-GWF InstantCert.com, LLC et al v. Advanced Online Learning, LLC et al, No. 2:2011cv01833 - Document 48 (D. Nev. 2012)
Court Description: ORDER Denying 31 Motion for Preliminary Injunction. Signed by Judge Miranda M. Du on 8/27/12. (Copies have been distributed pursuant to the NEF - MMM)
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-GWF InstantCert.com, LLC et al v. Advanced Online Learning, LLC et al Doc. 48 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 INSTANTCERT.COM, LLC and STEVEN GLOER, 11 Plaintiffs, 12 13 14 Case No. 2:11-cv-1833-MMD-GWF ORDER (Plfs.’ Motion for Preliminary Injunction – dtk. no. 31) v. ADVANCED ONLINE LEARNING, LLC and BRANDON PERRY, Defendants. 15 16 17 Before the Court is Plaintiffs Steven Gloer and InstantCert.com, LLC’s Motion for 18 Preliminary Injunction. (Dkt. no. 31.) For the reasons discussed below, Plaintiffs’ Motion 19 is DENIED. 20 I. BACKGROUND 21 InstantCert.com, LLC (“InstantCert”) provides online study materials for the 22 College-Level Examination Program (“CLEP”), Dantes, and Excelsior examinations used 23 to earn college credit at participating universities. These materials include examination 24 questions and answers organized by a number of different subject areas. 25 assistance of its officer Steven Gloer, InstantCert created study materials for the CLEP 26 in 2004. Gloer registered the materials with the United States Copyright Office. (Dkt. 27 no. 31-A.) 28 examinations, and Gloer had those materials registered as well. (Id.) With the In 2005, InstantCert created study preparation materials for the Dantes Dockets.Justia.com 1 InstantCert and Gloer allege that Defendants Advanced Online Learning, LLC 2 (“AOL”) and their employee/owner, Defendant Brandon Perry, created a website in 2008 3 at www.paceprep.com that copied all of Plaintiffs Dantes and CLEP’s materials. 4 Plaintiffs allege that, upon learning of the infringement, they sent a cease-and-desist 5 letter to the Defendants. The website subsequently shut down. Plaintiffs further allege 6 that on or about February 16, 2010, Defendants created another infringing website, 7 www.misterprep.com, where Defendants sell exact duplicates and substantially similar 8 copies of thirty one (31) of the copyrighted materials that Plaintiffs own and sell, 9 including the Dantes and CLEP exam preparation materials. 10 Plaintiffs filed this suit on November 16, 2011, alleging copyright infringement, 11 unfair competition, and trade dress infringement. (Dkt. no. 1.) Plaintiffs waited until May 12 21, 2012, to seek preliminary injunction. 13 II. LEGAL STANDARD 14 To qualify for a preliminary injunction, a plaintiff must demonstrate: (1) a likelihood 15 of success on the merits; (2) a likelihood of irreparable harm; (3) that the balance of 16 hardships favors the plaintiff; and (4) that the injunction is in the public interest. Winter v. 17 Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs have not demonstrated the 18 second and third requirements. 19 III. Plaintiffs seek a preliminary injunction on the basis of their copyright infringement 20 21 DISCUSSION claims. The Court will therefore only examine these claims. 22 A. Likelihood of Success on the Merits 23 To succeed on a copyright infringement claim, Plaintiffs must establish that (1) 24 they are the owners of the copyright; and (2) their works have been copied by 25 Defendants. Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004); Sid & Marty Krofft 26 Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir. 1977); see 17 27 /// 28 /// 2 1 U.S.C. § 106.1 2 success because Plaintiffs are not the owners of a valid copyright. Defendants do not 3 challenge the second element of the copyright infringement claim, and thus concede for 4 the purposes of this Motion that Plaintiffs’ works have been copied. Defendants argue that Plaintiffs cannot demonstrate a likelihood of 5 A copyright certificate establishes prima facie evidence of the validity of a 6 copyright and of the facts in the certificate. 17 U.S.C. § 410(c). The presumption of 7 validity is rebuttable. See Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 8 122 F.3d 1211, 1217 (9th Cir. 1997); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085- 9 86 (9th Cir. 1989); Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1321 (9th Cir. 1986); see, 10 e.g., North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992); 11 Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 908 (2d Cir. 1980). To rebut the 12 presumption, the defendant must offer some evidence to dispute or deny the plaintiff’s 13 prima facie case of infringement. 