The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Plaintiffs manufacture pre-recorded, copyrighted cassettes. Defendant runs a New York retail copy service. Its primary souce of revenue is photo-copying, but, until recently, it also operated a "Rezound" cassette-copying machine. The Rezound machine copies recorded cassette tapes onto specially designed blank cassettes, which defendant sold to customers who wished to use the machine. Plaintiffs have provided evidence which suggests that defendant used this machine to aid its customers in copying plaintiffs' prerecorded, copyrighted cassettes. They have requested a preliminary injunction enjoining further use of the Rezound for this purpose and directing seizure of the machine.
Defendant has not challenged the evidence of copying. Instead, it has informed the Court that it sent the Rezoundmachine back to the manufacturer one week after plaintiffs filed for a preliminary injunction (and several months after this lawsuits filing). Defendant argues that this action renders the motion moot and removes any necessity for entry of an injunction.
In order to obtain preliminary relief, plaintiffs must make a showing of "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Sadowsky v. City of New York, 732 F.2d 312, 316 (2d Cir. 1984), quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). I address first the probability of plaintiffs' demonstrating illegal infringement.
The uncontested evidence is that on three occasions plaintiffs' agents walked into defendant's store, handed defendant's salesperson a pre-recorded copyrighted tape on which the copyright symbols were clearly displayed, and requested that a copy be made. The salesperson promptly made a monaural copy of the original tape using the Rezound machine.Plaintiffs' agents paid approximately five dollars for this copy, somewhat less than the retail purchase price of a copyrighted stereo tape. The evidence indicates that the salespeople were well aware of both the copyrighted nature of the tapes copied and the wrongfulness of the copying. Indeed, a decal warning against such copying was plastered on the machine.
A clearer case of copyright infringement could hardly be imagined. The elements of infringement are ownership by the plaintiff of original, copyrighted works and copying by the defendant. Plymouth Music Co. v Magnus Organ Corp., 456 F. Supp. 676, 679 (S.D.N.Y. 1978) (Pierce, J.). Defendant contests neither the originality of the musical works on the cassettes nor the legitimacy of plaintiffs' copyrights. Nor does it contest that its salespeople made exact (save for the switch from stereo to monaural sound) duplicates of these works and sold them to plaintiffs' agents.
In a parallel case, Judge Neaher found infringement by a store which sold blank tapes to its customers for use in an on-the-premises "Make-A-Tape" machine. Elektra Records Co. v. Gem Electronic Distributors, Inc., 360 F. Supp. 821 (E.D.N.Y. 1973). The Make-A-Tape operated just like the Rezound: both the original and a blank tape were placed in the machine, a button was pushed, and the original was copied onto the blank tape. Customers were able, if they wished, to select the pre-recorded tape from a library maintained by the defendant. Judge Neaher found that the defendant's sale of blank tapes and its facilitation of copying by providing easy access to the Make-A-Tape "clearly evidences [the Make-A-Tape's] commercial exploitation by defendant for profit in derogation of plaintiffs' rights of exclusive publication." 360 F. Supp. at 823. It is true that, as defendant points out, the defendant in Electra provided the originals as well as the machine for copying, but this distinction is of no import under these circumstances. The significant element of a copyright violation is the copying. Defendant's agents did this themselves. Supplying the original creates a more egregious case of contributory infringement, perhaps, but plaintiffs need not rely on this theory in light of the personal participation of defendant's agents in the copying process, a factor absent in Electra Records.
Also irrelevant is the distinction that the Rezound machine makes only monaural copies. Such copies contain nearly all the artistic information encoded onto the original. It is true that the "presence" provided by stereo is absent, but the monaural copies capture enough of what is desirable or pleasurable -- and thus protectible -- in a musical work to qualify as the type of copies forbidden by the copyright laws. Defendant cannot rely on what is essentially a technological flaw in its copy machine to escape the reach of these laws.
I find frivolous defendant's argument that plaintiffs have presented no evidence of wrongful copying.Three times defendant's employees willingly and knowingly copied copyrighted tapes for plaintiffs' investigators. Assuming that this particular copying was, as defendant argues, consented to by plaintiffs, the evidence establishes a strong inference, which defendant has done nothing to rebut, that the employees would and did do exactly the same copying for customers unconnected with plaintiffs. I find this to be more than adequate evidence of wrongful copying. I conclude, therefore, that plaintiffs have shown the requisite likelihood of success on the merits.
An essential requirement for preliminary relief is, of course, a showing of irreparable harm. The showing of irreparable harm in a copyright infringement case need not be extensive, since such harm can normally be presumed. Town of Clarkstown v. Reeder, 566 F. Supp. 137, 140 (S.D.N.Y. 1983). Plaintiffs point out that by spreading inferior monaural copies of stereophonic tapes, defendant undermines plaintiffs' customers' good will. Of course, this practice also interferes with plaintiffs' efforts to portray their artists' performances with maximum fidelity and the greatest aesthetic impact. Further, as Judge Neaher noted in Electra, 360 F. Supp. at 823 n.6, the sale of copies disrupts the royalties-based contracts between artists and recording companies. All of these factors combine to meet the lesser standard of irreparable harm which is applied to copyright infringement actions.
Defendant argues that its return of the Rezound machine to its manufacturer renders the entry of an injunction pointless and the motion moot. I do not agree. Without an injunction, defendant is free to reacquire the machine and pick up where it left off. Plaintiffs have demonstrated that defendant has performed harmful, illegal acts, and they have a right to an injunction preventing future similar acts unless defendant can demonstrate that there is no "reasonable expectation" that the wrong will be repeated. United States v. W.T. Grant, 345 U.S. 629, 622, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). Defendant assures the Court that it has no intention of reacquiring the Rezound machine. Accepting arguendo defendant's assurance at fact value, it would eliminate any expectation that this particular machine will be used for further infringing purposes. But quaere whether plaintiffs are required to place childlike trust in defendant's assurances; and in any event, defendant has not said that it will never acquire any machine of this type.Since defendant's business is copying things, it is not unreasonable to expect, in the absence of a contrary assurance, that a different machine might in the future be used for a similar purpose. Defendant's ...