United Telephone Co. of Mo. v. Johnson Pub. Co.

Citation671 F. Supp. 1514
Decision Date22 October 1987
Docket NumberNo. 86-4372-CV-C-5.,86-4372-CV-C-5.
PartiesUNITED TELEPHONE COMPANY OF MISSOURI, Plaintiff, v. JOHNSON PUBLISHING COMPANY, INC., Defendant.
CourtUnited States District Courts. 8th Circuit. Western District of Missouri

Carter J. Kokjer, Kokjer, Kircher, Bradley, Wharton, Bowman & Johnson, Kansas City, Mo., for plaintiff.

John Cleary, Daniel Ross, Kansas City, Mo., Dan Chase, Overland Park, Kan., for defendant.

ORDER

SCOTT O. WRIGHT, Chief Judge.

Before the Court are cross-motions for summary judgment filed by plaintiff and defendant in this action alleging copyright infringement under Title 17 of the United States Code, and in which plaintiff seeks injunctive relief and monetary damages. For the following reasons, the Court finds that defendant has infringed upon plaintiff's copyright, and, thus, plaintiff is entitled to injunctive relief and monetary damages.

Factual Background

The facts in this case are pretty much undisputed and the parties have stipulated to the following factual findings.

To begin with, this is a civil action for copyright infringement brought under Title 17 of the United States Code. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. § 1338.

Plaintiff United Telephone Company of Missouri ("United") is a Missouri corporation, and provides telephone service in Jefferson City, Missouri, and the areas surrounding it. In conjunction with its provision of telephone service, United annually publishes a telephone directory entitled "The Phone Book."

At the time United published its 1985 Jefferson City telephone directory, it was regulated by the Missouri Public Service Commission. Under the Code of State Regulations governing telecommunication services, Title 4, C.S.R. 240-32.050, telephone books must be published at regular intervals and must list the names of all customers and their addresses (if available) and telephone numbers, with the exception of public telephones, mobile telephones and telephone service unlisted at a customer's request. United's 1985 Jefferson City telephone directory complies with this requirement.

Defendant Hiram Publishing, Incorporated, is a Colorado corporation, doing business as Johnson Publishing Company, Inc., all collectively referred to hereinafter as "Johnson."

United is the telephone service company for Jefferson City, Missouri. As part of United's operation, it has for many years published an annual telephone directory. Each directory includes, in addition to informational pages concerning service and procedures, a "white pages" section containing an alphabetical listing of the names, addresses and telephone numbers for telephone service subscribers, both residential and business, and a "yellow pages" section. When a person or business located within the exchanges covered by United's 1985 Jefferson City telephone directory subscribed to telephone service, United obtained for its records the customer's name and address. The names, addresses and telephone numbers listed in the white pages of United's 1985 Jefferson City telephone directory were obtained by United as a result of the persons listed subscribing to telephone service from United. United did not do any door-to-door or telephonic canvass to acquire, or to verify, any of the residential listing information shown in the white pages of its 1985 Jefferson City telephone directory.

Since 1982, the white pages of United's telephone directories have been prepared through the use of a master computer data base containing the listing information. Changes and additions to the data base are made by employees of United as they occur during each year from year to year. These changes and additions result from a variety of incidents, such as new subscribers, change in address, change in telephone numbers and the like. Each addition or change is recorded in writing as a "Service Order" which usually contains additional information concerning coding and customer information. The Service Orders are entered into the data base through a computer terminal as they occur, usually on a daily basis throughout the year. The information recorded in most of these Service Orders is obtained as a result of the plaintiff providing telephone service to the person listed.

The master data base for United is not limited to Jefferson City subscribers alone. The master data base is supplied listing changes from business offices in the United system in addition to the Jefferson City office.

When the time arrives for publication of a new Jefferson City telephone directory, steps are taken to cause the computer to produce a magnetic tape which contains listings, principally name, address and telephone number for the Jefferson City telephone directory arranged in alphabetical order. The computer is requested to produce a listing that incorporates all of the changes that have been made, and the computer is programmed to provide such a listing. The tape, when produced, is sent to the directory printer and a galley proof is printed from the tape. The galley is then proofed manually, line by line, at United, and the directory is then printed from the corrected proof. Thereafter, the telephone directories are distributed.

