Biosafe-One v. Hawks Dismissed

By Eric Goldman

Biosafe-One, Inc. v. Hawks, 2009 WL 2170150 (S.D.N.Y. July 25, 2009)

I previously blogged about this case in 2007. The parties are competitors in the septic system cleaning products business. The plaintiff alleged that the defendant ripped off its business concept through improper means. As part of the effort to shut down its competitor, the plaintiff sent 512(c)(3) notices to defendant’s host to get the defendant’s website offline. In the previous ruling, the court enjoined the plaintiff from issuing more 512(c)(3) notices during the litigation pendency–an extraordinary remedy I haven’t seen before or since.

The court finally resolves the “merits” of the parties’ cross-litigation in this ruling. I put “merits” in quotes because clearly Judge Chin wasn’t impressed with the plaintiff’s driftnet complaint. As he says in a footnote politely communicating his irritation, “Attorneys representing plaintiffs should realize that the pleading of numerous causes of action–here, twenty-five–is not a sign of strength. To the contrary, a kitchen-sink approach is often a sign of weakness, an admission that no claim has merit.” Ouch!

The opinion would be more interesting if the judge wasn’t so clearly trying to clean his docket quickly. The most interesting piece is the dismissal of the defendant’s 512(f) counterclaim because the defendant didn’t introduce evidence that plaintiff was aware of the non-infringing status of defendant’s website. Still, anticipating some potential abuse by the plaintiff, the court says in a footnote: “I note that plaintiffs would have no good faith basis to file a new DMCA notice, as all of their claims have been dismissed. The Court will retain jurisdiction over this case, however, and in the event plaintiffs do file a new DMCA notice, defendants may turn to this Court for relief.” Glad to see the judge is keeping an eye out for future tomfoolery.

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