Copyright Infringement

March 5, 2013

Malibu Media Sues Seventeen “John Doe” Defendants for Copyright Infringement

Indianapolis, IN – Plaintiff Malibu Media, LLC of Los Angeles, CA has sued seventeen “John Does” for copyright infringement in separate complaints filed in both the Southern District of Indiana and the Northern District of Indiana.

Paul Nicoletti, a copyright attorney, has filed seventeen nearly identical suits in Indiana federal court on behalf of Malibu Media. The “John Does” allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of copyrighted material.

We have previously blogged about Malibu Media here. We have also blogged about some of the other copyright-infringement litigation filed by Paul Nicoletti here.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of each defendant; an award of statutory damages of $150,000 per infringed work – which would total over $1 million for many defendants – and reasonable attorneys’ fees and costs.

Practice Tip: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. While the copyright infringements committed with BitTorrent once consisted mostly of music copyright violations, the adult entertainment industry has increasingly been filing suit against infringers who have used BitTorrent-based technology.

February 22, 2013

BMI and Copyright Owners Sue Carey Tavern and its Owners for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music, Inc. (“BMI”), of New York, NY and eight other plaintiffs have sued VAT, Inc. (“VAT”) d/b/a Carey Tavern and its owners, Matthew and Valerie Schachte of Westfield, IN, for copyright infringement in the Southern District of Indiana.

In its complaint, BMI states that it has been granted the right to license the public performance rights of more than seven million copyrighted musical compositions, including the compositions at issue. The other plaintiffs are the owners of the copyrighted music that was allegedly infringed and include such artists as Dolly Parton, via her sole proprietorship Velvet Apple Music, and R.E.M., via Night Garden Music, a division of R.E.M./Athens LTD. Also plaintiffs in this case are: Sony/ATV Songs, LLC d/b/a Sony/ATV Tree Publishing, Moebetoblame Music, Sony/ATV Songs LLC, ECAF Music, Blues Traveler Publishing Corporation, and Universal Music-Z Tunes LLC d/b/a Universal Music Z Songs.

The suit, brought under The Copyright Act, alleges that the defendants infringed multiple songs in BMI’s repertoire by performing the copyrighted songs and/or causing the copyrighted songs to be performed publically in Carey Tavern. It alleges that there were seven instances of infringement, with each artist-plaintiff having at least one copyrighted song infringed by the defendants.

Plaintiffs allege that VAT has a direct financial interest in Carey Tavern, as do Matthew and Valerie Schachte. Further, it is alleged that Matthew and Valerie Schachte are officers of VAT, with primary responsibility for the operation, management and supervision of the activities of VAT.

The plaintiffs claim that further acts of infringement will injure them irreparably and 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 #1: BMI has a history of actively pursuing litigation in cases where copyrighted songs were performed in bars or restaurants without authorization.

We have previously blogged about BMI:

– BMI Sues Indianapolis Bar for Copyright Infringement of Honky Tonk Women

– BMI Sues Elkhart Bar for Copyright Infringement of Achy Breaky Heart and Other Songs

– BMI Sues Fishers Bar for Copyright Infringement of Counting Crow’s Mister Jones and Other Songs

– Broadcast Music, Inc. et al Sues Bertee’s Inc. et al for Copyright Infringement of Musical Composition

– BMI Sues Diamond Investments Inc. D/B/A The Juke Box Live for Copyright Infringement of Eight Songs

– BMI Sues Olive’or Twist Bar for Copyright Infringement of Unlicensed Performance of Five Songs

– BMI sues Shenanigans for Infringement of Song Copyrights

– BMI Sues R House of Brews for Musical Composition Copyright Infringement

– BMI Sues Bugsy’s Entertainment Group for Copyright Infringement

Practice Tip #2: The plaintiffs have sued not only the business entity but also its two owners as individuals. Copyright laws allow an officer of a corporation to be held liable for the corporation’s copyright infringement if the officer contributes to the infringement by inducing or encouraging the infringement. An officer can also be liable for copyright infringement if the officer supervises the infringing conduct and has a direct financial benefit from the infringement.

January 29, 2013

The World Trade Organization Suspends United States Intellectual Property Rights in Retaliation for Trade Restrictions Deemed Improper Under the General Agreement on Trade in Services

By Overhauser Law Offices, LLC

Geneva, Switzerland – The World Trade Organization (“WTO”) has granted its permission for the twin-island nation of Antigua and Barbuda (“Antigua”) to disregard intellectual property rights granted by the United States (i.e., patents, copyrights and trademarks). The decision follows nearly ten years of negotiations and litigation pursuant to a 2003 complaint to the WTO by Antigua.

