Copyright Infringement

August 19, 2011

The Guardian Reports on BitTorrent Litigation Citing TorrentFreak Calculation That 200,000 John Does Have Been Sued

London, U.K. – The Guardian newspaper of London recently reported on the rash of BitTorrent lawsuits that have been filed in the United States. The Guardian reports on the claims of a blogger named TorrentFreak who has been vigorously tracking the BitTorrent lawsuits. Notably, TorrentFreak tracks that over 200,000 “John Does” have been named as defendants in BitTorrent-related copyright infringement lawsuits. According to these reports, a majority of the suits involve online music sharing.

TorrentFreak describes the BitTorrent-related copyright infringement lawsuits as “pay-up-or-else schemes” and describes the economics behind the suits. She notes “Copyright holders have embraced this new revenue stream by the dozen and new lawsuits are being filed every week.” The reports note that after the identity of the “John Doe” is disclosed through discovery on Internet Service Providers, the copyright holders contact the person and offer to settle for $2,500. Because most John Does prefer to pay the $2,500 rather than face legal costs and possible $150,000 fine, none of the cases have gone to trial.

Practice Tip: Indiana Intellectual Property Law News has been closely following the Bittorrent litigation recently Indiana, all of which so far involve adult entertainment file sharing, rather than music. Our reports are available here:

July 28, 2011

Another Update to Hard Drive v. 21 Indiana John Does: Attorney Files Motion to Dismiss, Court May Strike Anonymous Letters

By Overhauser Law Offices, LLC

Indianapolis, IN – There have been further updates to the Hard Drive Productions case in the Southern District of Indianathat Intellectual Property Law News has been closely following. The Hard Drive case is one of three similar copyright infringement lawsuits in the Southern District of Indiana all involving file sharing of adult entertainment videos via BitTorrent. The other two are the Boy Racer case and the First Time Videos case.

In one development, an attorney has filed a motion to dismiss and motion to quash subpoena on behalf of one of the John Does, who remains unnamed but has his or her I.P. address listed on the motion. The motion to dismiss argues that the Court does not have personal jurisdiction since the John Doe does not live in or have sufficient contacts with Indiana and that the defendants have been misjoined since none of the controversies arise out of the same facts or occurrences. The motion also argues that a subpoena that has been served on internet service provider Comcast requesting the name and identifying information for this John Doe is unduly burdensome.

In another development, the Court has ordered the authors of the anonymous letters, subject of an Intellectual Property Law News blog last month, to appear before the court and show cause why their letters should not be stricken from the record. If the authors do not appear by September 9, the Court will strike their letters from the case docket.

July 15, 2011

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

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music Inc. (“BMI”) of New York, New York and fifteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Bertee’s Inc. d/b/a Bertee’s Sports Café and Kelly D. Kendrick of Fortville, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Bertee’s Sports Café in Fortville on December 18, 2010 without authorization. The eight songs at issues are: Givin’ It Up For Your Love by Jerry Williams, Good Times by Nile Rogers, Jessie’s Girl by Rick Springfield, On the Dark Side by John Caffery, Kryptonite by Bradley Kirk Arnold, Tennessee by Arrested Development, Wherever You Go by Alex Brand and Name by John Rzeznik. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, the plaintiffs have sued Kelly Kendrick, the owner of Bertee’s Sports Cafe personally. 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.

July 14, 2011

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

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music, Inc. (“BMI”) of New York, New York and fourteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Diamond Investments Inc. d/b/a The Juke Box Live , and Salvatore T. Mazza of Franklin, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Juke Box Live in Franklin on March 19 and 20, 2011 without authorization. The eight songs at issues are: Every Rose Has Its Thorn by Brett Michaels, Family Tradition by Hank Williams, Jr., Keep Your Hands to Your Self by Dan Baird, Lady Down on Love by Randy Owens, Baby Got Back by Anthony L. Ray, Courtesy of The Red, White and Blue by Toby Keith Covel, Play Something Country by Terry McBride, and Gunpowder and Lead by Miranda Lambert. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, BMI is the exclusive licensor to rights to play the songs listed. Unless a proper license is received, a bar or other establishment plays or allows a band to play music that has been registered with the US Copyright Office may commit copyright infringement. These types of cases are very friendly to the intellectual property owner, and a plaintiff is entitled to attorney’s fees from the defendant.

