Articles Posted in Copyright Infringement

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New Albany, IN – Copyright lawyers for Jeral Tidwell of Kentucky filed a copyright infringement suit in the Southern District of Indianaalleging VSJ, Ltd of the United Kingdom and Raw International, LLC d/b/a Nitro USA of Valencia, California infringed the copyrighted work INK ALCHEMY which has been registered by the US Copyright Office.

The complaint states that Mr. Tidwell isThumbnail image for InkAlchemy.jpg an artist who creates markets and sells various images, including the copyrighted work, Ink Alchemy, which he created in 2008. Mr. Tidwell saw the defendant’s display at a trade show in Indianapolis in February 2011 and saw that the defendant’s were using his copyrighted work on motorcycle helmets without his authorization. Mr. Tidwell then discovered that the defendants were marketing helmets with the infringing images on their website as well. The complaint makes one claim of copyright infringement and seeks an injunction, damages, profits, attorney fees and costs.

Practice Tip: The complaint states that “venue” is appropriate in the Southern District of Indiana because the defendants have been conducting business in Indiana and specifically points to a website of the defendants that is accessible online. This sounds more like a personal jurisdiction argument, rather than a venue argument.
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Evansville; IN – Copyright attorney for Joe Hand Promotions of Feasterville, Pennsylvania filed a copyright infringement suit in the Southern District of Indiana alleging James C. Tosti d/b/a Sam & Jimmys Ho Bo Jungle Bar and JimSam, LLC, and unknown business entity d/b/a Sam & Jimmy’s HO BO Jungle Bar of Evansville, Indiana has illegally intercepted and broadcast Ultimate Fighting Championship 106: Tito Ortiz v. Forest Griffin II,JoeHandPicture.jpg a broadcast to which Joe Hand owned exclusive national broadcast rights.

The UFC fight at issue here was broadcast on November 21, 2009. Copyright attorneys have made claims both against the bar as a business entity and seeking personal liability claims against the owner. The complaint alleges one count of copyright infringement in violation of 47 U.S.C. § 605, one count of copyright infringement 47 U.S.C. § 553, and one count of conversion. Copyright attorneys for Joe Hand are seeking statutory damages of $150,000 as well as costs and attorney fees.

Practice Tip: Joe Hand Promotions is a frequent litigant and has brought several cases this year against defendants alleged to have illegally intercepted and/or broadcast UFC fights. Indiana Intellectual Property Law and News has previously blogged on the cases below:

  • Joe Hand Promotions Sues Lawrenceburg, Indiana Bar for Showing UFC Fight Without Authorization
  • Joe Hand Promotions Sues Beerbelly’s over Interception of Broadcast Signal
  • Joe Hand Promotions Sues Longwell and Pitt Stop Pub & Grill for Intercepting UFC Broadcast

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Indianapolis; IN – Copyright attorneys for J & J Sports Productions, Inc. of Campbell, California filed seven separate copyright infringement suits in the Southern District of Indiana alleging that seven Indianapolis restaurants illegally broadcast a fight on November 14, 2009, specifically “Firepower: Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program” a copyrighted work to which J&J Sports Productions owns exclusive national broadcast rights. The seven restaurants are Fandango’s Night Club, Taqueria Jalisco, El Sol Azteca, El Taco Torro, Rea Night Club, Moctezuma Restaurant and Pollos Los Reyes.

Picture.jpgThe complaints are nearly identical in each case. Copyright attorneys have made claims both against the restaurants and personal liability claims against the owners. Each group of defendants is accused one count of copyright infringement in violation of 47 U.S.C. § 605, one count of copyright infringement 47 U.S.C. § 553, and one count of conversion. Copyright attorneys for J&J are seeking statutory damages of $150,000 as well as costs and attorney fees.

In addition to these seven lawsuits, J&J filed eighty-seven other lawsuits in the district courts around the country alleging illegal broadcast of the copyrighted fight in question here between November 1 and November 14, 2011.

Practice Tip: All of these lawsuits were filed on the eve of the two year anniversary of the broadcast that the defendants are alleged to have illegally broadcast. When Congress passed the Cable Communication Act, a statute of limitations was not included. Some federal courts have determined that a two year statute of limitation is appropriate while other federal courts have used a three year statute of limitations.
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Washington, D.C. – The United States House of Representatives is considering a bill directed as providing law enforcement more tools to stop illegal online file sharing and copyright infringement. The bill, titled the “Stop Online Piracy Act,” was introduced by Representative Lamar Smith of Texas on October 26, 2011. house-gov.jpgThe bill would authorize the Department of Justice to seek a court order requiring alleged infringers as well as domain names and websites to immediately cease any activities that are intellectual property criminal offenses. The bill would also create a new mechanism for seeking limited injunctive relief against the owners of domain names and websites to stop infringement occurring through their sites and domains. The bill also expands the definition of criminal copyright infringement to include public performance of copyrighted work by digital transmission or making work intended for commercial dissemination available on a computer network. The bill is also being called the E-PARISITE Act (“the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act”).

The bill is drawing criticism from a number of corners. Specifically, some critics have noted that the bill would allow the government or private parties to shut down entire websites, not just infringing content. A report from John Moe of NPR’s Marketplace, quotes extensively from Professor Mark Lemley of Stanford Law School, who stated ““What’s remarkable about this provision is that it would allow the government and in many cases private parties to come into court, get a temporary restraining order without the participation of the accused website and shut down not just the infringing material, but the whole website.”

The bill was referred to the House Judiciary subcommittee on Intellectual Property, Competition and the Internet, of which Indiana Congressman Mike Pence is a member.

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Lafayette, IN – According to a report from the Associated Press, Purdue University has released the name of a student Thumbnail image for Thumbnail image for Thumbnail image for purdue-p.gifwho 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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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 AbandonedProperty.jpgdeveloped 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.

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Lafayette, IN – Magistrate Judge Andrew Rodovich of the Northern District of Indiana has denied a Motion to Quash Subpoena served on Purdue University Thumbnail image for purdue-p.gifof 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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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 Resort Dome.jpgWest 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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Chicago, IL — Copyright lawyers for Home DepotHome Depot.jpg 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, EdgeneEdgenet.jpgt 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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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 videosThumbnail image for Thumbnail image for BitTorrentPicture.JPG 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.”

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