Copyright Infringement

November 3, 2011

Update to Third Degree Films V. John Doe: Purdue Releases Student’s Name Who Is Accused of Copyright Infringement of Adult Film

Lafayette, IN – According to a report from the Associated Press, Purdue University has released the name of a student who is accused of illegally downloading an adult film from a dorm room internet connection. Last month, Indiana Intellectual Property Law and News reported on Magistrate Judge Andrew Rodovich of the Northern District of Indiana ruling that denied a motion to quash the subpoena that sought Purdue’s disclosure of the student’s name and address.

This Purdue student is one of 2,000 internet subscribers that Third Degree Films, Inc. of California alleges have committed copyright infringement by illegally downloading adult videos. Third Degree did not know the identities of the persons who allegedly illegally downloaded the copyrighted work, but did have the internet protocol (I.P.) address. Third Degree has served subpoenas on internet services providers attempting to uncover the identities of the subscribers with the specified I.P. addresses. The underlying copyright infringement lawsuit was filed by copyright attorneys for Third Degree in the Northern District of California. Several similar copyright infringement cases are currently pending in Indiana district courts.

The Purdue student had filed a motion to quash the subpoena issued on Purdue, arguing that the subpoena sought confidential information and was burdensome.

Practice Tip: Typically in a case like this, once the identity of the I.P. subscriber is learned, the copyright attorneys for the film company will send a letter to the person seeking a settlement and threatening to sue the person if a settlement is not reached.
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October 26, 2011

Copyright Infringement Suit Filed Over Course Materials for “Recovering Money From Taxing Authorities”

By Overhauser Law Offices, LLC

Hammond, IN – Copyright attorneys for Abandoned Property, LLC have filed a copyright infringement suit against Netcentric Publishing. LTD. and Stacie Kellams and others. The lawsuit alleges that Abandoned Property developed a course called “We’re hooked on overages” that teaches people how to recover amounts owed to them by various taxing authorities. Allegedly, the Defendants “purchased a copy of Plaintiff’s phenomenal course in January, 2010, but did so under what appears to be an alias, “Luke Matthews.””The complaint then alleges that the Defendants began selling a competing Course that was “identical” to the Plaintiff’s Course for $997.00 each.

The suit alleges various causes of action including Copyright Infringement, Misappropriation of Trade Secrets, Breach of Contract, Fraudulent Inducement, Declaratory Judgment and “Vicarious Liability.”

This may be a retaliatory suit. On July 18, 2011, Netcentric Publishing’s lawyer filed a suit against Abandoned Property and Joe Kaiser in Austin, Texas asserting claims for business disparagement, defamation, fraud, and tortious interference with existing and prospective business relationships. That case is in the Western District of Texas, Cause No. 1:11-cv-602.

Practice Tip: Plaintiffs complaint appears to suffer from several defects. It does not explicitly allege that the Plaintiff owns a Copyright Registration for its work, which is a prerequisite to filing a copyright infringement suit pursuant to 17 U.S.C. § 412. Also, it will be interesting to see how the Plaintiff can contend that its Course is a “trade secret,” in view of the fact that they make their Course available for purchase over the Internet. It is also not evident how the Plaintiff expects to assert personal jurisdiction over the defendants, who are in Texas.

October 17, 2011

Purdue Ordered to Disclose IP Address of Alleged Downloader Of Copyrighted Adult Video

By Overhauser Law Offices, LLC

Lafayette, IN – Magistrate Judge Andrew Rodovich of the Northern District of Indiana has denied a Motion to Quash Subpoena served on Purdue University of Lafayette, Indiana by Third Degree Films, Inc. of California as part of a copyright infringement lawsuit in the Northern District of California. In its suit in the Northern District of California, copyright attorneys for Third Degree alleged that 2,010 John Does infringement an adult video called “Illegal Ass 2” without its consent in violation of its copyright. Third Degree did not know the identities of the persons who allegedly illegally downloaded the copyrighted work, but did have the internet protocol (I.P.) address. Third Degree has served subpoenas on internet services providers attempting to uncover the identities of the subscribers with the specified I.P. addresses. One of these John Does, John Doe 26, was a nineteen-year-old student at Purdue University. John Doe 26 filed a motion to quash the subpoena served on Purdue in the Northern District of Indiana.

John Doe 26 argued that the subpoena should be quashed because it seeks privileged information and also is unduly burdensome. The court disagreed. Citing similar cases, the Court found that John Doe 26 does not have standing to challenge the subpoena as unduly burdensome because John Doe 26 is not required to do anything to comply. Rather, it is the internet service provider upon whom a burden is imposed.

