Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 1 of 31
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil Action No. ELH-14-1683
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`WILLIAM JOHN JOSEPH HOGE,
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`Plaintiff,
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`v.
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`WILLIAM M. SCHMALFELDT,
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` Defendant.
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`MEMORANDUM OPINION
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`On May 27, 2014, William John Joseph Hoge, plaintiff, filed suit against William M.
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`Schmalfeldt, defendant, under the Copyright Act, 17 U.S.C. § 101 et seq., and the Digital
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`Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512. ECF 1. Both plaintiff and defendant
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`are self-represented. Plaintiff has filed a motion for a preliminary injunction (the “Motion,” ECF
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`13), dated June 12, 2014. On June 26, 2014, the Court held a hearing in open court on plaintiff’s
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`Motion. See ECF 26.1 As reflected in the parties’ submissions and arguments presented at the
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`hearing, this suit is only the latest chapter in a nasty, ongoing feud between the parties, largely
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`waged on the Internet, but which has found its way into federal court.
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`In response to plaintiff’s original Complaint, ECF 1, defendant filed an answer, along
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`with counterclaims against plaintiff and what defendant characterized as counterclaims against
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`two other individuals: Chris Heather and an individual identified by the pseudonym “Paul
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`1 Subject matter jurisdiction is proper based on a “federal question,” pursuant to 28
`U.S.C. § 1338, which confers exclusive federal jurisdiction in copyright infringement suits. See,
`e.g., Tattoo Art, Inc. v. TAT Intern., LLC, 794 F. Supp. 2d 634, 647 (E.D. Va. 2011).
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 2 of 31
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`Krendler.” ECF 5.2 Defendant subsequently amended his counterclaims and dismissed his
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`counterclaim against Heather. ECF 8 (amended answer and counterclaims) at 7. The amended
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`counterclaims allege “Malicious Prosecution and Abuse of Process”; “Defamation and Libel”;
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`and “Harassment and Intentional Infliction of Emotional Distress.” See ECF 8 at 5-13. Plaintiff
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`has moved to dismiss defendant’s counterclaims, for lack of jurisdiction and for failure to state a
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`claim upon which relief may be granted. ECF 10.
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`On June 11, 2014, plaintiff filed an Amended Complaint (“Am. Compl.,” ECF 9),
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`containing 37 counts. Defendant has moved to dismiss the Amended Complaint. ECF 15. But,
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`he also filed an answer to the Amended Complaint. ECF 18.
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`Although several motions are pending, this Memorandum Opinion will only address
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`plaintiff’s motion for a preliminary injunction. The Motion is supported by four exhibits.
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`Defendant has filed an opposition (“Opposition” or “Opp.,” ECF 19), with exhibits marked A
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`through Z. Plaintiff has replied (“Reply,” ECF 24), attaching one exhibit. And, at the hearing
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`held on June 26, 2014, both parties introduced exhibits in support of their contentions. See ECF
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`27 (list of plaintiff’s hearing exhibits) and ECF 28 (list of defendant’s hearing exhibits).3 For the
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`reasons that follow, I will deny plaintiff’s Motion.
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`I. Background
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`A. Plaintiff’s Allegations
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`Plaintiff, a “semi-retired engineer,” alleges that he is the publisher of Hogewash!, an
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`Internet website. Am. Compl. ¶ 7. Defendant is identified in the Amended Complaint as a
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`2 Defendant also filed a motion seeking leave to conduct discovery to determine the
`actual identity of “Krendler.” See ECF 6.
`3 I will refer to documents introduced as hearing exhibits by plaintiff as “Pla. Hrg. Exh.
`____,” and those introduced by defendant as “Def. Hrg. Exh. ___.”
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`“retired writer who has published several different Internet websites and several books,” id. ¶ 8,
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`which consist in part of electronic-format “ebooks.” One of defendant’s websites is found at
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`patriot-ombudsman.com. Id. ¶ 31.
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`The Hogewash! website is a blog, described by plaintiff as “the Internet equivalent of a
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`newspaper column,” in which he provides “a running commentary on subjects of interest to
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`him.” Am. Compl. ¶ 9. See, e.g., United States v. Cassidy, 814 F. Supp. 2d 574, 576 (D. Md.
