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Tentative Second Order Granting Summary Judgment.
LA Times v. Free Republic.
U.S.D.C., C.D. Cal., Case No. CV 98-7840 MMM.
Date: July 31, 2000.

Editor's Notes:
   Tech Law Journal created this document by scanning a photocopy and converting to HTML.
   The photocopy was kindly provided by the law offices of Greines Martin Stein & Richland.
   The photocopy is dated, but not signed by Judge Morrow.
   Some features were eliminated in the conversion process, including line numbering, double spacing and paragraph indentations.
   Footnotes were converted to endnotes, and two-way hyperlinked.
   Hyperlinks were added.
   The Table of Contents, at right, was added.
   Copyright Tech Law Journal. All rights reserved.
   See also, Tech Law Journal Summary of LA Times v. Free Republic.

Table of Contents
I.  FACTUAL BACKGROUND
  A.  The Parties
  B.  Defendants' Copying And Control Of Content On The Free Republic Website
II.  DISCUSSION
  A.  Legal Standard Governing Motions For Summary Judgment
  B.  Effect Of Defendants' Failure To File Opposition To The Motion
  C.  Elements Of Copyright Infringement
  D.  Defendants' Liability For Copyright Infringement
    1. Direct Infringement
    2.  Contributory Infringement
  E.  Whether To Grant Permanent Injunctive Relief
III.  CONCLUSION
Footnotes

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

LOS ANGELES TIMES, and THE
WASHINGTON POST COMPANY
and its wholly owned subsidiary,
WASHINGTONPOST.NEWSWEEK
INTER-ACTIVE COMPANY,

Plaintiffs,

vs.

FREE REPUBLIC, ELECTRONIC
ORCHARD, JIM ROBINSON, and
DOES 1 THROUGH 10, inclusive,

Defendants.
_______________________________

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CASE NO. CV 98-7840 MMM (AJWx)

TENTATIVE ORDER
GRANTING PLAINTIFFS'
MOTION FOR SUMMARY
JUDGMENT

 

This is plaintiffs' second summary judgment motion in this action. As noted in the first order, plaintiffs Los Angeles Times and The Washington Post Company publish newspapers in print and online versions. Defendant Free Republic is a "bulletin board" website whose members use the site to post news articles to which they add remarks or commentary. Other visitors to the site then read the articles and add their comments. For the most part, Free Republic members post the entire text of articles in which they are interested; among these are verbatim copies of articles from the Los Angeles Times and Washington Post websites. Plaintiffs' complaint alleges that the unauthorized copying and posting of articles on the Free Republic site constitutes copyright infringement.

[begin page 2]

Plaintiffs and defendants earlier filed cross motions for summary judgment regarding defendants' fair use defense to the infringement claim ("the fair use motions"). The court issued an order on April 4, 2000, in which it found that defendants could not assert such a defense and that enforcing plaintiffs' rights under the Copyright Act did not impermissibly restrict defendants' constitutional right to free speech.

Plaintiffs have now brought a second motion for summary judgment, asserting that no genuine issues of material fact exist regarding defendants' infringement, and that their remaining affirmative defenses fail as a matter of law. Plaintiffs thus request that the court enter a permanent injunction prohibiting defendants' continued infringement. Defendants have filed no opposition to plaintiffs' motion and have orally advised the court that they intend to withdraw their affirmative defenses. The court concludes that no genuine issues of material fact exist respecting the liability of defendants Jim Robinson and Free Republic for copyright infringement. Although plaintiffs have established these defendants' liability and there is a threat of continuing copyright violations, plaintiffs have not moved for summary adjudication with respect to damages, and therefore a final judgment cannot yet be entered, precluding the granting of permanent injunctive relief. The result is otherwise with respect to defendant Electronic Orchard. Plaintiffs have proffered no credible evidence that this entity has engaged in copyright infringement, and plaintiffs' motion for summary judgment is denied as to it.

I.  FACTUAL BACKGROUND

A.  The Parties[1]

Plaintiffs publish the Los Angeles Times and The Washington Post in print and online at "http://www.latimes.com" and "http://www.washingtonpost.com." Their respective websites post the current edition of the newspaper, which can be viewed free of charge, and archived articles that users must pay to view. Defendant Jim Robinson is the owner and operator of defendants Electronic [begin page 3] Orchard and Free Republic. Although no longer actively engaged in business, Electronic Orchard is a for-profit limited liability company that offers "Internet programming and design services." Free Republic is a limited liability corporation that operates freerepublic.com.[2]

This website, which has been operational since 1996, allows registered visitors to "post" news articles and comments concerning them to the site. Registered members may then post additional comments. Free Republic has approximately 20,000 registered participants. The website receives as many as 100,000 hits per day, and between 25 and 50 million page views each month.

