On 3/20/2000, T. R. Halvorson <pastel[_at_]btigate.com> wrote:
>
> Recently published on LLRX.com
>
> How to Start an Urban Legend: the Reporting of Intellectual Reserve,
> Inc. v. Utah Lighthouse Ministry, Inc.,
>
> http://www.llrx.com/features/urban.htm
In this article Mr. Halvorson states:
"Utah Lighthouse Ministry says someone anonymously left a computer disc in its mailbox containing a copy of the Handbook. It published a verbatim copy of the tenth chapter and portions of two other chapters at its website. Intellectual Reserve asked Utah Lighthouse Ministry to cease publication. The Lighthouse continued publication and Intellectual Reserve filed suit."
This is inaccurate. IRI counsel sent a cease-and-desist letter on October 13, 1999, demanding that the Tanners (owners of the website) remove the Handbook from their website and that they post a notice on their website admitting infringement and asking that any copies previously downloaded from their website be destroyed. The Tanners promptly removed the material but posted the IRI cease-and-desist letter instead of the demanded notice. IRI, nonetheless, filed suit that same day. In fact, at the TRO hearing, Judge Campbell had a hard time understanding why the Church still wanted/needed a TRO:
"AFTER REVIEWING MS. TANNER'S AFFIDAVIT AND THE COPY OF THE MATERIALS THAT WERE ATTACHED, WHAT ELSE IS THERE THAT YOU COULD RECEIVE IN A T.R.O. THAT THE TANNERS HAVE NOT AGREED TO GIVE YOU? THEY'VE TAKEN THE WEB SITE--THE MATERIALS THAT YOU SAY INFRINGE YOUR CLIENT'S COPYRIGHT, THEY'VE TAKEN THEM DOWN. AND THEY HAVE ATTACHED YOUR LETTER. THEY PUT IT ON THE WEB SITE THAT -- AND THAT LETTER HAS THE ACKNOWLEDGMENT THAT YOU REQUESTED. SO WITH THAT IN MIND, I JUST NEED TO KNOW WHAT ELSE I COULD DO THAT THEY HAVEN'T DONE FOR YOU?" October 18, 1999 TRO Hearing Transcript, http://www.utlm.org/underthecoveroflight/transcripts/tro101899.htm
Mr. Halvorson also states:
"The Consent to Extention (sic) of Temporary Order & Response stipulates that the temporary restraining order may remain in effect as a preliminary injunction, and the Order of December 6, 1999 recites that the Lighthouse did not oppose a preliminary injunction against direct infringement."
According to Judge Campbell's opinion, the defenants conceded for the purpose of the TRO and PI that plaintiff had a valid copyright in the Handbook and that defendants directly infringed it. Defendants made this concession without admitting liability. Defendants later challenged the validity of the Church's copyright.
Mr. Halvorston states:
"Readers easily, though incorrectly, infer that the preliminary injunction were the court's final determination of whether the work is copyrighted, whether posting copies of chapter ten and portions of two other chapters was a direct infringement, and whether publishing the URLs of pages at other websites that the Lighthouse knew contained infringing copies of a copyrighted work was part of a contributory infringement. That just is not so. The function of a preliminary injunction is to preserve the status quo while the case proceeds toward final determination."
As a practical matter, a preliminary injunction is often the last word (other than appeal, and this one is currently on appeal) in a copyright infringement case.
Mr. Halvorston states:
"The publishing of the URLs was one thread in a tapestry of purposely subverting an order of court."
For someone who is writing against inflammatory rhetoric, you might try using a little less yourself. The URLs were initially published in the newspaper. In publishing the URLs on their website, the Tanners did nothing more than the newspaper did. Perhaps they didn't see their conduct as "purposely subverting an order of the court." Perhaps you can see into their minds?
Mr. Halvorson states:
"Hysteria about prior linking cases has proved to be just that, hysteria. [footnote] The holdings of prior cases have been held to the factual context of those cases."
What holdings of what prior cases?
Mr. Halvorson states:
"Judge Campbell says, "Based on this scant evidence, the court concludes that plaintiff has not shown that defendants contributed to the infringing action of those who operate the infringing websites." Based on that statement, some writers ridicule the court for concluding that the Lighthouse committed contributory infringement. They are reading indistinctly.
Vicarious liability and contributory infringement are distinct legal theories of liability. A contribution to "infringing action" goes to the issue of vicarious liability. Having found no contribution by Utah Lighthouse Ministry to the infringing action of other websites, the court correctly ruled that there was an insufficient showing to support a finding of vicarious liability. Whether a party has contributed to the infringing action of another does not go to the alternate theory of liability, contributory infringement."
I have trouble following this. The IRI case had little to do with vicarious liability (except passing references to it), only contributory liability. The court considered two possible direct infringers (direct infringement is required for a finding of contributory liability): the owners of the three websites and the users of the three websites. The court held that there could be no contributory infringment predicated on direct infringement by the website owners, but that there could be contributory liability predicated on direct infringment by users. If you look at the headings in the opinion, you will see that in both instances the court was considering only contributory liability.
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