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Norfolk, Virginia – District Judge Rebecca Beach Smith of the Eastern District of Virginia sentenced copyright infringer to prison.

Rocky P. Ouprasith, 23, of Charlotte, North Carolina, was sentenced recently to 36 months in prison for reproducing and distributing without permission millions of infringing digital copies of copyrighted works, including copies of popular songs and albums before they were commercially available. Ouprasith was also sentenced to two years of supervised release, ordered to pay restitution in the amount of $45,288.62, and to forfeit $50,851.05.

This case represents the first criminal copyright infringement sentence imposed for a cyberlocker operator in the United States.

“Ouprasith operated the second largest online file sharing site in the United States, averaging nearly 4.5 million visits per month and resulting in an estimated collective loss of more than $10 million per month to the rightful owners,” said Dana J. Boente, U.S. Attorney for the Eastern District of Virginia. “I believe this sentence reflects the seriousness of the crime and will promote greater respect for the law and property rights of others.”

“HSI is responsible for enforcing federal regulations that exist to protect American businesses from unfair trade practices and intellectual property theft,” said Clark E. Settles, Special Agent in Charge of U.S. Immigration and Customs Enforcement‘s Homeland Security Investigations (“HSI”). “Online piracy has a serious financial impact to business, which is felt at every level of a transaction – from the producer to the point-of-sales clerk.”

Ouprasith pleaded guilty on Aug. 21, 2015. According to court documents, between May 2011 and October 2014, Ouprasith operated RockDizMusic.com, a website originally hosted on servers in France and later in Canada, from which Internet users could find and download infringing digital copies of popular copyrighted songs and albums. Ouprasith admitted that he obtained digital copies of copyrighted songs and albums from online sources, and that he encouraged and solicited others, referred to as “affiliates,” to upload digital copies of copyrighted songs and albums to websites, including RockDizFile.com, that were hosted on servers in Russia, France and the Netherlands, and that hosted hyperlinks to content being offered for download on RockDizMusic.com. Ouprasith further admitted that to encourage such activity, he agreed to pay the affiliates based on the number of downloads from his website.

According to the Recording Industry Association of America, in 2013, RockDizFile.com was the second-largest online file sharing website specializing in the reproduction and distribution of infringing copies of copyrighted music in the United States. Ouprasith admitted that in 2013 and 2014, he either ignored or pretended to take remedial action in response to complaints from copyright holders and their representatives that the website contained links to infringing copies protected songs and albums.

In October 2014, federal law enforcement authorities shut down RockDizMusic.com and RockDizFile.com, and law enforcement authorities in the Netherlands and France seized file-hosting servers utilized by Ouprasith.

According to court documents, the market value of Ouprasith’s illegally pirated material was more than $6 million.

This sentencing is related to the many efforts being undertaken by the Department of Justice Task Force on Intellectual Property (“IP Task Force”). The IP Task Force supports prosecution priorities, promotes innovation through heightened civil enforcement, enhances coordination among federal, state, and local law enforcement partners, and focuses on international enforcement efforts, including reinforcing relationships with key foreign partners and U.S. industry leaders.

Practice Tip: To learn more about the IP Task Force, go to www.justice.gov/dag/iptaskforce.

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Indianapolis, Indiana – Magistrate Judge Mark Dinsmore of the Southern District of Indiana denied Defendants’ motion to limit discovery in the patent infringement litigation between Knauf Insulation, LLC et al. and Johns Manville Corp. et al. Judge Dinsmore also recently denied Defendants’ motion to bifurcate the trial.

This federal litigation alleges infringement of U.S. Patents Nos. 8,114,210; 8,940,089; D631,670; 9,039,827 and 9,040,652, which Plaintiffs Knauf Insulation, LLC, Knauf Insulation GmbH and Knauf Insulation SPRL contend were infringed by Defendants Johns Manville Corporation and Johns Manville, Inc.

This court order addresses Defendants’ motion, filed by patent attorneys for Defendants, for limitations on electronic discovery. Specifically, Defendants asked the court to implement a date cutoff of January 1, 2007 for all electronically stored discovery and to limit the number of e-mail custodians from which Defendants must produce e-mail. Defendants asserted that these restrictions would reduce its discovery-related expenses by approximately $49,400.

The request to limit the time was denied. The court noted that there was a high likelihood that relevant evidence that was not available from any other source would be found in Defendants’ materials prior to 2007. Further, the cost of obtaining that evidence was not excessive in light of the amount in controversy in the litigation. Consequently, the court held that Defendants had not met their burden of showing that the cost of the proposed discovery to Defendants outweighed the benefit to Plaintiffs.

