Information Technology Assignment Hello, I have an assignment, so I need you to read the word doc from the case summary and memorandum opinion and then ma

Information Technology Assignment Hello,

I have an assignment, so I need you to read the word doc from the case summary and memorandum opinion and then make brief “introduction” about what precedent and copyright act of 1978.

please don’t copy and have plagiarism .

Thanks Opinion
[***1872]
[*631] MEMORANDUM OPINION
Presently pending and ready for resolution in this copyright and trademark infringement case are (1)
Plaintiff’s motion for partial summary judgment on count I, (2) Defendant’s motion for partial
summary judgment on counts III, IV, and V, (3) Defendant’s motion to extend time for discovery and
to extend time to file, (4) Defendant’s motion to dismiss, and (5) Defendant’s motion for a writ of
mandamus. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no
hearing being deemed necessary. For the reasons that follow, Plaintiff’s motion [***1873] for partial
summary judgment will be granted. Defendant’s motion to extend time to file will be denied as moot.
Defendant’s motions for [**2] partial summary judgment, to [*632] extend time for discovery, to
dismiss, and for a writ of mandamus will be denied.
I. Factual Background
All facts are uncontroverted. Plaintiff Advance Magazine Publishers, Inc., is the owner on record with
the United States Copyright Office of more than 500 book-length stories, published in the 1930s and
1940s, in the pulp fiction serial magazines, The Shadow, Doc Savage, and The Avenger, as well as in similarly
titled magazines (“publications”). 1 (Paper 1, Exs. A, D, F; paper 8, Birenz Decl. PP 4, 5).
[**3] Defendant David Leach, d/b/a David Moynihan, d/b/a Disruptive Publishing, operates two
websites, Blackmask.com and Smartset.net, through which he displays or offers for distribution
electronic copies and reprints of Plaintiff’s publications. (Paper 8, Birenz Decl. P 13). Defendant
operates his business by scanning literary works into electronic form and making them available to the
public in a variety of formats, including MS-Reader, Adobe Acrobat, and Rocket eBook. (Paper 5 at 4).
Defendant’s customers may download advertiser-supported electronic copies of works directly from his
websites, purchase by mail CD-ROMs and DVD-ROMs containing compilations of works, or purchase
through online booksellers such as Amazon.com and Barnesandnoble.com, reprints of literary works
made by Defendant. Defendant began selling copies of Plaintiff’s publications in 2000. (Paper 5 at 5;
paper 8 at 5-6).
Plaintiff submitted extensive exhibits documenting its chain of title to the publications, which will be
summarized briefly. Between 1931 and 1949, Street & Smith published The Shadow, Doc Savage, and The
Avenger as works for hire written by Walter Gibson (pen name Maxwell Grant), Lester [**4] Dent, and
Paul Ernst (pen name Kenneth Robeson), respectively. (Paper 1 at PP 15, 26, 35; paper 8, Birenz
Decl. P 4). On December 19, 1961, Street & Smith merged into Conde Nast, transferring all “estate,
property, rights, privileges and Franchises.” (Paper 1 at P 44; paper 8, Birenz Decl. P 8). The merger
document was filed with the United States Patent and Trademark Office. On September 22, 1988,
Conde Nast merged into Plaintiff. At the time of the merger, Plaintiff acquired all rights previously
owned by Conde Nast. (Paper 8, Birenz Decl. PP 8, 9). Plaintiff has registered additional copyrighted
materials and trademarks related to the publications and has properly renewed all its registrations.
(Paper 1, Exs. J, K, L).
II. Procedural Background
On February 28, 2006, Plaintiff filed a six count complaint against Defendant alleging: count I,
copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 106, 501, et seq., (“Copyright
Act”); count II, copyright infringement under the Digital Millennium Copyright Act, 17 U.S.C. § 1202,
(“DMCA”); count III, trademark infringement under the Lanham [**5] Act, 15 U.S.C. § 1114; count
IV, trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a); count
V, trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c); and count VI, trademark
infringement under Maryland common law. (Paper 1).
