A Blip in the Transmission: Part 2

The second factor, whether there is a serious threat of irreparable harm, was, comparatively speaking, much more easily considered. While there is no assumption of harm for copyright claims in the 10th Circuit, the nature of a copyright claim does tend to make it easier for plaintiffs to prove this factor. Aereo argued that any financial damage they might have done to the plaintiffs were essentially insignificant, but the court found that appeal wanting, noting that one of the purposes of copyright is ensuring the exclusive control of the copyright material, so that the owner can ensure that the content’s value is not tainted or diluted by unauthorized use, such as the creation of inferior quality copies, or interference in potential business relationships based on the content. As a result, the court felt that this factor also weighed in favor of granting the injunction.

The third and fourth factors only merited truncated discussion. The court first examined the balance of harms and, although noting that Aereo did face a loss of business should the injunction be entered, in all likelihood, their entire business model was based on copyright infringement.  The loss of such a business was not grounds to prevent a preliminary injunction from being entered. The court then examined the public interest, noting that the public’s interest was in seeing the law of copyrights upheld. Our next post will deal with the scope of injunction, the bond, and Aereo’s attempt to transfer venue.

 

A Blip in the Transmission: Part 1

When technology changes the law often struggles to keep up. For decades, television was ruled by broadcast channels, free of charge to anyone with a television and, because of technological limitation, local affiliates were often tied to a major national network. While that has changed drastically in the intervening years, the copyright laws of America have not matched this technological evolution, creating various areas of uncertainty where old laws do not fit snugly against newer ideas.

Aereo is a company that has developed a way to allow people, for a fee, to watch broadcast television on their computers. For obvious reasons, this service has drawn the ire of television broadcasters, leading to a number of suits in various district courts throughout the country. Because the old copyright law regarding this particular issue was conceived of in the 1970s, when household computers, let alone using such a device to watch television, was more speculative than anything else, the circuits have split on whether or not current copyright law forbids Aereo from providing these broadcast streams to their customers, and the case is due before the Supreme Court in its next term to resolve the issue once and for all.

In the meantime, however, the case against Aereo in Utah, where it began providing its service in July 2013, has been stayed pending the outcome of the Supreme Court decision, but a district court still felt it necessary to rule on whether the plaintiff would be granted a preliminary injunction in the interim.

The crux of the Aereo cases, both here and in other circuits, has been the interpretation of the “Transmit Clause” that gives the copyright holder the exclusive right to publicly perform or transmit a performance. The question is whether or not Aereo’s service constitutes a public transmission, and thus violates that copyright act. Aereo’s argument, which has been successful in the Massachusetts, as well as the 2nd Circuit, is that its services merely allows its customers to view the transmission on a private basis, and so does not constitute a public performance. The opposing argument, made by broadcast networks around the country, is that Aereo’s service, technologically advanced though it may be, is, in practical terms, little more than a public retransmission of copyrighted broadcasts, and a clear violation of the Copyright Act, a view endorsed by courts in D.C. and California.

The Utah court ultimately agreed with the latter position. First, it noted that the “Transmit Clause” was enacted in 1976 as a result of the first cable systems’ habit of retransmitting local broadcast networks on their cable systems without paying for the right to do so, with the understanding that the revised language would force cable companies to receive a license to continue to retransmit these copyrighted works, and the position of Aereo is essentially analogous to those early cable companies.

The court then dismissed what had been a compelling argument for Aereo in other jurisdictions, a complex attack that relied on using prior decisions to create a distinction between public and private retransmission and to then argue that based on the specific mode of transmission used by Aereo, each retransmission created a unique copy to a single user, and should therefore be considered a private retransmission, not covered under the Copyright Act. The Utah court was unwilling to make this leap, instead relying on legislative history and its interpretation of the statute to reject this distinction, explaining that, technological technicalities aside, Aereo’s service did likely constitute a violation of the Copyright Act and, as a result, the plaintiffs in this case had a likelihood of success on the merits, clearing the first hurdle for a preliminary injunction.

Next week we will consider the second, third and fourth factors related to whether or not the plaintiff was granted a preliminary injunction.

For more information on the services we offer visit pattersonlawfirm.com or call us at 312.223.1699.

 

The Stream Runs Downhill: Part 3

Today we will conclude our overview of the court's four-part decision in the Hearst v. Aereo copyright infringement case. If you recall, last week we concluded with the court's denial of Hearst's final two claims.