In the United States, there are three separate federal laws (the “Wire Act,” the “Travel Act” and the “Illegal Gambling Business Act”) and various state laws promulgated by Louisiana, Massachusetts, South Dakota and Utah that prohibit certain means of delivering gambling services, most particularly the interstate delivery such services. The dispute centered on the conformance of these laws with an international trade agreement when the laws restricted online gambling services offered in the U.S. by Antigua. [NB: Other WTO members participated as complainants but, by 2009, the U.S. had negotiated agreements with each of them.]

Via its attorneys, Antigua alleged that, together, the federal and state restrictions amounted to discrimination against foreign companies and constituted a breach of the United States’ agreement under the WTO’s General Agreement on Trade in Services (“GATS”). Antigua stated that its economy, which had, without the restrictions, included a substantial volume of online gambling services offered to the residents of the U.S., had been significantly damaged.

January 29, 2013

Indiana Court of Appeals Vacates Trial Court’s Order to Forfeit Truck Used for Sales of Pirated Movies

By Overhauser Law Offices, LLC

Indianapolis, IN – The Indiana Court of Appeals has vacated the decision of The Honorable Timothy Oakes, Marion County Superior Court, to seize the truck of a defendant who pled guilty to fraud for having sold pirated movies from the truck.

In December 2009, the State charged Michael Curtis with felony fraud for selling pirated movies out of his truck. The State also sought forfeiture of the truck from which the movies had been sold under 34-24-1-1(a)(1)(B) which allows for the seizure of vehicles that are used to facilitate the transportation of “stolen . . . or converted property” valued at $100 or more.

Curtis pled guilty to one count of fraud and the remaining charges were dismissed. The court granted the State’s motion to seize the truck. Curtis filed a motion in opposition, which was not granted, and later appealed.

Upon appeal, Curtis cited Dowling v. United States, 473 U.S. 207 (1985) as precedent and the Indiana Court of Appeals discussed the case.

The U.S. Supreme Court held that a copyright was “no ordinary chattel,” Dowling, 473 at 216. Theft of a copyrighted work via infringement was held to be distinguishable from theft of tangible property as it “plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.” Id. at 218.

In Dowling, the defendant had engaged in infringement but had been convicted under the portion of the National Stolen Property Act (“NSPA”) which criminalized actions wherein items, subject to other conditions, were “stolen, converted or taken by fraud.” 18 U. S. C. § 2314. The Court ruled that the language of “stolen, converted or taken by fraud” did not include copyright infringement. Under the rule of lenity — a rule which calls for construing ambiguous criminal statutes in favor of criminal defendants — the Court held that the defendant had not violated the NSPA by infringing upon a copyright.

In Dowling, the rule of lenity caused the Court to construe the language of a criminal statute narrowly. Here, the Indiana Court of Appeals was asked to interpret a statute authorizing forfeiture, another type of statute that is strictly construed. As the language “stolen . . . or converted” did not include either fraud or copyright infringement, the order of the trial court to forfeit the truck was vacated.

Practice Tip: While the penalties for copyright infringement can be significant, the rule in Dowling will presumably prevent many statutes prohibiting theft of tangible items from being applicable to copyright infringement unless the legislature makes clear its intent to include copyright infringement in the language of the statute.

January 10, 2013

Attorney and Professional Photographer Richard Bell of McCordsville, IN Sues Seventy-Three Defendants in Two Separate Complaints Filed in the Southern District of Indiana Alleging Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, IN – Attorney and self-proclaimed professional photographer Richard N. Bell, suing on his own behalf, filed two separate complaints alleging copyright infringement and unfair competition under the Copyright Act and conversion under Indiana statutory law as a result of the unauthorized use of a photograph he had taken and which had been registered with the United States Copyright Office. Bell is seeking damages, injunctive relief and a declaratory judgment. Mr. Bell has been disciplined by the Indiana Supreme Court for violating the Rules of Professional Responsibility. (See Disciplinary Action here.)