John Doe 26 repeatedly argued that there was a high risk that he did not illegally download the video at issue here. He argued he had this I.P. address at his dorm room at Purdue, and that there was a high risk that his roommate or another resident of the dormitory downloaded the infringing video. He also argued there was a high risk the information obtained through the subpoena would damage John Doe 26’s reputation. The court noted other courts have found that these arguments did not create a privilege justifying quashing the subpoena. The decision and issues here are similar to recent activity in the First Time Video case in the Southern District of Indiana.

Practice Tip: John Doe 26 states he filed this motion to quash in the Northern District of Indiana because the California District Court does not have jurisdiction over John Doe 26. John Doe 26 states California does not have jurisdiction because he has not been served with a complaint or summons and lacks personal jurisdiction. The court did not address jurisdiction in this order.
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October 14, 2011

French Lick Resort and Casino Sued by Colorado Artist for Copyright Infringement in Commissioned Artwork

By Overhauser Law Offices, LLC

Indianapolis, IN – French Lick Resorts and Casino Group has been sued in the Southern District of Indiana by Pamela Mougin for Copyright Infringement, violation of the Visual Artist Rights Act (17 USC § 106A), Breach of Contract and Unjust Enrichment. The West Baden Hotel is a historic hotel in Southern Indiana that was extremely popular in the early 1,900’s. However, it fell in to disrepair. In the 2,000’s it was restored in connection and converted into a hotel / casino in an effort to revitalize the economically depressed region.

Copyright attorneys for Ms. Mougin allege that in 2006, she was commissioned by a Colorado Interior Design firm, Worth Group, to create “an archival hand-painted canvas series of angels with topography of story for the resorts West Baden Hotel, featuring angels from an existing work in the dome of the resorts hotel.”

Later, in November, 2007, Mougin claims she entered into an agreement with the hotel whereby, in exchange for $2,800 she granted permission on a “one time print agreement only” to make “large prints to be displayed at the resort West Baden Hotel.” Allegedly, in the agreement, the hotel acknowledged Mougin’s Copyrights in the Works.

Copyright lawyers for Mougin further claim that on October 13, 2008, she discovered that additional “3D relief productions of the Works were present in the upper lobby mezzanine of the hotel” and at least 48 outdoor banners hanging on light posts. She alleges she notified the French Lick Resort of Copyright Infringement that same day.

The lawsuit was filed October 11, 2011, apparently two days before the 3 year Copyright statute of limitations would have run on the copyright claim.

Practice Tip: This lawsuit raises several interesting issues, among them, the scope of Copyright in Ms. Mougin’s work, since the complaint alleges that she made her angels from copies of what was preexisting at the hotel. The complaint also raises issues of the interplay between Copyright Infringement and Breach of Contract, as Mougin admits that the hotel had rights in the Copyrighted Works, although Mougin claims the scope of that license has been exceeded. Also, it appears that Ms. Mougin’s claim for Unjust Enrichment is preempted by the Copyright Act, as its only factual basis appears to be acts that would constitute copyright Infringement. It is unclear why Worth Group is named a Defendant; as no specific actions of it are implicated.
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October 10, 2011

Home Depot Successfully Defends Copyright Infringement Suit in Seventh Circuit Court of Appeals

By Overhauser Law Offices, LLC

Chicago, IL — Copyright lawyers for Home Depot successfully defended a copyright infringement lawsuit that had been appealed to the Seventh Circuit Court of Appeals.

Edgenet, Inc. of Waukesha, Wisconsin had filed a copyright infringement lawsuit in the Eastern District of Wisconsin alleging that Home Depot of Atlanta, Georgia infringed the copyrighted work BIG HAMMER MASTER COLLECTION TAXONOMY , which has been registered by the US Copyright Office.

Home Depot had contracted with Edgenet to develop a “taxonomy” which is essentially a method of categorizing different types of products. The parties successfully worked together for several years, but at some point Home Depot decided to develop their own taxonomy in-house that was built upon Edgenet’s system. At that point, Edgenet caught wind and filed to copyright its taxonomy, calling it Big Hammer Master Collection Taxonomy. Home Depot offered Edgenet $100,000 for a perpetual license and informed Edgenet that it would discontinue using its services. Edgenet, however, declined the check and filed suit alleging copyright infringement. In an opinion by Judge Easterbrook, the Seventh Circuit Court of Appeals found that Home Depot had not infringed the copyrighted work. The court found Home Depot had a right to use the intellectual property pursuant the parties’ contract, which did not limit types of uses.