B.  Defendants' Copying And Control Of Content On The Free Republic Website

Plaintiffs own valid copyrights in their respective news articles.[3] Defendant Robinson has personally copied and posted plaintiffs' articles on the Free Republic website.[4] Robinson and through him, Free Republic, have also encouraged registered members of Free Republic to copy and post full-text articles.[5]

[begin page 4]

Robinson and Free Republic have the right and ability to control the content that is posted on the Free Republic site, and have exercised this control by instructing registered members how to post articles, establishing guidelines as to what should be posted, and removing postings that Robinson considers inappropriate.[6] They also reserve the right to terminate individuals' posting privileges if they place improper content on the website, or disregard Free Republic's posting guidelines and instructions.[7]

Plaintiffs have repeatedly requested that defendants and their members cease posting full-text copies of their articles, and urged that they post links to the articles on plaintiffs' websites [begin page 5] instead. Defendants have declined these requests.[8]

II.  DISCUSSION

A.  Legal Standard Governing Motions For Summary Judgment

A motion for summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Proc. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. See Celotex Corp, v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof at trial, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. See id. If the moving party meets its initial burden, the non-moving party must then set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed.R.Civ.Proc. 56(e).

In evaluating evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T. W. Electric Service, Inc. v. Pacific Electric Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). The evidence presented by the parties must be admissible. Fed.R.Civ.Proc. 56(e). Conclusory, speculative testimony in affidavits and moving papers is not sufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir. 1985); Thornhill Pub. Co., Inc, v. [begin page 6] GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

B.  Effect Of Defendants' Failure To File Opposition To The Motion

As noted earlier, defendants have failed to oppose plaintiffs' motion for summary judgment. Plaintiffs filed a proof of service indicating that they served their motion papers on defense counsel on June 5, 2000.[9] On June 27, 2000, the court issued a minute order scheduling a hearing on the motion for July 24, 2000.[10]

When defendants failed to file either opposition or a statement of non-opposition by July 10, 2000,[11] the court contacted defendants' attorney, who asserted that he had never received plaintiffs' motion papers. He acknowledged receiving a copy of the court's June 27, 2000 minute order, however, which referenced the motion and placed him on notice that plaintiffs sought summary judgment in this case.[12] Despite this fact, he took no steps to obtain copies of any motion papers he did not have, or to file opposition as required by July 10, 2000.

Because of the potentially dispositive nature of the motion, the court extended defendants time to file opposition to July 21, 2000 and continued the hearing date to July 28, 2000.[13] After this order was entered, defendants represented that they would file a pleading withdrawing their remaining affirmative defenses. Their attorney also communicated that no opposition would be filed.

Defendants' failure to file opposition "may be deemed by the Court consent to the granting . . . of the motion." Local Rule 7.9. Summary judgment may not be granted, however, simply because a party falls to oppose the motion or to comply with a local rule. See Marshall v. Gates, [begin page 7] 44 F.3d 722, 725 (9th Cir. 1995); Henry v. Gill Indus. Inc., 983 F.2d 943, 950 (9th Cir. 1993) ("the party opposing the motion is under no obligation to offer affidavits or any other materials in support of its opposition. Summary judgment may be resisted and must be denied on no other grounds than that the movant has failed to meet its burden of demonstrating the absence of triable issues"). Rather, the court must examine whether the moving papers demonstrate that no genuine issue of material fact exists and that plaintiffs are entitled to judgment as a matter of law.[14]

C.  Elements Of Copyright Infringement

"Copyright law protects an author's expression; facts and ideas within a work are not protected." Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990). See also Sid & Marty Kroft Television Productions v. McDonald's Corp., 562 F.2d 1157, 1163 (9th Cir. 1977) ("It is an axiom of copyright law that the protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself").

