John G. Koeltl

“ Article 9, P 1 of the Russian Federation Law on Copyright and Neighboring Rights sets forth the basic principle that, "A scientific, literary or artistic work is eligible for copyright by virtue of the mere fact of its creation. The origin and [**17] exercise of copyright shall not require either registration of the work or the performance of any other act or formality." Although no registration or use of copyright sign is necessary to acquire rights to a work, the plaintiffs demonstrated that copyright notices were present. ”

“ Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of contract without justification, actual breach of the contract, and damages resulting therefrom. ”

“ In fact, no part of the copying element of the claim is in controversy in this action, because defendants Russian Kurier,
Page 1125 Inc. and Oleg Pogrebnoy do not claim to have obtained any authorization from anyone to publish the articles that they have copied into Kurier. They rest their defense in this case on the allegation that while they have no rights to the works that they have copied, neither do the plaintiffs. They argue that the plaintiffs do not possess rights in the copied works, but that the rights are possessed solely by the individual authors of the works. ”

“ In July, 1995, Fromer stopped publishing the United States edition of Pravda and terminated his agreement with Pravda. (Fromer Aff. at P13) . The defendants never obtained any prior permission, license or copyright from the plaintiffs to publish any articles. The only permission from the plaintiffs alleged by the Kurier defendants is their assertion that they received permission to copy articles published in Megapolis after March 1, 1996. They assert that Vladimir Volin, the editor-in-Chief of Megapolis, gave Pogrebnoy permission during a telephone conversation. ”

“ The defendants' interpretation of the Russian Copyright Law, which would give publishers no right to prevent infringements of individual articles appearing in their publications, would be wholly inconsistent with this goal of preventing piracy. Under Article 30, paragraph 1, of the Russian Copyright Law, an author may transfer his rights to a work to his employer by an Author's Agreement. ”

“ A work is a "Berne Convention work" if-- (1) in the case of an unpublished work, one or more of the authors is a national of a nation adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a nation adhering to the Berne Convention on the date of first publication; (2) the work was first published in a nation adhering to the Berne Convention, or was simultaneously first published in a nation adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention. ”

“ Given the defendants' willful, blatant, continuous and extensive copying from the plaintiffs, 25% of the Kurier defendants' $ 2.0 million profits can reasonably be attributed to their infringement of the plaintiffs' copyrights. Therefore, the plaintiffs are entitled to an award of $500,000 in actual damages. Calculating Linco's profits is far more straight-forward, because Linco carefully kept its financial records. ”

“ Plaintiff Itar-Tass Russian News Agency, formerly known as the Telegraph Agency of the Soviet Union (TASS) , is a privately owned news gathering corporation centered in Moscow. Plaintiff Itar-Tass, USA, Inc., a New York corporation, is its wholly owned subsidiary with its principal place of business in New York, New York. Plaintiffs Argumenty i Fakty, Komsomolskaya Pravda, Express Gazeta, Moskovskie Novosti ("Moscow News") , and Nezavisimaya Gazeta are private newspapers with their principal places of business in Russia. The newspapers also distribute and sell papers in the United States. ”

“ Having copied the plaintiffs' articles, the Kurier defendants cannot now prove that they would have achieved the same financial success had they not infringed on the plaintiffs' copyrights. Moreover, Kurier continued to publish, without permission, articles from the publications of plaintiffs not covered by the preliminary injunction. Courts have attributed very high percentages of an infringer's profits to the infringement when the infringing material was repackaged and sold by the infringer in almost the same form in which it was created. ”

“ In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes ”

“ Therefore, the use of cut-and-paste layout sheets did not indicate that Kurier did not have authorization to republish the articles. Moreover, after the entry of the preliminary injunction in this action, which did not apply to Linco, Linco had every reason to believe that Pogrebnoy would obey the Court's injunction. (Chan Aff. at PP 27-28) . While its conduct was not willful, Linco is still liable as an infringer. "Even an innocent infringer is liable for infringement. Under §501 (a) intent or knowledge is not an element of infringement." ”

“ This is a copyright infringement action in which the plaintiffs seek preliminary injunctive relief enjoining the defendants from unauthorized copying for profit of the publications of the news organization plaintiffs. [1] The news organization plaintiffs are members of the Russian press. They have sued the defendant Russian Kurier, Inc. and others for allegedly participating in the infringement of their rights in news articles and reports by copying the articles without authorization and publishing them in the United States in a newspaper called Kurier. ”

“ Similarly, the plaintiffs did not pursue any claims against defendants Sverdlov, Inc., a/k/a Sverdlov Video and Veniamin Sverdlov.↑ Section 410 (c) of Title 17 of the United States Code provides that "In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court." ”

“ Pogrebnoy continued to copy the articles. Given that the Kurier defendants' violations were willful, the plaintiffs
Page 45 are entitled to statutory damages of up to $ 100,000 per infringement. While there are 28 eligible articles, each article is not separately compensable. "all parts of a compilation or derivative work constitute one work." ”

“ The plaintiffs have yet to receive the certificates of copyright registration for which they applied. [7] In any case, the registrations are not directly relevant to the present application for a preliminary injunction because the preliminary injunction is directed at preventing the continued and ongoing publication of the copyrighted works after March 13, 1995. ”

“ Page 44 to complain about the use of one of his articles without permission, a person identifying himself as "Oleg," who said he was "in charge," and who was plainly the defendant Pogrebnoy, said "We take all our articles from the Russian press without paying." When the Moscow News correspondent threatened to sue, Pogrebnoy responded: "Go ahead and try; you'll never get a penny." (Declaration of Dmitry E. Radyshevsky at PP13-18) . Similarly, a representative of Itar-Tass called Pogrebnoy after Itar-Tass's articles began to appear in Kurier and offered him a subscription. ”

“ Israel has been a Berne Convention signatory since March 24, 1950. Id. at §3. As explained above, given that the articles copied from Balagan were first published in the United States or Isreal after 1950, and were written by Isreali nationals, they are Berne Convention works. Thus, the defendants have violated United States copyright law by reproducing those works without permission. The Defendants' Counterclaim The Kurier defendants have brought a counterclaim against the plaintiffs for tortious interference with contract. ”

“ The Bratus and Sadikov commentary, relied on by the plaintiffs' expert as well as the defendants', states: The organization-legal person owns the copyright to the publication as a whole. Copyright is retained in full by the authors of the works included in such a publication. ”