14 Impressions, Inc. v. Byer Cal., 937 F.2d 759, 763 (2d Cir. 1991). See, e.g., North Coast, 972 F.2d at 1033; Folio 15 Here, Plaintiffs provide copyright certificates as prima facie proof of the validity of 16 their copyrights in the materials copied by Defendants. (See Dkt. no. 31-A.) Defendants 17 attempt to rebut that presumption by advancing three arguments: (1) Plaintiffs’ materials 18 are unoriginal and belong to other third parties; (2) Plaintiffs failed to demarcate their 19 copyright registrations as compilations and/or derivative works; and (3) the deposit copy 20 of one of the copyrights has been destroyed, rendering that copyright invalid. All three 21 arguments fail. 22 17 U.S.C. § 106 provides: “the owner of copyright under this title has exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, or dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, or dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.” 1 23 24 25 26 27 28 3 1. 1 2 Copyright status of Plaintiffs’ materials The only disagreement between the parties here concerns the quantity of 3 infringement that has occurred. Accordingly, Defendants are likely either liable for 4 infringing directly on various questions and answers copied from Plaintiffs’ product, or, if 5 those materials are unoriginal and/or copyrighted elsewhere, Defendants are at least 6 liable for copying Plaintiffs’ original composition of unoriginal or copyrighted works. 7 Defendants challenge the originality of Plaintiffs’ materials, and argue that much, 8 if not all, of the materials were lifted from other sources. Defendants point to questions 9 and answers that exist in Plaintiffs’ CLEP materials that are substantially similar or 10 otherwise copied verbatim from sources whose copyrights predated Plaintiffs’ date of 11 registration. 12 using online plagiarism tracking tools revealed that answers from at least 18 of the 29 13 chapters are unoriginal, and that 479 test questions or answers from 18 of those 14 chapters are lifted from other sources.2 They point to several chapters consisting almost 15 exclusively of lifted materials, including Chapters 2, 3, 27, and 28. According to Defendants, a short analysis of Plaintiffs’ CLEP materials 16 To the extent that Plaintiffs’ materials are original, Defendants have infringed on 17 valid copyrights. If, however, some of those materials are unoriginal to Plaintiffs, or are 18 copyrighted elsewhere, Plaintiffs’ purported copyright over those materials is invalid. 19 See 17 U.S.C. § 102(a) (“Copyright protection subsists . . . in original works of 20 authorship fixed in any tangible medium of expression . . . .”) (emphasis added in 21 parenthetical); Feist Pub’lns. Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 347 22 (1991) (“The originality requirement . . . remains the touchstone of copyright protection 23 today.”). Plaintiffs do not concede that any of their materials are unoriginal, and it is not 24 clear from the briefing what percentage of materials is contested. However, assuming at 25 least some of the materials were composed by either Gloer or the independent 26 According to Defendant Perry’s declaration, most of the copyrighted materials at issue have not been reviewed for originality. The CLEP materials contain at least 10,491 exam questions. Plaintiffs do not concede that the 479 are unoriginal to Plaintiffs’ writers. 2 27 28 4 1 contracting firm hired to create the questions for Plaintiffs, Defendants have likely 2 infringed on Plaintiffs’ valid copyrights. 3 In addition, Plaintiffs are also likely to succeed on copyright infringement claims 4 relating to the original compilations of their materials. 5 Plaintiffs’ copyright status as original compilations. The Copyright Act protects 6 “collective” works, i.e. those works “formed by the collection and assembling of 7 preexisting materials or of data that are selected, coordinated, or arranged in such a way 8 that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C § 9 101. So long as Plaintiffs selected, coordinated, or arranged their various materials in 10 unique and creative ways, Plaintiffs are entitled to protection over their compilations. 3 11 Defendants claim that the titles and subheadings that Defendants copied from Plaintiffs 12 are the intellectual property of College Broad and Prometric, the entities that own the 13 CLEP and Dantes tests, respectively. 