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Kelly v Brown
Kelly Wins Again: Web Designer Found Liable For Willful
Copyright Infringement, Ordered To Pay Treble Damages
April 28, 2004. Los Angeles, CA. In an action for
copyright infringement involving the unauthorized use of one website image, the
United States District Court (Hon. A. Howard Matz) entered judgment in favor of
Plaintiff Leslie A. Kelly d/b/a Les Kelly Enterprises and against Defendants
James E. Brown, Live Digital Technologies, Inc., and IHS Digital Technologies,
Inc., jointly and severally, in the sum of $60,000, plus attorneys' fees and
costs. The case involved an unusual twist. After receiving the cease &
desist letter, the infringer retaliated by causing obscene and pornographic
spam to be sent to the copyright owner.
In awarding treble damages, Judge Matz found the conduct of defendants to be
"outrageous." Plaintiff's counsel, Steven L. Krongold,
Esq. of BIENERT & KRONGOLD, argued that post-infringement conduct
of sending porn spam demonstrated "willful" infringement. Mr. Krongold also
requested the Court to take judicial notice of the damage caused by spam as
evidenced by Congressional findings in the recently passed "Controlling The
Assault of Non-Solicited Pornography and Marketing Act of 2003" (CAN-SPAM Act)
(Pub.L. 108-187, Dec. 16, 2003, 117 Stat. 2699). In particular, Congress noted
that spam has become the "method of choice" for distributing pornography,
perpetrating fraudulent schemes, and introducing viruses, worms, and Trojan
horses into personal and business computer systems. 15 U.S.C. §7703(c)(1).
KELLY FILES COPYRIGHT INFRINGEMENT AND SPAMMING COMPLAINT
Kelly Wins Judgement Against James E. Brown, Live Digital Technologies, Inc.,
and IHS Digital Technologies, Inc.
Huntington Beach, CA December 1, 2003. Leslie A. Kelly announced today
that his Attorney, Steven L. Krongold, Esq., Bienert & Krongold, San
Clemente, CA, has successfully obtained a default judgement in Case CV03-6812
AHM in which Kelly alleged violations of the DMCA (illegal use of a copyright
registered image) and the California Computer Crimes Act (to include charges of
obscene and pornographic spam). Kelly has authorized Krongold to seek damages
against Brown as a result of the recent court decision in his favor.
Huntington Beach, CA. October 1, 2003. Leslie A. Kelly announced today
that his Attorney, "Steven L. Krongold, Esq.,
Turner Green Afrasiabi & Arledge, LLP", has filed a lawsuit in the
US District Court, Central District of California, Southern Division. The
lawsuit, assigned Case No. CV03-6812 AHM (RZx), names Defendants James E.
Brown, "LIVE DIGITAL TECHNOLOGIES, INC., a
Michigan corporation", Crystal H. Brown, IHS DIGITAL TECHNOLOGIES, INC.
Kelly alleges "Copyright
Infringement (17 USC §501), Violation of Digital Millennium Copyright Act (17
USC §1201), Violation of California Computer Crimes Act (Penal Code §502),
Violation of California Unfair Competition Law (B&PC §17200) and Violation
of Federal Unfair Competition Law."
The complaint alleges that in February 2003, Kelly discovered "unauthorized
commercial use" of one of his copyright registered images at the
"Village Shopkeeper", a website developed by defendants Live Digital
Technologies, Inc. and IHS Digital Technologies, Inc., of Plymouth, Michigan.
Defendants allegedly removed the embedded copyright notice on the image and
represented to its customers that the image was royalty-free stock photography.
The acts of defendants were designed to induce, enable, facilitate or conceal
infringement of Kelly's copyright in the photograph in violation of the DMCA.
In retaliation for the cease and desist letter, defendants hijacked Kelly's
email address and caused a barrage of spam to be sent to Kelly. The spam
included obscene and pornographic images. The spamming caused by defendants
damaged Kelly's computer and disrupted his service.
In the complaint, Kelly seeks the recovery of damages, attorney's fees and costs
in addition to injunctive relief under California's Unfair Competition Law for
violation of the California Spam Act, Business & Professional Code, Sec.
17538.4.
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Huntington Beach, CA, February 21, 2003. Leslie A. Kelly announced today
that he has implemented a takedown demand for copyright infringement and filed
a Notice of Copyright Infringement against
The Village Shopkeeper, Plymouth, Michigan and its web site
developer and ISP, IHS Digital Technologies
and Live Digital Technologies, Plymouth, Michigan. The Village
Shopkeeper, a retailer of Amish made furniture, has used Kelly's copyright
registered image at its website to create the visual connection between its
merchandise for sale and the reputation of the Amish as well known craftsman,
noted for their quality products.
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Oddly enough, upon receipt of the
Takedown Demand, IHS Digital Techologies immediately removed
Kelly's image and replaced it with an infringed image of a
horse drawn Amish buggy taken from another website.
Upon Kelly inquiring about that matter, IHS Digital
Technologies immediately replaced it with an image of furniture. Soon
thereafter, images of Amish settings that had appeared at
The Amish were removed and replaced with images of furniture.
Kelly has inferred from all of this that IHS Digital Technologies has illegally
sourced all of the Amish images that they have used at Village Shopkeeper to
promote and increase traffic and sales.
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