Sega Enterprises Ltd. v. Maphia
| Decision Date | 28 March 1994 |
| Docket Number | No. C 93-4262 CW.,C 93-4262 CW. |
| Citation | 857 F. Supp. 679 |
| Court | U.S. District Court — Northern District of California |
| Parties | SEGA ENTERPRISES LTD. and Sega of America, Inc., Plaintiffs, v. MAPHIA, a business of unknown structure; Parsac, a business of unknown structure; Psychosis, a business of unknown structure; Chad Scherman aka Chad Sherman aka "Brujjo Digital," and Does 2-6 aka "Operator," "Firehead," "Lion," "Hard Core," "Candyman," all individually and d/b/a Maphia and Parsac; Howard Silberg by his mother and next friend Ilene Silberg, aka "Caffeine," and Does 14-18 aka "Apache," "Maelstrom," "Gazzer," "Paranoid/Chryseis," "Doom" all individually and d/b/a Psychosis and Parsac; Does 7-12; Does 19-25, Defendants. |
COPYRIGHT MATERIAL OMITTED
Marilyn C. Siegel, Siegel and Siegel, Baltimore, MA, for defendants.
Neil A. Smith, Limbach & Limbach, San Francisco, CA, for plaintiffs.
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF PRELIMINARY INJUNCTION, AND CONFIRMATION OF SEIZURE
This is an action for copyright infringement (under 17 U.S.C. § 101 et seq.), federal trademark infringement (under 15 U.S.C. § 1051 et seq.), federal unfair competition/false designation of origin (under 15 U.S.C. § 1125(a)), California trade name infringement (under California Business & Professions Code § 14400 et seq.), and California unfair competition law (under California Business and Professions Code § 14210, 17200-17203) against Defendant Chad Scherman and several other individuals operating on-line computer bulletin boards, and the MAPHIA and other bulletin boards as businesses of unknown origin. On December 9, 1993, the Court, the Honorable Fern M. Smith presiding, issued an ex parte Temporary Restraining Order, Seizure Order, and Order to Show Cause Re Why a Preliminary Injunction Should Not Issue enjoining Defendants' use of Plaintiffs' SEGA trademark and the direct and/or contributory infringement of Plaintiffs' copyrights.
A hearing was held before Judge Smith on December 17, 1993, on Plaintiffs' motion for a preliminary injunction, pursuant to the order to show cause. At that hearing, Judge Smith continued the temporary restraining order in effect until further order of the Court. Thereafter, Defendant Paolo Rizzi, individually, filed a written stipulation to a preliminary injunction and confirmation of the seizure. Defendants Scherman and MAPHIA filed an opposition.
Following reassignment of this action to the undersigned, a further hearing was held on February 25, 1994. The Court now determines, having considered the pleadings, all papers filed by the parties, and the parties' oral arguments, that a preliminary injunction should issue against Defendants Scherman and MAPHIA as ordered separately. Pursuant to F.R.C.P. 65(d), the Court makes the following Findings of Fact and Conclusions of Law in support of the preliminary injunction and confirmation of the seizure order:
FINDINGS OF FACT
1. Plaintiff Sega Enterprises, Ltd. ("SEL"), is a corporation organized and existing under the laws of Japan. Compl. ¶ 1.
2. Plaintiff Sega of America, Inc. ("SOA"), is a California corporation with a principal place of business in this district in San Mateo, California. SOA is a wholly-owned subsidiary of SEL. SOA and SEL are hereinafter sometimes collectively referred to as "Sega" or "Plaintiffs." Compl. ¶ 2.
3. Defendant MAPHIA is a business of unknown structure doing business and located in San Francisco, California, within this District, engaged in the business of running a computer bulletin board and related activities. Yang Decl. ¶ 12.
4. Defendant Chad Scherman (aka Chad Sherman, aka "Brujjo Digital") is an individual residing in this district in San Francisco, California. Chad Scherman is in possession and/or control of the MAPHIA Bulletin Board, which is run from his residence where the computer and memory comprising the bulletin board are located, and does business as MAPHIA or Maphia Trading Company on such bulletin board. He is also one of the "system operators" of the MAPHIA bulletin board. Keene Decl. ¶¶ 2, 11.
