Opinion
Civil Action CV-13-135
12-27-2013
CONCORDIA PARTNERS LLC, Plaintiff, v. MARCELLE PICK, et al., Defendants
ORDER
Thomas D. Warren Justice
Before the court is a motion by plaintiff Concordia Partners LLC for a preliminary injunction.
The court has considered the submissions of Concordia and of defendants Marcelle Pick and Pick Enterprises LLC (collectively "Pick Enterprises"), the affidavits submitted by both sides, and the points raised at oral argument on December 11.
In ruling on a preliminary injunction, the court must ordinarily consider four factors: (1) whether the plaintiffs will suffer irreparable injury in the absence of a preliminary injunction; (2) whether that injury outweighs any harm which granting injunctive relief would inflict on the defendant, (3) whether plaintiffs have demonstrated a likelihood of success on the merits (at most, a probability; at least, a substantial possibility); and (4) whether the public interest would be adversely affected by granting the injunction. Bangor Historic Track Inc. v. Department of Agriculture, 2003 ME 14019, 837 A.2d 129; Ingraham v. University of Maine, 441 A.2d 691, 693 (Me. 1982).
The primary relief sought by Concordia is an injunction prohibiting Pick Enterprises from displaying on its website certain articles whose copyright is allegedly owned by Concordia under section 8H of a 2006 Licensing Agreement between the parties.
The court concludes that Concordia has shown irreparable injury under the principle that harm that is apparent but that cannot easily be quantified is sufficient to justify injunctive relief. Ross-Simons of Warwick Inc. v. Baccarat Inc., 217 F.3d 8, 13 (1st Cir. 2000). Pick Enterprises argues with some force that the major harm to Concordia results from its loss of the W2W website, which is the acknowledged property of Pick Enterprises. This may be correct, but it does not allow Pick Enterprises to inflict significant additional harm by appropriating articles to which it appears likely that Concordia has the copyright pursuant to the Licensing Agreement and thereby subjecting Concordia to Google's duplicate content penalty.
On the subject of harm the court was invited by the parties to google the subjects of the disputed articles. In a set of five searches, the W2W website appeared in each case on the second page of the search. In each case Concordia's website was not found in the first 10 pages of the google search, and the court terminated the search at that point.
On the issue of whether the injury to Concordia if an injunction is not issued outweighs any injury to Pick Enterprises if an injunction is entered, the court concludes that the balance of harms strongly favors Concordia. Indeed, the court sees no harm to Pick Enterprises from the granting of an injunction limited to prohibiting Pick Enterprises from displaying on its website articles to which Concordia appears to own the copyright. Pick Enterprises retains the W2W website and trademark, retains the portal to Ms. Pick's Clinic, and retains its rights to all of the articles and other materials which are not the subject of this injunction.
The court also concludes that under section 8H of the 2006 Licensing Agreement Concordia has demonstrated a reasonable likelihood of success on its claim that it owns the copyright to the articles that are the subject of this order. Although there is ample evidence that Ms. Pick was the source of the ideas for many of the articles to which Concordia now claims the copyright, an author may not copyright ideas - copyright applies to the expression of ideas. See Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539, 556-57 (1985).
In light of this principle, the court does not find section 8H to be ambiguous and concludes based on all the affidavits submitted that Concordia has established a reasonable likelihood of success on its claim that under section 8H, Concordia owns the copyright to the articles on the attached Schedule A.
Finally, the court can discern no harm to the public interest from the granting of the injunctive relief specified in this order.
Pick Enterprises argues that Concordia is barred from injunctive relief because it has unclean hands. Whether Concordia correctly decided not to rely on an eleventh hour statement from an attorney for Pick Enterprises retreating from its former position that the 2006 Licensing Agreement was not subject to renewal is an open question but that does not constitute unclean hands that would bar injunctive relief. This is particularly true because, regardless of the manner in which the 2006 Licensing Agreement was terminated or who was at fault, the provision which Concordia now seeks to enforce involves the respective rights of the parties post-termination.
Two other points should be made. First, although Concordia originally sought other injunctive relief, including relief based on the contention that that Pick Enterprises had also appropriated marketing materials and website architecture belonging to Concordia, Concordia has not demonstrated a likelihood of success on any issue other than the issue on which the court has granted relief as set forth below.
Second, the titles of eleven articles on the revised list as to which Concordia seeks injunctive relief are identical to the titles of certain articles that the 2006 Licensing Agreement specifically awards to Pick Enterprises. Accordingly, the court has deleted those eleven articles from Concordia's revised list as shown by the additional deletions on Schedule A attached hereto. Where indexes appear on Schedule A, defendants are required to remove any articles covered by this order from any indexes appearing on defendant's website.
The entry shall be:
1. Plaintiff's motion for a preliminary injunction is granted to the extent set forth below.
2. The Court hereby orders defendants to remove from the womentowomen.com website and from any other website maintained by defendants, both from the website and from any index on the website, the articles listed on the attached Schedule A.
3. This order shall be binding on each of the defendants, their agents, servants, employees, attorneys, successors and assigns, and upon those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise.
4. This order shall remain in effect, unless modified or vacated by further order of the court, until the entry of final judgment in this case.
5. There being no showing that this order may cause any financial detriment to Defendants, the giving of security pursuant to M.R.Civ.P. 65(c) is hereby waived.