July 7, 2011

Update: Righthaven Controversial Copyright Infringement Case Dismissed, Countersued for Legal Fees

By Overhauser Law Offices, LLC

Las Vegas, NV — In May, Indiana Intellectual Property Law News reported on Righthaven, LLC, a controversial company that claims to enforce copyrights online. One of the cases Righthaven pursued has recently been in the news again and illustrates the risk of pursuing copyright lawsuits that are not well founded. Righthaven filed a copyright infringement against attorney Thomas DiBiase, a former federal prosecutor. Righthaven claimed DiBiase committed copyright infringement when he posted a news story from the Las Vegas Review-Journal on his blog No Body Murder Blog. In late June, U.S. District Court Judge Roger Hunt of the District of Nevada dismissed the case for lack of standing. It seems that Righthaven did not fully own the copyrighted work and therefore had no standing to sue.

In early July, Mr. DiBiase countersued for $119,000 in legal fees, as reported by Vegasinc.com. Other defendants who have succeeded in getting Righthaven lawsuits dismissed have already been awarded attorneys fees totally over $35,000. As Vegasinc.com reports, many of the early Righthaven lawsuits were settled, but the defendants who have fought the suits have largely won on either standing or under the fair use doctrine.

Practice Tip: The case illustrates the very real risk that Righthaven faced in filing its copyright infringement cases – that it would be forced to pay the attorney fees of those who successfully defended their cases. It also underscores the importance of having an experienced intellectual property attorney who will take an aggressive defense

June 30, 2011

Update to Hard Drive Productions BitTorrent Copyright Infringement Case: John Doe Letters Ask Court Not to Allow Discovery

By Overhauser Law Offices, LLC

Indianapolis, IN – Several anonymous letters have been sent to the Southern District of Indiana regarding the Hard Drive Productions Copyright infringement case, all opposing any discovery attempts in the case that might reveal the identities of persons alleged to have illegally downloaded pornographic videos. Intellectual Property Law News has reported recently on three copyright infringement lawsuits filed in the Southern District of Indiana involving file sharing of adult entertainment videos via BitTorrent: the Hard Drive Productions case, the Boy Racer case and the First Time Videos case.

In an unusual procedural move, three anonymous letters, signed “John Doe,” were sent to the Court to protest the lawsuit and pre-emptively attack potential discovery efforts by the plaintiff that might reveal the identities of the “John Does,” who are accused of illegally sharing adult videos using BitTorrent. The first letter calls the case “wrongful harassment of internet subscribers” and states “Mr. Steele and lawyers attempting to the same scheme of intimidation will eventually be in contact with me to demand several thousand dollars not to sue ME for downloading this pornography file if Your court permits subpoena[.]” It points out the ease at which I.P. addresses could be forged and that wireless internet service can be used by a person other than the owner of the I.P. address, a concern that has been reported in Time Magazine.

A second letter points out to the court that in another similar case, discovery requests were denied by the Central District Court of Illinois and the Northern District of California. One court order attached to the letter says “The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

Hard Drive filed a response to one of the letters, stating: “The Court is fully capable of protecting each defendant’s due process rights and ascertaining the quality of evidence presented at this proceeding. The anonymous letter expresses fear to the contrary, but these fears are not a good justification for curtailing discovery of the identities of those who have conspired to pirate copyrighted material.”

Practice Tips: We note the letters were sent from anonymous “John Does.” Had the writers identified themselves, they would have opened themselves to service of process and risked giving up several defenses including personal jurisdiction, which is an issue raised by one letter.

June 22, 2011

Update to Harvest Scents v. KMI Jury Trial: Settlement Reached Before Case Sent to Jury

By Overhauser Law Offices, LLC

Indianapolis, IN – In May, Indiana Intellectual Property Law News blogged about the jury trial in the copyright infringement case Harvest Scents v. KMI. The jury trial began on May 2, 2011 in the Southern District of Indiana and was presided over by Senior Judge Larry J. McKinney. According to PACER, on May 9^that the conclusion of the presentation of evidence on day six of the jury trial, the Court heard several additional motions. The plaintiff moved for a judgment as a matter of law, which Judge McKinney denied. At that point, rather than waiting for a jury verdict, the parties reached a settlement, and the jury was dismissed.

According to PACER, on June 22, 2011, the court approved a joint stipulation of the parties regarding settlement and dismissed the case with prejudice. The terms of the settlement appear to be confidential.