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`2011) (“A ‘Blog’ is a shorthand term for a ‘web log,’ i.e. a log or web page maintained on the
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`World Wide Web. A Blog is like a bulletin board and contains whatever material its sponsor
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`decides to post.”). Readers of Hogewash! may submit comments that are posted on plaintiff’s
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`website. Am. Compl. ¶ 10. However, plaintiff “screen[s] all comments for suitability,” and thus
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`only a portion of the comments submitted by his readers appear on Hogewash!. Id. Plaintiff
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`alleges: “While the ownership of each comment remains with its author, the Hogewash! Terms
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`of Service require that commenters grant Mr. Hoge a royalty-free license for the use of their
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`comments as a part of his copyrighted work.” Id. The Hogewash! Terms of Service state, in
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`part, Pla. Hrg. Exh. 8 at 1:
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`Any comment posted to the site remains the property of the originator of the
`comment who is solely responsible for the content of his comment. Posting or
`attempting to post a comment to the site grants a royalty-free license to
`Hogewash! and its owner to reproduce the comment or any portion of it in any
`medium without limitation to the place or time of use or publication . . . .
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`Hoge also alleges that on April 30, 2014, he purchased from a pseudonymous writer,
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`identified as “Paul Krendler,” “the world book and ebook rights” to a particular blog post that
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`had been published at the website thinkingmanszombie.wordpress.com. Am. Compl. ¶ 11
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`(footnote omitted).
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`According to plaintiff, “[a]pplications for certificates of registration have been submitted
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`to the Copyright Office by Mr. Hoge and ‘Paul Krendler’ for all works covered by the instant
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`lawsuit in conformance with this Court’s precedent.” Am. Compl. ¶ 12. At the hearing on the
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`Motion, plaintiff offered an exhibit, introduced without objection, in support of his claim that he
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`submitted copyright applications in June 2014 covering material posted on Hogewash! during
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`March, April, and May of 2014, as well as the blog post that plaintiff purchased from
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`“Krendler.” See Pla. Hrg. Exh. 1.
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`Plaintiff’s central allegation is that defendant has infringed plaintiff’s copyrights because
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`he “has repeatedly taken all or essentially all of complete blog posts written by Mr. Hoge and
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`republished them without permission.” Am. Compl. ¶ 13. Publication has allegedly occurred
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`“via books and ebooks, via various Internet websites operated by Defendant, and via the social
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`media service Twitter.” Id.
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`Count I of the Amended Complaint pertains to an ebook published by defendant on or
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`about April 18, 2014, titled My Slow, Journalistic Death. Am. Compl. ¶ 19. Plaintiff alleges
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`that Chapter 13 of that ebook contains a blog post that appeared on plaintiff’s Hogewash!
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`website on April 14, 2014. Id. ¶¶ 18-19. According to plaintiff, both the Amazon and
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`Smashwords websites, where defendant allegedly sold My Slow, Journalistic Death, promptly
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`removed the ebook from their catalogs at plaintiff’s request. Id. ¶ 20. Specifically, Amazon
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`removed the ebook on April 21, 2014, one day after receiving plaintiff’s complaint; Smashwords
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`removed the ebook on April 22, 2014, one day after plaintiff had advised it of the allegedly
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`infringing content. Id.
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`A copy of the ebook My Slow, Journalistic Death, which plaintiff appears to have printed
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`for purposes of the hearing, was introduced as an exhibit. Pla. Hrg. Exh. 3. The exhibit indicates
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`that Chapter 13 begins with approximately a dozen introductory lines, written by defendant. Id.
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`at 2. The next portion is a brief post from Hogewash!, written by plaintiff, titled “Are You
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`Pondering What I’m Pondering?,” and which reads: “Troz! Brain . . . how do you have a useful
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`conversation with someone who’s written more books than he’s read?” Id. Defendant then
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`inserts three more sentences of his own commentary. The subsequent portion consists of dozens
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`of comments, also taken from Hogewash!, but which were written by various readers, in
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`response to Hoge’s “Are You Pondering What I’m Pondering?” posting. See id. at 3-24.
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`Notably, several comments appear to quote brief Twitter messages written by defendant. See,
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`e.g., id. at 7, 15, 16, 17, 18. The end of Chapter 13 contains approximately two dozen lines of
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`further commentary from defendant. Id. at 24-25. See also Pla. Hrg. Exh. 2 (copy of original
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`“Are You Pondering What I’m Pondering?” posting from Hogewash!).