14 copying of the titles or subheadings — rather, Plaintiffs seek the Court’s protection from 15 the infringement of Plaintiffs’ original compilations of various questions into groups. The 16 creative act of assembling materials is copyrightable. See Feist Pub’lns., Inc., 499 U.S. 17 at 347-49. For this reason, Defendants are either liable only for infringing on Plaintiffs’ 18 thin copyright on their original composition of questions and answers, or Defendants are 19 also liable for directly infringing on Plaintiffs’ copyrights in the underlying materials. a. 20 Defendants do not challenge But Plaintiffs do not challenge Defendants’ Failure to Demarcate as Compilation or Derivative 21 Defendants’ second argument revolves around Plaintiffs’ failure to claim 22 compilation or derivative work status on their copyright applications. Gloer left lines 6(a) 23 24 25 26 27 28 3 Of course, Plaintiffs would not receive protection over the underlying copyrighted material solely because they arranged that material in a creative way. Their copyright would exist only in the form of the compilation, not in that which is compiled. See 17 U.S.C. § 103(b) (“The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.”); Feist Pub’lns., Inc., 499 U.S. at 348 (“Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.”). 5 1 and 6(b) on the Certificates of Registration blank. (Dkt. no. 31-A.) These lines ask a 2 registrant to identify any preexisting work or works that the copyrighted material is based 3 on, and to identify the material added to the original work. 4 Gloer’s failure to identify these materials in the registration, coupled with the fact that the 5 material was prepared through the assistance of an attorney, “strongly indicates” that the 6 omission was intentional and thus renders the copyrights invalid. Defendants argue that 7 Plaintiffs counter that Gloer was not aware that his independently contracted 8 writers hired to compose the questions and answers used existing sources. Plaintiffs 9 draw the Court’s attention to the “Services Agreement” that operated between the 10 Plaintiffs and the firm that provided the writers. This contract states that the work 11 provided by the firm will be original and will not infringe upon the intellectual property 12 rights of any third party. (Dkt. no. 37-A.) 13 “Absent intent to defraud and prejudice, inaccuracies in copyright registration do 14 not bar actions for infringement.” Harris v. Emus Records Corp., 734 F.2d 1329, 1335 15 (9th Cir. 1984). “[I]nadvertent mistakes on registration certificates do not invalidate a 16 copyright and thus do not bar infringement actions, unless the alleged infringer has 17 relied to its detriment on the mistake, or the claimant intended to defraud the Copyright 18 Office by making the misstatement.” Urantia Found. v. Maaherra, 114 F.3d 955, 963 19 (9th Cir. 1997). Omissions may be immaterial if the work would still have been 20 registerable. Id. As stated above, the burden of proving invalidity rests with the party 21 seeking to rebut the presumption of copyright validity. See North Coast Indus., 972 F.2d 22 at 1033; S.O.S., Inc., 886 F.2d at 1086. 23 Defendants have failed to demonstrate a likelihood of success on the issue of the 24 registrations’ invalidity. Defendants’ burden is “very high,” Bibbero Sys., Inc. v. Colwell 25 Sys., Inc., 731 F. Supp. 403, 404 (N.D. Cal. 1988), and they have failed to provide 26 enough evidence for this Court to infer an intent to defraud. Whether or not other third 27 parties hold valid copyrights over Plaintiffs’ test preparation materials, it is likely that 28 Plaintiffs at least hold a valid copyright over the compilation of those materials. 6 1 Therefore, Plaintiffs are likely to have some registerable materials, despite their failure to 2 designate their works as derivative or compilations. Further, Gloer’s affidavit and the 3 agreement between InstantCert and the independent writing firm suggest that Gloer was 4 unaware that some of their materials might be copyrighted. The Court will not infer intent 5 to defraud the Copyright Office merely because the copyright registration was prepared 6 by a lawyer and did not include its potential derivative or compilation status. 2. 7 Status of Destroyed Deposit Copy 8 Defendants’ last argument is that the deposit copy of the Dantes Exam 9 Preparation materials has been destroyed, thereby invalidating the copyright held by 10 Gloer. 