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On August 1, 2002, just a week after the discovery hearing, and just
one day after he received the last of the notes that the attorneys sent him following the hearing,
Judge Komives issued his ruling on our motion to compel discovery. In short, to quote from his
order, "Defendant's motion is granted in part and denied in part."
You can view the order in its entirety by selecting the link below,
but here's a quick summary. (Note that "Count IV" refers to the copyright infringement claim.)
Taubman must provide us with further answers to these
interrogatories:
Interrogatory #1: "Identify all oral and written communications and all contracts or other
written documents that establish Your right to claim the copyright of documents authored by
JPRA and Associates."
Interrogatory #3: "Identify all artwork, maps and other documents authored by JPRA and
Associates in connection with The Shops at Willow Bend."
Interrogatory #4: "Identify all artwork, maps and other copyrightable documents used in
publicizing or promoting The Shops at Willow Bend, and identify all persons (or all classes of
persons, where the individual names are not known) to whom those documents were given."
Interrogatory #5: "Identify all materials pertaining to The Shops at Willow Bend that You have
copyrighted."
Interrogatory #6: "Identify all documents that You have transmitted to any person for the
purpose of publicizing or promoting The Shops at Willow Bend."
Interrogatory #7: Identify all transmission of documents to other persons that included either
or both of the graphics at issue in Count IV."
Interrogatory #15: "Do you admit that Defendant has made fair use of the graphics at issue in
Count IV? If you do not admit that Defendant has made fair use, state in detail each fact or
circumstance that defeats a claim of fair use, identify all persons who know those facts, and
identify all documents and things that support your denial of fair use."
Interrogatory #17: "Except as otherwise provided above, state in specific detail the factual
basis supporting, identify every person who has knowledge of the facts and circumstances surrounding
or supporting, and identify all documents and things supporting the claims asserted by You in Count
IV of the Complaint, identifying the subjects of the information for each such person."
Taubman must provide us with further responses to these document
requests:
Request #3: "All artwork, maps and other documents authored by JPRA and Associates in
connection with The Shops at Willow Bend."
Request #4: "All artwork, maps and other copyrightable documents used in publicizing or
promoting The Shops at Willow Bend, and identify all persons (or all classes of persons, where the
individual names are not known) to whom those documents were given."
Request #5: "All materials pertaining to The Shops at Willow Bend that you have
copyrighted."
Request #6: "All documents that you have transmitted to any person for the purpose of
publicizing or promoting The Shops at Willow Bend."
Request #7: "All transmission of documents to other persons that included either or both of
the graphics at issue in Count IV."
Request #9: "All documents showing the potential market for the graphics at issue in Count
IV."
Request #10: "All documents showing all impact of defendant's use of the graphics at issue in
Count IV on the potential market for those graphics or for the work of which they are a part."
Request #11: "All documents showing any impact of defendant's use of the graphics at issue on
the value of the graphics at issue in Count IV."
Taubman does not have to provide us with further answers to these
interrogatories:
Interrogatory #2: "Identify all artwork, maps and other documents authored by JPRA and
Associates for You."
Interrogatory #9: "Identify the potential market for the graphics at issue in Count IV, and
explain your basis for saying that this market exists. Identify all persons who know the facts
contained in your answer, and all documents pertaining to the nature and existence of that market."
Interrogatory #10: "Explain in detail how the defendant's use of the graphics at issue in Count
IV has affected the potential market for those graphics or for the work of which they are a part.
Identify all persons who know the facts contained in your answer, and all documents pertaining to the
nature and existence of that effect."
Interrogatory #11: "Explain in detail how defendant's use of the graphics at issue in Count IV
has affected the value of those graphics. Identify all persons who know the facts contained in your
answer, and all documents pertaining to the nature and existence of that effect."
Taubman does not have to provide us with further responses to these
document requests:
Request #1: "All written communications and all contracts or other written documents that
establish Your right to claim the copyright of documents authored by JPRA and Associates."
Request #2: "All artwork, maps and other documents authored by JPRA and Associates for You."
View the Original Order (in a
separate window)
I can't claim to follow the logic behind each of these rulings (but
then again, I can't claim to understand why I'm being sued in the first place), but they seem to be
generally favorable to me. At any rate, Taubman will finally have to provide me with the information
I'll need to be able to defend myself from this ridiculous charge. Or they could appeal the parts of
the ruling with which they disagree – or we could appeal the parts of the ruling with
which we disagree. (We each have until August 15 to appeal.) Or they could send us
unresponsive "responses" (as they've done in the past), forcing us to go back to the court for
additional relief. Or they could decide that they really don't want to spend so much time and
money pursuing this silliness, and drop the copyright charge. (That's my personal prediction –
although now that I've said that, they'll probably continue to pursue it just to prove me wrong.) Or,
of course, there's always the remote possibility that they'll comply fully with judge's order and send
us all of the responses that they should have sent us a couple of months ago. Anyway, once we get this
all sorted out, I suspect that our next step will be to ask the judge to delay the trial to allow time
for this expanded discovery.
I think that it's important to take a look behind all of this legal
wrangling and realize just how incomprehensible this situation is. Here's a quick summary of what's
been going on:
I downloaded two graphics from Taubman's website and used them on my website. I figured that
they wouldn't mind, because I was using the graphics to promote their mall.
If Taubman had objected to my use of the graphics, I would have removed them from my website.
However, Taubman never once objected to my use of their graphics. (And I can't very well remove them
now, as they obtained an injunction that forced me to remove the site from the Web.)
I've informed Taubman that if I win the case and am allowed to put the site back online, I
won't include their graphics (even though, frankly, I believe that this would be a "fair use" and
wouldn't violate their copyright). So even without pursuing Count IV (the copyright infringement
charge), Taubman knows that is no chance that the copied graphics will ever appear on my site
again.
Taubman has stated that the only damages they're seeking from me are the profits I earned from
the use of their graphics – but as they are well aware, I never made a dime from their
graphics!
So the situation is that they are suing me to force me to remove
graphics that are already offline and which I have told them will remain offline. And they are suing
me to recover money that they know does not exist. Taubman is wasting not only their own time and
money blindly pursuing this meaningless charge, this waste of resources has a ripple effect:
I'm wasting my time having to defend myself.
My attorney (a noted public-interest lawyer) is spending his limited time defending me from
this charge, time which certainly could be better spent addressing more important issues instead of
wrestling with Taubman over an issue that they've basically manufactured out of smoke and mirrors.
And now, a United States Magistrate Judge has had to conduct a hearing and write a 12-page
order just to get Taubman to produce information that they should have provided months ago!
So Taubman is wasting not only their own time and money, they're
wasting the resources of the United States Judicial System – and, by extension, they're wasting
the resources of every United States taxpayer as well.
In fact, oddly enough, the only people who appear to be benefiting
from this absurd situation are the law firm of Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski,
P.C. – and, in particular, Ms. Julie A. Greenberg, the lead partner on this case, whose website
bio proudly boasts of her "extensive experience in the field of pretrial injunctions involving
infringement." (I had a comment prepared to insert here, but I'll let Ms. Greenberg's words speak for
themselves...)
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