6. In all other respects, plaintiff's motion for a preliminary injunction is denied.
7. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
Schedule A To Order Dated December 16, 2013.
ATTORNEY: NUZZI, DANIEL FOR: CONCORDIA PARTNERS LLC
ATTORNEY: EISENSTEIN, MARTIN FOR: CONCORDIA PARTNERS LLC
ATTORNEY: LILLEY, DANIEL FOR: PICK ENTERPRISES LLC FOR: MARCELLE PICK
ATTORNEY: FOSTER, CHRISTIAN C FOR: PICK ENTERPRISES LLC DEF FOR: MARCELLE PICK
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60. Index - Bone Health
61. Index - Detoxification
62. Index - Digestive Health
63. Index - Drug therapy
64. Index - Emotions, anxiety and mood
65. Index - Exercise and lifestyle
66. Index - Fatigue and insomnia
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68. Index- General women's health articles
69. Index - Health topics
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72. Index - Hormonal imbalance .
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80. Index - Osteoporosis and bone health
81. Index - PCOS and insulin resistance
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85. Index - Thyroid health
86. Index - uncategorized
87. Index - Understand your body
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89. Index - weight loss
90. Index - Women's health testing
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12/27/13
ATTORNEY: NUZZI, DANIEL FOR: CONCORDIA PARTNERS LLC
ATTORNEY: EPSTEIN, ELLIOTT FOR: PICK ENTERPRISES LLC DEF FOR: MARCELLE PICK DEF
ORDER
Before the court are (1) plaintiff's December 20, 2013 emergency motion for clarification of the preliminary injunction or to alter or amend that injunction and (2) defendants' December 26, 2013 motion to alter or amend the preliminary injunction, for relief from the preliminary injunction, for a testimonial hearing, and for a stay of the injunction.
1. Defendants' Motion
Defendants' motion to amend or alter, for relief, for a testimonial hearing, and for a stay is largely a motion for reconsideration of the court's preliminary injunction order dated December 16, 2013. With respect to the merits, defendants have not made any arguments that were not already presented at the preliminary injunction hearing or that could not have been presented at that hearing. Accordingly, except with respect to two issues that may be subject to possible clarification as set forth on section 2 below, defendants' motion is denied without the necessity for plaintiff to respond. See M.R.Civ.P. 7(b)(5).
The only new argument in defendants' motion is an argument based on subject matter jurisdiction. However, the court's ruling was based on the contract between the parties, an issue that this court may decide even if the contract in question allocates the ownership of copyrighted material. Nobel v. Bangor Hydro- Electric Co., 584 A.2d 57, 58 (Me. 1990).
2. Issues for Possible Clarification
Defendants suggest there is some unclarity as to which items are covered by the attachment to the December 16 preliminary injunction order. If, after discussion between counsel, there is still any dispute as to the articles covered by the December 16 order, counsel shall schedule a conference by phone or in person at the earliest opportunity. If counsel wish to be on the record, a conference in person shall be necessary.
Plaintiff and defendants appear to agree that at some points in the December 16 order, the court referred to the term "website" when the more accurate term would have been "domain name." This does not affect the relief ordered. Moreover, the court cannot discern which specific references to "website" the parties contend should be amended. If either party contends that this issue is sufficiently important to call for the order to be amended, that party shall request a conference.
This order and the December 16 order are not stayed pending the possible clarifications or amendments set forth above.
4. Plaintiffs Emergency Motion for Clarification or Amendment
For the reasons advanced by plaintiff in its December 20 motion for clarification and in plaintiff's reply memorandum filed today, the court agrees that after removal of the articles set forth in the court's December 16 order, defendants should be ordered to submit updated Sitemaps to the relevant search engines in order to implement the relief set forth in the December 16 order. In particular, the court sees no merit in defendants' contention that requiring updated sitemaps would somehow violate defendants' trademark.
Defendants argue that requiring updated sitemaps would constitute affirmative relief requiring a heightened showing of likelihood of success under Department of Environmental Protection v. Emerson, 563 A.2d 762 (Me. 1989). In the court's view, the submission of updated sitemaps is not mandatory relief within the meaning of Emerson but is part and parcel of the prohibitory relief ordered on December 16 and is required to implement that relief. If defendants remove an article from their website but do not submit an updated sitemap, they will still be capturing web searches as if the article had not been removed. In effect, for purposes of search results, they will not have complied with the order to remove the articles.
In any event, plaintiffs have demonstrated a sufficiently clear likelihood of success on this issue to require the submission of updated site maps.
The entry shall be:
1. Defendants' motion to alter or amend the December 16, 2013 preliminary injunction order, for relief from that order, for a testimonial hearing, and for a stay of that order is denied except for the specific issues identified in this order as to which clarification may be appropriate.
2. On the issues identified in this order for possible clarification, counsel shall contact the clerk's office to schedule a telephonic or in-person conference with the court.
3. On or before December 31, 2013 defendants are ordered to submit updated sitemaps reflecting the removal of the materials ordered to be removed in the court's December 16 order to Google, Google Webmasters Tools, AOL, Bing, Yahoo and Lycos. Defendants shall provide confirmation to plaintiff's counsel that the sitemaps have been updated within 36 hours after submission of the updated sitemaps.
The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).