5. Sega is a major manufacturer and distributor of computer video game systems and computer video games which are sold under the SEGA trademark, a registered trademark of Sega Enterprises, Ltd. (Federal Registration No. 1,566,116, issued November 14, 1989) owned by Sega. Yang Decl. ¶ 3, Exh. A.
6. Sega's computer video game programs are the subject of copyright under the laws of the United States. Yang Decl. ¶ 5; Compl. Exh. B.
7. Sega creates and develops its games and ensures the quality and reliability of the video game programs and products sold under SEGA trademarks. Yang Decl. ¶ 4.
8. The Sega game system consists of two major components sold by Sega: the game console and software programs stored on video game cartridges which are inserted into the base unit. Each cartridge contains a single game program. The base unit contains a microcomputer which, when connected to a television, permits individuals to play the video game stored on the inserted cartridge. Yang Decl. ¶ 6.
9. The computer programs for the Sega video games are stored on a cartridge in a Read-Only Memory ("ROM") chip. Sega's video games cannot be copied using the game console. However, as noted below, running devices, called "copiers," are designed to copy the video game programs from a Sega game cartridge onto other magnetic media such as hard and floppy disks. Yang Decl. ¶¶ 6, 21, 23.
10. An electronic bulletin board consists of electronic storage media, such as computer memories or hard disks, which is attached to telephone lines via modem devices, and controlled by a computer. Yang Decl. ¶ 12.
11. Third parties, known as "users," of electronic bulletin boards can transfer information over the telephone lines from their own computers to the storage media on the bulletin board by a process known as "uploading." Uploaded information is thereby recorded on the storage media. Third party users can also retrieve information from the electronic bulletin board to their own computer memories by a process known as "downloading." Video game programs, such as Sega's video game programs, are one kind of computer programs or information which can be transferred by means of electronic bulletin boards. Yang Decl. ¶¶ 18-19.
12. Defendants MAPHIA and Chad Scherman operate an electronic bulletin board called MAPHIA (hereinafter "the MAPHIA bulletin board"). The MAPHIA bulletin board is open to the public and, according to Defendant Scherman's Opposition Memorandum, has approximately 400 users. Users of the MAPHIA bulletin board communicate using aliases or pseudonyms. "Brujjo Digital" appears as the alias used by Defendant Chad Scherman as the system operator of the MAPHIA bulletin board, and in communicating with others. Keene Decl. ¶¶ 2, 11; Yang Decl. ¶ 33.
13. Data from the MAPHIA bulletin board indicates that the MAPHIA bulletin board is economically linked to another electronic bulletin board called PSYCHOSIS. This data also indicates that Defendant Scherman and the MAPHIA bulletin board are part of or linked to a network of bulletin boards, called PARSEC, for business purposes. Keene Decl. ¶¶ 12-16, Exh. 5A.
14. The evidence establishes that Sega's copyrighted video games are available on and transferred to and from the MAPHIA bulletin board by users who upload and download games. Once a game is uploaded to the MAPHIA bulletin board it may be downloaded in its entirety by an unlimited number of users: Keene Decl. ¶¶ 7, 9; Yang Decl. ¶¶ 18, 24.
15. It appears that the copies of Sega's video game programs on Defendants' bulletin board are unauthorized copies of Sega's copyrighted video games, having been uploaded there by users of Defendant's bulletin board. Keene Decl. ¶ 9.
16. It has been shown by evidence in the form of printouts from the data on Defendant's bulletin board which was seized pursuant to this Court's Order and on-line data captured from Defendant's bulletin board, that the uploading and downloading of unauthorized copies of Sega's copyrighted video games is particularly known to Defendant Scherman and the MAPHIA bulletin board. This evidence also indicates that Defendant specifically solicited this copying and expressed the desire that these video game programs be placed on the MAPHIA bulletin board for downloading purposes. Keene Decl. ¶¶ 7-16.