In the first complaint, filed January 4, 2013, Bell named twenty-five separate Defendants: Greg Bayers, LLC; Leppart Associates; crazy-frankenstein.com; Hometown Rentals; Frank Kirchner; Brent Bythewood; Pixmule.com; InternMatch; Team Champion; Electraproducts; Alex Bruni; Mark Groff; Greatimes Family Fun Park; Peter Brzycki; Tom Kelly; Relociti.net; gerberbabycontest.net; MerchantCircle, Inc; Amber Russell; WSBT, Inc.; Delia Askew; Intercontinental Industries; The Friedman Foundation for Educational Choice; Linen Finder, Inc.; and Radio One of Indiana.

In the second complaint, filed January 8, 2013, Bell named the remaining forty-eight Defendants: Jerry Gordon; Demand Media, Inc.; Bryce Welker; Royal Corniche Travel Ltd.; VRBO.com, Inc.; Experience Credit Unions, LLC; Jaclothing.com; Glacier International; ABNHotels.com; 1&1 Internet, Inc.; Conde Nast Digital; Flixter, Inc.; Financing-USA.com; SodaHead, Inc.; NuMedia Marketing, Inc.; Jynell Berkshire; Tzvetelin Petrov; Los Pentecostales del Area de la Bahia; 10Best, Inc.; Keyes Outdoor Advertising; Zoom Communications Inc.; Christine Nevogt; Zarzar, Inc.; Hydro-Gear; Tam T. Dang; Lon Dunn; William McLaws, Trustee; Natl-electronic Residential Payment History Recording Agency; CVI; Constant Contact, Inc.; Charles Lantz; Schumacher Cargo Logistics; Eventbrite, Inc.; Celebrity Entertainment Corp.; Association of Equipment Manufacturers; Yardi Systems Inc.; DiamondIndyLimo.com; Marcelo Santos; National Rural Recruitment & Retention Network; Anbritt Stengele; Pinnacle Sports Equipment, Inc.; Marygrove College; RunAnyCity.com; Buzzle.com, Inc.; Charles Onuska; University of Indianapolis; and PersephoneMagazine.com.

December 10, 2012

Indiana Court Denies Motions to Sever and Quash in Bittorrent Porn Copyright Infringement Suit

By Overhauser Law Offices, LLC

Fort Wayne, IN – Copyright attorney Paul Nicoletti filed a lawsuit on behalf of Malibu Media in the Northern District of Indiana alleging copyright infringement of the pornographic movie “Romantic Memories.” It alleges the infringement occurred by downloading it using the Internet file sharing “bittorrent” protocol. The suit was against 14 as-yet-unnamed Indiana Defendants, John Does 1-14. “Romantic Memories” had been coded with a “Unique Hash Number,” and upon investigation, 14 Internet Protocol (“IP”) addresses were identified. Upon receiving permission from the court, Plaintiff served third party subpoenas on two Internet Service Providers (“ISPs”) to discover the names and other contact information of each Defendant.

Defendant John Doe No. 12, acting pro se, filed a Motion to Dismiss or Sever for Misjoinder and to Quash Plaintiff’s Subpoena. The court rejected the Motion to Dismiss on a technicality, noting that under local rules motions must be filed separately, and denied the Motions for Severance and to Quash.

Doe No. 12’s Motion to Quash under Fed. R. Civ. P. 45(a) argued that there was no evidence that any improper use of his IP address would be sufficient to support an assertion that he was responsible for such misuse. The Court acknowledged that Doe No. 12 had standing to object to the subpoena on the grounds that it would implicate his privacy interest. However, it went on to reject his argument as a mere denial of liability and not relevant to a Motion to Quash. Doe No. 12 further asserted that the subpoena should be quashed as a burden on his ISP. The court found that argument unpersuasive as 1) the subpoena would not burden Doe No. 12 personally and 2) Rule 45 only requires a court to quash a subpoena when it subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). Further, the court held that no exception for privilege was applicable, as courts have consistently held that “there is no expectation of privacy in Internet subscriber information because it has already been exposed to a third party, the Internet Service Provider.”

Doe No.12’s Motion to Sever under either Federal Rule of Civil Procedure 20 or 21 argued, that there was no single transaction or series of transactions as is required for permissive joinder. Courts across the country are split regarding whether joining anonymous defendants alleged to have participated in a single BitTorrent “swarm” in a single suit is appropriate. The court here allowed joinder as the Plaintiff alleged a set of facts sufficient to support a finding that the separate actions were part of the same series of transactions, noting that the file sharing protocol required each participant to send and receive portions of the work in order to download and view the entire work. The second requirement for joinder under Rule 20, a “common question of law or fact,” was sufficiently pled by the Plaintiff’s assertion, without exception, of the same counts of copyright infringement against all Defendants. Discretionary severance under Rule 21 was also denied as unnecessarily cumbersome at this stage of the litigation.