[*633] On March 22, 2006, Defendant filed an answer defending his actions by alleging that Plaintiff is
not the true owner of the copyrights at issue because Defendant had acquired the rights through
adverse possession. 2 (Paper 5 at 1). The answer also included a copy of a letter Defendant wrote
to the United States Copyright Office, requesting a recordation of transfer of ownership of 506 of
Plaintiff’s publications based on the doctrine of adverse possession. (Paper 5, Ex. 1). The copyright
office rejected Defendant’s petition because he did not pay the proper fee.
[**6] On May 3, 2006, pursuant to the DMCA, Plaintiff sent a notice to the Internet service provider
hosting Defendant’s websites, PEER 1 Network, informing PEER 1 that Defendant’s websites contained
infringing copies of Plaintiff’s publications. The following day, PEER 1 disabled access to Defendant’s
websites. [***1874]
On May 4, 2006, Defendant resubmitted his letter to the copyright office claiming a transfer of rights
through adverse possession. On June 28, 2006, the copyright office responded to Defendant’s letter,
indicating that the copyright office does not consider the doctrine of adverse possession applicable to
intellectual property. (Paper 20, Ex. 1).
Plaintiff seeks partial summary judgment on its copyright infringement claim (count I). (Paper 8).
Defendant seeks partial summary judgment on counts III, IV, and V. (Paper 28). Defendant also filed
an untitled motion, (paper 34). While it is not clear precisely what relief is sought by Paper 34, the
court will construe it as a request to extend the period for discovery and to extend the time for
Defendant to file a motion to dismiss. Defendant additionally filed a separate motion to dismiss (paper
38) and a motion requesting a writ of [**7] mandamus ordering PEER 1 to restore access to the
server hosting Defendant’s websites for a limited period to allow Defendant to remove the content
(paper 39).
III. Motions for Summary Judgment
A. Standard of Review
It is well established that HN1 a motion for summary judgment will be granted only if there exists no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law. SeeFed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In
other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party,” then summary judgment is
inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th
Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979). The moving party bears the
burden of showing that there is no genuine issue as to any material fact and that he [**8] is entitled
to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of S.C. v. South Carolina, 978
F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1415, 122 L. Ed. 2d 785 (1993).
HN2 When ruling on a motion for summary judgment, the court must construe the facts alleged in
the light most favorable to [*634] the party opposing the motion. See United States v. Diebold, 369 U.S.
654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th
Cir. 1985). HN3 A party who bears the burden of proof on a particular claim must factually support
each element of his or her claim. “[A] complete failure of proof concerning an essential element . . .
necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323. Thus, on those issues on
which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the
motion for summary judgment with an affidavit or other similar evidence in order to show the
existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at
324. [**9] However, “[a] mere scintilla of evidence in support of the nonmovant’s position will not
defeat a motion for summary judgment.” Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir.), cert.
denied, 522 U.S. 810, 118 S. Ct. 52, 139 L. Ed. 2d 17 (1997). There must be “sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted).
B. Copyright Claim (count I)
In its motion for partial summary judgment on count I, Plaintiff requests that the court enter a
judgment of liability against Defendant for copyright infringement, with the amount of damages, costs,
and attorney’s fees to be determined separately. Plaintiff seeks to enjoin Defendant immediately and
permanently from reproducing, displaying, or distributing any copies of Plaintiff’s publications. Plaintiff
further requests that the court order Defendant to provide to Plaintiff’s attorney all infringing copies of
its publications in his possession, custody, or control, and all publications used to make the
infringing [**10] copies that are in his possession, custody, or control. (Paper 8 at 3-4).
Plaintiff contends that by scanning into electronic form, displaying, and selling or otherwise making
available to the public, more than 500 of Plaintiff’s publications, Defendant has infringed its copyrights
in those publications under 17 U.S.C. § 501(a).