Defendants also requested that the court limit electronic discovery to 10 of Defendants’ 38 e-mail custodians. Patent lawyers for Defendants argued that such a limitation would result in a savings of $18,000 and would also facilitate the predictive coding process.

The court was again unpersuaded. It noted that, while discovery couldn’t guarantee that 100% of responsive material would be produced, eliminating material held by 28 of Defendants’ 38 e-mail custodians from the scope of discovery would “guarantee a zero percent recall for the 28 custodians not chosen.” After asking itself the question, “how many relevant responsive documents are too many to voluntarily walk away from?,” the court concluded that it had insufficient evidence to weight the benefit of the e-mails that would be produced as a result of including the 28 custodians that Defendants proposed be omitted from discovery. Moreover, it opined that in high-value litigation such as this lawsuit, the burden of the additional $18,000 expense does not outweigh the potential benefit to Knauf of receiving those emails.

The court ordered Defendants to produce discovery from all 38 e-mail custodians but also ordered that, should the search of the additional 28 custodians yield fewer than 500 responsive documents, Plaintiffs must reimburse Defendants $18,000 for the cost of loading the additional data from those 28 e-mail custodians.

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Houston, Texas – Via its trademark attorneys, Plaintiff Texas A&M University of College Station, Texas filed a trademark lawsuit in the Southern District of Texas alleging that the Indianapolis Colts, Inc. infringed its intellectual property rights in the “12TH MAN” mark, Trademark Registration Nos. 1,612,053; 1,948,306; and 3,354,769, which were issued by the U.S. Patent and Trademark Office. Also alleged were federal unfair competition and false designation of origin as well as unfair competition and trademark dilution under Texas state law.

Texas A&M asserts that, as early as 1922, it has used the trademark 12TH MAN in connection with sporting events and numerous products and services. It contends that the 12TH MAN mark identifies and distinguishes Texas A&M in connection with all of its athletic entertainment services and events. Texas A&M also licenses the mark, including having granted a license to Football Northwest, LLC for use by the Seattle Seahawks professional football team.

Plaintiff contends that the Indianapolis Costs first used 12TH MAN trademark inside of its stadium around 2006. In response to this use, Plaintiff indicates that it sent a cease and desist letter to Defendant, which appeared to result in a resolution of the matter. Texas A&M states that it again became aware of use of the 12TH MAN mark by the Indianapolis Colts in 2012, which again resulted in a cease and desist letter sent to Defendant.

According to the complaint, Texas A&M most recently became aware of use of the 12TH MAN mark by the Indianapolis Colts in July 2015, when Defendant e-mailed a solicitation including the mark to an individual in Texas A&M’s home town of College Station, Texas. Plaintiff claims that this use of the 12TH MAN mark is one of multiple current uses of the trademark by the Indianapolis Colts.

In the complaint, filed by trademark lawyers for Texas A&M, the following claims are listed:

• Count I: Trademark Infringement Under 15 U.S.C. §1114 et seq.
• Count II: Unfair Competition, False Designation and Infringement Under 15 U.S.C. §1125(a)
• Count III: Texas Trademark Dilution

• Count IV: Common Law Unfair Competition

Texas A&M seeks injunctive relief, attorneys’ fees and costs.

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Indianapolis, Indiana – Magistrate Judge Mark Dinsmore of the Southern District of Indiana denied a motion to bifurcate the patent infringement trial in ongoing litigation styled Knauf Insulation, LLC et al. v. Johns Manville Corp. et al.

This Indiana patent litigation began in January 2015 when Knauf Insulation, LLC, Knauf Insulation GmbH, and Knauf Insulation SPRL (“Plaintiffs”) sued Johns Manville Corporation and Johns Manville, Inc. (“Defendants”). Plaintiffs contended that Defendants had infringed U.S. Patents Nos. 8,114,210; 8,940,089; D631,670; 9,039,827 and 9,040,652 (“the ‘652 patent”).

Patent attorneys for Denver-based Defendants asked the court to bifurcate the trial, asking it to hear the claims of patent infringement of the ‘652 patent separately from the infringement claims regarding the other patents. Defendants supported its motion for bifurcation by asserting that the ‘652 patent is made from binding chemistry different from the other patents and that this difference might confuse the jury.

Whether or not to bifurcate a trial is within the discretion of the trial court, subject to certain conditions: (1) the bifurcation should avoid prejudice to a party or promote judicial economy; (2) the bifurcation should not unfairly prejudice the non-moving party; and (3) the bifurcation must not be granted if doing so would violate the Seventh Amendment.