Finally, the court issued a warning to plaintiffs in situations such as these, stating that “the litigation strategy Plaintiff has employed in this case has a history of becoming abusive and potentially giving rise to sanctions under Rule 11.” The court further cautioned plaintiffs against improperly leveraging a defendant’s reluctance to have his identity revealed to coerce a settlement.

July 31, 2012

CP Productions, Inc. Sues John Doe for copyright Infringement of Video: “GH Hustlers – Maryjane’s Second Visit”

By Overhauser Law Offices, LLC

Indianapolis IN – Copyright lawyers for CP Productions, Inc. of Phoenix, AZ filed a copyright infringement declaratory judgment suit in alleging John Doe, an alleged serial infringer known at this time only by an IP address, infringed the copyrighted work “GH Hustlers – Maryjane’s Second Visit” which has been registered by the US Copyright Office.

In the complaint filed by attorneys for CP Productions, John Doe and other un-named parties are believed to have infringed a copyrighted video belonging to CP Productions. CP Productions is a producer of adult entertainment and seeks judgment against John Doe and others for the alleged serial infringement of the video “GH Hustlers–Maryjane’s Second Visit” to which the Plaintiff owns the copyright. John Doe and the joint tortfeasers are not known by name but rather, through their IP address and attorneys for CP Productions will be filing a Motion for Leave to Take Discovery in order to ascertain the actual identities of the Defendants from their ISPs. CP Productions is seeking judgment from counts including copyright infringement, civil conspiracy, and contributory infringement. CP Productions claims to have observed John Doe’s infringing multiple copyrighted content through agents the Plaintiff has employed using the BitTorrent protocol because the Plaintiff employs P2P netword forensic software to provide real time monitoring of the BitTorrent swarm that distributes the video. This software allowed CP Productions to log John Doe and the joint tortfeasers unlawful activities. CP Productions further alleges that John Doe and the joint tortfeasers intentionally downloaded a torrent file particular to the Plaintiff’s video, purposefully uploaded the torrent into their BitTorrent clients and entered a BitTorrent swarm particular to the Plaintiff’s video and reproduced and distributed the copyrighted video among themselves and third parties thereby becoming both and uploader and downloader of the video. By doing so, CP Productions claims that this “ever growing swarm will jointly contribute to the complete download of the Video for all individuals that enter the swarm at any given moment.” CP Productions believes that this lawsuit is the only practical means by which to combat BitTorrent based infringement. Because the damage claimed by CP Prodcutions includes economic and reputation losses, to which Plaintiff asserts will continue, the Complaint sets out demand for actual or statutory damages allowed under the Copyright Law, compensatory damages for the counts of civil conspiracy and contributory infringement, and an order or impoundment for all copies of Plaintiff’s works, photographs or other materials in the Defendant’s possession or control.

Practice Tip: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. Where this market was once consumed by music copyright violations, the adult entertainment industry has seen an increase in litigation against infringers using BitTorrent-based technology. Although no concrete rules govern jurisdiction of the Internet, Indiana’s long arm statute (Indiana Rule of Trial Procedure 4.4) permit personal jurisdiction of Defendants if they either downloaded or uploaded the copyrighted material.

June 27, 2012

U.S. Supreme Court Will Hear Copyright Case over Gray Market Goods

By Overhauser Law Offices, LLC

Washington, D.C.: The Supreme Court has recently decided to hear a case that could reconcile two competing sections within The Copyright Act–section 602(a)(1) which prohibits the importation of a work without the authority of the owner and section 109(a) which allows copyrighted works to be sold without the copyright owner’s permission–which will determine the applicability of foreign copyright owners’ control of the sale and distribution of their work.