The court then turned to the question of whether Hearst had adequately shown that irreparable harm would be caused absent an injunction, and found that it had not. Hearst first claimed that allowing Aereo to continue its streaming service would leave Hearst unable to maintain its negotiating position in regards to the sale of rebroadcasting rights and the pursuit of other streams of revenue. While the court conceded that Aereo’s service might, in time, weaken Hearst’s ability to negotiate with rebroadcasters, it also noted that because these contracts were only re-negotiated every few years, rather than constantly, that the irreparable harm would likely not occur before the litigation ran its course, making a preliminary injunction unnecessary for preventing this damage.

Hearst next claimed that there would be irreparable harm to its advertising revenue, as advertising rates were based on viewership ratings, and those ratings did not measure those viewers who used streaming services such as Aereo. The court noted that Nielsen, the foremost ratings agency, had recently begun to count online viewers as part of its ratings, and thus ruled that Hearst had not shown irreparable harm from that source either. Finally, the court ruled that Hearst’s claim that Aereo’s service would harm Hearst’s efforts to create its own online streaming service was defective as well, as Hearst’s plans for such a service were too inchoate to be irreparably harmed at this time.

Having failed the first two prongs of the preliminary injunction test, the final two factors were more perfunctory than dispositive. The court, in two paragraphs, noted that the balance of harm does not appear to clearly favor either party, and the public interest similarly “cuts both ways.” In the end, it found that neither factor did much to change its earlier conclusions, and so ruled that because Hearst had failed to show a likelihood of success on the merits, and failed to show irreparable harm, its request for a preliminary injunction was denied.

What does this case mean in a larger context? For one, it is clear that attempts to use decades-old law to regulate cutting edge technology are bound to create serious problems of interpretation. The Copyright Law regarding these issues as cited by the court comes from 1976, when cable television was still in its infancy, and has not truly evolved to keep up with the times. The court’s ruling can be interpreted in different ways. Some will argue that it allows emergent forms of technology to effectively flout copyright laws and profit off the protected material of others due to unforeseen loopholes in the law. Others will take the opposing view, that the courts are unwilling to force new forms of technology into an antiquated regime of law, and will instead allow them to innovate new forms of content distribution until some elected body makes the conscious decision to regulate these new technologies.

 

The Stream Runs Downhill: Part 2

Last week’s post focused on the court’s rejection of Aereo’s motion to change venues. But that was all the good news that the Hearst Group would receive that day, as the court next denied its request for a preliminary injunction. As is mandated in these cases, the court looked through the four-part test for granting preliminary injunctions, and found that there were insufficient grounds to enjoin Aereo’s activities while the litigation was ongoing.

First, the court examined the likelihood of success on the merits, noting that, in the 1st Circuit, at least, this factor is the most important. At this point, the technological advancements of the past few years run headlong into the decades-old body of copyright law. The court first concedes that the 1st Circuit has never ruled whether the use of a DVR-like device infringes on the right of the copyright holder, more specifically, whether Aereo’s interception and conversion of the broadcast into a digital and recordable form infringes on the copyright holder’s exclusive right to control the public transmission of its works.

Lacking any direct precedent of its own, the court turned to the 2nd circuit, which had previously ruled that a DVR, in effect, created a personal recording of the broadcast, and then transmitted that personal copy to the viewer, meaning that it did not publicly re-transmit the broadcast, and so did not infringe on any copyright. Aereo, as the court noted, had already successfully defended its service in the 2nd circuit, and had won because the court found that its service was sufficiently similar to the earlier DVR case and that, therefore, no infringement had taken place. More specifically, that court had noted that Aereo only allowed viewers to view those digital copies that Aereo had specifically prepared for them at their request, and that each copy was unique.

In that decision, however, there had been a dissent, which argued that, due to advances in technology, it no longer made sense to determine whether a transmission was private by the nature of the copy, but instead whether or not the viewer saw what was, essentially, a public broadcast to begin with. They also noted that some district courts have appeared amenable to determining the nature of a broadcast by how it was originally transmitted rather than how it was ultimately received.

The court, however, found that attempting to use Hearst’s proffered interpretation would force an untenable construction of the Copyright Act, and so reverted to the 2nd Circuit’s ruling on the matter, finding that Hearst was not likely to prevail on its claim that Aereo had infringed on Hearst’s copyright through unauthorized retransmission.

