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Monthly Archives: October 2013

reFX v. Does 1-141 Severed

reFX Audio Software v. Does 1-141, Case No. 13-940 (N.D. Ill. Oct. 28, 2013)(Judge Bucklo)

On motion from SBC Internet Services, Judge Bucklo severed this BitTorrent copyright infringement case, and ordered that all but the first Doe be dismissed.  This case was originally filed in February, and while the Court allowed reFX to serve early discovery, it has changed course.  The Court’s opinion largely follows the reasoning of Judges Guzman and Reinhard.  It may signal that BitTorrent cases filed before Judge Bucklo will be sua sponte severed going forward.  We note that this decision appears to cut against the recent trend in the Northern District, as evidenced by decisions of, for example, Judges Tharp and Durkin.

Purzel Video Sues 83 Does in the Northern District of Illinois

Purzel Video GmbH, a distributor of “risque” videos, has filed suit against 83 Does for downloading its videos “Creampie Young Girls 1” and “Redhead Girls 2”.  A word of warning – Google the titles at your own risk.

The individual cases are:

Purzel Video GmbH v. Does 1-23  2013-cv-7506

Purzel Video GmbH v. Does 1-60  2013-cv-7507

If you are identified by your ISP as a Doe Defendant in a file sharing lawsuit, you may want to review this article, which contains some helpful tips on how to deal with these kinds of suits:

http://ezinearticles.com/?The-5-Steps-You-Need-to-Take-When-You-Receive-an-ISP-Subpoena-Letter&id=7696216

Atty Ad:  The Law Offices of Konrad Sherinian, LLC with offices in Naperville and Chicago, has successfully defended numerous file sharing cases alleging the use of Bit Torrent to copy movies, music, software and other content other the Internet.  Call (630) 318-2606 or (312) 981-5004 today for a free consultation if you have received a subpoena letter from your ISP.

reFX Sues Another 148 Does in the Northern District of Illinois

reFX Audio Software has sued another 148 downloaders for pirating its Nexus 2.0 audio software.  Nexus is an extremely popular audio synthesizer application; it is also likely one of the most pirated pieces of software around, and reFX has filed numerous cases around the country to go after downloaders.  ISP subpoena letters will likely arrive right around Christmas time for the unlucky Does.

The cases are:

reFX Audio Software  Inc. v. Does 1-39   2013-cv-7494

reFX Audio Software Inc. v. Does 1-109  2013-cv-7502

If you are identified by your ISP as a Doe Defendant in a file sharing lawsuit, you may want to review this article, which contains some helpful tips on how to deal with these kinds of suits:

http://ezinearticles.com/?The-5-Steps-You-Need-to-Take-When-You-Receive-an-ISP-Subpoena-Letter&id=7696216

Atty Ad:  The Law Offices of Konrad Sherinian, LLC with offices in Naperville and Chicago, has successfully defended numerous file sharing cases alleging the use of Bit Torrent to copy movies, music, software and other content other the Internet.  Call (630) 318-2606 or (312) 981-5004 today for a free consultation if you have received a subpoena letter from your ISP.

TRO Denied Even Though Trade Secret Plaintiff Demonstrates Likelihood of Prevailing on the Merits

Marketing Werks v. Fox, Case No. 13-7256 (N.D. Ill. Oct. 11, 2013)(Judge Kendall)

Marketing Werks was denied a TRO against a former employee that started a competing company and attempted to procure the client that he was primarily responsible for working with while at Marketing Werks.

Fox had worked for Marketing Werks as a senior account executive and was primarily responsible for the Indy Racing League (“IRL”) account.  In this role, he was privy to Marketing Werks’ strategic plans for the IRL account.   Fox then left Marketing Werks and started his own company, in which he immediately bid for the IRL account.

Marketing Werks asserted a number of counts against Fox, including trade secret misappropriation.   The Court found that Marketing Werks was likely to be able to establish both the existence of a trade secret (its strategic plans, for example) and that Marketing Werks would also likely be able to prove that Fox misappropriated the trade secret.

However, the Court denied a TRO because the value of the IRL account could be established based on Marketing Werks with IRL.  In addition, the Court questioned the measures that Marketing Werks took to maintain its trade secret.  Finally, Marketing Werks did not immediately seek a TRO, which is often fatal.

