Temporary Restraining Order issued in Ono suit

On April 30, last Wednesday, the judge in Yoko Ono's lawsuit issued a temporary restraining order against the defendants. The order requires that pending a hearing on a motion for a preliminary injunction, now scheduled for May 19, (1) theatres showing "Expelled" as of the date of the order may continue to show it but no other theatres may start showing it and (2) CD's or DVD's of the movie may not be manufactured or distributed anywhere in the world (he didn't mention VCR tapes -- LOL -- but I suppose that a lot of people no longer have VCR's). The defendants did not contest the TRO -- the TRO said, "On consent, no undertaking is required for the T.R.O." Copies of the order are here and here.

The scope of copyright protection requested by the motion for a preliminary injunction is astonishing -- a prohibition of the defendants' use of any part of the song's music or lyrics in any medium. In contrast, the original complaint (at the bottom of this webpage) is aimed only at the use of the song in the movie. The TRO said,
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IT IS FURTHER ORDERED that defendants show cause before the Honorable Sidnet (sic) H. Stein, United States District Judge. . . on May _19_, 2008, at 4:30 p.m., or as soon thereafter as counsel may be heard, whay (sic) an order should not be entered . . .during the pendency of this action:

1. enjoining and prohibiting the Defendantys (sic), their officers, agents, servants, employees and attorneys and all persons in active concert and participation with them, from further use of any portion, or the music and lyrics, in any media, of the musical composition written by John Lennon entitled “Imagine”, or committing any further copright infringement with respect thereto (emphasis added)

The TRO said,

Defendants will produce the following documents on or before _May 6_, 2008: (i) a complete copy of the Movie, (ii) Defendants’ agreements, licenses and contracts with third parties in connection with rights and permissions for all musical compositions or “clips of third-party film or video footage, still photography, and any and copyrighted materials included in the Movie; (iii) documents and opinions obtained by Defendants in connection with their use of the song “Imagine” in the Movie which support any defense of fair use or first amendment; (emphasis added)

IMO the plaintiffs' only possibly legitimate gripe is that the defendants discriminated against them by not getting their permission to use "Imagine" while getting the permission of other copyright holders for use of other works in the movie. But whether that discrimination is unfair depends on how the other works are used in the movie -- for example, if the movie uses a song just for background music, of course the movie producers should pay a licensing fee to the song's copyright holders. IMO unfair discrimination in requesting and/or getting permission for use of copyrighted material should not by itself be considered grounds for a finding of copyright infringement -- requesting and/or obtaining permission should be considered courtesies where permission is not absolutely required.

Also, the TRO says,

IT IS FURTHER ORDERED, that answering papers, if any, shall be served upon Plaintiffs by hand delivering copies thereof to Plaintiffs counsel . . . .

IT IS FURTHER ORDERED, that reply papers, if any, shall be filed with the Court and served upon Dendants (sic) by hand delivering copies thereof to be retrieved by Defendants' counsel

I don't know why the judge required that service of papers be by "hand deliverying" them. Even ordinary mail is hand delivered. Does he mean Federal Express or something like that? Maybe he is just telling the parties not to use electronic transmission. I think electronic transmission is better because it is instantaneous and there is no need to scan documents into a computer.

(BTW, different courts use different terms for the titles of answering papers. "Reply" is often -- but not always -- used as a title for an answer to an answer. My first-ever answering brief was titled "Objection")

FRCP Rule 5 says,

Rule 5. Service and Filing of Pleadings and Other Papers

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(2) Service in General.

A paper is served under this rule by:

(A) handing it to the person;

(B) leaving it:

(i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(C) mailing it to the person’s last known address — in which event service is complete upon mailing;

(D) leaving it with the court clerk if the person has no known address;

(E) sending it by electronic means if the person consented in writing — in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or

(F) delivering it by any other means that the person consented to in writing — in which event service is complete when the person making service delivers it to the agency designated to make delivery.

In the federal courts, service of papers (not counting the complaint and summons) by deposit in ordinary mail is normally allowed. However, to be on the safe side in my lawsuits, I usually served important papers by certified mail with a return receipt. At the time of my lawsuits, electronic transmission might not have been allowed and if it was allowed I was not aware of it and was not connected to the Internet at the time anyway.

BTW, IMO the rules should require that -- where appropriate -- the papers be served upon the parties as well as the parties' counsel. IMO it is insulting to the parties to assume that they are not interested in reading the papers.
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