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`In Count II, plaintiff alleges that, on or about April 22, 2014, through Lulu, a print-to-
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`order service, defendant sold a book titled “Brain Dead,” which contained the same blog post
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`referenced in Count I. Am. Compl. ¶ 23. Plaintiff asserts that, “[o]n information and belief,” a
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`third party made a complaint to Lulu on or about April 22, 2014, “concerning infringing material
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`in Brain Dead.” Id. ¶ 24. Upon receiving that complaint, Lulu removed Brain Dead from its
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`catalog on April 22, 2014. Id.
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`At the hearing, plaintiff displayed a hard copy of Brain Dead that he had purchased.
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`Plaintiff also introduced a photocopy of several pages from Chapter 13. See Pla. Hrg. Exh. 4.
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`Like My Slow, Journalistic Death, Chapter 13 contains an introduction written by defendant,
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 6 of 31
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`followed by plaintiff’s brief blog post and comments written by plaintiff’s readers that were
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`included on Hogewash!. See id.
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`Count III relates to Intentional Infliction, a book that defendant allegedly made available
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`online, on or about April 23, 2014, through Amazon’s CreateSpace publishing service. Am.
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`Compl. ¶ 27. The “bulk of the first chapter” of Intentional Infliction allegedly contains “a
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`reproduction of approximately 80 percent of [a] blog post” for which plaintiff had purchased the
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`“world book and ebook” rights” from the pseudonymous author, “Paul Krendler.” See Am.
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`Compl. ¶ 11 (footnote omitted), ¶ 27. After purchasing the rights from “Krendler” on April 30,
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`2014, plaintiff informed CreateSpace of the alleged copyright infringement that same day, and
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`Intentional Infliction was removed from CreateSpace’s catalog. See Am. Compl. ¶¶ 11, 28.
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`Plaintiff’s remaining claims fall into two groupings. The first group, containing Counts
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`IV through XXV, pertains to 22 allegedly infringing uses by defendant of plaintiff’s copyrighted
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`works on defendant’s website, patriot-ombudsman.com. See Am. Compl. ¶¶ 31-34.4 According
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`to plaintiff, defendant incorporated plaintiff’s works into defendant’s own blog posts. Am.
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`Compl. ¶ 31. Counts IV through XXV are listed in Table 1 of the Amended Complaint. See
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`Am. Compl. at 10-13.
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`The other group, consisting of Counts XXVI through XXXVII, pertains to “at least 12
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`infringing uses of Mr. Hoge’s copyrighted works in messages sent [by defendant] via the social
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`media service Twitter.” Am. Compl. ¶ 36; see id. ¶¶ 36-38. According to plaintiff, although
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`Twitter messages are limited to 140 characters, “Defendant included whole blog posts”
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`belonging to plaintiff “by capturing them as images and embedding those images in” defendant’s
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`4 At the hearing on June 26, 2014, plaintiff agreed to withdraw Count IV of the Amended
`Complaint. Accordingly, that count will be dismissed, pursuant to plaintiff’s motion.
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`Twitter messages. Id. Counts XXVI through XXXVII are listed in Table 2 of the Amended
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`Complaint. See Am. Compl. at 14-16.
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`In the Amended Complaint, plaintiff seeks to recover damages from defendant based
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`upon defendant’s alleged “unauthorized reproduction, preparation of derivative works,
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`distribution, and public display of Mr. Hoge’s copyrighted works.” Am. Compl. ¶ 1. Plaintiff
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`asks the Court to (1) enter an order that defendant has violated plaintiff’s rights under 17 U.S.C.
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`§ 101 et seq.; (2) “[p]ermanently ENJOIN defendant from further infringement of Mr. Hoge’s
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`copyrighted works”; (3) order defendant to “permanently delete any digital copies of Mr. Hoge’s
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`copyrighted works”; and (4) order defendant to pay damages, expenses, and costs, as specified in
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`the Amended Complaint. See Am. Compl. at 17 (“Prayer for Relief”). However, plaintiff
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`advises that, “[b]ased on an economic cost/benefit analysis,” he “has dropped all counts relating
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`to items published before 1 March, 2014.” Id. ¶ 39.
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`As noted, defendant moved to dismiss the Amended Complaint. ECF 15. In his motion
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`to dismiss, defendant argues, among other things, that plaintiff failed to register his copyrights in
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`advance of filing suit, contrary to the requirement found in 17 U.S.C. § 411(a). Defendant also
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`invokes the protection of the “fair use doctrine.” ECF 15 at 12-15. Further, defendant seeks to
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`limit plaintiff’s damages in the event plaintiff prevails, based on a lack of prior copyright
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`registration. Id. at 15-16.
