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

Traverse Internet Law Disclaimer

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.


KBS AMERICA, INC. AND MUN HWA BROADCASTING CORPORATION v. MYTV, INC., ET AL
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:08-CV-07753
FILED: 11/24/2008

The Defendants' response in this case is interesting in that it attempted to create a firestorm backlash against the Plaintiff in the apparent hope of creating a "mobosphere" attack to gain some bargaining advantage and to intimidate the Plaintiff into submission. This is an attempt to use the "Streisand effect" to create a "mobosphere" attack. No matter what type of claim you are asserting, there is always the possibility of a counter-attack aimed at your business reputation online.

The Plaintiffs offer and sell immediate real-time access to a stream of content broadcast by Korean affiliates over the Internet to North American subscribers. The Defendants are alleged to be an illegal business by intercepting and re-broadcasting the Korean television streams of such works without authorization and then competing against the Plaintiff. Plaintiff demanded the Defendant's cease and desist from intercepting signals and infringing on its exclusive license rights. The Defendants allegedly responded by taking out full page advertisements in Korean language newspapers in the United States demanding that the Plaintiff stop asserting its rights to the programming. This lawsuit followed shortly thereafter.

Plaintiff has sued the Defendants for copyright infringement, unfair competition, and unfair business practices. An injunction prohibiting further copyright infringement, together with an order requiring impoundment and destruction of copies of the creative works, together with compensatory and punitive damages, costs and attorneys' are request by the Plaintiff to be awarded by the court. Traverse Internet Law Cross-Reference Number 1253.


FRACTIONAL VILLAS, INC. v. WINDSOR CAPITAL MORTGAGE CORP. AND DOES 1-25
SOUTHERN DISTRICT OF CALIFORNIA (SAN DIEGO)
3:08-CV-02076
FILED: 11/12/2008

In order for there to be copyright infringement there must be "substantial copying". The analysis, however, is a very subjective one. The determination of what is, and is not, copyright infringement can often turn on design elements, arrangement of information, and the underlying html code. Consequently, make sure that if there is not blatant, word for word copying involved that you perform a quality analysis.

The Plaintiff developed, built, and launched a real estate industry website. Defendants are alleged to have copied its website and are competing against the Plaintiff. The Defendants are alleged to have "replicated the look and feel of Plaintiff's website by mimicking certain distinctive elements". The Plaintiff also alleges that the two sites bear striking similarity to one another, in that Windsor's site has taken virtually all textual and design elements, as well as the website layout, from the Plaintiffs.

The lawsuit alleges copyright infringement, trademark infringement, common law trademark infringement, trade dress infringement, and unfair competition under state and federal law. The lawsuit requests entry of temporary restraining order, a preliminary injunction, a permanent injunction, and an award of compensatory and punitive damages, attorneys' fees and costs. Traverse Internet Law Cross-Reference Number 1254.


NATIONAL GOLF FOUNDATION, INC. v. AUTOMATED INFO SOLUTIONS, INC.
SOUTHERN DISTRICT OF FLORIDA (WEST PALM BEACH)
9:08-CV-81281
FILED: 10/31/2008

Unfortunately, there are still people and businesses who actually believe that if you can access information online the owner has waived all rights to protect it. Of course, that is not the case. Software programs that "scrape" data create inherent exposure for copyright infringement and claims of unauthorized access (hacking). There are a long line of cases going back into the late 1990s in which Plaintiff's have been successful in lawsuits against those running automated programs and retrieving information.

Plaintiff is a website that provides timely and relevant information on the golf industry with original research on every aspect of the business. Part of its business is to maintain databases which it has developed at great cost and expense, including a directory of all golf facilities and golf courses, which is a comprehensive listing of golf courses and their features throughout the United States. The Defendant claims to be in the business of "automating the collection of public data from websites". Plaintiff alleges that Defendant developed a software program that "scraped" the data from its database and sold the information as a "list of U.S. golf courses".

The lawsuit is for copyright infringement, false designation or origin, false advertising, misappropriation of trade secrets, and deceptive and unfair trade practices. The Plaintiff requests the issuance of a temporary and permanent injunction, together with an award of actual damages, punitive damages, reasonable attorneys' fees and costs and other relief. Traverse Internet Law Cross-Reference Number 1255.

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

Traverse Internet Law Disclaimer

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.

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

Traverse Internet Law Disclaimer

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.

FRACTIONAL VILLAS, INC. v. DESERT QUARTERS, ET AL.
SOUTHERN DISTRICT OF CALIFORNIA (SAN DIEGO)
FILED: 9/23/2008
3:08-CV-01744

This is one of 5 lawsuits filed with the same allegations. Note the references to duplicate content and the allegation relating to the value of the creative aspects of the pages allegedly stolen by the Defendants. The relationship between the exact terms, the location of those terms in relation to other words, the formatting and presentation of the page, and other SEO elements are now finally working their way into the subject matter of lawsuits as it relates to damages and the intellectual property included on a webpage.

The Plaintiff is the author of certain creative works protected by US copyright registration which comprise the "fractionalvillas.com" website. The site offers fractional ownership of high end luxury properties. The Defendants are alleged to have reproduced the work protected by the copyrights and launched competing websites selling fractional ownership in luxury property. Plaintiff alleges that its "business and reputation were irreparably harmed by the confusion caused by the dual publication of the infringed material to web search engine results from Google, Yahoo, et al."