The court noted that the burden of establishing that bifurcation is appropriate rests on the party seeking it and that “bifurcation remains the exception, not the rule.” It held that Defendants had failed to meet that burden. Instead, the difference in binder chemistry by itself did not outweigh the benefits of a single trial during which the finder of fact could evaluate the “many common facts” relating to all of the patents-in-suit.

The court finally noted that, even if bifurcation might at some point be appropriate, it was too early in the litigation for it to be ordered. The parties were advised that the court would review a motion for bifurcation, should a party choose to submit one, when the matter was closer to trial.

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Indianapolis, Indiana – In the matter of Bell v. Find Tickets, LLC, the Southern District of Indiana quashed overbroad discovery requests and limited inquiries to those pertaining to the matter of personal jurisdiction.

Plaintiff Richard Bell of McCordsville, Indiana photographed the Indianapolis skyline in 2000 and copyrighted the work. In this copyright lawsuit, Bell, acting as his own copyright attorney, alleges that Defendant Find Tickets of Alpharetta, Georgia published the photo on a website without Bell’s permission.

As part of the litigation, Bell propounded multiple interrogatories to Defendant. Defendant asked the court to quash this discovery, characterizing it as “far exceed[ing] the scope of a reasonable jurisdictional inquiry.” Defendant also asked for a protective order prohibiting Bell from deposing Find Tickets’ officers.

Writing for the court, Magistrate Judge Mark Dinsmore noted that Defendant’s own affidavit had estimated that “less than 1% of Find Tickets [sic] income is from Indiana related sales.” Consequently, the court concluded that, while personal jurisdiction might eventually be found to be lacking, this small amount of business was sufficient as the required “colorable showing” that jurisdiction over Defendant might exist. Consequently, the court ruled that jurisdictional discovery would be permitted.

However, the court also found that the interrogatories that had been served had been too broad for the limited question of establishing whether the exercise of personal jurisdiction over Defendant was proper. Judge Dinsmore ordered that the interrogatories be limited to inquiries that would support that “Defendant had extensive and pervasive contact with Indiana (general jurisdiction) or that Defendant ‘purposely availed’ itself of the privilege of conducting business in Indiana and the alleged copyright infringement arose from Defendant’s conducting business in Indiana (specific jurisdiction).” The court revised Plaintiff Bell’s interrogatories to limit them to the relevant jurisdictional matters, pending a ruling on Defendant’s separate motion to dismiss, and ordered that Defendant respond by December 1, 2015.

Defendant’s motion to quash the deposition of the owner of Find Tickets was also granted as the court found that such a deposition was unnecessary under the circumstances.

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Fort Wayne, Indiana – Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Northern District of Indiana asserting unlawful interception of Plaintiff’s program “Ultimate Fighting Championship 167: Georges St. Pierre v. Johny Hendricks” on November 16, 2013. This lawsuit is in addition to the litigation commenced by Plaintiff in the Southern District of Indiana on Thursday.

The complaint filed in the Northern District, filed by an intellectual property lawyer for Joe Hand, was nearly identical to Thursday’s complaint, with the primary difference being the Defendants named. In this lawsuit, the Defendants listed are Glen Robert Dotson, individually and d/b/a Fatzboyz Bar & Grill, and Dotson R. Inc., also d/b/a Fatzboyz Bar & Grill of Ligonier, Indiana. Defendants are accused of “depriving Plaintiff of the commercial license fee to which Plaintiff was rightfully entitled to receive from them” by showing the championship fight without having purchased a commercial license from Plaintiff.

Under Counts I and II, Joe Hand seeks statutory damages for all violations of 47 U.S.C. § 605 and 47 U.S.C. § 553, including additional damages for willful violations, where appropriate. Costs and attorney’s fees are also sought. A claim of conversion is included as Count III.

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Indianapolis, Indiana – A lawyer for Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Southern District of Indiana alleging that Angelina S. Alford, individually and d/b/a Tag’s Pub and Eatery LLC of Frankfort, Indiana, unlawfully intercepted Plaintiff’s program.

Joe Hand distributes digital content. It asserts that it holds exclusive domestic rights to the commercial distribution of “Ultimate Fighting Championship 167: Georges St. Pierre v. Johny Hendricks.” In an intellectual property complaint filed yesterday, Joe Hand accuses Alford and Tag’s Pub and Eatery LLC, of which Alford is allegedly an officer, of illegally intercepting the program on November 16, 2013.

In addition to interception, the allegations against Defendants include reception, publication, divulgence, display, exhibition, and “tortuous” [sic] conversion of the program. Joe Hand asserts that the acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff, Joe Hand Promotions, Inc., by depriving Plaintiff of the commercial license fee to which Plaintiff was rightfully entitled to receive from them.” Joe Hand contends that by doing so, “the Defendants subjected the Plaintiff to severe economic distress and great financial loss.” As a result of these alleged acts, Defendants have been have been accused in this lawsuit of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 as well as conversion.