17. Notwithstanding contrary assertions of Defendant Scherman, there is evidence that MAPHIA directly or through an affiliate sometimes charges a direct fee for downloading privileges, or barters for the privilege of downloading Sega's games. Information on the MAPHIA bulletin board includes the following passage:
18. Defendant thus provides downloading privileges for Sega games to users in exchange for the uploading of Sega games or other programs or information or in exchange for payment for other goods, such as copiers, or services, such as the provision of credit card numbers to users. See Keene Decl. ¶¶ 7-21.
19. By utilizing the MAPHIA bulletin board, users are able to make and distribute one or more copies of Sega video game programs from a single copy of a...
To continue reading
Request your trial
-
Sega Enterprises Ltd. v. Maphia, C 93-04262 CW.
...v. Brodie, 858 F.2d 492, 496-97 (9th Cir.1988). 5. This holding is consistent with this Court's earlier order, Sega Enter. Ltd. v. MAPHIA, 857 F.Supp. 679 (N.D.Cal.1994), which granted preliminary injunctive relief to Sega. In that order, the Court noted that Sega had shown direct copying o......
-
Woodke v. Dahm
...that venue had been laid in district in which infringing sales occurred and defendant did substantial business); Sega Enter. Ltd. v. MAPHIA, 857 F.Supp. 679, 686 (N.D.Cal.1994) (venue proper where infringement occurred without further comment); Eastman Kodak Co. v. Photaz Imports Ltd., Inc.......
-
Alzheimer's Found. of America, Inc. v. Alzheimer's Disease & Related Disorders Ass'n, Inc.
...use of undercover investigators to detect ongoing violations of the law as not ethically proscribed); see also Sega Enters. Ltd. v. MAPHIA, 857 F.Supp. 679, 689 (N.D.Cal.1994) (“the fact that a plaintiff's employee, in the course of investigating a copyright or trademark infringement, fails......
-
A&M Records v. Napster
...were made to save the expense of purchasing authorized copies. See Worldwide Church, 227 F.3d at 1117-18; Sega Enters. Ltd. v. MAPHIA, 857 F. Supp. 679, 687 (N.D. Cal. 1994) (finding commercial use when individuals downloaded copies of video games "to avoid having to buy video game cartridg......
-
E-law 4: Computer Information Systems Law and System Operator Liability
...Sega's game consoles. 571. Id. at 932. 572. Id. 573. Id. at 932-33. 574. Id. at 936. In an earlier decision, Sega Enterprises v. MAPHIA, 857 F. Supp. 679, 687 (N.D. Cal. 1994), the court found that in order to employ the fair use exception, one must possess a legal copy in the first place. ......
-
EU DIRECTIVE ON COPYRIGHT IN THE DIGITAL SINGLE MARKET AND ISP LIABILITY: WHAT'S NEXT AT INTERNATIONAL LEVEL?
...(29) Playboy Enterprises v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993). (30) Sega Enterprises v. Mahphia, 857 F. Supp. 679 (N.D. Cal. (31) Religious Tech. Center v. Netcom On-Line Comm. Serv., 907 F. Supp. 1361 (N.D. Cal. 1995) (32) DANIEL SENG, COMPARATIVE ANALYSIS OF THE NATIONAL APPROACHE......
-
Cybercommunity versus geographical community standard for online pornography: a technological hierarchy in judging cyberspace obscenity.
...at 1914. (64.) Id. (65.) RICHARD RAYSMAN ET AL., MULTIMEDIA LAW [sections] 10.0113] (1996); see also Sega Enterprises, Ltd. v. Maphia, 857 F. Supp. 679, 683 (N.D. Cal. 1994). The court states An electronic bulletin board consists of storage media, such as computer memories or hard disks, wh......
-
Signposts to Oblivion? Meta-tags Signal the Judiciary to Stop Commercial Internet Regulation and Yield to the Electronic Marketplace
...U.S. 844 (1997); Religious Tech. Ctr. v. Netcom On-Line Comm'n Serv., 907 F. Supp. 1361 (N.D. Cal. 1995); Sega Enter., Ltd., v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994); Playboy Enter., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 111. Gibbons, supra note 105, at 501. 112. See id. 113. FRAM......