June 20, 2011

DIRECTV Sues Corner Bar & Grill For Copyright Infringement for Improper Interception Of NFL Games

By Overhauser Law Offices, LLC

Evansville, IN – Copyright lawyers for DIRECTV of California filed a copyright infringement lawsuit in the Southern District of Indiana alleging that Kevan Tally and Michael Schnell, owners of McGahery Enterprises, Inc., which operates the Corner Bar & Grill in Evansville, Indiana infringed copyrighted NFL games by illegal intercepted and unencrypted satellite signals.

The complaint alleges that on October 17, 2010, Mr. Schnell and Tally, displayed NFL games publicly at the Corner Bar and Grill without the authorization of DIRECTV. The complaint states that the Corner Bar did not have a paid DIRECTV subscription, yet received and unencrypted DIRECTV satellite signals in violation of the Cable Communications Act. DIRECTV claims the bar and its owners received financial benefit from the display of NFL games. DIRECTV is seeking statutory damages of $1000 to $10,000 for each violation and $10,000 to $100,000 for each willful violation as well as an injunction to prevent further display of illegal intercepted transmissions. Copyright attorneys for DIRECTV have also made a claim of civil conversion, alleging that the defendants intentionally and wrongfully deprived DIRECTV of proprietary interests.

Practice Tip: Most satellite signal providers employ encryption to limit reception to certain groups, such as paying subscribers. If an individual has a “residential” agreement with a satellite provider, this does not give them the right to display the performance in a public setting like a bar or restaurant. Both the satellite signal providers and the owners of the copyrighted content are typically quite aggressive about enforcing their copyrights.

June 16, 2011

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

By Overhauser Law Offices, LLC

South Bend; IN – Trademark and copyright lawyers for Coach, Inc. and Coach Services, Inc. of New York, New York filed two trademark infringement lawsuits in the Northern District of Indiana.

In the first lawsuit, intellectual property attorneys have alleged that Diva’s House of Style and Elizabeth “Beth” Bond of Elkhart, Indiana infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Diva’s House and Ms. Bond infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint alleges that Diva House and Ms. Bond have been designing, manufacturing, and/or selling “studied imitations” of Coach products that bear the Coach trade marks, trade dress and copyrighted works. Coach alleges that Diva House and Ms. Bond advertised the knock-off products on Facebook. A Coach representative used e-mail and phone to correspond with the defendants and purchased a purse from her. The representative then determined that the purse was not a genuine Coach purse and was a knock-off of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting. This case has been assigned to Judge Jon E. DeGuilio and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana, and assigned Case No. 3:11-cv-00253-JD-CAN.

In the second lawsuit, intellectual property attorneys allege that Lyn-Maree’s LLC of Auburn, Indiana, and its owners, Emma Taylor and Lynn Siples, infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Lyn-Maree’s and its owners infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint states that a Coach representative purchased a hand bag, wallet and sunglasses labeled “Coach” at the Lyn Maree’s retail store. The items were examined by Coach and determined to be not genuine Coach items, but knock-off items of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting.

Practice Tip: Coach has a reputation for vigorously defending their intellectual property. Coach filed two trademark lawsuits in the Northern District of Indiana in April of this year, which were reported on in Indiana Intellectual Property Law News. It seems that a Coach representative is monitoring businesses in the Northern District of Indiana and purchasing knock-off goods that then become the basis of these lawsuits.

June 14, 2011

Boy Racer, Inc. Sues 23 Indiana John Does for Copyright Infringement of an Adult Video Via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN – Copyright lawyers for Boy Racer, Inc. of North Bellmore, New York filed a copyright infringement lawsuit in the Southern District of Indiana alleging 23 Indiana John Does infringed the copyrighted work, a video called LA PINK, which has been registered by the US Copyright Office.

Boy Racer is an adult entertainment company that produced the video at issue. The complaint alleges that the 23 individuals have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that Hard Drive has the Internet Protocol address (“IP address”) of these 23 individuals and will learn their identities during discovery. Boy Racer has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge William G. Hussmann in the Southern District of Indiana, and assigned Case No. 4:11-cv-00070-SEB-WGH.

Practice Tip: As Indiana Intellectual Property Law News reported last month, the adult entertainment industry is using a copyright infringement litigation strategy to target online file sharing. This suit is the second filed in Indiana federal courts so far, and like the earlier suit, it targets file sharing via the BitTorrent program. Typically, the plaintiff will engage in discovery to find out identities of the persons associated with the IP addresses alleged to have infringed the copyrighted work. Once these identities are revealed to the plaintiff, the plaintiff typically reaches out to the alleged infringers to try to settle the case. If a settlement is not reached, the plaintiff will pursue further court action.