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`B. Preliminary Injunction Motion
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`In his preliminary injunction Motion, plaintiff asks this Court to enjoin defendant from
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`violating plaintiff’s copyrights, and to (1) order defendant to “remove all of Mr. Hoge’s
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`copyrighted materials from any Internet websites and social media accounts under his control”;
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 8 of 31
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`(2) order defendant not to “sell, lend, give away, or otherwise distribute any books or ebooks
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`containing Mr. Hoge’s copyrighted material”; (3) order defendant not to “republish any further
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`copyrighted material belonging to Mr. Hoge”; (4) order defendant not to “use image capturing in
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`order to quote words presented in a text format as part of anything posted on the Internet”; and
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`(5) order other relief that this Court deems just and proper. Motion at 6-7.
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`In his Opposition, defendant asserts: “Plaintiff has the audacity to ask this Court to make
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`such an injunction on a unilateral basis while allowing Plaintiff to continue on unencumbered by
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`the same rules he wishes to impose on the Defendant.” Opp. ¶ 2. According to defendant (and
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`as demonstrated by a review of his exhibits), plaintiff “also takes such images, sometimes
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`complete or nearly complete articles from the Defendant’s Twitter and blog posts to use on his
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`‘Hogewash’ blog without Defendant’s permission.” Id. See also, e.g., Def. Hrg. Exh. 2B, 2D,
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`2F, and 2G (exhibits that, according to defendant, reflected plaintiff’s use of material written by
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`defendant).
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`Defendant asserts that, among the two dozen Hogewash! blog posts that plaintiff claims
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`were subject to infringement, all but seven entries contain material from some other source.
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`Moreover, defendant insists that the “blog entries are so short and lacking in creativity that they
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`would not be subject to copyright even if plaintiff had filed for copyright protection.” Opp. ¶ 3.
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`In support of that contention, defendant cites his Exhibits A through X, attached to his
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`Opposition, see ECF 19-1, and introduced at the hearing. See Def. Hrg. Exh. 2A - 2X.5
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`According to defendant, those exhibits contain materials that correspond to plaintiff’s allegations
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`in Counts IV through XXXVII of the Amended Complaint. Defendant concedes that he has not
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`5 All 26 of the exhibits attached to defendant’s Opposition, labeled Exhibits A through Z,
`were introduced at the hearing, without objection, as defense Exhibits 2A through 2Z.
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 9 of 31
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`applied for copyright protection for his own blog or Twitter account, because he rejects “the
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`whole idea of suing someone for using inconsequential snippets from another person’s blog or
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`Twitter account . . . .” Opp. ¶ 4.
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`Regarding a blog entry containing material that plaintiff says he purchased from “Paul
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`Krendler,” defendant argues that plaintiff must show that he signed a transfer agreement with
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`“Krendler,” pursuant to 17 U.S.C. § 204. Opp. ¶ 6a. In addition, defendant reiterates that
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`plaintiff’s claims “should fall on deaf ears” until plaintiff has “prove[n] his alleged copyright
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`ownership.” Id. ¶ 12. He maintains that plaintiff must provide evidence that he has filed
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`applications with the U.S. Copyright Office for the material in defendant’s books that plaintiff
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`claims infringes his copyright, including defendant’s book My Slow, Journalistic Death. Id.
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`¶ 6b. Likewise, defendant argues that plaintiff must “provide proof that he has filed an
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`application with the [U.S.] Copyright Office for material” found in defendant’s book Brain
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`Dead, which defendant “personally pulled off the shelves at Lulu.com and never received a
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`copyright takedown request over.” Id. ¶ 6c. Defendant raises a similar argument in connection
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`with defendant’s book Intentional Infliction, asserting that plaintiff must “prove that he filed a
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`proper application with the [U.S.] Copyright Office for the material prior to filing his DMCA
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`takedown request and prior to launching his vexatious Copyright suit.” Id. ¶ 6d.