On April 16, 2012 the Supreme Court Granted cert in the case of Kirtsaeng v. John Wiley & Sons in an attempt to resolve the issue of the copyright protections of gray market goods. Reuters.com reports that Kirtsaeng, a graduate student at The University of Southern California, is from Thailand and had his family purchase textbooks cheaply overseas and then shipped to him. He then resold them on eBay for a profit, in order to make money for school. According to Kirtsaeng’s petition for cert, he claims to have researched the Copyright Law including the Doctrine of First Sale, section 109(a), and felt that it was applicable to him. However, John Wiley & Sons, whose Asian subsidiary produced some of the books sold, disagreed with the interpretation and filed an infringement suit in 2008. Although Kirtsaeng profited $37,000 from the Sale of books produced by John Wiley & Sons, a jury found him liable of infringement and imposed damages of $600,000.

According to SCOTUSblog.com, the 2nd Circuit upheld the ruling, stating that the Doctrine of First Sale only applies to U.S. made goods. In their ruling, the 2nd circuit applied the Costco Wholesale Corp. v. Costco case, in which the court split 4-4 in its decision to apply the Doctrine of First Sale to U.S. made goods sold by businesses, and extended its reach to individuals as well. When the Supreme Court hears Kirtsaeng’s case, it will seek to resolve the discrepancy in the Copyright Law and the issue of whether the Copyright Law applies to a copy that was made and legally acquired abroad and then imported into the United States, SCOUTUSblog.com reports. According to supremecourt.gov, the time for the parties to file their briefs on the merits has been extended until August 31, 2012. The case will be heard next term, reports abajournal.com.

May 29, 2012

Northern District Court Dismisses Copyright Infringement Claim in Suit Over RV Sales Agreement and Design

By Overhauser Law Offices, LLC

Fort Wayne; IN – The Northern District of Indiana has granted a partial summary judgment for Forks RV of Shipshewana, Indiana that dismisses copyright infringement claims in a dispute over a recreational vehicle sales agreement and design. Copyright attorneys for Amy and James Ortega had filed a lawsuit against Forks RV of Shipshewana, Indiana alleging that Fork breached a sales distribution agreement and also alleged copyright infringement over Fork’s use of Ortega’s designs for a custom RV. The court summarily dismissed the copyright infringement claim because Ortega had not registered his designs with the U.S. Copyright Office. The court noted “The Copyright Act states that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a).

The court, however, denied summary judgment on the breach of contract claim relating to the distribution and/or sales agreement. The court found that there was a genuine dispute of material fact, and therefore, summary judgment would be inappropriate.

Practice Tip: Copyright attorneys for Fork had requested attorney’s fees in defending the copyright infringement claim. The court granted this request, noting that . There is a strong presumption that the “prevailing party” in a copyright infringement case is entitled to recover attorney’s fees in the 7th Circuit, and that a copyright registration must be obtained before pursing an infringement claim (in most instances). Thus, plaintiffs must take care to register their copyrights before filing a copyright infringement suit, at the peril of being liable for the defendant’s attorney’s fees.

May 3, 2012

Southern District Grants Partial Summary Judgment Dismissing Some Copyright Claims In Dispute Over Virgin Mary Images

By Overhauser Law Offices, LLC

Indianapolis; IN – The Southern District of Indiana has granted partial summary judgment that dismisses many of Patricia Fuller a/k/a Sister Joseph Therese’s claims in a lawsuit over the physical and intellectual property rights to certain images and statues of the Virgin Mary, which are titled Our Lady of America. Intellectual property attorneys for Kevin B. McCarthy of Indianapolis, Indiana, Albert H. Langsenkamp, Carmel, Indiana and BVM Foundation, Inc. of Batesville, Indiana had filed a lawsuit in the Southern District of Indiana making several claims against Patricia Ann Fuller, also known as Sister Joseph Therese of Fostoria, Ohio and John Doe of Ohio. Ms. Fuller apparently has counterclaimed claiming trademark and copyright ownership of the copyrighted work OUR LADY OF AMERICA.

The court’s partial judgment dismisses Fuller’s defamation, RICO and trade dress claims as well as her copyright claims that do not relate to the copyrighted works VAu000297438, VA0000643362 and TXu000366731, which have been registered by the US Copyright Office. The court also stayed the litigation, pending a resolution from the Catholic Church of “the status/ownership of ecclesiastical property and property rights arising while Sister Ephrem was a nun[.]”

This case has convoluted facts and procedural issues. We have previously blogged about the case here.

Practice Tip: It looks like the copyright claims are going to turn on whether Ms. Fuller or the Catholic Church is the owner of the copyrights. The records of the US Copyright Office indicate that “Sister Mildred Mary Neuzil” is the copyright claimant.