The opinion of the court was delivered by: CHARLES P. SIFTON
In these two copyright infringement actions based on allegations of film piracy, the plaintiffs apply ex parte for an Order of Seizure directing the United States Marshal to accompany plaintiffs' experts to the business locations of each defendant and to seize and impound infringing videocassettes and the equipment used in manufacturing the allegedly infringing products. Plaintiffs also request that the court files in these cases be maintained under seal until the seizure order is granted and executed and that the affidavit of plaintiffs' investigator be maintained under seal pending further order of the Court. For the following reasons, the plaintiffs' ex parte application for an order of seizure in each case is denied. The applications to seal the court files (with the exception of this opinion) and the investigator's affidavit are granted subject to the conditions set forth below and the order of this or any reviewing court.
These cases involve allegations of "film piracy," i.e., the unlawful reproduction and sale or rental of videocassettes. Plaintiffs in both actions are corporations that produce and distribute motion pictures and are coordinating their efforts against film piracy.
The defendant in the first action is a person identified by name in the sealed affidavits who allegedly owns and operates a retail video business located in Flushing, New York. The defendant in the second action is another person also identified in the sealed affidavits who allegedly owns and operates a retail video business located in Astoria, New York. Both sets of plaintiffs claim that defendants do not and did not at any relevant time have a license agreement with plaintiffs authorizing the duplication for sale or rental of any motion picture. Kaplan Aff. P 6; Corrigan Aff. P 9.
In the first action, the plaintiffs claim that they own the copyright to the following six motion pictures, among others: Honey, I Blew Up the Baby, The Last of the Mohicans, A League of Their Own, Mo' Money, Sneakers, and South Central. As part of their current applications, plaintiffs have submitted copies of the certificates of copyright registration for each of these motion pictures. Corrigan Aff. Ex. A.
In the second action, the plaintiffs claim that they own the copyright to the following six motion pictures, among others: Diggstown, Housesitter, The Last of the Mohicans, A League of Their Own, Patriot Games, and Unlawful Entry. As part of their current applications, plaintiffs have submitted copies of the certificates of copyright registration for each of these motion pictures. Corrigan Aff. Ex. A.
In both cases, the investigator states that during a specified period of time he rented a total of six videocassettes from each defendant and that all six were unauthorized copies. The six films rented by the investigator in each case are the films for which the plaintiffs hold the copyright identified above in each case. The investigator determined that the films are unauthorized either because they were not professionally packaged or labeled, the promotional labels or trademarks did not appear on the packaging or labeling of the videocassettes which are present on authorized tapes, the cassettes lacked the heat stamps, or the quality of each cassette was inferior to authorized tapes. Investigator Aff. P 6. The investigator also states that there are approximately 4,000 videocassettes in each of the defendants' stores and that of these 400 are unauthorized videocassettes of plaintiffs' films. He does not explain how he arrived at these conclusions. Investigator Aff. P 8.
In the proposed order, the plaintiffs seek authorization to seize infringing videotapes and machines used to produce them located at the business premises of the defendants, as well as authorization to seize such materials at any location where defendants or their agents may be found within the Eastern District of New York. Plaintiffs have not provided a description of the defendants' places of business or a description of where the videocassettes are stored and likely to be found on the respective premises. To be clear, plaintiffs seek authorization to seize videocassettes which infringe the copyrights of the films identified above and also authorization to seize any videocassette which infringes any other copyright held by the plaintiffs. Plaintiffs do not explain how the seizure would be effected and, in particular, how infringing tapes will be identified during the execution of the seizure order.
Under the copyright laws, a copyright owner may seek to impound infringing material. See 17 U.S.C. § 503 (a). Moreover, the impoundment may in appropriate circumstances occur at the commencement of an action for copyright infringement. See, e.g., Wallace Berrie & Co. v. Custom Styled Toys, CV 82-1820 (E.D.N.Y. Aug. 16, 1982), reprinted in Copyright Law Reports, § 25,492 (CCH 1981-83). Congress explicitly provided for the availability of impoundment in section 503(a) of the Copyright Act of 1976, which states:
At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies . . . claimed to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film ...