Monday, October 7, 2013

Court Won't "Rubber Stamp" Request for Injunction

Broadcast Music, Inc. sued a bar (Evie's Tavern Ellenton) and its owner for copyright infringement.  The bar played a number of songs without license, and BMI sought to enforce its rights.  The bar defended by arguing that BMI didn't have proper title to the copyrights at issue.  At summary judgment, BMI proved otherwise (documenting the chain of title sufficiently to convince the Court that it owned the licenses for five of the works at issue).

Defendants' argument was an attempt to rely on 17 U.S.C. 204(a), which provides:

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
Defendants' argument was that, in the chain of transfers, there was a gap in an assignment, where the principal of one of the corporate owners of one of the copyrights drafted a letter assigning his rights, but that letter was not sufficient to transfer the interest his corporation had in the copyright.  [Notably, the Court was not persuaded with Defendant's evidence, and had this to say:
As an initial matter, and before reaching the merits of the dispute, the Court will pause to note that the documents submitted by the defendants that purport to be declarations are woefully inadequate.  The Court will, therefore strike all statements that are not facts based on Mr. Evanoff's personal knowledge.  In effect, that leaves only portions of [certain paragraphs of Defendants' motion and affidavit].  All other paragraphs are stricken, and the Court will consider the legal arguments contained within them to the extent they have merit.
] Ouch.  The Court did not spend much time addressing the 204(a) claim:
when (as in this case) there is no dispute between the copyright owner and the transferee about the status of the copyright, it would be unusual and unwarranted to permit a third-party infringer to invoke section 204(a) to avoid suit for copyright infringement.
Finding that the bar had infringed at least 5 works, the Court turned to BMI's request for an injunction.  No "rubber stamp" here:
There is no question that the entry of a permanent injunction seems entirely appropriate in this case.  In fact, it has been quite customary in these types of cases to permanently enjoin further acts of infringement simply as a matter of course.  But in light of the Supreme Court's admonition in eBay, that all four factors must be given thoughtful consideration prior to issuing permanent injunction, the Court is not willing to simply "rubber stamp" BMI's request.  See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006).  ... A finding of liability of copyright infringement does not conclusively establish the remaining principles of equity that form the basis for injunctive relief.  
BMI's request for injunctive relief was denied without prejudice, so that the parties could meet and confer to determine if they could agree to appropriate relief.

Defendant's Motion for Summary Judgment, Denied; Plaintiff's Motion for Summary Judgment Granted in Part, Denied in Part.
Broadcast Music, Inc. v. Evie's Tavern Ellenton, Inc., Case No. 8:11-CV-2056 (Sept. 30, 2013) (J. Kovachevich)

Friday, October 4, 2013

Attorneys May Now Bring Cellphones, Laptops, and Tablets Into Middle District of Florida Courthouses

Lawyers have needed to stow their cellphones before bringing them into MDFLA courthouses and obtain Court order to bring in laptops.  As of September 26, 2013, that has now changed.  While the Court retains its general policy that no one may bring a personal electronic device past security, the following exception has been added:
2.4 Attorneys
Any attorney permitted to practice law in the Middle District of Florida may bring any personal electronic device beyond the courthouse's security checkpoint by presenting a valid Florida Bar identification card or pro hac vice order.  In addition to the restrictions set forth in paragraph 2, attorneys may not use personal electronic devices directly outside of any courtroom when court is in session.
"Personal electronic devices" are:
things like cellular telephones, "smart phones," laptop computers, and tablet computers.
So I can shelve my form motion for permission to bring in my computer.  Standard caveats still apply, which is to say they must be kept on silent, can't be shared with others, can't be used to disrupt any proceeding, and can't search for juror information.  And the security personnel may inspect them.  The full order is below.

In re: Possession and Use of Personal Electronic Devices in Federal Courthouses in the Middle District of Florida, General Order 6:13-MC-94-ORL-22

Tuesday, October 1, 2013

Patent and Trademark Office Estimates It Can Run 4 Weeks During Shutdown

From the U.S. Patent and Trademark's website:
During the general government shutdown that began October 1, 2013, the United States Patent and Trademark Office will remain open, using prior year reserve fee collections to operate as usual for approximately four weeks. We continue to assess our fee collections compared to our operating requirements to determine how long we will be able to operate in this capacity during a general government shutdown. We will provide an update as more definitive information becomes available.
You can read the full post here.