Comments on: Can 512(f) Support an Injunction? Novotny v. Chapman https://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm Fri, 25 Aug 2006 07:00:05 +0000 hourly 1 By: David Jaglowski https://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-429 Fri, 25 Aug 2006 07:00:05 +0000 http://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-429 Having finally had the opportunity to read the opinion in the case, I no longer think that the result is inexplicable.

You stated that the plaintiff sought a declaratory judgment of non-infringement and an injunction against Chapman. In fact, the court declined to issue a preliminary injunction, noting that “this injury is not likely to reoccur since the plaintiffs neither are posting the videos-at-issue on their website, nor have they cited any interest in re-posting these videos before the underlying legal issues are resolved.” That seems perfectly reasonable, since the court has yet to fully consider the terms of the license, the defendant’s alleged termination of the license, and the other substantive issues in the case.

I see nothing in the opinion that suggests that the court could not or would not issue an injunction if the plaintiffs prove their case.

]]> By: David Jaglowski https://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-428 Fri, 18 Aug 2006 09:56:58 +0000 http://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-428 Oops. I inadvertantly confused the plaintiff and the defendant, in spite of correctly calling the plaintiff the plaintiff. That does make the result rather inexplicable.

To the prior commenter: I suspect that 501(c)(3) notices would be considered to be commercial speech, if not an “act” rather than speech entirely. You should also consider that, barring appeal, the issue has been fully litigated with respect to the copyright owner.

]]> By: David Jaglowski https://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-427 Fri, 18 Aug 2006 09:23:20 +0000 http://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-427 Perhaps you can’t see the forest for the trees? A entity holding a valid license could pursue a claim for intentional interference with prospective business advantage or other related business torts against the copyright owner, obtain a judgment and possibly damages, and request a permanent injunction barring future interference, including unjustified 512(c)(3) notices. The 512(f) remedy is a post-hoc mechanism, and there is nothing to indicate that Congress intended it as an exclusive remedy that would preclude conventional remedies for subsequent activities that would violate a court order or injunction.

The plaintiff should have filed a declaratory judgment counterclaim to force the trial court to rule on the “moot” issue. You can learn valuable lessons from the procedural issues that are commonly raised in patent litigation and appeals.

]]> By: Michael Risch https://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-426 Thu, 17 Aug 2006 23:42:00 +0000 http://blog.ericgoldman.org/archives/2006/08/can_512f_suppor.htm#comment-426 A couple of comments:

1. Perhaps a straight defamation claim is the way to go. The person is sending out false statements of fact that are causing damage

2. Is there is prior restraint problem?

3. Wouldn’t a declaratory ruling that the license is valid be sufficient to overcome any frivolous notices? An injunction might be preferred, but is it necessary?

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