Copyright infringement is established by demonstrating (1) ownership of a valid copyright and (2) copying of the original elements of the protected work. Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1043, n. 2 (9th Cir. 1994). To prove copying, plaintiffs must show that defendants had [begin page 8] access to the copyrighted work and that there is a substantial similarity between the copyrighted work and defendants' work. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992); Chase-Riboud v. Dreamworks, Inc., 987 F.Supp. 1222, 1224 (C.D.Cal. 1997).

D.  Defendants' Liability For Copyright Infringement

Plaintiffs are the owners of valid copyrights in the news articles contained on their websites and in the print editions of their newspapers.[15] Defendants, in fact, do not dispute this. Thus, the first element of plaintiffs' copyright infringement claim is satisfied. As respects the second, plaintiffs argue that defendants are not only direct infringers, but that they are liable for contributory and vicarious infringement as well.

1.  Direct Infringement

Robinson admits that he has personally copied plaintiffs' articles and posted them in their entirety on the Free Republic website.[16] As respects the articles he has posted, Robinson has directly infringed plaintiffs' copyrights. Plaintiffs argue, however, that his liability for direct infringement is broader, and extends to articles posted by others.

Some courts have concluded that the operator of an internet bulletin board service on which infringing material is posted, uploaded or downloaded is liable as a direct infringer. See Playboy Enterprises, Inc. v. Hardenburgh, Inc., 982 F.Supp. 503, 511 (N.D.Ohio 1997) (holding the operator of an electronic bulletin board to which copyrighted photographs were uploaded and from which they were downloaded liable for direct copyright infringement since defendant encouraged its subscribers to upload the photographs and screened them before making them generally available on the site). See also Playboy Enterprises, Inc. v. Webbworld, Inc., 968 F.Supp. 1171, 1175 (N.D.Tex. 1997) (holding the operator of a website that stored images of Playboy photographs in its web server computers and made them available for downloading by paying subscribers liable for [begin page 9] direct infringement, and rejecting defendant's argument that it was not infringing because it had no control over the adult newsgroups from which the photographs were obtained); Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552, 1554, 1559 (M.D.Fla. 1993) (holding the owner of a bulletin board service from which subscribers could download images onto their personal computers liable for direct copyright infringement despite the fact that third parties uploaded the infringing images onto the site).

Other courts, however, have determined that a bulletin board operator that merely provides a space where infringing activity can take place does not directly infringe. See Sega Enterprises Ltd. v. Maphia, 948 F. Supp. 923, 931-32 (N.D.Cal. 1996) (even though a bulletin board operator "knew infringing activity was occurring, and . . . solicited others to upload games" onto his website, he was not liable for direct infringement because he did not "directly caused copying to occur"); Sega Enterprises Ltd. v. Sabella, 1996 WL 780560, * 7 (N.D.Cal. 1996) ("whether Sabella knew her BBS users were infringing on Sega's copyright, or encouraged them to do so, has no bearing on whether Sabella directly caused the copying to occur. . . . Sabella's actions as a BBS operator and copier seller are more appropriately analyzed under contributory or vicarious liability theories"); Hardenburgh, supra, 982 F.Supp. at 511 ("As a legal matter, the court would agree with Judge Whyte['s conclusion in Netcom] that a finding of direct copyright infringement requires some element of direct action or participation. . .") Cf. Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F.Supp. 1361, 1369 (N.D.Cal. 1995) (rejecting plaintiffs argument that an internet access provider was liable for direct infringement since there was no "human intervention beyond the initial setting up of the system," and imposing liability on the access provider "would . . . result in liability for every single Usenet server in the worldwide link of computers transmitting [the subscriber's] message to every other computer"). The court need not resolve this dispute, since it is clear that Robinson and Free Republic are liable for contributory infringement in connection with members' posting of articles to the Free Republic site.