Practice Tip: In this case, the Court of Appeals asked for supplemental briefing because it was not sure whether the federal courts would have jurisdiction over the case. The court noted that federal jurisdiction is available if the case involves a federal question (28 U.S.C. 1331) or if there is diversity of citizenship. Since both corporations were registered in Delaware, diversity of citizenship was not available. The question the court was concerned with was whether this was simply a contract dispute, which would be a state law question, or whether the controversy was really copyright infringement, a federal question. The court noted the T.B. Harms doctrine, which states that “the fact that a copyright is a contract’s subject matter does not change the status of a claim that arises under the contract.” According to the court, the supplemental briefs confirmed that the controversy was a copyright infringement claim.
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October 6, 2011

Southern District of Indiana Denies John Doe’s Motion to Quash Subpoena Seeking to Reveal the Identity of an IP Address That Allegedly Downloaded Adult Video in Copyright Infringement Suit

By Overhauser Law Offices, LLC

New Albany, IN – Magistrate Judge William G. Hussmann of the Southern District of Indiana has denied a Motion to Quash Subpoena filed by Defendant Doe No. 2 in First Time Video v. Indiana John Does 1-18. A copyright infringement attorney had filed a motion to quash subpoena on behalf of John Doe Number 2. Copyright lawyers for First Time Video did not know the names and addresses of the person who allegedly committed copyright infringement by downloading adult videos and had named 18 “John Does” when the suit was filed. First Time Video then served subpoenas on the internet service providers seeking the names and addresses of certain IP addresses which were alleged to have downloaded the copyrighted works. John Doe 2’s copyright attorney argued that the internet service provider subpoena should be quashed because it sought protected information and the subpoena was unduly burdensome.

The court’s order denied the motion to quash, meaning the internet service providers can be expected to turn over the names and addresses of the subscribers with the IP addresses that First Time has identified. The court’s order also reveals that John Doe 2 claims to be a woman who denies downloading the adult video. While denying the motion to quash, the Court made a very interesting notation at the end of the order:

The Magistrate Judge notes Doe No. 2’s concerns that the disclosure of her identity can lead to unwarranted embarrassing public disclosures, extortion-like attempts to force settlements, or lawsuits brought against defendants who have no liability. Those concerns are not far-fetched. However, the Rules of Professional Responsibility and Rule 11 of the Federal Rules of Civil Procedure stand as barriers to such conduct. Plaintiff’s attorneys are admonished to carefully consider these rules before determining what use to make of the information garnered from the Subpoena.

This case was previously blogged about by Indiana Intellectual Property Law News when it was filed. This is one of three suits currently pending in the Southern District of Indiana that are copyright infringement suits alleging infringement of adult videos by Indiana John Does using the BitTorrent “distribution protocol”.

Practice Tip: Pursuant Federal Rule of Civil Procedure 45(c)(3), the Court could quash a subpoena if it requests protected information or if it is unduly burdensome. The court here noted “there is no expectation of privacy in Internet subscriber information because it has already been exposed to a third party, the Internet Service Provider.” Regarding the undue burden argument, the court noted “Courts that have addressed this issue have concluded that the issuance of a subpoena to the Internet Service Provider of putative defendants does not create an undue burden on the putative defendants because they are not required to produce anything.”

October 4, 2011

U.S. Supreme Court Declines to Consider Several Intellectual Property Cases

By Overhauser Law Offices, LLC

Washington, DC – On Monday, October 3, 2011, the U.S. Supreme Court opened its session and refused to review several appellate decisions in patent, trademark and copyright cases. These included the following cases:

Lockwood v. Sheppard, Mullin, Richter, & Hampton, LLP., U.S., No. 10-1339.

The Federal Circuit summarily affirmed a district court dismissal of a patent owner’s malicious prosecution suite against the patent attorney that requested the USPTO to reexamine his patents. The patent owner had alleged, among other things, that the law firm filed a sham reexamination request with misrepresentations of the prior art. The district court held that the state law claims were essentially allegations of fraud and bad faith before the USPTO, preempted by federal law under Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001). The district court also found the claims over the 2003 reexamination request barred by the two-year statute of limitations.

October 3, 2011

Southern District of Indiana Issues Discovery Order in Copyright Infringement Suit Over Our Lady of America Works

By Overhauser Law Offices, LLC

Indianapolis, IN – Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana has issued a decision in a discovery dispute in a copyright infringement lawsuit. 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 that 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. Ms. Fuller apparently operates the website www.ourladyofamerica.com.