The lawsuit claims copyright infringement, federal unfair competition, California unfair competition, and requests the entry of temporary restraining orders, preliminary injunctions, permanent injunctions, the award of statutory damages of not less then $150,000.00 per copyright infringement, and other relief. Traverse Internet Law Cross-Reference Number 1220.


FEARS/NACHAWATI, PLLC v. GETTY IMAGES (US), INC.
NORTHERN DISTRICT OF TEXAS (DALLAS)
FILED: 9/23/2008
3:08-CV-01677

This is a classic example of why demand letters create an inherent risk and it is important to consider the implications of the words used. The response in this case was for a declaratory judgment to be filed in the lawyer's hometown and puts the law firm in a better position to resolve this matter on favorable grounds.

Plaintiff is a law firm located in Texas and the Defendant, Getty Images, asserted a claim of copyright infringement against the law firm for the alleged unauthorized use of images on its website.

The law firm filed a lawsuit in its own jurisdiction for a declaratory judgment that it was not infringing on the Getty Images' photographs. Traverse Internet Law Cross-Reference Number 1221.


TECHNOMARINE SA v. AUTHENTICWATCHES.COM INC AND JOHN DOE 1 SOUTHERN DISTRICT OF NEW YORK (FOLEY SQUARE)
FILED: 9/11/2008
1:08-CV-07916

Very common problem today online. The Defendants stole the Plaintiff's website and, as savvy Internet business people know, a replica website cannot only divert traffic away but also "sandbox" or otherwise penalize the organic search results generated by the original website. So the theft of a website is a double edged sword that has more than one direct business consequence.

Technomarine is a Swiss based corporation famous for its watches and the worldwide owner of the "Technomarine" trademark. The defendant allegedly copied all or portions of the website of Technomarine and started selling "grey market" Technomarine-branded watches for sale to the public.

The lawsuit is brought for "federal unfair competition", trademark infringement and copyright infringement under the US Trademark Act. Damages, attorney's fees, triple damages, punitive damages, and other relief is included in the prayer for relief by the Plaintiff's for "Defendants use of copies of the copyrighted work". Traverse Internet Law Cross-Reference Number 1222.


DESIGN BUREAU CORP. v. JEWELL E. COLVIN, ET AL.
SOUTHERN DISTRICT OF FLORIDA (MIAMI)
FILED: 9/04/2008
1:08-CV-22455

Liability is being extended to third parties through claims of "conspiracy" and traditional notions of "vicarious liability" and "contributory liability" in the context of torts and intellectual property infringements. These types of claims establishing potential significant liability on the shoulders of third parties will dramatically change, over the coming years, the conduct of businesses in the world of the Internet. The natural consequence of these risks will be to "self police" more attentively the practices, policies and procedures of businesses internally and increase the care given in selecting business partners and customers.

The Plaintiff registered a state trademark and service mark in the term "adbportfolios.com" in 2002 and developed a website for which it claims copyright protection. Due to various disputes, the Plaintiff obtained a court order in 2004 validating its ownership of both the content of the website and the domain name for which it held a state trademark registration. Defendant is alleged to have copied the Plaintiff's website in its entirety, obtained the domain name "adbportfolio.com" and launched a competing website. A third Defendant, Reed Presentations, Inc., a New Jersey corporation, allegedly acquired the website and is alleged to have conspired with the other Defendants.

Plaintiff has brought an action for federal trademark infringement, federal copyright infringement, Florida state trademark infringement, Florida deceptive and unfair trade practices act violations, tortious interference with prospective business relationships, and civil conspiracy. The relief requested includes $100,000.00 for each trademark infringement, $150,000.00 for each copyright infringement, punitive damages, attorney's fees, costs, and extensive injunctive relief addressing the claimed misconduct of the Defendants. Traverse Internet Law Cross-Reference Number 1223.

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

Traverse Internet Law Disclaimer

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.

SEGA OF AMERICA, INC. v. DOES 1-10
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)

2:08-CV-05699

FILED: 08/29/2008

The Plaintiff goes to great length to explain in this lawsuit that the “early screenshots and some video of what was still very much a work in progress” had been taken and further states that the “FTP files do not accurately portray the ultimate appearance or functionality” of the video game. It makes you wonder whether the purpose of this lawsuit is to seek redress for damages or a notice to the public that the unauthorized version making the rounds is far inferior to the actual game which is scheduled for release during the holiday season of 2008. This case may be the perfect example of a lawsuit being used for public relations purposes.

Sega is a publisher and distributer of video games, and Sega employees posted an early version of “Sonic Unleashed” on a FTP server behind password protection. The same day that the video game files were posted, a Sega employee accidentally posted the password to the confidential FTP page and although this security breach was discovered within an hour, unknown Defendants are claimed to have accessed the server and repeatedly copied and distributed the FTP files on the web.

Sega of America, Inc. has sued unknown Defendants, identified as “John Doe” defendants, for copyright infringement. Sega is asking for the entry of injunctive and monetary relief, and in particular a preliminary and permanent injunction prohibiting Defendants and all other acting in concert or participation with them from infringing or assisting further infringement of the Sega copyright protected files. Traverse Internet Law Cross-Reference Number 1203.