The court next examined whether it was likely Hearst would prevail on a claim that Aereo had infringed on its copyright through unauthorized reproduction of Hearst’s broadcasts. The question here came down to a question of whether or not this type of copyright infringement could occur without volitional conduct by Aereo. As Aereo’s system automatically responds to user commands, Aereo itself lacks any sort of volitional conduct. According to Aereo’s argument, such a requirement is necessary in an infringement case, as otherwise innocent technology providers could be held liable for the wrongful acts of those using their products, such as a copy machine owner being held liable when a third party uses that machine to copy copyrighted material.

From its ruling, it is clear the court felt at least slightly uncomfortable with this aspect of the case, noting that the 1st Circuit has not yet ruled that volitional conduct is a necessary element, but other circuits have. The court ultimately decided that it was likely that some sort of volitional conduct element would be necessary in an infringement claim, but punted the issue, explaining that later discovery may change the contours of that particular claim, and it was a closer call than the unauthorized retransmission claim. That said, the court found that the likelihood of success on the merits was not high enough on this claim either to justify a preliminary injunction.

The court then quickly disposed of the final two claims made by Hearst on technical grounds. First, it claimed that, because Aereo was streaming the works rather than authorizing them for download, it is considered to be ‘performing’ rather than ‘distributing’ for the purposes of copyright law, and so cannot be found to have violated Hearst’s exclusive right to distribute its copyright works. Second, it ruled that although Aereo does convert its broadcasts into a different formats in order to allow it to be streamed, that act does not create a derivate work under the meaning of the Copyright Act, and so Hearst was also unlikely to prevail on a claim charging Aereo with infringing on Hearst’s exclusive right to create derivative works from its copyrighted material. In all, the court found that Hearst was unlikely to prevail on any of its claims on the merits, a crippling blow in its quest to gain a preliminary injunction.

 

The Streams Run Downhill: Part 1

Today’s blog post will focus on yet another online television streaming case. In a recent decision by the Federal District Court in Massachusetts, a company owning a local broadcast network found itself unable to get a preliminary injunction to stop a new start-up from converting its signals into a digital, streaming format.

The set-up of the case is interesting, in that it shows how changing technology can, in some cases, create new conflicts. Aereo, the defendant in this case, had recently begun a new service that allowed users, for a fee, to receive digital versions of broadcast television signals that they could either watch live or save on a DVR system for later viewing. To accomplish this goal, Aereo had set up a number of antennae around Boston in order to receive the broadcast signals for digital conversion. The Hearst Group, a media conglomerate that counts WCVB-TV in Boston as one its holdings, brought suit in the District Court of Massachusetts, alleging copyright infringement by Aereo, and further filed for a preliminary injunction to stop Aereo’s service while the litigation was ongoing. Aereo responded by asking the court to transfer the case to the Southern District of New York, where the company was incorporated.

As a preliminary matter, the court first rejected the motion for transfer. It explained that even though Aereo was incorporated in New York, and the Hearst Group had its place of principal business there as well, the Hearst Group’s choice of venue would have to be given deference unless Aereo could show some reason why the action should be transferred. In this case, since the Hearst Group’s claim was restricted to Aereo’s conversion of signals only from WCVB, based in Boston, and since Aereo did a great deal of business in the city, there was no sufficient reason to transfer the case. Further, as the court pointed out, the litigation was in an advanced enough stage that the transfer would have the pernicious effect of delaying the litigation, which the court also deemed to be a factor in denying Aereo’s request. Looking at the rest of the decision, it is clear that at least one reason for Aereo’s attempt to move venue is that the 2nd circuit, which encompasses New York, had a more substantial body of favorable precedent than the 1st Circuit, and, in addition, Aereo had already prevailed in a similar suit in the 2nd Circuit just months prior.

Next week we will begin to review the court's process in reaching its decision.

 

Fox Broadcasting v. Dish Network

Recent developments in broadcasting technology have changed the way that people watch television. Unsurprisingly, however, there has been some push back from traditional broadcasters, who see their business model as being under siege from these new innovations. We have written about one such case in our last couple posts. The recent case of Fox Broadcasting v. Dish Network is one example of this type of clash.

The defendant, Dish Network, had recently introduced a service, “Autohop”, that allowed customers to fast-forward through commercials on certain shows they had digitally recorded previously. Fox Broadcasting, which derives a great deal of its revenue through the sale of ad time, sued Dish Network in the Federal  district court in Central California, claiming a breach of the contract between Fox Broadcasting and Dish Network, as well as copyright infringement. Fox also sought preliminary injunction to stop the Autohop service while the case was still pending.