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`In the Opposition, defendant also asserts that plaintiff has failed to make an adequate
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`showing as to the elements necessary for a preliminary injunction. Among other arguments,
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`defendant suggests that readers will not infer that defendant, rather than plaintiff, was the author
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`of the material at issue. Opp. ¶ 11 (stating that “nobody will believe for a moment that I wrote
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`the material”). Notably, as to plaintiff’s likelihood of success on the merits, defendant asserts
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`that his use of plaintiff’s material qualifies under the “fair use doctrine.” Id. ¶ 13. He also insists
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`that he “currently has no plans to use material written by the Plaintiff,” and suggests that, if he
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`were to do so, he would provide “proper attribution.” Id. ¶ 14.6 Further, defendant maintains
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`that the balance of harms weighs against plaintiff, and characterizes plaintiff’s suit as an effort to
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`make defendant “abandon the principles of journalism.” Id. ¶ 15. Regarding the public interest
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`aspect, defendant invokes First Amendment principles, and suggests that only plaintiff’s interest,
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`rather than the public’s interest, weighs in favor of a preliminary injunction. Id. ¶ 16.
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`In his Reply, plaintiff argues, among other things, that defendant’s Exhibits A through X
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`(introduced at the hearing as Def. Hrg. Exh. 2A through 2X) “are not accurate reproductions of
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`[plaintiff’s] writings.” Reply ¶ 3. Plaintiff also asserts that he will face harm in the absence of a
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`preliminary injunction, that defendant has continued to engage in behavior that plaintiff claims is
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`unlawful, and that the “balance of harms” and “public interest” weigh in favor of a preliminary
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`injunction. See id. ¶¶ 11-16.
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`At the hearing on June 26, 2014, plaintiff introduced the Terms of Service governing his
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`Hogewash! Website, titled “The Fine Print.” See Pla. Hrg. Exh. 8. The Terms of Service state,
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`in part, id. at 2:
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`4. Permission is granted to read, quote, cite, link to, print out, or otherwise use
`Hogewash! content under the following terms of use:
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`A. All quotations from Hogewash! must include credit to Hogewash! or to W. J. J.
`Hoge and, wherever practicable, a hyperlink of
`the form http://www.
`hogewash.com/ to this site.
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`6 At the hearing, plaintiff took issue with that claim, arguing that defendant continues to
`improperly use his copyrighted materials.
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 11 of 31
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`Although not directly relevant to the legal issue before the Court, I note that Hoge asserts
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`in the Amended Complaint that, on June 14, 2013, he “was granted a peace order against
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`Defendant because of harassment via the Internet,” and adds that the peace order was extended
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`for six months on December 9, 2013, “because of Defendant’s continuing harassment.” Am.
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`Compl. ¶ 8. Schmalfeldt does not dispute that Hoge sought and obtained a peace order. Rather,
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`Schmalfeldt portrays the peace order as part of a pattern of harassment by Hoge, which allegedly
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`“includ[ed] three hundred sixty seven (367) misdemeanor criminal charges filed against
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`Schmalfeldt by Hoge in Carroll and Howard Counties.” See ECF 8 (amended counterclaim)
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`¶ 56.
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`Additional facts will be included in the Discussion.
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`II. Copyright Law Generally
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`Copyright protection applies to “original works of authorship fixed in any tangible
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`medium of expression.” 17 U.S.C. § 102. The Fourth Circuit has explained the purpose of the
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`Copyright Act, 17 U.S.C. § 101 et seq., as follows, Bond v. Blum, 317 F.3d 385, 393 (4th Cir.
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`2003) (some modifications in original):
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`The Copyright Act, enacted on the authority of Article I, § 8, of the
`Constitution, confers on creators of original works a limited monopoly in their
`works of authorship to advance an important public purpose. “It is intended to
`motivate the creative activity of authors and inventors by the provision of a
`special reward, and to allow the public access to the products of their genius after
`the limited period of exclusive control has expired.” Sony Corp. of Am. v.
`Universal City Studios, Inc., 464 U.S. 417, 429, 104 S. Ct. 774 [] (1984). The
`reward to the owner is “a secondary consideration” that serves the primary public
`purpose of “induc[ing] release to the public of the products of [the author’s or
`artist’s] creative genius.” Id. (quoting United States v. Paramount Pictures, Inc.,
`334 U.S. 131, 158, 68 S. Ct. 915 [] (1948)); see also Harper & Row Publishers,
`Inc. v. Nation Enterprises, 471 U.S. 539, 546, 105 S. Ct. 2218 [] (1985).
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`Of relevance here, 17 U.S.C. § 501(b) states that the “legal or beneficial owner of an
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`exclusive right under a copyright is entitled, subject to the requirements of section 411, to
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`institute an action for any infringement of that particular right committed while he or she is the
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`owner of it.” 17 U.S.C. § 501(b).
