Opinion
CV 02-2462 (ADS)
October 10, 2002
REPORT AND RECOMMENDATION
Plaintiff Jeffrey Hammer ("Hammer" or "plaintiff"), pro se, alleges in his complaint that defendant Anthony L. Trendl ("Trendl" or "defendant") posted on an internet web site maintained by book retailer Amazon.com certain unfavorable reviews of plaintiff's books in violation of federal copyright and state defamation laws. Plaintiff moved before District Judge Spatt for a temporary restraining order principally to (i) enjoin defendant Trendl from publishing any further unfavorable reviews of plaintiff's books on the Internet; and (ii) enjoin nonparty Amazon.com from removing plaintiff's book pages from its website and directing Amazon.com to remove defendant Trendl's unfavorable reviews from its website. By Order dated August 22, 2002, District Judge Spatt referred this matter to the undersigned for the purpose of conducting a hearing and issuing a report and recommendation on plaintiff's application for a temporary restraining order pursuant to 28 U.S.C. § 636 (b)(1)(B).
As an initial matter, where material facts are not in dispute or where facts in dispute are not essential to the temporary restraining order sought, the court is not required to hold an evidentiary hearing. See Maryland Casualty Co. v. Realty Advisory Board on Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997) ("As we have previously explained, there is no hard and fast rule in this circuit that oral testimony must be taken on a motion for a preliminary injunction or that the court can in no circumstances dispose of the motion on the papers before it.") (internal quotation marks and citations omitted); Marshak v. Thomas, 1998 WL 476192, at * 1 (E.D.N.Y. June 11, 1998). Given that the parties in this matter do not dispute the material facts, the Court declines to conduct a hearing and decides the application for an injunction on the papers before it.
Preliminary injunctive relief is "an extraordinary and drastic remedy which should not be routinely granted." Medical Society of the State of New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977); see also Computer Assocs. Int'l v. Bryan, 784 F. Supp. 982, 986 (E.D.N.Y. 1992). "A party seeking a preliminary injunction must establish that (1) absent injunctive relief, it will suffer irreparable harm, and (2) either (a) that it is likely to succeed on the merits, or (b) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party." Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999).
(i) Application to enjoin defendant from posting additional unfavorable reviews
Preliminarily, plaintiff's application for an order to restrain defendant from any further unfavorable reviews of his book is a prior restraint on the freedom of expression. A "prior restraint on expression comes . . . with a heavy presumption against its constitutional validity," Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578 (1971) (internal quotation marks and citation omitted), and is "the most serious and the least tolerable infringement on First Amendment rights," Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803 (1976). Moreover, "[w]hen a prior restraint takes the form of a court-issued injunction, the risk of infringing on speech protected under the First Amendment increases." Metropolitan Opera Ass'n, Inc. v. Local 100, 239 F.3d 172, 176 (2d Cir. 2001).
Notwithstanding, plaintiff contends that because defendant's review of his books are libelous and defamatory, plaintiff is entitled to equitable relief. Plaintiff has failed, however, to establish any circumstances that might justify a court of equity enjoining even a libelous publication. Plaintiff's claims that these reviews subjected him to public humiliation, world wide ridicule, character assassination and a ruined reputation are insufficient. See Keefe, 402 U.S. at 418-19, 91 S.Ct. at 1575, 1577-78 (striking state court's order enjoining distribution of pamphlets as unconstitutional and stating "[i]t is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication. . . . No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court"); Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963) ("We are concerned with the power of a court of the United States to enjoin publication of information about a person, without regard to truth, falsity, or defamatory character of that information. Such an injunction, enforceable through the contempt power, constitutes a prior restraint by the United States against the publication of facts which the community has a right to know."); Konigsberg v. Time, Inc., 288 F. Supp. 989, 989 (S.D.N.Y. 1980) ("A court of equity will not, except in special circumstances, issue an injunctive order restraining libel or slander or otherwise restricting free speech. To enjoin any publication, no matter how libelous, would be repugnant to the First Amendment to the Constitution, and to historic principles of equity.") (internal quotation marks and citation omitted); see also American Malting Co. v. Keitel, 209 F. 351, 354 (2d Cir. 1913) ("Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may be. This is the universal rule in the United States and was formerly the rule in England.").
Moreover, plaintiff fails to establish that he will suffer irreparable harm if the Court does not grant injunctive relief. Plaintiff alleges that defendant's reviews created an economic disadvantage and an economic loss of sales and injured his property (and an inference can be drawn for purposes of this motion that future unfavorable reviews would result in similar harm). Such monetary harm can be rectified by financial compensation, see Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir. 1991) ("when a party can be fully compensated for financial loss by a money judgment, there is simply no compelling reason why the extraordinary equitable remedy of a preliminary injunction should be granted"), and plaintiff has not proffered any extraordinary circumstances that would dictate enjoining defendant from posting future reviews of plaintiff's books, see Metropolitan Opera, 239 F.3d at 177 ("because ordinarily libels may be remedied by damages, equity will not enjoin a libel absent extraordinary circumstances"). See also Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989) ("A monetary loss will not suffice [as irreparable harm] unless the movant provides evidence of damage that cannot be rectified by financial compensation."); Keital, 209 F.3d at 356 ("The fact that the false statements may injure the plaintiff in his business or as to his property does not alone constitute a sufficient ground for the issuance of an injunction. The party wronged has an adequate remedy at law.").