Malibu Media Files 40 Single Doe Cases in the Northern District of Illinois

Malibu Media has been busily filing single Doe cases in the Northern District of Illinois.  Between September 6 and October 11, it filed a total of 40 cases, all of which are likely against single Doe defendants.  The cases are:

1 Malibu Media LLC (pla) ilndce 1:2013-cv-07299 820 10/11/2013
2 Malibu Media LLC (pla) ilndce 1:2013-cv-07312 820 10/11/2013
3 Malibu Media LLC (pla) ilndce 1:2013-cv-07314 820 10/11/2013
4 Malibu Media LLC (pla) ilndce 1:2013-cv-07315 820 10/11/2013
5 Malibu Media LLC (pla) ilndce 1:2013-cv-07316 820 10/11/2013
6 Malibu Media LLC (pla) ilndce 1:2013-cv-07318 820 10/11/2013
7 Malibu Media LLC (pla) ilndce 1:2013-cv-07282 820 10/10/2013
8 Malibu Media LLC (pla) ilndce 1:2013-cv-07284 820 10/10/2013
9 Malibu Media LLC (pla) ilndce 1:2013-cv-07285 820 10/10/2013
10 Malibu Media LLC (pla) ilndce 1:2013-cv-07295 820 10/10/2013
11 Malibu Media LLC (pla) ilndce 1:2013-cv-07297 820 10/10/2013
12 Malibu Media LLC (pla) ilndce 1:2013-cv-07112 820 10/04/2013
13 Malibu Media, LLC (pla) ilndce 1:2013-cv-07115 820 10/04/2013
14 Malibu Media LLC (pla) ilndce 1:2013-cv-07116 820 10/04/2013
15 Malibu Media LLC (pla) ilndce 1:2013-cv-07118 820 10/04/2013
16 Malibu Media LLC (pla) ilndce 1:2013-cv-07119 820 10/04/2013
17 Malibu Media, LLC (pla) ilndce 1:2013-cv-07125 820 10/04/2013
18 Malibu Media LLC (pla) ilndce 1:2013-cv-07129 820 10/04/2013
19 Malibu Media LLC (pla) ilndce 1:2013-cv-07132 820 10/04/2013
20 Malibu Media, LLC (pla) ilndce 1:2013-cv-07135 820 10/04/2013
21 Malibu Media LLC (pla) ilndce 1:2013-cv-07136 820 10/04/2013
22 Malibu Media LLC (pla) ilndce 1:2013-cv-07139 820 10/04/2013
23 Malibu Media LLC (pla) ilndce 1:2013-cv-07141 820 10/04/2013
24 Malibu Media LLC (pla) ilndce 1:2013-cv-06978 820 09/30/2013 10/10/2013
25 Malibu Media LLC (pla) ilndce 1:2013-cv-06985 820 09/30/2013
26 Malibu Media LLC (pla) ilndce 1:2013-cv-06988 820 09/30/2013
27 Malibu Media LLC (pla) ilndce 1:2013-cv-06991 820 09/30/2013
28 Malibu Media LLC (pla) ilndce 1:2013-cv-06993 820 09/30/2013
29 Malibu Media, LLC (pla) ilndce 1:2013-cv-07025 820 09/30/2013
30 Malibu Media LLC (pla) ilndce 1:2013-cv-07026 820 09/30/2013
31 Malibu Media LLC (pla) ilndce 1:2013-cv-07029 820 09/30/2013
32 Malibu Media LLC (pla) ilndce 1:2013-cv-06414 820 09/08/2013
33 Malibu Media, LLC (pla) ilndce 1:2013-cv-06415 820 09/08/2013
34 Malibu Media LLC (pla) ilndce 1:2013-cv-06416 820 09/08/2013
35 Malibu Media LLC (pla) ilndce 1:2013-cv-06417 820 09/08/2013
36 Malibu Media LLC (pla) ilndce 3:2013-cv-50286 820 09/08/2013
37 Malibu Media LLC (pla) ilndce 3:2013-cv-50287 820 09/08/2013
38 Malibu Media LLC (pla) ilndce 1:2013-cv-06418 820 09/08/2013
39 Malibu Media LLC (pla) ilndce 1:2013-cv-06371 820 09/06/2013
40 Malibu Media LLC (pla) ilndce 1:2013-cv-06372 820 09/06/2013

Case Number 13-6978 has been dismissed.  However, Judge Castillo granted Malibu leave to take discovery, and ordered that all subpoenas that are issued be complied with.  Accordingly, there are going to be numerous ISP subpoena letters going out to Doe Defendants in the near future.