The Our Lady of America copyrighted works are drawings and statutes based upon a nun’s visions of the Virgin Mary that began in the 1950s. According to the complaint filed in the case, Ms. Fuller claims she owns the copyright to one of the Our Lady of America statute and the parties dispute the ownership. The plaintiffs disagree and believe Ms. Fuller is making numerous misrepresentations regarding the works and is fraudulently representing herself as the owner of the works and marks. In the original complaint, the plaintiffs made claims of defamation, intentional infliction of emotional distress, fraud, deception, theft, criminal conversion, and civil conspiracy. It appears that Ms. Fuller is claiming copyright and/or trademark rights to the images and statutes. The court’s discovery orders require her to disclose information such as “how the representation of the Virgin Mary was being used as a trademark in 1960.

Practice Tip: It appears that Ms. Fuller provided vague answers to numerous interrogatories sent to her. Federal Rule of Civil Procedure 26(e)(1)(A) requires parties to supplement their answers to discovery questions when the party learns that an answer provided is incomplete or incorrect.
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September 29, 2011

Coach, Inc. Files Federal Trademark and Copyright Infringement Lawsuits Against Indiana Company J & JS Petroleum, Inc. for Infringements of Handbags

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Coach, Inc. of New York, New York have filed a trademark infringement suit in the Southern District of Indiana alleging J & JS Petroleum, Inc. of Indianapolis, Indiana infringed the forty-eight trademarks registered with the US Trademark Office. In this suit, Coach also alleges J & JS infringed the copyrighted works of Registration No. VAu000704542, LEGACY STRIPE, Registration No. VA0001228917, SIGNATURE C DESIGNS, Registration No. VAu1-046658, COACH 70^th ANNIVERSARY SNAPHEAD PRINT AND Registration No. VA1-010-918, COACH CLOVER DESIGN which have been registered by the US Copyright Office.

The complaint against J & JS alleges that the company operates a gas station and convenience store at 9025 Brookville Road in Indianapolis where a Coach representative purchased a purse labeled “Coach” on August 21, 2011. The knock-off purse was purchased for $59.99, rather than the normal retail price of the Coach purse of approximately $298. Coach had not authorized the use of the “Coach” mark on the purse sold. The Coach representative viewed additional product labeled “Coach” for sale in the store. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, unfair competition, criminal forgery, and criminal counterfeiting.

Practice Tip: Coach has recently been very aggressively defending its intellectual property rights in Indiana. Indiana Intellectual Property Law News has previously reported on several cases here:

Coach Files Two Trademark and Copyright Infringement Lawsuits in Northern District Over Knock-Off Coach Items

Coach, Inc. Sues Chaos of Muncie and Angelina’s Unique Boutique for Trademark and Trade Dress Infringement For Sale of Coach Knock-Off Products

Coach, Inc. and Coach Services, Inc. Sue Diggz Clothing LLC and Lori Harth for trademark and trade dress infringement
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September 23, 2011

Rare Criminal Conviction for Copyright Infringement for Unauthorized Online File Sharing of Film Black Swan

By Overhauser Law Offices, LLC

Los Angeles, CA – Wesley DeSoto of Los Angeles, California has pleaded guilty to a charge of criminal copyright infringement in a rare federal criminal prosecution of copyright infringement, which was brought in the Central District of California. Mr. DeSoto allegedly uploaded copies of the copyrighted films Black Swan, The Fighter, The King’s Speech, 127 Hours and Rabbit Hole on to the website The Pirate Bay. Mr. DeSoto allegedly used the bittorrent protocol to share these films in January 2011 using the username “mf34inc.” According to Wired.com, the FBI raided Mr. DeSoto’s apartment earlier this year after being alerted of the alleged infringement by the Motion Picture Association of America. Mr. DeSoto is an actor and member of the Screen Actor’s Guild. He had obtained advanced copies of the films through his SAG membership. Investigators were able to identify Mr. DeSoto as “mf34inc” by tracing username’s Internet Protocol address to Mr. DeSoto.

On September 12, 2011, Mr. DeSoto and copyright infringement attorneys at U.S. Attorney’s Office filed a plea agreement with the court. Mr. DeSoto agreed to plead guilty and the U.S. Attorney’s Office is recommending a sentence of three years of probation. The judge in the case, however, will not be bound by the sentencing recommendation. The offense carries a maximum sentence of three years of incarceration.

Practice Tip: Mr. DeSoto was charged under 17 U.S.C. § 506(1)(C), which criminalizing the distribution of a copyrighted work that is being prepared for commercial distribution by making it available on a computer network to the public. This provision was passed in 2005. Mr. DeSoto’s case is a rare prosecution under this statute.
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