The district court used the four-factor test for determining whether or not a preliminary injunction was warranted, and ultimately decided that it was not. The first factor, whether Fox had established a likelihood of success on the merits of the case, was likely the most dispositive. This factor turned on whether or not it was DirectTV, or the consumer, that was party that made the digital copy of Fox’s programming for later viewing. In order for Fox’s copyright infringement case to be likely to succeed, it would have to show that it was DirectTV making those copies, and thus directly infringing its copyright. In support of its position, Fox argued that since it was DirectTV that operated the system that made the copies possible, and set rules such as how long the copies would last in the memory, as well as editing the start and end times of the recorded shows, that it should be judged to be directly responsible for making the copies. The district court disagreed with this assessment, and instead ruled that this fact pattern was more akin to a person making a copy of a show on a VCR, and that it is the end user who is making the copies, and who be most likely liable for a direct infringement suit.

The court next turned to whether or not Fox could show a likelihood that DirectTV had was liable for secondary copyright infringement by facilitating the direct copying of its users. As there was no real question that the users in question were copying Fox’s copyright material, the burden shifted to DirectTV to show that the users were protected by fair use. The long-held precedent is that a person is entitled, under the doctrine of fair use, to record a program for the purpose of time-shifting. Fox argued, however, that fair use did not allow customers to skip commercials or build a library of recorded programs. When the Betamax case was decided, the technology had not yet reached the point where either of purposes was feasible and so that court had not ruled on whether they were permissible under fair use or not. As to the matter of skipping commercials, the court was not sympathetic to Fox’s argument, noting that, although Fox owned the copyright to the television shows being recorded, it did not own the copyright to the commercials being skipped, and could not sue for copyright infringement under that theory.

The court then examining DirectTV’s AutoHop program under the Fair Use factors. First, the use was noncommercial; it was done by private consumers for their own viewing convenience, not as a commercial activity. Next the court looked at the “nature of the work” and “amount of substantiality of the work shown”, ultimately concluding that, even though the users in question copied the entirety of the material copyrighted by Fox, they had been invited to watch this event free of charge, and merely copied the work in order to make its viewing more convenient. Finally, the court looked at the last factor, how the use would affect the market for this work, which they ultimately concluded would not be adversely affected by the commercial skipping technology. Next week’s blog post will focus on the next steps that the court took in coming to the conclusion.

The Court Answers Last Two Questions in Online Television Streaming Copyright Infringement

Last week we presented an overview of the court’s process in making its decision in a recent copyright infringement lawsuit involving broadcasters and an online television streaming company. This week’s wrap-up will focus on the ancillary questions presented at the end of last week’s post—what the scope of the injunction should be and what amount of bond should be required of the plaintiffs.

As to the first question, the matter of scope was complicated by jurisdictional issues. As the defendants’ business had been running on a nationwide basis, different district courts had already weighed in and while Ninth Circuit had come to a similar conclusion to this court, the Second Circuit, having come to a different conclusion on whether the streaming service violated copyright law, had not granted an injunction. Further, the Copyright Act mandated that whenever an injunction was granted based on a claim of copyright infringement, that the injunction should be “operative throughout the United States.” Attempting to square this circle, the court referred to D.C. Circuit precedent that allowed it to limit the scope of injunctions in circumstances such as these and, accordingly, limited the scope of the injunction to cover the entirety of the United States except for the Second Circuit.

Finally, the court turned to the issue of bond. As it noted, the D.C. Circuit is not a mandatory-bond jurisdiction and, as a result, the court had the option of requiring no bond if the circumstances warranted it. The defendants, concerned that the injunction might destroy their business, asked the court to require a $10,000,000 bond. The court, however, noting the “considerable assets” held by the plaintiffs of this case, instead imposed a $250,000 bond.

               

 

Overview of the Court's Decision in Online Television Streaming Case

Last week we wrote about a recent decision in a copyright infringement case involving online television streaming. Today we are going to run through the court’s process in reaching the decision.

The court used the standard four-part test to determine whether or not a preliminary injunction should be granted in this case.

Likelihood of Success

The first question was whether the moving party was likely to succeed on the merits of the case. As a result, the court first had to look at the two elements that must be shown in a successful copyright claim, (1) that the plaintiff owns the allegedly infringed material and (2) that the infringement is a violation of the copyright holder’s rights set forth in the federal copyright law. In this case, the court noted that there was little dispute that the plaintiffs owned the material in question.

