Good news: Sierra Corporate Design ("Usenet.com") found guilty
Xavier Roche
_nothing_ to do with Usenet - except maybe that they used the NNTP
protocol to carry binaries) was found _guilty_.
Case 1:07-cv-08822-HB-THK
<http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/090630DecisionOfMotions.pdf>
For once, people can rejoice and celebrate the MAFIAA (hey! they did not
sue a grandma this time!) because "Sierra Corporate Design" is probably
the most _infamous_ name known on Usenet, cursed after suing (SLAPP) a
famous anti-spam activist.
As a reminder, for all our beloved readers of NANAU,
"The Spam Diaries - News on David Ritz case"
<http://thespamdiaries.blogspot.com/2007/10/news-on-david-ritz-case.html>
"Overview of spam from Netzilla"
<http://www.rahul.net/falk/Nz/>
Extract (the "I was a the Reynolds's puppet" part is really rejoicing)
of the Opinion&Order:
(..)
E. Liability of Defendant Reynolds
As a last-ditch effort to avoid liability, Defendants contend that
Plaintiffs have no evidence that Reynolds can be held liable for conduct
that has been described only in broad terms referring to the
“Defendants” in the collective. This argument cannot withstand scrutiny.
It is well settled in this Circuit that “[a]ll persons and corporations
who participate in, exercise control over, or benefit from the
infringement are jointly and severally liable as copyright infringers.”
Sygma Photo News, Inc. v. High Society Magazine, Inc., 778 F.2d 89, 92
(2d Cir. 1985) (citing Shapiro, 316 F.2d at 308-09). Here, the evidence
bears out that Reynolds was personally responsible for a major share of
Defendants’ infringing activities; moreover, he was the moving force
behind the entire business of both corporate Defendants. UCI has never
had employees; rather, its business is carried out by Sierra’s
employees, all of whom (besides Reynolds) were terminated by August
2008. Reynolds is the director and sole shareholder of both companies,
and he and other employees of Sierra have expressly admitted his
ubiquitous role in the companies’ activities. See, e.g., Pls.’ SUF
102-05. Specifically, Reynolds was admittedly responsible for the
“overall strategic vision” of the corporate defendants, Pls.’ SUF 105,
and former president of Sierra, Lesa Kraft, testified that she “ran the
company as [Reynolds] requested,” and “followed through with whatever he
wanted, how he wanted it ran [sic],” Pls.’ SUF 103; see also Pls.’ SUF
115 (“[W]e aren’t a publicly owned corp[oration]. We are running things
how [Reynolds] . . . would like things done.”); see also June 16 Order
at 5-7. Further, separate and apart from this general role, the evidence
conclusively reveals that Reynolds was personally and intimately
involved in many of the activities that form the basis of Defendants’
copyright liability. For example, Reynolds directed the marketing
department of Sierra to draft promotional “essays” to drive traffic to
the Usenet.com website and gave detailed instructions “to make sure
everything [was] covered.” Pls.’ SUF 108-09. As discussed above, these
promotional essays are among the multitude of evidence that shows
Defendants’ intent to foster infringement. Also, Reynolds had an active
role in the corporate Defendants’ technical operations, directing
employees to block certain groups and filter certain conduct - though
never issuing imperatives, so far as the record shows, to limit the
extend of copyright infingement on their service. See Pls.' SUF 112.
IV. Conclusion
For the foregoing reasons, Plaintiff's motion for sanction is GRANTED to
the extent discussed above. Plaintiff's motion for summary judgement is
also GRANTED. The Clerk of this Court shall close all open motions in
this matter and enter judgment in favor of the Plaintiffs on all causes
of action. The parties shall submit supplemental briefing of no more
than ten (10) pages and proposed orders on the scope of permanent
injunctive relief within twenty-one (21) days of the date of this
Opinion and Order. By separate order of reference accompanying this
Opinion, this matter shall be referred to magistrate Judge Katz for a
damage determination.
IT IS SO ORDERED.
New York, New York
June 30, 2009
U.S.D.J.