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`“Although copyright in an original work exists from the moment of creation, the author
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`must comply with the statutory requirements of the Copyright Act to bring a suit for
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`infringement.” Edgerton v. UPI Holdings, Inc., 2010 WL 2651304, at *5 (D. Md. July 1, 2010)
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`(Blake, J.). “‘[T]o establish copyright infringement, two elements must be proven: (1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original.’” CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 549 (4th Cir. 2004) (quoting Feist
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`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)); accord Metropolitan Regional
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`Information Systems, Inc. v. American Home Realty Network, Inc., 888 F. Supp. 2d 691, 709 (D.
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`Md. 2012), aff’d, 722 F.3d 591 (4th Cir. 2013).
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`In order to show ownership of a valid copyright, a plaintiff must supply “proof of
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`originality and copyrightability.” See Darden v. Peters, 488 F.3d 277, 285 (4th Cir. 2007)
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`(internal quotation marks omitted). “A work is original when it has been ‘independently created
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`by the author (as opposed to copied from other works), and . . . possesses at least some minimal
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`degree of creativity.’” Edgerton, 2010 WL 2651304, at *4 (quoting Feist, 499 U.S. at 345). The
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`Supreme Court has said: “The vast majority of works make the grade quite easily, as they
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`possess some creative spark, no matter how crude, humble, or obvious it might be.” Feist, 499
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`U.S. at 345 (internal quotation marks omitted).
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`“The Copyright Act specifies that copyrights may extend to compilations and derivative
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`works, but ‘only to the material contributed by the author of such work, as distinguished from the
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`preexisting material employed in the work . . . .’” Edgerton, 2010 WL 2651304, at *4 (quoting
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`17 U.S.C. § 103(b)). Regarding the originality of a compilation of facts, the Feist Court
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`observed that “choices as to selection and arrangement, so long as they are made independently
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`by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress
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`may protect such compilations through copyright laws.” Feist, 499 U.S. at 348.
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`Section 106 of the Copyright Act, 17 U.S.C. § 106(1)-(3), (5), grants to the owner of a
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`copyright, inter alia, the following “[e]xclusive rights in copyrighted works”:
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`(1) to reproduce the copyrighted work in copies or phonorecords;
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`(2) to prepare derivative works based upon the copyrighted work;
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`(3) to distribute copies or phonorecords of the copyrighted work to the public by
`sale or other transfer of ownership, or by rental, lease, or lending;
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`* * *
`(5) in the case of literary, musical, dramatic, and choreographic works,
`pantomimes, and pictorial, graphic, or sculptural works, including the individual
`images of a motion picture or other audiovisual work, to display the copyrighted
`work publicly . . . .
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`The DMCA, which is codified in § 512 of the Copyright Act, is also pertinent. “The
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`DMCA was enacted both to preserve copyright enforcement on the Internet and to provide
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`immunity to service providers from copyright infringement liability for ‘passive,’ ‘automatic’
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`actions in which a service provider’s system engages through a technological process initiated by
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`another without the knowledge of the service provider.” ALS Scan, Inc. v. RemarQ Cmtys., Inc.,
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`239 F.3d 619, 625 (4th Cir. 2001) (citing H.R. Conf. Rep. No. 105–796, at 72 (1998); H.R. Rep.
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`No. 105–551(I), at 11 (1998)). “Section 512(c) codifies a detailed notice and takedown
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 14 of 31
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`procedure by which copyright holders inform service providers of infringing material accessible
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`through their sites, and service providers then ‘disable access to’ such materials.” UMG
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`Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1018 (9th Cir. 2013) (citing 17
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`U.S.C. § 512(c)(1)(A)(iii), (c)(1)(C) & (c)(3)(A)(iii)) (emphasis added in UMG Recordings).
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`
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`Regarding copyright registration, 17 U.S.C. § 411(a) states, in part:
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`[N]o civil action for infringement of the copyright in any United States work shall
`be instituted until preregistration or registration of the copyright claim has been
`made in accordance with this title. In any case, however, where the deposit,
`application, and fee required for registration have been delivered to the Copyright
`Office in proper form and registration has been refused, the applicant is entitled to
`institute a civil action for infringement if notice thereof, with a copy of the
`complaint, is served on the Register of Copyrights. The Register may, at his or her
`option, become a party to the action with respect to the issue of registrability of
`the copyright claim by entering an appearance within sixty days after such
`service, but the Register’s failure to become a party shall not deprive the court of
`jurisdiction to determine that issue.