11 This argument is unavailing. As Plaintiffs correctly point out, the Dantes copyright 12 registration is not invalidated simply because the Copyright Office might have 13 mishandled the submitted materials. Defendants cite to Seiler v. Lucasfilm, Ltd., 808 14 F.2d 1316, 1319 (9th Cir. 1986), a case where a claim of copyright infringement was 15 made without producing the original work, thereby precluding a proper copyright analysis 16 as to the question of copying and substantial similarity. Indeed, the Seiler court made 17 clear to point out that the plaintiff could not demonstrate that the work was unavailable 18 “through no fault of his own.” Id. Here, the Copyright Office was unable to open the 19 compact disc that contained the copyrighted materials. This may have been due either 20 to a faulty disc provided by Plaintiffs, or to destruction or ordinary wear and tear 21 occurring after the disc was deposited with the Copyright Office. Defendants have not 22 met their burden of demonstrating that Plaintiffs’ own actions caused the destruction of 23 the deposit copy, and as a result have not overcome the presumption of copyright 24 validity. 25 For the reasons set forth above, Plaintiffs’ claim of copyright infringement – 26 whether in the underlying works or as compilations – is likely to succeed on the merits. 27 Defendants have not provided sufficient evidence to question the validity of Plaintiffs’ 28 copyrights. 7 1 B. 2 The second factor a court must analyze in determining whether to issue a 3 preliminary injunction is the likelihood of irreparable harm in the absence of temporary 4 injunctive relief. “The basis of injunctive relief in the federal courts is irreparable harm 5 and inadequacy of legal remedies.” Los Angeles Memorial Coliseum Comm’n v. Nat’l 6 Football League, 634 F.2d 1197, 1202 (9th Cir.1980) (citing Sampson v. Murray, 415 7 U.S. 61, 88 (1974)). “Perhaps the single most important prerequisite for the issuance of 8 a preliminary injunction is a demonstration that if it is not granted the applicant is likely to 9 suffer irreparable harm before a decision on the merits can be rendered . . . .” C. Wright, 10 Likelihood of Irreparable Harm A. Miller & M. Kane, Fed. Practice and Procedure § 2948.1, p. 139 (2d ed. 1995). 11 Traditionally, courts presumed the likelihood of irreparable harm when a plaintiff 12 demonstrated a likelihood of success on a copyright infringement claim. Flexible Lifeline 13 Sys, Inc. v. Precision Lift, Inc., 654 F.3d 989, 994-95 (9th Cir. 2011). However, the 14 Supreme Court’s decisions in Winter and eBay Inc. v. MercExchange, L.L.C., 547 U.S. 15 388 (2006), have altered this presumption. The Ninth Circuit recently held in two 16 copyright infringement actions that a “plaintiff must demonstrate a likelihood of 17 irreparable harm as a prerequisite for injunctive relief, whether preliminary or 18 permanent.” Flexible Lifeline Sys., Inc., 654 F.3d at 998; Perfect 10, Inc. v. Google, Inc., 19 653 F.3d 976, 981 (9th Cir. 2011) (decided the same month as Flexible Lifeline Sys., 20 Inc.). 21 Leatherman Tool Group, Inc. v. Coast Cutlery Co., 823 F. Supp. 2d 1150, 1158 (D. Or. 22 2011). Showing monetary injuries, without more, will not justify granting a preliminary 23 injunction. 24 Cir.1984) (explaining that if money damages or other relief granted in the ordinary 25 course of litigation can adequately compensate the plaintiff, irreparable injury probably 26 will not follow the denial of a preliminary injunction); Los Angeles Memorial Coliseum 27 Comm’n, 634 F.2d at 1202 (noting that purely monetary injuries normally are not 28 considered irreparable). As a result, a plaintiff must now present evidence of irreparable injury. See See Lydo Enter., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th 8 1 While the Court finds that Plaintiffs will likely succeed on the merits of their 2 infringement claims, the Court cannot presume the likelihood of harm but must 3 determine whether Defendants’ infringing conduct will result in irreparable injury to 4 Plaintiffs. Granting a preliminary injunction is an extraordinary remedy. Munaf, 553 U.S. 5 at 689-90. 6 prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. 