“[T]he HN4 Copyright Act grants the copyright holder ‘exclusive’ rights to use and to authorize the
use of his work in five qualified ways,” namely, (1) to reproduce the work, (2) to prepare derivative
works, (3) to distribute copies of the work to the public, (4) to perform the work publicly, and (5) to
display the work publicly. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432-33, 104 S. Ct. 774, 78
L. Ed. 2d 574 (1984); 17 U.S.C. § 106. The [***1875] Copyright Act provides HN5 that “[a]nyone
who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright.” 17
U.S.C. § 501. Stated at a general HN6 level, “[t]o establish infringement, two elements must be
proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that
are original. [**11] ” Feist Pub’lns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L.
Ed. 2d 358 (1991). “A direct infringer has thus been characterized as one who trespasses into the
copyright owner’s exclusive domain established in § 106, subject to the limitations of §§ 107 through
118.” CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549 (4th Cir. 2004) (quoting Sony, 464 U.S. at 433)
(internal quotations omitted).
1. Adverse Possession
Defendant asserts that his actions cannot constitute infringing activity because [*635] he has acquired
the copyrights to Plaintiff’s publications through the doctrine of adverse possession. Defendant alleges
that he has maintained a publicly available website for nearly 8 years, which is open and notorious,
hostile to the interests of the copyright owner, continuous, and under claim of right.
Defendant makes a rather novel argument. No court has decided whether the doctrine of adverse
possession applies to intellectual property since the revision of the Copyright Act in 1976. Plaintiff
offers two legal arguments for why this court should hold that the doctrine of adverse possession does
not apply to copyright: (1) adverse [**12] possession is a common law doctrine and as such is
preempted by the federal Copyright Act, and (2) adverse possession cannot constitute a transfer “by
operation of law” under the Copyright Act because it is not a voluntary act. (Paper 8 at 14-26).
a. Federal Preemption
HN7 Under the Supremacy Clause, a state law that interferes with or is contrary to federal law is
invalid. U.S. CONST. Art. 6, cl. 2. Even in its traditional application to realty, the doctrine of adverse
possession is strictly a state law defense and does not apply to rights created by federal law, such as
Native American title to lands. See Catawba Indian Tribe of S.C. v. South Carolina, 865 F.2d 1444, 1448 (4th
Cir. 1989) (“[e]xcept where Congress provides otherwise, claims based on Indian title are not subject
to state law defenses such as . . . adverse possession”).
Defendant seeks to extend the state law doctrine of adverse possession to federal copyrights. HN8
The United States Constitution vests Congress with the exclusive authority to regulate copyrights
and patents. U.S. CONST. Art. I, § 8, cl. 8. Congress amended the Copyright Act in 1976 to clarify the
relationship between the Act [**13] and state law:
HN9 On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the
general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression
and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date
and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or
equivalent right in any such work under the common law or statutes of any State.
17 U.S.C. § 301(a). “Thus, HN10 § 301(a) preempts state law claims if the rights granted under
state law are equivalent to any exclusive rights within the scope of federal copyright as set out in 17
U.S.C. § 106.” Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 229 (4th Cir. 1993). HN11 Application of
the doctrine of adverse possession would transfer all of the original owner’s rights to the adverse
possessor. Therefore, the rights that would be acquired by adverse possession of a copyright would be
equivalent to the [**14] rights set out in § 106 of the Copyright Act. Section 301(a) expressly
preempts any state law granting equivalent rights. Thus, the state common law doctrine of adverse
possession is preempted by the Copyright Act and cannot divest Plaintiff of its federal copyrights
in The Shadow, Doc Savage, and The Avenger.
b. Adverse Possession as Transfer by Operation of Law
In the alternative, Defendant attempts to circumvent the federal preemption issue by maneuvering
within the Copyright Act to argue that there has [*636] been a transfer of Plaintiff’s copyrights to him
by “operation of law” through the doctrine of adverse possession. (Paper 5, Ex. 1). Thus, he is not
asserting adverse possession as a state law doctrine, but rather asking the court to construe
“operation of law” to encompass the principles of adverse possession. This argument is also
misguided. [***1876]
HN12 The Copyright Act does allow the transfer of copyrights by “operation of law” as Defendant
suggests. See 17 U.S.C. § 201(d)(1). However, transfers by operation of law are expressly limited to
voluntary transfers, except in bankruptcy proceedings.