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`In 2010, the Supreme Court held that subject matter jurisdiction is not dependent upon
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`registration of a copyright pursuant to § 411(a). In Reed Elsevier, Inc. v. Muchnick, 559 U.S.
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`154, 164-65 (2010), the Court said: “Federal district courts have subject-matter jurisdiction over
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`copyright infringement actions based on 28 U.S.C. §§ 1331 and 1338. But neither § 1331, which
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`confers subject-matter jurisdiction over questions of federal law, nor § 1338(a), which is specific
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`to copyright claims, conditions its jurisdictional grant on whether copyright holders have
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`registered their works before suing for infringement.”
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`
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`Reed Elsevier overruled the approach taken by a number of lower courts, including the
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`Fourth Circuit, that registration is a jurisdictional requirement. See Metropolitan Regional
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`Information Systems, 888 F. Supp. 2d at 705 (“the Fourth Circuit’s treatment of registration as a
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`‘jurisdictional prerequisite’ to an infringement suit has been overruled”) (quoting Reed Elsevier
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 15 of 31
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`and citing Xoom, Inc. v. Imageline, Inc., 323 F.3d 279 (4th Cir. 2003)). However, after Reed
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`Elsevier, registration of a copyright remains a precondition to filing a copyright suit. See 559
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`U.S. at 157; See, e.g., Airframe Sys. Inc. v. L-3 Commn’s Corp., 658 F.3d 100, 105 (1st Cir.
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`2011) (“Although the Supreme Court in Reed Elsevier [] recently held that the Copyright Act’s
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`registration requirement ‘does not implicate the subject-matter jurisdiction of federal courts,’
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`proof of registration of the allegedly infringed work remains an ‘element[] of a cause of action’
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`for copyright infringement.”) (quoting Reed Elsevier, 559 U.S. at 161, 169). As discussed, infra,
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`it remains a matter of dispute in this Circuit as to the proper interpretation of the registration
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`requirement.
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`III. Preliminary Injunction
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`A. Legal Standard
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`As the Fourth Circuit observed in Centro Tepeyac v. Montgomery County, 722 F.3d 184,
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`188 (4th Cir. 2013), a preliminary injunction is “an extraordinary remedy involving the exercise
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`of a very far-reaching power, which is to be applied only in the limited circumstances which
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`clearly demand it.” (Quotation marks and citation omitted.) The movant may obtain such
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`extraordinary relief only on a clear showing of entitlement. Mazurek v. Armstrong, 520 U.S.
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`968, 972 (1997) (per curiam). Notably, a preliminary injunction is not appropriate “simply to
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`prevent the possibility of some remote future injury.” 11A C. WRIGHT, A. MILLER, & M. KANE,
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`FEDERAL PRACTICE & PROCEDURE § 2948.1 (2d ed. 1995), at 154-55.
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`In order to obtain a preliminary injunction under Rule 65(a), the movant must satisfy all
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`four factors articulated by the Supreme Court in Winter v. Natural Resources Defense Council,
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`Inc., 555 U.S. 7, 20 (2008): (1) that the movant is “likely to succeed on the merits,” (2) that the
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`Case 1:14-cv-01683-ELH Document 31 Filed 07/01/14 Page 16 of 31
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`movant is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) that the
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`“balance of equities tips in [the movant’s] favor,” and (4) that “an injunction is in the public
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`interest.” Accord Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013); Dewhurst v. Century
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`Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011); Real Truth About Obama, Inc. v. Fed.
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`Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089
`
`(2010), reinstated in relevant part on remand, The Real Truth About Obama, Inc. v. F.E.C., 607
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`F.3d 355 (4th Cir. 2010) (per curiam); WV Ass’n of Club Owners & Fraternal Servs., Inc. v.
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`Musgrave, 553 F.3d 292, 298 (4th Cir. 2009).
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`Of relevance here, Section 502(a) of the Copyright Act expressly authorizes a court to
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`“grant temporary and final injunctions on such terms as it may deem reasonable to prevent or
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`restrain infringement of a copyright.” 17 U.S.C. § 502(a). See also, e.g., Metropolitan Regional
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`Information Systems, Inc. v. American Home Realty Network, Inc., 722 F.3d 591, 594 (4th Cir.
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`2013).
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`B. Fac