7 Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations 8 omitted). Plaintiffs fail to offer evidence to satisfy this important prerequisite. As such, “[a] showing of irreparable harm is the single most important 9 Plaintiffs make two arguments in support of their position that irreparable injury is 10 imminent. First, they argue that counterfeit exam preparation materials “destroys the 11 salability and value” of their work, and that Defendants’ conduct results “in a loss of 12 business and profits not measurable with precision.” Second, Plaintiffs argue that their 13 reputation stands to suffer by being associated with Defendants’ inferior products. They 14 allege that Defendants’ infringement hurts their investment in their business goodwill and 15 reputation, losses that are not measurable in monetary terms. Plaintiffs fail to offer any 16 evidence of irreparable harm, but merely rely on the argument that the two types of 17 injuries they advance have been recognized as irreparable injuries. 18 arguments fail. Both of these 19 Plaintiffs’ first argument asks the Court to grant a preliminary injunction merely 20 because the monetary value of Defendants’ conduct cannot, at this stage of the 21 litigation, be measured with precision. However, “[t]he possibility that adequate 22 compensatory or other corrective relief will be available at a later date, in the ordinary 23 course of litigation, weighs heavily against a claim of irreparable harm.”). Sampson, 415 24 U.S. at 90. Plaintiffs have not offered any evidence that the value of their business has 25 been impacted by Defendants’ infringement. 26 impacts the “salability and value” of Plaintiffs’ business is only true to the extent that 27 Defendants are receiving income that might otherwise belong to Plaintiffs. 28 differently, Plaintiffs are losing only the estimated $750 of monthly AOL revenue, 9 Moreover, that Defendants’ conduct Put 1 assuming all of AOL’s services infringe. Monetary damages alone must be inadequate 2 to compensate for the injury. 3 demonstrate . . . that remedies available at law, such as monetary damages, are 4 inadequate to compensate for that [irreparable] injury”). eBay Inc., 547 U.S. at 391 (“A plaintiff must 5 Plaintiffs’ second argument also fails because Plaintiffs have not offered any 6 evidence demonstrating irreparable injury to Plaintiffs’ reputation and goodwill. Failure to 7 make even a minimal showing of irreparable harm proves fatal to Plaintiffs’ position that 8 irreparable injury is likely. See Goldie’s Bookstore, Inc. v. Superior Court of State of 9 Cal., 739 F.2d 466, 472 (9th Cir. 1984) (findings of loss of goodwill and customers that 10 are speculative and not based on factual allegations do not constitute irreparable injury); 11 see, e.g., Aurora World, Inc. v. Ty Inc., 719 F. Supp. 2d 1115, 1169 (C.D. Cal. 2009) (no 12 irreparable injury demonstrated because of failure to provide evidence of reputational 13 harm from infringement); Jacobsen v. Katzer, 609 F. Supp. 2d 925, 937 n. 3 (N.D. Cal. 14 2009) (denying request for preliminary injunction for failure to provide evidence of 15 irreparable harm resulting from copyright infringement); CJ Products LLC v. Snuggly 16 Plushez LLC, 809 F. Supp. 2d 127, 145 (E.D.N.Y. 2011) (finding irreparable harm where 17 plaintiff produced evidence that infringing product created customer confusion); Apple 18 Inc. v. Psystar Corp., 673 F. Supp. 2d 943, 948-49 (N.D. Cal. 2009) (finding irreparable 19 injury in part based on evidence of actual consumer confusion and harm to reputation 20 and goodwill); see also Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 21 841 (9th Cir. 2001) (“Evidence of threatened loss of prospective customers or goodwill 22 certainly supports a finding of the possibility of irreparable harm.”) (emphasis added in 23 parenthetical). 24 Plaintiffs make two general allegations in support of their reputational injury 25 argument: they have invested heavily in their products, reputation, and goodwill; and 26 reputational injury can constitute irreparable harm for the purposes of injunctive relief. 