RE: Re: Responsibility for an insert...

There is no GIS map. It is a data base. You can with some skill and effort extracts various parts of a map from it...but no there is no way any can get the GIS system to produce anything that resembles my map. The data base has various visible views but none that approximate the map in question. So when you remove the GIS map...nothing changes.

One extracts pieces from the GIS base. A line that shows the appropriate shape for the centerline of a particular street for instance.

And the maps are within small percentages of identical in most areas.

So back to the really interesting part.

I agree that I blew the statutory damages. Got the package together twice and held both times for a further revision. Dumb.

I also agree I will be unable to prove damages.

But as I understand the infringers profit is vulnerable. I need only prove the infringers gross profits...which I can do reasonably well. The infringer is then required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

How they gonna do that? They went to a certain amount of trouble to copy the map. Likely paid somebody a grand or two to copy it. Likely provided copies to 100s of clients over a span of years. For PR? How do they determine how the map rates against open houses? Against Newspaper ads? Against walk ins? Don't they have a basic problem in dividing the revenue? There justification for the contribution of other sources is as likely as loose as that against the map. Who takes ties?

Jim Donohue

> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of J. Noble
> Sent: Wednesday, May 03, 2006 8:21 AM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] Re: Responsibility for an insert...
>
>
> You have a very thin copyright. Take out the GIS map, and you're left
> with the overlay -- your original contribution to the extent it's at
> least a little bit creative, e.g. the choice to add local community
> centers and the symbol that marks them. I'd have to look at the GIS
> map, yours, and the infringement, but I'd guess that you don't have a
> lot to work with. You would need to prove that they were not just
> substantially similar, but virtually identical.
>
> The fact that the copyright wasn't registered within three months of
> first publication means you can't get statutory damages or attorney's
> fee. That leaves you with actual damages, which are highly
> speculative and probably, as you say, "unprovable." It isn't even a
> matter of how much of his $1 million was "due to the map," but rather
> how much money he made by using your original contribution to the
> public domain map. You might not get past a motion to dismiss; and if
> you did, the damage award wouldn't pay for the depositions.
>
> I'm not your lawyer, and I don't have all the facts. I'm offering my
> opinion, not my legal advice. My only legal advice is that you
> shouldn't rely on my opinion.
>
> John Noble
>
> At 2:30 PM -0400 5/2/06, Jim Donohue wrote:
> >OK - I was trying to keep it brief but as everyone is now
> sucked in I
> >will go through your questions...
> >
> >First off I and My wife practice Real Estate in the NW
> section of Las
> >Vegas.
> >
> >
> >The map is of a community in NW Las Vegas of about 7800 homes.
> >
> >I drew it. While a realtor now I retired from a 35 year
> career as an
> >engineer, computer scientist and developer. The base shape
> of the map
> >were done by overlaying the Clark County GIS maps of the
> area. The map
> >is however relatively schematic. The overall outline is
> correct as is
> >the interconnect of the streets. Various things are moved a
> little to
> >make the text part work well. So it is as much a street
> schematic as
> >an accurate map. The map is overlayed with a Alpha/Numeric grid.
> >
> >It is constructed as an 11x17 or 12x18 with the map across
> one side.
> >The other side is split into two equal panes. The first is the
> >advertising pitch and the second the index to the streets.
> Fold it with
> >the map inside and you are done.
> >
> >It was initially completed in 2000 or 2001. It has always carried a
> >copyright and a revision level. It is probably in its tenth or more
> >version. The one ripped off is earlier maybe 5 or 6 level.
> >
> >>
> >> At 9:25 PM -0400 4/27/06, Jim Donohue wrote:
> >> >Got a little copyright flap going. Fellow ripped off a
> map for a
> >> small >community from us and then distributed 7700 copies to the
> >> residences in
> >> >the community. We gonna go after him to one degree or another.
> >> >
> >> This is the point in the phone call at which I say,
> "let's make you
> >> an appointment." I've got more questions than answers.
> >>
> >> Who drew the map?
> >Me.
> >> Who is "we"?
> >DonohueTeam..Doreen and Jim Donohue
> >> How did "we" acquire the map?
> >Created it from scratch
> >> Is the copyright registered?
> >No - damn it.
> >> Did the map carry a copyright notice?
> >Yes always.
> >> Who is this "fellow"?
> >Competitive Realtor in Las Vegas. Works the same community.
> Does more
> >than $20million a year...three year gross income of perhaps
> $1,000,000.
> >> Is the home owner's association a legal entity?
> >Yes..Big and filthy rich
> >> How did they obtain the copyrighted map?
> >Took $800 from other Realtor to distribute it. Delivered to HOA
> >magazine printer by the other Realtor.
> >> How is this "fellow" connected to the home owner's association?
> >Advertiser in their publication.
> >Who exactly directed the design shop to copy the
> >> map?
> >The other Realtor
> >
> >Does the map "express" anything but the location of
> >> streets?
> >Specialized for older eyes. Features the local community
> centers and
> >facilities. Easy to find streets. But still a map.
> >
> >>How is the map different from any other map of the
> >> same area?
> >The data underlying a map is the same though this one is
> usefully but
> >subtlely different. It has excellent utility. Can someone do an
> >equally useful map...Yup there is another.
> >
> >What does "ripped it off ... reasonably well"
> >> mean? High quality work generally. Not perfect...used to small a
> >> font for
> >instance...but high quality overall.
> >
> >Is the infringing map identical to your map?
> >In most places. Not all.
> >> If not, how is it different?
> >Different font similarly placed. Filled golf course areas in green
> >different advertising pane.
> >
> > How was the magazine distributed?
> >Mail
> >
> >>How are "we" harmed? Lost use of copyrighted product. Can never be
> >>fully
> >effective now. No provable damages. Argument will be how
> much of his
> >million was due to map. All? Nah. Most? Nah Some? Yup
> >How much do "we" care?
> >Certainly enough for a demand letter and at least a C&D.
> >>Can "we" come up with
> >> a $25,000 retainer?
> >Yup..but we would not...any attorney gets a retainer up
> front and then
> >a cut of the proceeds. Say $5K and 40% of over 5K?
> >
> >>
> >> But I can answer one question:
> >>
> >> >Can you demand that a community association retrieve its
> addenda
> >> to the >magazine?
> >>
> >> No. But that raises more questions:
> >>
> >> What would be the point?
> >If a map is floating around in a home there I would prefer
> it be mine.
> >I will bet you can figure out why.
> >> Are "we" in a personal pissing contest with our home owner's
> >> association?
> >Nope. I generally get along with those folk. They are however deep
> >pocketed.
> >>
> >And I would love to go after whoever did the design. I do
> not like rip
> >off artists. The Realtor involved is a a guy who might well
> do this in
> >stupidity. I do not think that true of the designer.
> >
> >Jim Donohue
> >
> >
> >
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Received on Thu May 04 2006 - 21:55:01 GMT