RS Means and The Gordian Group accuse SED Associates and Aaron Richardson of copyright and trademark infringement in connection with SED’s alleged sales of counterfeit copies of books relating to construction cost estimating data. RS Means asserts that its RS Means data is the construction industry standard for local cost estimation data, and that SED sells counterfeit copies on Amazon under the pseudonym “Code Emporium.” RS Means says that Aaron Richardson, an SED engineer, purchased seven different RS Means titles in November 2019, which were then copied and sold via Amazon, several specifically from Aaron Richardson himself. RS Means points to reviews of these books on Amazon, which include complaints as to the quality of the physical books themselves, as opposed to the content. In addition to copyright and trademark claims, RS Means asserts unfair competition under M.G.L. c. 93A. Judge Casper has the case.
Solta sued Lumenis, Inc. and its Israeli-based corporate parent Lumenis Ltd. In 2019, accusing them of infringing two patents related to improvements in controlled cooling of skin and other tissue being treated by lasers. Lumenis Ltd. Moved to dismiss for lack of personal jurisdiction, asserting that the U.S. entity was responsible for all efforts to market and sell the accused products in the United States (and in Massachusetts). Judge Casper applied the prima facie standard and taking all factual allegations in the complaint and uncontroverted factual allegations made by the defendant as true, as is required where the motion is decided without an evidentiary hearing. She noted that Lumenis Ltd. Manufactures the accused products in Israel and then sells the products through wholly-owned subsidiaries in the United States and other countries. Lumenis, Inc., one such wholly-owned subsidiary, has sold accused products and directed marketing activity into Massachusetts. The accused products were identified as Lumenis Ltd. Products in an SEC filing, and Lumenis Ltd. Is the entity that applied for FDA approval to market and sell in the United States. While noting that ownership of a Massachusetts subsidiary is not, standing alone, sufficient to establish personal jurisdiction, here the two Lumenis entities are both transacting business for the purposes of satisfying the long-arm statute of the Commonwealth. Lumenis Ltd’s’ SEC filing indicated that it provides training and certification of field service engineers for the accused products and operates communications centers for each regional sales and marketing areas. This collaboration with Lumenis, Inc. is sufficient to establish personal jurisdiction over Lumenis Ltd. For complaints associated with the sales of these products.
Richard Rogers, who runs Yourfavorite.com., accuses Federation of Exchange Accommodators (FEA) and a number of individuals of having wrongfully taken his copyrighted material for use on its own website. Rogers asserts that FEA’s publication titled “Member Guide to Internal Controls and Procedures for Handling Exchange Funds” contains material duplicated from an article he authored on 2007, titled “Reasons for Return.” He states that the infringement is willful and knowing, and that the Defendants ignored his cease and desist letter. The case is before Judge Casper.
California photographer Jeffery Cross accuses Custom Contracting, a home remodeling business in Arlington, of using one of his photographs, depicting a kitchen sink and shelves, on its website. Cross, who makes no concrete claims of access (merely stating that “[u]pon information and belief, Defendant located the Copyrighted Work on the internet…”) alleges contributory and vicarious infringement as well as direct, apparently seeking to cover circumstances where Custom Contracting obtained the photograph from someone other than Cross. I note that there are also no factual allegations related to actual or constructive knowledge of Cross’ copyright or of any acts that would show inducement or material contribution, or anything to suggest that the infringement was willful, although such is generally alleged. I would also note that the exhibit alleged to show the infringing use includes five web pages, of which two appear to be identical copies from a Bob Villa (of “This Old House” fame) website and the other three appear to be identical pages from Custom Contracting’s website that include a photo credit to indulgy.com (which is no longer active).
This complaint is similar to a rapidly-growing number of copyright cases involving photographs found on the internet. As image recognition software has improved, a business model of combing the web and bringing suit for unlicensed use of copyrighted images has developed, relying in large part on the simple existence of an alleged infringement and the potential for high statutory damages and attorneys fees to drive quick settlements that are often well out of proportion to the actual harms that the use might have caused. A small number of firms account for the vast majority of complaints along these lines, at least in my experience, including one New York lawyer who has filed more than 1100 such copyright suits since being admitted to the bar in 2015. While I have no objection to photographers protecting their rights, and strongly recommend people not download and use photographs from the internet without first confirming their right or license to do so, I hope to see some pushback on these “information and belief” – type of complaints, which do not seem to meet the Twombly/Iqbal requirement that a complaint show plausible factual allegations that, accepted as true, are sufficient to state a claim for relief that is plausible on its face. These complaints in essence assert that the mere existence of an identical (or, in some cases, merely similar) photograph as a copyrighted work are enough to state a claim for infringement, with no analysis of whether the alleged infringer copied the photograph from the copyright holder, obtained it elsewhere, or created it independently.
Judge Casper awarded Sophos $1,404,949.50 in attorneys fees. She had previously granted Sophos summary judgment of invalidity, and had determined that this was an exceptional case meriting an award of reasonable fees. Here, she determined that the hours and rates sought were reasonable, but that some small degree of block billing occurred, meriting a reduction of 10% but not the substantial reduction sought by RPost. She rejected RPost’s argument that the $1.56 million sought was excessive –RPost’s damages demand, together with the amount of discovery, expert discovery and motion practice, framed the potential stakes and demands for legal work, regardless of Sophos’ belief in the viability of the damages demand.
Having previously granted summary judgment in favor of Defendants and having determined that the case was exceptional and that Defendants were entitled to their reasonable attorney’s fees under 25 U.S.C. § 1117(a), Judge Casper ordered Plaintiffs to pay $153,820.35 in fees. Relying on the opinion of lead counsel, a 2013 Massachusetts Lawyers Weekly article on average rates in Boston, and the approval (over no objection) of the rates sought in earlier discovery proceedings between the parties before Magistrate Judge Kelley, Judge Casper approved of rates of $590-$600 for partners, $290-$465 for associates, and $100-$250 for paralegals. She did reduce the total fees sought by 10% due to some block billing that did not divide out time spent on particular tasks, but otherwise rejected Plaintiffs’ objections to the amount sought.
Judge Casper partially granted Neotech’s motion to stay the litigation pending inter partes review. This case, which concerns allegations of infringement of a patent relating to aspiration devices, was filed in California in May 2017. Following the issuance of the TC Heartland decision, Neotech filed a complaint in Delaware, where it believed Sandbox to have been incorporated, and dismissed the California complaint. Upon being informed that Sandbox was, in fact, incorporated in Massachusetts, Neotech amended its Delaware complaint to remove the jurisdictional allegations and moved to transfer the case to Massachusetts, while Sandbox moved to dismiss the case for lack of personal jurisdiction and improper venue, seeking to have the second Delaware complaint deemed a second voluntary dismissal and asking the Court to dismiss the complaint with prejudice pursuant to FRCP 41(a)(1)(B). The Delaware court transferred the case to Massachusetts and left the decision on Sandbox’s motion to dismiss to the Massachusetts court. Sandbox then requested inter partes review of the patent in suit, and Neotech moved to stay the litigation pending the outcome of the IPR. Judge Casper stayed the case in its entirety until the first of May 30, 2019 or the PTAB’s decision on whether to institute the IPR, and indicated that she would accept requests to continue to stay the case if the IPR should proceed. She further denied Sandbox’s motion to dismiss without prejudice, indicating that Sandbox would be free to renew the motion once the stay was removed.