27 However, “[t]he fact that alleged harm is primarily in the form of lost customers and 28 business goodwill, which at least in theory may be compensated by damages, weighs 10 1 against a claim of irreparable harm.” 2 5079552, at *10 (N.D. Cal. Oct. 26, 2011). Moreover, Plaintiffs have not demonstrated 3 how irreparable injury would result from Defendants’ actions, and have proffered no 4 evidence in support of their argument. See Goldie’s Bookstore, Inc., 739 F.2d at 472; 5 Aurora World, Inc., 719 F. Supp. 2d at 1169. Plaintiffs failed to show how a consumer 6 would connect Defendants’ services with InstantCert. AOL grants an ordinary consumer 7 access to test preparation materials, but the record does not demonstrate that the 8 consumer might confuse AOL’s materials with those of InstantCert while reading AOL’s 9 questions and answers. Without evidence of non-monetary irreparable injury, this Court 10 cannot upend the Ninth Circuit’s decisions in Flexible Lifeline Sys. and Perfect 10 by 11 effectively reinstating a presumption of irreparable injury. For these reasons, Plaintiffs fail to demonstrate that irreparable injury will likely 12 13 OG Intern., Ltd. v. Ubisoft Entm’t, 2011 WL result without a preliminary injunction. 14 C. Balance of Hardships 15 An injunction may not issue unless the balance of hardships tips in favor of the 16 moving party. Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 17 1993). “[A] court must remain free to deny a preliminary injunction, whatever be the 18 showing of likelihood of success, when equity in the light of all the factors so requires.” 19 Apple, Inc. v. Samsung Electronics Co., Ltd., __ F. Supp. 2d __, 2012 WL 2572037, at 20 *64 (N.D. Cal. July 1, 2012). 21 Here, Defendants’ argument is two-fold: that Defendant Perry will suffer a serious 22 financial setback if a preliminary injunction issues, and that InstantCert will not be unduly 23 harmed if forced to litigate without this preliminary remedy. An injunction would burden 24 Perry and AOL. Failing to issue an injunction would be burdensome to InstantCert to the 25 extent that the injury accrues during the pendency of the litigation. But as Defendants 26 point out, only 53 individuals have subscribed for AOL’s services, and AOL is not in any 27 /// 28 /// 11 1 position to seriously challenge InstantCert’s status atop the industry.4 Plaintiffs can seek 2 monetary relief for any damages incurred as a result of Defendants’ alleged continuing 3 infringement during the pendency of this litigation. While Plaintiffs have demonstrated a 4 likelihood of success on the merits, they cannot assume that Defendants are in fact 5 infringing. 6 requirements of the preliminary injunction inquiry. For these reasons, the balance of the 7 hardships inquiry weighs in favor of Defendants. The Court rejects Plaintiffs’ request to collapse the first and third 8 D. Public Interest 9 The Court concludes that the public interest is served by issuance of a preliminary 10 injunction, as “it is virtually axiomatic that the public interest can only be served by 11 upholding copyright protections and correspondingly, preventing the misappropriation of 12 skills, creative energies, and resources which are invested in the protected work.” Apple 13 Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1255 (3rd Cir. 1983); Warner 14 Bros. Entm't, Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1015 (C.D. Cal. 2011) 15 (quoting Apple Computer, Inc.). 16 In summary, the Court holds that a preliminary injunction against Defendants is 17 inappropriate. Plaintiffs have failed to proffer specific evidence as to the likelihood of 18 irreparable injury it faces in the absence of such an extraordinary remedy, and have 19 failed to demonstrate that the balance of the hardships favors granting preliminary relief. 20 Although Plaintiffs have demonstrated a likelihood of success, whatever damage 21 incurred by the Plaintiffs during the course of the litigation can be addressed at the 22 remedy stage of the litigation in the event that Plaintiffs succeed on the merits. 23 /// 24 4 25 26 27 28 Plaintiffs use these same figures to argue that AOL stands to lose less were an injunction to issue since it cannot be, by virtue of its small subscriber base, a very profitable entity. However, the injunction could seriously damage AOL’s entire business, and the hardship to AOL would be necessarily great. This is a different situation than occurred in CJ Products LLC, where the district court qualified its balance of hardship finding on the fact that the accused infringing company would “not be severely impacted, as they have an extensive array of non-infringing products that they may continue selling.” CJ Products LLC, 809 F. Supp. 2d at 146. 12 1 2 3 IV. CONCLUSION Accordingly, IT IS HEREBY ORDERED THAT Plaintiffs Steven Gloer and InstantCert.com, LLC’s Motion for Preliminary Injunction (dkt. no. 31) is DENIED. 4 5 ENTERED THIS 27th day August of 2012. 6 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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