The second element, though, whether the infringement violated the plaintiffs’ rights, was more carefully scrutinized. The plaintiffs’ argument was that although online streaming was not entirely what Congress had in mind when they had last updated the relevant law, the streaming service provided by the defendant was an effective retransmission of the copyrighted material and, as a result, the defendants had violated the Copyright Act by failing to secure a license before retransmitting the copyrighted work.

The defendants, on the other hand, argued that the streaming service did not constitute a public retransmission of copyrighted material, instead casting its service as a private transmission to a single user, who could use the service in order to record broadcasts as a matter of convenience, which has, since the Betamax case, been considered a right of the consumer, and not a violation of copyright law.

Ultimately, the court chose to look at the legislative history regarding the 1976 amendments to the Copyright Act, which contained the clauses that were operative in this case, and came to the conclusion that, although Congress had not been able to foresee the exact cluster of facts in this case, it was clear from the record that they would have considered a streaming service like the defendant’s to be considered a transmission for the purposes of the Copyright Act and, as a result, there was a strong likelihood that defendant had violated the law by failing to gain the plaintiffs’ consent before retransmitting the material over its service.  The court then went on to explain that, even if the technological methods involved in the streaming service meant that, in a technical sense, the streaming was not done by conventional public transmission as was contemplated in the act, the overall effect of the streaming service was effectively the same as public transmission in either case. As a result, the court found that there was a likelihood that the plaintiffs would succeed on the merits of the case, passing the first part of the test.

Irreparable Harm

The second factor is whether there is a likelihood of irreparable harm should the injunction not be granted. The court ruled that there was, as the existence of the streaming service negatively impacted the copyright holder’s ability to sell advertising, negotiate retransmission agreements, or create its own internet television presence, as well as the danger of loss of control over its own content. Further, this harm could not be compensated with money damages as it would be difficult to calculate the total damages and, in all likelihood, the defendant would not be able to afford the judgment should the plaintiffs prevail on the case.

The defendant countered that such damages were speculative, and that plaintiffs had not shown that said damages were imminent or anything other than economic losses that could be recovered at law. The court rejected this argument, however, noting that the plaintiffs had produced some testimony from television executives that cable companies had already begun to take entities such as the defendant into account when negotiating retransmission fees, and therefore the harms were both imminent and non-speculative. The court ruled that there was a likelihood of irreparable harm as well.

Balance of Harms

The court looked at the balance of harms only briefly. The defendants had argued that, even if there were a likelihood of irreparable harm to the plaintiffs in the form of lower payments from content partners, the harm done to them by the granting of this injunction would be more severe, potentially collapsing their business model and thereby chilling technological innovation. The court, however, noted that the defendant had already begun to make agreements to legally transmit material through its streaming service, and therefore would not be too badly damaged by having its illegal streaming services shut down by an injunction.

Public Interest

The final question, that of the public interest, was dismissed with the court merely pointing to the long-held precedent that the public interest favors the upholding of copyright law and, as a result, that this final factor weighed in the plaintiffs’ favor as well.

Having decided that an injunction was warranted, the court next turned to two ancillary questions. First, what the scope of the injunction should be, and second, what amount of bond should be required of the plaintiffs. This will be covered in our next post.

 

 

Broadcasters Obtain Second Win in Court Case against FilmOn

Several lawsuits have resulted from the emergence of live streaming services broadcasting television via the internet.  Music streaming companies such as Napster involved similar issues, but the courts have only recently tackled the issue of television streaming.

A recent decision in Washington, D.C. granted a preliminary injunction against FilmOn, providing some insight into the future of these copyright issues.

The U.S. District Court for the District of Columbia handed out a preliminary injunction as the second win for the broadcasters in a series of three decisions in their copyright battle.

Both television streaming companies (FilmOn used to be associated with Aereo under a different name before striking out on its own) contend that they are not in violation of the law because they merely provide consumers with their own antennae, not access to the copyrighted content.

While it appears that the broadcasters involved in the lawsuit against FilmOn (Fox, NBC Universal, Telemundo, ABC, CBS, Allbritton Communications, Gannett Co.) will achieve a victory, having already been granted an injunction preventing FilmOn from continuing to stream television from their networks without permission, the U.S. District Court for the District of Columbia’s decision opposes a New York court’s decision in a similar case there against the streaming company Aereo.

What does this mean for the issue of copyright law associated with live streaming? It could mean that the issue will reach the Supreme Court. While the U.S. District Court of the District of Columbia’s decision extends to many territories beyond the D.C. area, the injunction is not nation-wide. It is yet to be determined whether or not the issue will reach the Supreme Court, but two major decisions reaching opposite conclusions opens a door to that possibility.  