Joe Hand seeks statutory damages of $110,000 for each violation of 47 U.S.C. § 605; $10,000 for each violation of 47 U.S.C. § 553; $50,000 for each willful violation of 47 U.S.C. § 553; compensatory and punitive damages on the claim of conversion; costs; and attorney’s fees.

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Washington, D.C. – The U.S. International Trade Commission (“USITC”) began an investigation under section 337 of the Tariff Act of 1930 regarding the importation and sale of blood cholesterol test strips that allegedly infringe a U.S. patent. The respondents are Jant Pharmacal Corp. of Encino, California; Infopia America LLC of Titusville, Florida and Infopia Co., Ltd. of the Republic of Korea.

In August 2014, Indiana patent attorneys for Plaintiff Polymer Technology Systems (“PTS”) of Indianapolis, Indiana sued respondents in the Southern District of Indiana alleging infringement of U.S. Patent No. 7,087,397, “Method for determining HDL concentration from whole blood or plasma,” which was granted by the United States Patent and Trademark Office. In the lawsuit filed in Indiana federal court, PTS also asserted that Defendants had violated the Lanham Act.

In October 2015, PTS filed a complaint with the USITC involving its point-of-care blood cholesterol testing meters, test strips, and systems containing the same naming the same three parties. PTS asks that the USITC issue an exclusion order and a cease and desist order.

No decision has yet been made on the merits of the USITC action. The matter will be assigned to an administrative law judge (“ALJ”), who will hold an evidentiary hearing. The ALJ will make an initial determination regarding whether there is a violation of section 337. That decision, in turn, is subject to review by the USITC, which then makes a final determination.

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Shipshewana, Indiana – Indiana trademark lawyers for Plaintiff Kevin Horn, sole proprietor of Shipshewana Spice Company of Warsaw, Indiana, filed an intellectual property lawsuit in the Northern District of Indiana alleging that Bob Wilson d/b/a Amish Farms and Shipshewana’s Best Spice Co. of Millersburg, Indiana infringed the trademark “HAPPY SALT,” Trademark Registration No. 4,241,663, which was granted by the United States Patent and Trademark Office. Horn also alleges trademark counterfeiting, false description, trademark dilution and unfair competition.

Plaintiff Horn of Shipshewana Spice states in his intellectual property complaint that his company has been selling spices and other seasonings since 1994 both locally in north-central Indiana and online at www.shipshewanaspicecompany.com. Plaintiff further claims that the trade name “HAPPY SALT” has been associated with his spices since 1994. A trademark registration for this mark in International Class 30 for “Seasonings, namely, Seasonings in salt” was granted by the USPTO on November 13, 2012.

Defendant Wilson, alleged to be the operator of the website www.amishfarms.com, is accused of offering counterfeit goods offered as “HAPPY SALT SEASONING,” “HAPPY HEARTS SALT FREE SEASONING” and “HAPPY SEA SALT SEASONING.” Plaintiff also protests the use by Defendant of the business name “Shipshewana’s Best Spice Company,” which it contends is nearly identical to Plaintiff’s business name, “Shipshewana Spice Company”.

The complaint, filed by Indiana trademark attorneys for Plaintiff, includes the following counts:

• First Claim: Trademark Infringement Under Lanham Act §32; 15 U.S.C. §1114
• Second Claim: Trademark Counterfeiting Under Lanham Act §32; 15 U.S.C. §1114
• Third Claim: False Description Under Lanham Act §43; 15 U.S.C. §1125
• Fourth Claim: Trademark Dilution Under Lanham Act §43; 15 U.S.C. §1125

• Fifth Claim: Unfair Competition Under Lanham Act §43; 15 U.S.C. §1125

Horn seeks equitable relief along with damages, costs and attorneys’ fees.

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Santa Clara, California – EFF to participate in today’s U.S. House Judiciary Committee discussion on copyright law in the digital age.

Today at 2 p.m., Electronic Frontier Foundation (“EFF”) Staff Attorney Kit Walsh will participate in a roundtable discussion about U.S. copyright laws convened by the House Judiciary Committee, which is undertaking the first comprehensive review of the nation’s copyright laws since the 1960s.

EFF argues that copyright was intended to promote creativity, but the law has not developed to support the explosion of creativity enabled by new technologies. Too often, it says, copyright is instead being abused to shut down innovation, creative expression, and even everyday activities like tinkering with your car.

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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
  • Southern District of Indiana
Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
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101 W Ohio St #2000
Indianapolis, IN 46204
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