2.  Contributory Infringement

" '[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held in as a "contributory" infringer.' " [begin page 10] Fonovisa v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (quoting Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). Here, there is no doubt that members' posting of full-text copies of plaintiffs' articles to the Free Republic website constitutes copyright infringement. Robinson, and through him, Free Republic, have induced and contributed to this infringing activity by providing guidelines and instructions for posting, and by actively encouraging full-text copying. See, e.g., Hardenburgh, supra, 982 F.Supp. at 514 (holding a bulletin board service liable for contributory infringement since it admittedly "encouraged subscribers to upload information including adult files" to the website, "benefitted from having more files available to their customers," and "had at least constructive knowledge that infringing activity was likely to . . . occur[ ] on the[ ] BBS"); Maphia, supra, 948 F.Supp. at 932-33 (finding that a bulletin board service was liable for contributory infringement since it knew users were uploading plaintiffs games to, and downloading them from, the site, it tracked or had the ability to track uploads and downloads, it offered the BBS as "a central depository site for . . . unauthorized copies of [the] games," it facilitated "distribution of the games by user downloads," it "actively solicited users to upload unauthorized games," and it "provided a road map on his BBS for easy identification of Sega games available for downloading"); Sabella, supra, 1996 WL 780560 at * 8 (holding a bulletin board service liable for contributory infringement on the basis of evidence that "files on [the] BBS were labeled as Sega Genesis games," it "provided a road map on the BBS for easy identification of Sega games available for downloading," it "had the ability to track user uploads and downloads of these files," it "advertised . . . the copiers which played unauthorized copies of Sega games," it "gave downloading privileges to customers that bought copiers" and "sold [them] to others"). See also Netcom, supra, 907 F.Supp. at 1375 ("it is fair, assuming Netcom is able to take simple measures to prevent further damage to plaintiffs' copyrighted works, to hold Netcom liable for contributory infringement where Netcom has knowledge of Erlich's infringing postings yet continues to aid in the accomplishment of Erlich's purpose of publicly distributing the [begin page 11] postings").[17] Consequently, the court concludes that plaintiffs are entitled to summary judgment on the issue of Robinson and Free Republic's liability for contributory copyright infringement.[18]

E.  Whether To Grant Permanent Injunctive Relief

"As a general rule., a permanent injunction will be granted when liability has been established and there is a threat of continuing violations." Mai Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1993). See also Maphia, supra, 948 F.Supp. at 939 (noting that a permanent injunction is appropriately entered where liability is established and there is a threat of continuing violation, and concluding that a permanent injunction should issue in that case because defendant retained the ability to facilitate the uploading and downloading of Sega computer game programs); 17 U.S.C. 502(a) ("Any court having jurisdiction of a civil action arising under this title may . . . grant . . . final injunctions . . . to prevent or restrain infringement of a copyright")[19]

As detailed above, plaintiffs have established that defendants Robinson and Free Republic are liable for copyright infringement. Plaintiffs have also proffered evidence that defendants have refused requests that they cease copying articles, in full-text format, and that they remove articles presently on the Free Republic site. Additionally, they have demonstrated that Robinson and other [begin page 12] Free Republic members continued to copy articles even after this litigation was filed. There is thus a clear likelihood of continuing violation.

Plaintiffs' motion is for partial summary judgment on the issue of defendants' liability, however, leaving damages to be tried at a later stage of the case. The Advisory Committee Notes to Rule 56 of the Federal Rules of Civil Procedure state:

"Rule 54(a) defines 'judgment' as including a decree and 'any order from which an appeal lies.' Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary 'Judgment' is not a final judgment, and, therefore, that it is not appealable, unless in the particular case some statute allows an appeal from the interlocutory order involved. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact." Fed.R.Civ.Proc. 56, Advisory Committee Notes.

Rule 54(b) provides:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed.R.Civ.Proc. 54(b).

While Rule 54(b) contemplates that judgment may be entered on one or more but fewer than all of the claims in an action, plaintiffs' request for a permanent injunction suggests that the court should [begin page 13] enter a partial Judgment addressing liability and one form of relief, while leaving a second -- damages -- for trial. This is not permitted. See Fed.R.Civ.Proc. 54, Advisory Committee Notes (observing that Rule 54(b) was adopted to "avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication, of the entire case," and that it was not intended to abrogate the rule prohibiting "piecemeal disposal of litigation" (emphasis added)). See also Maphia, supra, 948 F.Supp. at 940 (the district court determined that plaintiff was entitled to a permanent injunction at the summary judgment stage, but stated the injunction would issue only upon entry of final judgment following a damages trial on plaintiff s trademark infringement claim); Harms v. Tops Music Enter., Inc., 160 F.Supp. 77, 85 (S.D.Cal. 1958) (granting partial summary judgment on liability for infringement, but refusing to enter judgment under Rule 54(b) because "[b]y granting summary judgment declaring that liability has been admitted and leaving the remedies by way of injunction, accounting and the like to be determined later, we merely crystallize and reduce the issues").