Tune into our blog next week for a more comprehensive run through of the Court’s decision.

The Patterson Law Firm has handled many intellectual property cases and we stay abreast of the trends within this sphere in order to provide the best service to our clients. To learn more about the services we offer visit pattersonlawfirm.com or call 312.223.1699.

 

The Preliminary Injunction with Regard to Emerging Legal Issues Surrounding the Internet

A recent case out of the Federal District Court in Minnesota shows how important the proper use of a preliminary injunction can be to protect a business from harm.

In the case of Nadia Wood v. Sergey Kasputin et al, what began as a dispute over an automobile sale quickly spun out of control as Ms. Nadia Wood, the lawyer for car buyers, set up a website designed to collect information, mainly customer complaints, for use in a lawsuit against the car dealership.  In response, the owner of the dealership set up his own website, Nadiawood.net, using the same logo and typeface as the site Wood had used for her law firm’s website, and implicitly accused Wood of being a blackmailer and of running a racket.

Wood immediately filed suit in Federal court, accusing Kasputin of violating her copyright as well as violations of federal anti-cybersquatting laws. As part of that action, she filed for a preliminary injunction in order to have Nadiawood.net shut down pending the litigation.

In determining whether or not the injunction should be granted, the court used the usual four-part test to determine whether or not the injunction should be granted.

First, it looked at whether there was a likelihood of success on the merits. As part of Wood’s claim was that Kasputin had infringed on her copyright, the court was forced to examine the likelihood of Wood prevailing on the two elements of copyright infringement. That is, whether or not Wood had a valid copyright, and whether or not Kasputin had copied that protected material.

The court found Wood would likely be able to show that the copyright was valid. The logo and wordmark appeared to be original, and she had already filed registration paperwork with the Copyright Office. Next, the court examined whether Wood would be able to show that Kasputin likely copied that copyrighted material.  As Wood could not show that Kasputin had directly copied her logo and wordmark, the court instead investigated the likelihood that Kasputin had indirectly copied her work. In this case, that analysis was rather simple, as the logo used by Kasputin was identical to the copyrighted logo registered by Wood. The court thus found that Wood was likely to prevail on her copyright claim, meeting the first element of the four-part test.

The second question was whether Wood would suffer an irreparable harm for which there was no adequate remedy in law should the preliminary injunction not be granted. In this case, this element was rather easily met. The website in question, though it had been scrubbed since the filing of the lawsuit, had previously accused Wood of various unsavory activities that posed a serious threat to her reputation. As the court noted, harm to intangible assets such as reputation and goodwill can be nearly impossible to quantify in terms of dollars, making it virtually impossible to compensate Wood with money damages. As a result, the court concluded that this element was met as well.

The next element was to balance the harms. On Wood’s side, there was the harm to her reputation. Reading the order, it appears that Kasputin did not make an argument in his own defense on this point. Granted, given that it was a case of copyright infringement, and he had copied Wood’s copyrighted logo, there would likely have been no harm he could allege that would have prevented the injunction outright, but he likely did miss an opportunity to claim that an injunction that would entirely block the website he set up would harm him by infringing on his ability to freely express himself. As Kasputin did raise this argument, however, the court instead concluded that he would suffer no serious harm, and so concluded that this element had been met as well. The court’s opinion did not differentiate between the harm caused by infringing the copyright and the harm caused by the criticism of Wood.

The final element was one of public interest. Whether or not Kasputin could have raised some sort of defense here, namely that an overbroad injunction might have a chilling effect on free speech, or anything else, it seems clear that no such argument was ever proffered, and the court simply concluded that because Wood had shown that she likely had a valid copyright claim, the public interest supported the injunction. In the guise of an infringement action, a prior restraint of speech was accomplished by Wood.

As a result, the court ruled that not only would Kasputin be enjoined from using the copied copyrights, but also that the website addresses he had set up would be automatically redirected to Wood’s site. In addition, the court, because it is in a jurisdiction where the bond requirement is mandatory, was forced to issue a bond, but decided that, in light of the circumstances, to require only a nominal amount, in this case, $1000.

This case is a good example of both how a preliminary injunction can be useful in the context of copyright violations, and also how important it can be for a party to defend itself against preliminary injunctions. While some manner of preliminary injunction would have been given no matter what Kasputin had argued, the record makes it clear that Kasputin did himself no favors by neglecting to vigorously argue about the harm an overbroad injunction might do to him.