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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.

75 F.Supp. 2d 1290 (D. Utah, Dec. 6, 1999)

Plaintiff holds a copyright in the Church Handbook of Instructions ("Handbook"). After being directed by the court to remove the Handbook from its website, defendants posted a message on its website that informed users that the Handbook was online. The message went on to provide users with the urls of three websites at which the Handbook was posted. Defendants also posted on its website e-mail that encouraged users to visit these websites and download the Handbook. From the court's decision, it does not appear that defendants created a hyperlink from their site to any of those that posted the Handbook online. Such third party posting was done without plaintiff's permission and infringed its copyright.

Plaintiff sought a preliminary injunction enjoining defendants from continuing to post such messages to their site, which plaintiff claimed constituted contributory infringement of its copyright in the Handbook. The court agreed, and issued the requested injunctive relief.

Defendants claimed that their actions did not constitute contributory infringement because the users defendants referred to the websites on which infringing content was posted did not themselves infringe plaintiff's copyright. As framed by the Court the issue "is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement)." The court held that by viewing a web page containing infringing material thru a broswer, the user is himself infringing the copyright in the underlying work. "When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright."

The court further held that by posting a message on their website providing users with the location of infringing materials, and, in at least one instance, apparently aiding a user in viewing the infringing websites, the defendants had committed contributory infringement.

The court accordingly issued a preliminary injunction, directing that defendants "shall remove from and not post on defendants' website, addresses to websites that defendants know, or have reason to know, contain the material alleged to infringe plaintiff's copyright."

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