Midway Mfg. Co. v. Omni Video Games, Inc., 81-1461

Decision Date24 December 1981
Docket NumberNo. 81-1461,81-1461
Citation668 F.2d 70
Parties1982 Copr.L.Dec. P 25,341 MIDWAY MANUFACTURING COMPANY, Plaintiff, Appellant, v. OMNI VIDEO GAMES, INC., Ferncrest Distributors, Inc., Competitive Video, Inc., Chens International, Inc., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

David A. Gerber, Los Angeles, Cal., with whom Leonard J. Santisi, Curtis, Morris & Safford, New York City, Donald L. Welsh, Fitch, Even, Tabin, Flannery & Welsh, Chicago, Ill., Loeb & Loeb, Los Angeles, Cal., James E. Purcell and Tillinghast, Collins & Graham, Providence, R. I., were on brief, for plaintiff, appellant.

Robert D. Wieck, Providence, R. I., with whom Richard W. MacAdams and Adler, Pollock & Sheehan, Inc., Providence, R. I., were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, DAVIS, Judge, * BREYER, Circuit Judge.

COFFIN, Chief Judge.

In the course of a suit against defendant-appellee for infringement of its copyrights on the electronic video games PAC-MAN, RALLY-X, and GALAXIAN, appellant filed a motion for an ex parte hearing to obtain an order to impound any infringing items found within appellees' possession at certain locations. See 17 U.S.C. § 503(a). The court's issuance of the impoundment order led to seizure of one allegedly infringing version of PAC-MAN. Several days later, however, the court vacated its order to impound at appellees' request, finding that the ex parte impoundment proceeding had been unnecessary and had been based upon inaccurate information. The court ordered that any evidence obtained in the course of the impoundment procedure could not be introduced at trial and that appellant was to bear the cost of attorneys' fees incurred by appellees when they sought return of the impounded property.

Appellant challenges the court's decision to vacate the impoundment order and its imposition of the sanctions of suppression of the evidence and the award of attorneys' fees. In its brief it addresses incompletely and in oral argument not at all the one issue we deem dispositive of this appeal-the existence or not of appellate jurisdiction under the "collateral order" doctrine.

The well-established criteria for determining when an interlocutory appeal is permissible require that the order being appealed must be a final order that presents an issue of law, not one of discretion, that is separable from the issues to be presented at trial, and that cannot await resolution until appeal from the final judgment because irreparable harm would be probable. See, e.g., Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949); In re Continental Investment Corp., 637 F.2d 1, 4 (1st Cir. 1980), quoting United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979). The first requirement would seem to be met; the court's order vacating the impoundment, suppressing the evidence, and allowing appellee to apply for attorneys' fees is final. Our difficulty, however, lies in identifying any threat of irreparable injury that would be posed by allowing the several issues to await review until the trial court has issued a final judgment.

We see no possibility of irreparable harm from the court's decision to vacate the impoundment order. The primary purpose of impoundment is to maintain the feasibility of the eventual destruction of items found at trial to violate the copyright laws by safeguarding them during the pendency of the action. Jewelers' Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 936 (S.D.N.Y.1921), aff'd, 281 F. 83 (2d Cir.), cert. denied, 259 U.S. 581, 42 S.Ct. 464, 66 L.Ed. 1074 (1922); 3 Nimmer on Copyright § 14.07 at 14-59. Because the impoundment resulted in the seizure of only one allegedly infringing machine, the release of that one machine will impose only a minimal threat to appellant's rights if indeed appellees are found to have violated those rights. What injury may occur can be remedied through the award of damages and injunctive relief. Compare Swift & Company Packers v. Compania Colombiana del Caribe, 339 U.S. 684, 691, 70 S.Ct. 861, 866, 94 L.Ed. 1206 (1950) (pretrial attachment of ship immediately appealable because attachment both secured defendants' appearance in court and ensured that judgment favorable to plaintiff would be honored).

In addition, when we are asked to review not a question of controlling law but an exercise of a judge's discretion that depended upon the...

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    ...F.2d 1211, 1213 (1979). See also, e.g., Sobol v. Heckler Congressional Committee, 709 F.2d 129, 130-131 (1983); Midway Mfg. Co. v. Omni Video Games, Inc., 668 F.2d 70, 71 (1981); In re Continental Investment Corp., 637 F.2d 1, 4 (1980). This approach has some support in our opinions, see Co......
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