Union Hospital.

The claims of liability which Attachmate apparently made have been attacked by Union Hospital on several grounds. Union Hospital states that the claim of over-deployment of certain software was based not upon the actual usage of Attachmate’s product, but upon the potential total number of users who could have used Attachmate software on Union Hospital’s server regardless of whether the user ever accessed or used the product. Union Hospital further asserts “estoppel, waiver, laches, and/or acquiescence” in its defense.

This Indiana litigation, filed under the Declaratory Judgment Act, was filed by Indiana copyright lawyers for Union Hospital. The complaint lists three causes of action:

1. Declaratory Judgment on Copyright Infringement Claims
2. Declaratory Judgment on Copyright Infringement Claims for Unregistered Copyrights
3. Declaratory Judgment on Breach of Contract Claims

Union Hospital asks the court to:
a. Declare that one or more of Attachmate’s breach of contract claims are preempted by the Copyright Act;
b. Declare that Attachmate’s asserted license agreements are invalid and unenforceable;
c. Declare that Union Hospital is not liable to Attachmate for copyright infringement, as Union Hospital’s use of Attachmate’s software was licensed;
d. Declare that Attachmate’s copyright infringement and/or breach of contract claims are barred by estoppel, waiver, laches, and/or acquiescence;
e. Declare that Attachmate’s copyright infringement and/or breach of contract claims are barred by the applicable statute(s) of limitations;
f. Declare that, if Attachmate’s claims are allowed to proceed, any damages for Attachmate’s copyright and/or breach of contract claims be substantially reduced due to Attachmate’s failure to mitigate its damages;
g. Declare that Attachmate’s alleged copyrights were not timely registered and therefore Attachmate is barred from seeking statutory damages and attorneys’ fees for its copyright infringement claims;
h. Declare that Attachmate’s copyright infringement claims based on unregistered copyrights are barred; and
i. Alternatively, declare that Attachmate’s is only entitled to de minimis damages because Union Hospital’s uses did not exceed the total number of uses that it contracted for with Attachmate.

Practice Tip:

The use of the compound conjunction “and/or” in this complaint raises some interesting possibilities. As one basis for federal jurisdiction, Plaintiff alleges that “Attachmate’s representatives have expressly or impliedly threatened litigation for breach of contract and/or copyright infringement….” Such an assertion may not be sufficient to invoke federal-question jurisdiction, as it claims that the threat of litigation exists for one of three possible circumstances: breach of contract only, copyright infringement only, or both breach of contract and copyright infringement. Under the first scenario – breach of contract only – no federal jurisdiction would lie. This potential problem may be remedied by other allegations in the complaint, including a separate assertion of diversity jurisdiction.

The use of “and/or” is also found in the prayer for relief. There, Plaintiff asks for, inter alia, declarations “that Attachmate’s copyright infringement and/or breach of contract claims are barred by estoppel, waiver, laches, and/or acquiescence” and “that Attachmate’s copyright infringement and/or breach of contract claims are barred by the applicable statute(s) of limitations.” Again, this use of the compound conjunction leaves open the possibility that the court might interpret the prayer for relief as a request to bar the claims of breach of contract or copyright infringement, but not both.

January 29, 2014

Sixteen Doe Defendants Alleged to Have Infringed “Charlie Countryman”

By Overhauser Law Offices, LLC

South Bend, Indiana – Michigan copyright attorney Paul Nicoletti, on behalf of Countryman Nevada, LLC (“Countryman”), sued in the Northern District of Indiana alleging that 16 unidentified John Does infringed the copyright of the motion picture “Charlie Countryman,” which has been registered by the U.S. Copyright Office. The movie stars Shia LaBeouf, Evan Rachel Wood and Mads Mikkelsen. It was directed by Fredrick Bond.

Countryman alleges that the infringing transfer and copying of this movie, which was released on DVD in January 2014, was accomplished by Defendants using BitTorrent, a peer-to-peer file-sharing protocol. Plaintiff states that the BitTorrent protocol makes even small computers with low bandwidth capable of participating in large data transfers for copying large files such as movies.

In this Indiana lawsuit, the Doe Defendants are accused of deliberately participating in a peer-to-peer “swarm” and illegally reproducing and/or distributing portions of the movie “Countryman” in digital form with other Defendants. Countryman indicates in its complaint that it used geolocation technology to determine that the Doe Defendants were located in Indiana.

The complaint lists a single count: copyright infringement. The copyright lawyer for Plaintiff Countryman asks the court for permanent injunctions prohibiting infringement of Plaintiff’s movie by all Doe Defendants; the destruction of all copies of infringing works in any Defendant’s control; judgment that Defendants have willfully infringed Plaintiff’s copyrighted work; judgment that Defendants have otherwise injured the business reputation and business of Plaintiffs; actual damages or statutory damages; an order impounding all infringing copies of Plaintiff’s movie; attorneys’ fees and litigation expenses.

Practice Tip: This is at least the second movie starring Shia LaBeouf which is the subject of copyright litigation in Indiana. In October 2013, a similar Indiana lawsuit regarding “The Company You Keep,” also starring LaBeouf, was filed in the Southern District of Indiana. That lawsuit was also filed by copyright lawyer Nicoletti. In addition to these lawsuits filed by the owners of the copyrighted movies, LaBeouf seems to have intellectual property concerns of his own, most recently having been served with another cease and desist letter for posts to his Twitter feed.