If a permanent injunction were to issue at this stage of the proceedings, defendants would be placed in the anomalous position of being subject to a permanent injunction that they could not appeal. Additionally, the court's order could be changed or rescinded in the future. See 10B C. Wright, A. Miller & M. Kane, FEDERAL PRACTICE AND PROCEDURE, Civil, 2737, p. 323 (3d ed. 1998) ("the trial court retains jurisdiction to modify the order at any time prio to the entry of a final judgment"). Consequently, the court will not issue an injunction prior to the entry of final judgment in this case. See Maphia, supra, 948 F.Supp. at 940.

III.  CONCLUSION

For the reasons stated above, plaintiffs' motion for partial summary judgment adjudging defendants Robinson and Free Republic liable for copyright infringement is granted. The motion is denied as respects defendant Electronic Orchard. Plaintiffs' request for a permanent injunction is granted; the injunction will issue as part of any final judgment entered in this case.

DATED: July 31, 2000 ____________________________
MARGARET M. MORROW
UNITED STATES DISTRICT JUDGE

 


Footnotes

[1] The information included in this section of the order reflects facts presented to the court in connection with the fair use motions. Absent evidence to the contrary, the court assumes that the corporate status of Free Republic and Electronic Orchard has not changed.

[2] At the time of the hearing on the fair use motions, Free Republic's corporate counsel was preparing to seek tax-exempt status for the Free Republic Institute, a company incorporated on September 27, 1999, that was going to assume responsibility for the freerepublic.com website. Defendants have proffered no evidence as to whether the Institute has been granted tax-exempt status in the interim. The tax-exempt status of Free Republic or Free Republic Institute is not relevant to decision of this motion, however.

[3] Declaration of Caroline H. Little ("Little Decl."), 14, Ex. A; Declaration of Katherine L. McDaniel ("McDaniel Decl."), 14, Ex. A. See also Declaration of Heather L. Wayland ("Wayland Decl."), Ex. O ("Robinson Depo.") at 67:16-23 (Robinson's testimony that he had no reason to believe the articles from plaintiffs' publications posted on the Free Republic site were not registered).

[4] Robinson Depo. at 53:8-19, 53:25-54:3.

[5] Id. at 62:25-63:13, 74:4-18 (Robinson's testimony that he is aware Free Republic members are copying the full text of plaintiffs' articles and that this is necessary because "to really discuss the article, you need the article right there in front of you"); Wayland Decl., Ex. A (instruction for posting articles found on the Free Republic website); Wayland Decl., Ex. B (a post by Robinson stating, inter alia: "If you go to Free Republic and there's nothing there, for God's sake, POST SOMETHING!"); Wayland Decl., Ex. C (a post from Robinson on December 22, 1998, explaining that "[t]he idea [of the Free Republic website] is to post news articles by topic and to invite discussion. Then these news articles and discussions are archived and are available for later comparison as the politicians and media continue to spin and lie"); Wayland Decl., Ex. D (a thread posted on November 8, 1999, in which one Free Republic member asks whether the court's fair use ruling means that only excerpts of articles can be posted, and another replies that the issue will ultimately be decided by a jury); Wayland Decl., Ex. E (a November 27, 1999 post from Robinson regarding the purposes of the Free Republic site, which states, inter alia: "Our chosen vehicle for dissent is to use the media's own words against them.... This is why it is important to post articles in their entirety"); Wayland Decl., Ex. F (Robinson's statement posted on the website that "in order to fulfill our public service mission of exposing government corruption and media complicity, we need to have the full text available as evidence for comparison today and for historical purposes later"); Wayland Decl., Ex. G (the comment of a Free Republic member on the website that "[p]er Jim Robinson's request, you. should post the full article").

[6] Robinson Depo. at 55:1-13, 56:23-24, 57:17-25, 58:2-4, 91:20-92:1, 97:9-19 (Robinson occasionally exercises his right to delete posts, and has deleted one or two articles following complaints about copyright infringement); Wayland Decl., Ex. C (a December 22, 1998 post by Robinson regarding "posting guidelines and vanity posts," in which he reminds members that "the idea [of the Free Republic site] is to post news articles," that the site should not be used as a chat room, and that noting that while Robinson has "been very reluctant to ban any but the most flagrant violators, . . . [he] feel[s] that [the bulletin] board is starting to get out of hand"); Wayland Decl., Ex. E (a November 27, 1999 post by Robinson, which states that "[I]f a participant posts something that I feel is contrary to our purposes, I will remove it. In some cases, I will revoke the posting privileges from people whom I feel are working at odds to our goals or purposes").