HN13 When an individual author’s ownership of a [**15] copyright, or of any of the exclusive rights under a copyright, has
not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or
organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the
exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.
Id. § 201(e) (emphasis added). By its nature, adverse possession requires involuntariness, or lack of
consent, on the part of the original owner. 3 Defendant’s claim to have effected the transfer by
operation of law through adverse possession amounts to a claim for an involuntary transfer of rights,
which is barred by 17 U.S.C. § 201(e).
[**16] Defendant essentially contends that his conduct over time somehow estops Plaintiff from
complaining about copyright infringement. Any argument that Plaintiff’s claim is time-barred must be
rejected. HN15 The limitations period for bringing a copyright infringement claim is three years after
the claim accrues. 17 U.S.C. § 507(b). A claim accrues when “one has knowledge of a violation or is
chargeable with such knowledge.” Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 202
(4th Cir. 1997) (internal quotation marks and citations omitted). Because each sale or copy of a work
is a separate act of infringement, a “party does not waive the right to sue for [copyright]
infringements that accrue within three years of filing by not asserting related claims that accrued
beyond three years.” Id. Defendant was displaying infringing copies of Plaintiff’s work until PEER 1
disabled access to his websites, thus, the last act of infringement occurred as recently as May,
2006. Plaintiff’s complaint was brought within the three year statute of limitations. Furthermore, a
court may not apply the doctrine of laches to shorten the statutory [**17] limitations period
established by Congress for claims brought under the Copyright Act, 17 U.S.C. § 507(b). Lyons
Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 798 (4th Cir. 2001).
[*637] Thus, Defendant’s argument that he has acquired the copyrights to The Shadow, Doc Savage,
and The Avenger through adverse possession fails as a matter of law. Plaintiff has produced
uncontroverted evidence that it owns the copyrights to the publications.
2. Infringing Activity
HN16 “Section 106 of the Copyright Act confers a bundle of exclusive rights to the owner of the
copyright,” including the rights to reproduce, create derivative works, distribute, perform, and display
the copyrighted work. Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 546, 105 S. Ct. 2218, 85
L. Ed. 2d 588 (1985); 17 U.S.C. § 106. Plaintiff alleges that Defendant has violated its exclusive rights
of reproduction, distribution, and display in the publications Defendant makes available on his
websites.
Plaintiff contends that Defendant violated its exclusive right to reproduce the publications by scanning
into electronic form the text, original [**18] illustrations, and cover art of its publications. (Paper 8 at
13). It is well-established that HN17 photocopying a copyrighted work without the owner’s
permission infringes the owner’s right of reproduction. See Princeton Univ. v. Michigan Document Svcs., 99
F.3d 1381 (6th Cir. 1996), cert. denied, 520 U.S. 1156, 117 S. Ct. 1336, 137 L. Ed. 2d 495
(1997). Although Defendant used a scanner to create a digital copy of a work, rather than a
photocopier to print a physical copy, the methods of copying are equivalent and they are both
infringing. 4 A digital copy made without the owner’s permission is copyright
infringement. [***1877] See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct.
2764, 162 L. Ed. 2d 781 (2005) (holding companies contributorily liable for copyright infringement for
facilitating users’ transmissions of unauthorized digital copies of copyrighted works). Thus, Defendant
has infringed Plaintiff’s exclusive right to reproduce its publications.
[**19] Furthermore, Plaintiff alleges that Defendant violated its exclusive right to display its
publications by making them available for the public to view as HTML pages on his websites. (Paper 8
at 13). HN18 To infringe an owner’s right to display, a person must (1) display a copy of the work
(2) to the public. 17 U.S.C. § 106(5). “Display” covers any showing of a copy of the work, “either
directly or by means of a film, slide, television image or any other device or process.” 17 U.S.C. § 101.
To display publicly means “to transmit or otherwise communicate a . . . display of the work . . . to the
public, by means of any device or process, whether the members of the public capable of receiving the
performance or display receive it in the same place or in separate places and at the same time or at
diffe…
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