If you are identified by your ISP as a Doe Defendant in a file sharing lawsuit, you may want to review this article, which contains some helpful tips on how to deal with these kinds of suits:

http://ezinearticles.com/?The-5-Steps-You-Need-to-Take-When-You-Receive-an-ISP-Subpoena-Letter&id=7696216

Atty Ad:  The Law Offices of Konrad Sherinian, LLC with offices in Naperville and Chicago, has successfully defended numerous file sharing cases alleging the use of Bit Torrent to copy movies, music, software and other content other the Internet.  Call (630) 318-2606 or (312) 981-5004 today for a free consultation if you have received a subpoena letter from your ISP.

District Court Needs to Seek Opinion of Copyright Office on Significance of Misstatements Made by Applicant

DeliverMed Holdings v. Schaltenbrand, Case Nos. 12-3773 & 12-3774 (7th Cir. Oct. 7, 2013)

The 7th Circuit has ruled that a district court should seek the opinion of the Register of Copyrights as to the significance of an applicant’s misstatements before canceling the applicant’s registration.

In particular, in this case, the plaintiff filed for a copyright registration after suit was filed, and in doing so, referred to an agreement to establish ownership of the registration.  However, the plaintiff knew that no such agreement existed.  While the other party to the agreement did sign a transfer of ownership to the plaintiff, the Defendant nonetheless moved to revoke the registration based on the plaintiff’s misstatements.  The district court agreed that the statements made by plaintiff constituted fraud, and invalidated the copyright registration.   Defendant appealed.

While cautioning copyright claimants from adopting a strategy based on such a registration, the 7th Circuit indicated that the district court should have sought the opinion of the Register of Copyrights as to the significance of the misstatements prior to invalidating the registration.  The Court made this ruling based on a procedure initiated by the Copyright Office in 2009 allowing courts to seek guidance from the Register.

Interestingly, the Court did not overturn a ruling by the District Court directing plaintiff to pay Defendant’s attorneys fees, even though Defendant’s victory was due, at least in part, to the invalidation of plaintiff’s copyright registration.

U.S. Supreme Court to Review Two Cases Based on Proper Standard to Award Fees to Prevailing Defendant

Highmark v. Allcare Health Management Systems, Case No. 12-1163

Octane Fitness v. Icon Health & Fitness, Case No. 12-1184

In the Highmark case, Allcare brought a counterclaim for patent infringement.  The trial court eventually granted summary judgment in favor of Highmark, and determined that the case was exceptional and awarded nearly $5M in fees and costs.  The Federal Circuit affirmed for one claim as it determined that Allcare’s position was “objectively unreasonable,” but reversed with regards to a different claim, and remanded for a determination as to the proper award of fees for just the one claim.  The question presented on certiorari is “whether a district court’s award of fees based on a determination that a claim is objectively baseless is entitled to deference?”

In the Octane case, Icon had alleged that Octane infringed its patent.  The District Court determined that there was no infringement, and refused to award fees.  Octane appealed the District Court’s determination that the case was not exceptional, and, in particular, argued that the standard for a prevailing defendant should be lowered to allow a collection of fees where the plaintiff’s assertions were “objectively unreasonable.”  The Federal Circuit affirmed, and in particular determined that it would not revisit the established standard for determining whether a case is exceptional.

Octane’s petition for certiorari asks the court to decide “does the Federal Circuit’s promulgation of a rigid and exclusive two-part test for determining whether a case is ‘exceptional’ under 35 U.S.C. 285 improperly appropriate a district court’s discretionary authority to award attorney fees to prevailing accused infringers in contravention of statutory intent and this Court’s precedent, thereby raising the standard for accused infringers (but not patentees) to recoup fees and encouraging patent plaintiffs to bring spurious patent cases to cause competitive harm or coerce unwarranted settlements from defendants?”