Friday, November 21, 2008

Traverse Internet Law Federal Court Report: October 2008 Copyright Infringement Lawsuits


The facts are unproven allegations of the Plaintiff and all commentary is based upon the allegations, the truthfulness and accuracy of which are likely in dispute.


FRESH SOFTWARE, LLC v. TRANSCORE, ET AL.
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:08-CV-07112
FILED: 10/28/2008

This should be another wake up call for businesses. Your employees, acting within the scope of employment, can create significant liabilities for a business, even if the owners of the business were not aware of the misconduct.

The Plaintiff, Fresh Software, LLC, is in the business of developing, marketing and selling security related application and utility software on the Internet. A number of individuals are alleged to have obtained fraudulent registration codes which allow for the installation of the Plaintiff's program without purchase from "cracking sites". Transcore, the employer of the individual Defendants, has been sued because the individuals were allegedly acting within the course and scope of their employment as computer operators.

The lawsuit claims copyright infringement, vicarious copyright infringement, contributory copyright infringement, and violations of the Digital Millennium Copyright Act (relating to the intentional bypass of the technology leading to access). The Plaintiff asks for compensatory damages, disgorgement of all profits, an order for an accounting of all income, an award of attorneys' fees and costs, and the entry of a preliminary and permanent injunction against the Defendants prohibiting further copyright infringement activity. Traverse Internet Law Cross-Reference Number 1230.


INTEGRITY MANAGEMENT OF FLORIDA v. DENTAL WEBSMITH, INC.
WESTERN DISTRICT OF KENTUCKY (PADUCAH)
5:08-CV-00174
FILED: 10/16/2008

Web developers that allegedly use a single copyright protected image owned by a third party on many different websites generally will create liability for all of its customers with those websites. While the damages recoverable against the web developer may be limited, there are likely claims that can be asserted against all of the customers, and they will look back to the web developer for "indemnification". The indemnification claim will be based upon a contract, either express or implied, between the web developer and its customers. It is difficult to see how filing for declaratory judgment and attempting to have the court assess damages will help the Plaintiff avoid indemnification liability from all of its customers. The lesson to be learned, if the facts alleged are true, is that one mistake can lead to a very big problem cutting to the very essence of customer relationships.

This is a lawsuit filed for declaratory relief involving two competitors. The Plaintiff, Integrity Management of Florida, creates, maintains and supports websites for Chiropractors and Chiropractic clinics. The Defendant, Dental WebSmith, creates, maintains and supports websites for Dentists and Dental clinics. Dental WebSmith notified the Plaintiff that is was using an image of a Dental Hygienist for which it held a registered copyright on more than 120 different Chiropractor websites. While not directly contesting the claim of copyright infringement as a central point of the lawsuit, the Plaintiff complains about the alleged owner of the image issuing 22 demand letters to its clients and filing four lawsuits against its clients for copyright infringement.

The relief requested is a declaration from the court that Integrity Management of Florida did not unlawfully copy, publish, distribute, and/or commercially exploit copyrighted content purportedly belonging to Dental WebSmith, or alternatively if the court found Integrity did infringe Dental WebSmith's copyright, a declaration from the court as to the damages recoverable. Traverse Internet Law Cross-Reference Number 1231.


XCENTRIC VENTURES, L.L.C. v. OPINION CORP., ET AL.
DISTRICT OF ARIZONA (PHOENIX)
2:08-CV-01841
FILED: 10/7/2008

The Plaintiff is suing for trademark infringement for the use of Plaintiff's trademark in a sub-domain and in metatags. This continues a significant trend of recent litigation occurring between competitors relating to the use of a business name. The web host is being sued because it "failed to adopt and reasonably implement a policy that provides for the termination in appropriate circumstances of services provided to customers who are repeat infringers". Given these facts, if true, this case is a good example of the circumstances under which a web host or other service provider has copyright infringement liability from hosting a website.

The Plaintiff, owner of the famous "www.ripoffreport.com" website, sued the Defendant and its web host for allegedly copying copyrighted works from the Rip-Off-Report site and publishing those works on the "Pissed Consumer" website. Additionally, Plaintiff claims that the use of the term "rip-off-report" as a sub-domain on the Defendants' website and use in metatags on the “Pissed Consumer” site is trademark infringement.

The lawsuit includes a claim for copyright infringement against the website, a claim for vicarious copyright infringement against the web host, a claim of trademark infringement against the website, a claim for cyberpiracy against the website for use of the Rip-Off-Report trademark in its sub-domain, and a claim for unfair competition and initial interest confusion trademark infringement. Plaintiff requests a permanent injunction prohibiting further copyright infringement against both Defendants, actual damages, statutory damages, triple damages, its costs, attorneys' fees, and the forfeiture or cancellation of the sub-domain name. Traverse Internet Law Cross-Reference Number 1232.

1 comment:

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