Finally, plaintiff has failed to demonstrate a likelihood of success on the merits on his defamation claims and on his copyright claims. First, with respect to plaintiff's defamation claims, the Court finds that defendant's unfavorable public reviews of plaintiff's books constituted constitutionally protected critical commentary and expressions of opinion. "Under New York law, in order to state a claim for defamation, the claimant must allege facts sufficient to support a finding of a published statement concerning the claimant that is both false and defamatory." Belly Basics, Inc. v. Mothers Work, Inc., 95 Supp.2d 144, 145 (S.D.N.Y. 2000) (internal quotation marks and citation omitted); see 600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 598 N.Y.S.2d 825 (1992) (stating that "[b]ecause falsity is a necessary element in a defamation claim involving statements of public concern . . . only statements alleging facts can properly be the subject of a defamation action"). In the case at hand, the alleged offending statements appear in the context of a book review, a genre in which a reader anticipates favorable and unfavorable critiques of works that they understand to be the reviewer's interpretation, and thus the Court finds the statements to be expressions of opinion on a matter of public concern, rather than "objectively verifiable" false statements of facts. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 2705-06 (1990); see Celle v. Fillipino Reporter Enters. Inc., 209 F.3d 163, 179 (2d Cir. 2000) (plaintiff has burden of proving statement is not constitutionally protected opinion under New York law); Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997) (holding "expressions of opinion are not actionable"); Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 248-50, 566 N.Y.S.2d 906 (1991) (holding that under the New York Constitution, expressions of "pure" opinion are accorded absolute protection); see also Moldea v. New York Times Co., 22 F.3d 310, 313 (D.C. Cir. 1994) (holding "when a reviewer offers commentary that is tied to the work being reviewed, and that is a supportable interpretation of the author's work, that interpretation does not present a verifiable issue of fact that can be actionable in defamation").
Next, with respect to plaintiff's copyright claims, plaintiff fails to establish infringement. To establish copyright infringement, "two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns. Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296 (1991); see Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 701 (2d Cir. 1992). In the instant matter, plaintiff's allegation that "Trendl has placed two illegal links to author's/publisher's book WebPages on Amazon.com, illegally giving himself trespass rights to alter author's/publisher's information at will," Compl. at ¶ 2, is insufficient to demonstrate that defendant copied plaintiff's works. Such "links" are merely the modality by which Amazon.com has enabled a web site user to move from the book review web page to the actual web page where the book is offered for sale. Because plaintiff has not offered any evidence that defendant actually copied plaintiff's works, plaintiff's copyright claims are unavailing. See Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122-23 (2d Cir. 1994) ("A plaintiff with a valid copyright proves infringement by demonstrating that (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's.") (emphasis in original).
In sum, the Court finds that (i) a temporary restraining order prohibiting defendant from publishing any further reviews of plaintiff's books in this case would be an impermissible prior restraint on expression; (ii) plaintiff has failed to demonstrate irreparable harm; and (iii) plaintiff has failed to state a claim for defamation or copyright infringement. Additionally, the Court concludes that plaintiff has not established that there are sufficiently serious questions going to the merits of his claims to make them a fair ground for litigation and therefore the balance of equities tips in favor of defendant. Accordingly, this Court respectfully reports and recommends that plaintiff's motion for a temporary restraining order against defendant be denied.
(ii) Application to enjoin nonparty Amazon.com from removing plaintiff's book pages from its website and directing that it remove defendant's unfavorable reviews from its website
Plaintiff's motion for a temporary restraining order against nonparty Amazon.com likewise fails. Rule 65(d) of the Federal Rules of Civil Procedure provides in relevant part:
Every order granting an injunction . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Thus, subject to exceptions which are not applicable in this case, "a court's in personam order can bind only persons who have placed themselves or been brought within the court's power. Doctor's Assocs., Inc. v. Reinert Duree, P.C., 191 F.3d 297, 302 (2d Cir. 1999); see United States v. Paccione, 964 F.2d 1269, 1275 (2d Cir. 1992) ("[A] court generally may not issue an order against a nonparty."); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832-33 (2d Cir. 1930) ("[N]o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree.").
Inasmuch as Amazon.com is not a party named in this action, plaintiff's complaint seeks relief only against defendant Trendl and there is no indication that Amazon.com was given notice of this motion for a temporary restraining order, this Court respectfully reports and recommends that plaintiff's motion for a temporary restraining order against Amazon.com be denied.
Based on the findings and conclusions set forth above, the Court respectfully reports and recommends that plaintiff's motion for a preliminary injunction against defendant Trendl (and to the extent plaintiff seeks a preliminary injunction against the non-party Amazon.com) also be denied.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court with a copy to the undersigned within 15 days of the date of this Report. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. June 30, 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992).