John G. Koeltl

“ 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. ”

“ Ekho Planety is a publicly held corporation, and 51% of its stock is owned by Itar-Tass. The principal place of business of Ekho Planety is located in Moscow, Russia. (UF at P6) . Plaintiff Megapolis Express ("Megapolis") is a privately held corporation that publishes the weekly Russian newspaper Megapolis Express ("Megapolis") . Its principal place of business is located in Moscow, Russia. (UF at P7) . Plaintiff Moskovsky Komsomolets publishes Moskovsky Komsomolets, a Russian language daily newspaper, in Russia. Its principal place of business is located in Moscow, Russia. ”

“ 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. ”

“ 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." ”

“ Page 16 The defendants argue that the plaintiffs' copyrights are invalid because the plaintiffs initially applied for the copyrights on the wrong forms. However, after the initiation of this lawsuit, the plaintiffs corrected any errors in their prior registrations and received valid copyrights. A copyright infringement action need not be dismissed simply because registration occurs after the filing of the complaint. ”

“ A publisher shall have the right, under any use of such publications, to show its name or request that it be shown Authors of works included in such publications shall retain exclusive rights of use of their works independently from the publication as a whole. At trial, the defendants argued that this provision gives publishers a copyright only to their publication as a whole. [8] However, the plaintiffs argued that Article 11 also provides publishers with rights to prevent the copying of individual articles. ”

“ 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." ”

“ An exclusive right to publish in a specific location is sufficiently exclusive to establish standing. 3 Nimmer on Copyright at §10.02 [A] . The licensees therefore have standing. In sum, therefore, in regard to those articles that have been registered, the defendants have not presented any valid defense to liability. The plaintiffs have shown that they have valid copyrights and that the defendants engaged in unauthorized copying. Therefore, for the registered articles, the plaintiffs have established the defendants' liability for copyright infringement. ”

“ 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. ”

“ 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." ”

“ 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. ”