|
Tech Law Journal |
 |
| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
|
|
|
| |||||
|
Editor's Notes: Todd E. Zenger (#5238) IN THE UNITED STATES DISTRICT COURT
Plaintiff, Intellectual Reserve, Inc. (IRI), submits this reply in support of its motion for preliminary injunction to restrain continuing infringing conduct of defendants Lighthouse Ministry, Inc., Jerald Tanner and Sandra Tanner (collectively "Lighthouse"). I. COPYING A COPYRIGHTED BOOK WITHOUT PERMISSION IS ILLEGAL Original books have copyrights.[1] The United States Constitution provides for copyrights.[2] Copyrights give the owner the privilege to decide whether, how, when or where to first make the book available to the public.[3] Copyrights also give the owner the privilege to control copying of the book as well as distribution or display of the book to the public.[4] Copyrights are property.[5] It is, of course, illegal to steal property. Copyrights in a book are stolen or infringed when the book or a portion of the book is copied, distributed or displayed to the public without permission from the copyright owner[6] or from the copyright laws.[7] Copyrights are also infringed when one encourages or helps others to copy, distribute or display without permission.[8] In this case, the book at issue, the Church Handbook of Instructions, Book I, Stake Presidencies and Bishoprics ("Handbook") was created with great effort and at significant expense as a guide to assist Church leaders in serving and strengthening Church members and others. The Handbook is not a set of rigid rules and regulations. Nothing in the Handbook is secret. Rather, Church leaders are instructed to use the Handbook to gain an understanding of principles, policies and procedures to apply when seeking inspiration and exercising discretion and judgment. Hence, the Handbook has been prepared solely for use by and distribution to Church officers to administer the affairs of the Church. The Handbook is an original book. The Handbook has copyrights. Copyright registration was sought and obtained from the United States Copyright Office. The federal courts have power to prevent infringement of such copyrights.[9] II. LIGHTHOUSE CONCEDES THAT IRI’S HANDBOOK IS COPYRIGHTED AND HAS FAILED TO OFFER ANY PROOF OF PERMISSION TO COPY. At the October 18, 1999 temporary restraining order (TRO) hearing, Lighthouse:
The Court issued a temporary restraining order prohibiting Lighthouse from further violating IRI’s copyrights in the Handbook until November 10, 1999, at which time the Court would decide whether to expand and extend the restraining order for the duration of the lawsuit as a preliminary injunction. The restraining order requires:
At the TRO hearing, the Court also invited Lighthouse to tell the Court by October 28, 1999 the reasons Lighthouse should be permitted to copy, distribute and display chapters of the Handbook. As of October 28, 1999, Lighthouse again did not contest that IRI’s Handbook has copyright protection, did not dispute that Lighthouse has copied, distributed and displayed chapters of the Handbook, and failed to offer any proof that it had permission to copy, distribute or display IRI’s book. Instead, Lighthouse agreed that the restraining order should continue for the duration of the lawsuit.
Lighthouse has openly flouted and disregarded the Court’s restraining order by not merely continuing to publish portions of the Handbook without authorization but by now publishing and inducing publications of the entire Handbook. This disobedience constitutes contempt of the Court’s order. Utah Law defines contempt as "Disobedience of any lawful judgment, order or process of the court."[10] Contempt is punishable by a fine up to $1000 dollars, incarceration in jail up to 30 days, and monetary damages paid to the other party resulting from the disobedience.[11]
The Court ordered Lighthouse to honor IRI’s copyright by refraining from copying or distributing verbatim any portion of the Handbook. Actually copying or distributing is no more an infringement than inducing, causing or materially contributing to copying or distribution by another. Gershwin Publishing Corp. v. Columbia Artists Mngmnt, 443 F.2d 1159, 1162 (2d Cir. 1971); H.R. Rep. No. 94-1476, 94th Congress (enforcement of copyrights includes "liability of contributory infringers"). Indeed, advertising goods known to be an infringement renders the advertisers equally liable for infringement. Id. (citing Screen Gems-Columbia Music Inc. v. Mark FI Records, Inc., 256 F. Supp. 399, 403 (S.D.N.Y. 1966)). Infringement includes either doing it directly or helping another to do it. After issuance of the restraining order, Lighthouse has itself reproduced the entire Handbook contrary to the Court’s order. Lighthouse admits it. In its responsive paper and in its statements to the press, Lighthouse asserts that the entire Handbook, not just the portions originally alleged in this matter, is available from other sources including Internet sources. Lighthouse can only know this by having made and viewed electronic copies of the entire Handbook from these other sources. This copying by Lighthouse is even more egregious because the copying constitutes all 160 pages of the Handbook, not the 20 or so pages in dispute. Furthermore, after issuance of the restraining order, Lighthouse openly and admittedly helped and helps others copy and/or distribute copies of the Handbook. In its court papers, in its statements to the press and posted on its website are express advertisements for and instructions on how to obtain a copy of the entire Handbook. In its court papers filed October 28th, Lighthouse expressly tells the world where to go to get a copy of the entire Handbook. This is a blatant end-around the Court’s order. At its website, even to date, Lighthouse announces: "Church Handbook of Instructions is back online!" Lighthouse then advertises the Internet addresses at which copies of the entire Handbook or portions of the Handbook can be obtained. Ex. 1 (the copy of the October 30, 1999 Internet posting of Lighthouse has been redacted to prevent further advertising). Lighthouse not only continues to advertise but Lighthouse affirmatively acts to help people obtain known infringing copies of the entire Handbook. For example, Lighthouse received an October 30, 1999 e-mail in which the sender (whose identity Lighthouse has withheld) tried unsuccessfully to access the website which Lighthouse identified in its interview with the Salt Lake Tribune. Lighthouse responded giving explicit, detailed instructions on how to access the infringing work. Ex. 2 (October 30, 1999 e-mail and response, redacted to prevent further advertising and inducement). The damaging effect of Lighthouse’s continued conduct is evidenced by the admission of a person who, guided by Lighthouse, accessed and copied the entire Handbook. In an October 31, 1999 e-mail, the sender reports successfully downloading the complete Handbook:
Ex. 2. Lighthouse’s intent to continue to induce and contribute to infringement is clearly expressed in Sandra Tanner’s own words now posted at the Lighthouse website. On November 1, 1999, a person wrote to Lighthouse stating: "I read an article in the paper yesterday which said that you guys are basically throwing in the towel." To which Sandra Tanner responded in a posting on the Internet:
Ex. 3 (November 1, 1999 Internet posting). Lighthouse clearly intends to continue to advertise infringing copies of the Handbook and to continue to assist others to obtain infringing copies. The damaging effect of Lighthouse’s post-TRO advertising of infringing copies is revealed by the report from one web site owner at which the entire Handbook has been posted in retaliatory response to the restraining order on Lighthouse and to which Lighthouse directs others. The website owner brashly encourages copying and distribution of the Handbook as fast and far and wide "as absolutely soon as possible" and defiantly mocks any attempt to stop the illegal copying and distribution:
Ex. 4 (redacted copy of Internet announcement advertised by Lighthouse). This website owner reported that between Saturday October 30, 1999 (when Lighthouse advertised the website owner’s infringing copy through statements in the Salt Lake Tribune) and Monday, November 1, 1999, the website had over 6000 visits to the infringing material after Lighthouse advertised the website. Ex. 5 (redacted Internet e-mail from website owner touting success of Lighthouse’s advertising). In other words, Lighthouse has actively induced and caused apparently thousands of additional infringements after the Court issued the restraining order. This is the antithesis of the Court’s firm admonition to Lighthouse to "lay low" until the preliminary injunction was decided. Lighthouse’s flagrant violation of the Court’s temporary restraining order reveals the need to modify the restraining order to prevent Lighthouse’s continued active participation in infringing events.
Prior to October 18, 1999, Lighthouse had indexes which listed the Handbook and which provided click-on access to unauthorized copies. The index appeared as follows:
Exhibit 6 (redacted). The Court ordered Lighthouse to remove not only the text of the unauthorized copies but also these indexes which listed and invited inquiries about unauthorized copies. The prohibited indexes were removed from the Topical index. However, as of November 1, 1999, Lighthouse has reposted the prohibited indexes on another page as follows:
Exhibit 7 (redacted). Reposting of such indices merely on a different page is deliberate disobedience of the Court’s order to remove indices for the copyrighted material from the web site. Because Lighthouse has acted and continues to act in such blatant disregard for the orders of this Court and the copyright laws, the Court should not only continue the temporary restraining order as the preliminary injunction, but the Court should recognize the need to further curb the expressly intended and actual unauthorized copying and distribution, or helping to copy or distribute, by issuing a modified preliminary injunction. Therefore, IRI requests that the preliminary injunctive relief include:
In violation of the Court’s temporary restraining order, Lighthouse has continued to reproduce not only portions of the Handbook but now the entire Handbook. In further violation, Lighthouse has since October 18, 1999 actively induced, caused or materially contributed to thousands of unauthorized reproductions, distributions and displays of infringing copies of the entire Handbook by others. Lighthouse presently continues to actively induce, cause or materially contribute to unauthorized reproduction, distribution and public display of infringing copies of the entire Handbook by others. This Court should issue the submitted preliminary injunction to corral the unchecked, ongoing infringement by Lighthouse. This Court should also consider imposing a fine or other punishment as permitted by law to deter further infringements. DATED this _____ day of November, 1999. KIRTON & McCONKIE
By: ___________________ Todd E. Zenger, Esq.
CERTIFICATE OF SERVICE I hereby certify that on this ______ day of December, 1999, I caused a true and correct copy of the foregoing PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION to be delivered by hand-delivery to the following: Brian M. Barnard Footnotes [1] U.S. Copyright Law, 17 U.S.C. § 102 (1990). [2] United States Constitution, Article 1, § 8, clause 8. [3] United States Supreme Court in Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 552-553 (1985). [4] U.S. Copyright Law, 17 U.S.C. § 106 (1990). [5] E.g., White-Smith Music Publishing Co. v. Apollo Co., 209 U.S.1, 19 (United States Supreme Court 1908) [6] The Copyright Laws, 17 U.S.C. § 501 (1990). [7] The Copyright Laws, 17 U.S.C. §§ 107-120 (1990). [8] Federal appeals court, Gershwin Publishing Corp. v. Columbia Artists Mngmnt, 443 F.2d 1159, 1162 (2d Cir. 1971). [9] The Copyright Laws, 17 U.S.C. § 502(a) (1990). [10] Utah Code Annon., 78-32-1 (5) (Mitchie 1999). [11] Utah Code Annon., 78-32-10 and -11 (Mitchie 1999). [12] IRI has submitted herewith a proposed preliminary injunction.
|
|