United published in May, 1985, its Jefferson City telephone directory. A principal component of that directory comprised the alphabetized white page listings of residences and businesses to whom the plaintiff provided telephone service, identifying each listing (in most cases) by name, address and telephone number. The listings also include non-local listings of parties who desire to be included.

The white-page listings of the United 1985 telephone directory were compiled by United personnel using the aforementioned procedures. The white pages in the United 1985 directory differed from the 1984 white pages, principally in that the 1985 directory involved a substantial number of what are termed "new listings," namely, listings that did not appear in the 1984 directory which the 1985 directory was intended to supplant. The new listings for the 1985 United directory totalled approximately five thousand (5,000) in number, which represented approximately twenty percent (20%) of the total listings in the 1985 directory (a total of 26,561). Included in these new listings were listings with telephone prefixes which were not covered in the defendant's 1986 city directory.

The United Telephone directories have been duly and regularly copyrighted and certificates of copyright registration have been issued, including a copyright for the 1985 United directory.

In June of 1986, Johnson published two editions of a Jefferson City, Missouri City Directory. One, a soft cover edition, was the residential edition, and the other, a hard cover directory, was Johnson's business edition. Both editions contained the same white pages listings. However, the business edition contained more information for the individual listings than did the residential edition. The business edition of Johnson's 1986 City Directory sold to customers for a base price of $120.00 each and the residential edition sold for a price of $6.00 each.

Both editions of Johnson's 1986 Jefferson City directory included both white pages and yellow pages in which listings were arranged in an alphabetical format for Jefferson City and the suburb towns of Hartsburg and Holts Summit. The prefixes covered by Johnson's directory were 634, 635, 636, 751, 893 and 896.

Commencing in 1943, and continuing until 1972, a publishing company named Mullin Kille Co. published a city directory for the Jefferson City area. Mullin Kille Co. obtained the information in the white pages listings of its Jefferson City directories by conducting door-to-door canvasses.

In 1973, Johnson purchased from Mullin Kille Co. the listing information data base used to publish its 1971 Jefferson City directory. Mullin Kille Co.'s last publication of its Jefferson City directory was for 1971. Except for 1981, Johnson published a city directory for the Jefferson City area every year from 1974 through 1986.

The listing information contained in the 1974 Jefferson City directory published by Johnson was obtained by Johnson updating, by a door-to-door canvass, the listing information data base it purchased in 1973 from Mullin Kille Co. The listing information contained in each of the directories published by Johnson for the years subsequent to 1974 was acquired by Johnson updating the listing information contained in the previous year's directory. The updating for the years 1975 through 1980 was done by Johnson doing an annual door-to-door canvass. The updating for each of the years subsequent was done in a manner that is the bone of contention in this lawsuit, as set forth below (pages 9 through 13). The reason for the change from a door-to-door canvass was that Johnson found it extremely difficult to find people who were willing to hire or to conduct a door-to-door canvass. Also, with the advent of both husbands and wives working outside the home, it had become difficult to find anyone at home during normal business hours.

United's 1985 Jefferson City telephone directory contains listings for, in addition to the towns of Jefferson City, Hartsberg and Holts Summit, the towns of Brazito, Centertown, Eugene, New Bloomfield, Russellville, St. Thomas and Taos. Johnson's 1986 Jefferson City directory contains listings for Jefferson City, Hartsburg, and Holts Summit only. United's 1985 telephone directory contains listings with the telephone prefixes of 496, 584, 498, 491, 782, 477 and 395. Johnson's 1986 directory does not contain listings for these prefixes. The telephone prefixes which are common to United's 1985 telephone directory and Johnson's 1986 directory are 634, 635, 636, 751, 893 and 896.

The white pages of the residential edition of the Johnson's 1986 Jefferson City directory contained in an alphabetical format a listing of names, addresses ...

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