[7] Wayland Decl., Ex. A (one of the posting guidelines, which states that "[t]he owner reserves the right to revoke posting privileges and, when necessary, to permanently ban individuals"); Wayland Decl., Ex. C ((a December 22, 1998 post by Robinson regarding the posting guidelines, in which he states that he has "been very reluctant to ban any but the most flagrant violators, . . . but . . . feel[s] that [the bulletin] board is starting to get out of hand"); Wayland Decl., Ex. E (a November 27, 1999 post by Robinson, which states that "[I]f a participant posts something that I feel is contrary to our purposes, I will remove it. In some cases, I will revoke the posting privileges from people whom I feel are working at odds to our goals or purposes.").

[8] Robinson Depo. at 62:3-8, 62:12-63:13; Declaration of Caroline H. Little ("Little Decl."), 7, Exs. F, G, & H; Declaration of Katherine L. McDaniel ("McDaniel Decl."), 7, Exs. F & G.

[9] Certificate of Service by Hand Delivery, filed June 5, 2000.

[10] Civil Minutes, dated July 27, 2000.

[11] See Local Rules 7.6, 7.12.

[12] Indeed, at a status conference held on March 30, 2000, plaintiffs indicated their intention to file a summary judgment motion, and opposed any continuance of the motion hearing cut-off date then scheduled for April 30, 2000.

[13] Civil Minutes, dated July 18, 2000.

[14] Because defendants have indicated an intent to withdraw their remaining affirmative defenses, the court has not addressed those issues in this order. It notes that, in any event, summary judgment would be properly entered in plaintiffs' favor on the defenses, since defendants bear the burden of producing admissible evidence establishing each element of the defenses, and have not done so. See, e.g., Lowrey v. Texas A&M Univ. System, 11 F.Supp.2d 895, 905 (S.D.Tex. 1998) ("Because limitations is an affirmative defense, defendants have the burdens of proof and persuasion at trial. Thus, in a motion for summary judgment, defendants have the burden of presenting admissible evidence legally sufficient to sustain a finding favorable to them on each element of that defense"). See, also Meyers v. Brooks Shoe Inc., 912 F.2d 1459, 1461 (Fed Cir. 1990) (the moving party must demonstrate that "undisputed facts establish every element of [its] claim or defense"); Paul v. Monts, 906 F.2d 1468, 1474 (10th Cir. 1990) ("[W]here the moving party has the burden -- the plaintiff on a claim for relief or the defendant on an affirmative defense -- his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party"); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) ("Thus, if the movant bears the burden of proof on this issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant Judgment in his favor").

[15] The copyright registrations plaintiffs have proffered are prima facie evidence of the validity of the copyrights and of the information contained in the certificates. 17 U.S.C. 410(c).

[16] This obviously demonstrates copying as that term is used in the statute. Robinson has access to the copyrighted articles, which are available for viewing on plaintiffs' respective websites. Moreover, the posting of full-text copies of the articles satisfies the substantial similarity test.

[17] Plaintiffs assert additionally that defendants are liable for vicarious copyright infringement, which occurs where a defendant . . . has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities."' Fonovisa, supra, 76 F.3d at 262 (quoting Gershwin, supra, 443 F.2d at 1162). Because the court concludes that there are no genuine issues of material fact surrounding Robinson and Free Republic's liability for contributory copyright infringement, it need not decide whether they are also liable under a vicarious infringement theory.

[18] Plaintiffs' arguments fail to address the liability of defendant Electronic Orchard, and they have offered no evidence to support its liability for direct, contributory or vicarious copyright infringement. Consequently, to the extent plaintiffs' motion requests a finding of liability of Electronic Orchard, the motion is denied.

[19] According to one treatise:

"Because a permanent injunction is issued only after liability is established, its issuance probably does not require a showing of irreparable injury. Nonetheless, injunctive relief ordinarily will not be granted, when there is no probability or threat of continuing or additional infringements.

"It is uncontroversial that a 'showing of past infringement and a substantial likelihood of future infringement' justifies issuance of a permanent injunction." 4 M. and D. Nimmer, NIMMER ON COPYRIGHT, 14.06[B].

 

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