2. The Instant Motion
Tattilo now claims that the above passage does not accurately describe the process by which a user accesses PLAYMEN Lite. According to Tattilo, not only is a password not necessary to peruse the PLAYMEN Lite service, but in reality no contact with Tattilo is required for a potential user to access PLAYMEN Lite.
On July 3, 1996, a hearing was held at which the parties demonstrated the process of accessing the PLAYMEN Internet site. No password or user ID was necessary. Defendant has therefore presented factual matter which was not before the Court that might materially have influenced its earlier decision.
The question, then, is whether Tattilo's PLAYMEN Lite service still violates the Injunction.
While the Opinion held that deliberate and intentional contact with the United States was established based on the requirement that prospective customers fax subscription forms to Italy, and that user names and IDs are sent to United States customers from Italy, this is not the only basis for finding that a distribution occurred within the United States. The PLAYMEN Lite service allows (indeed invites) a user to download Tattilo's pictorial images onto his or her home computer. PLAYMEN Lite can thus be viewed as an "advertisement" by which Tattilo distributes its pictorial images throughout the United States. That the local user "pulls" these images from Tattilo's computer in Italy, as opposed to Tattilo "sending" them to this country, is irrelevant. By inviting United States users to download these images, Tattilo is causing and contributing to their distribution within the United States.
Moreover, the availability of PLAYMEN Lite within the United States violates the Injunction even if the user could not download the images. PLAYMEN Lite is nearly identical to PLAYMEN Pro. Both reveal many of the same images; both allow the user to download these images; both services purport to sell products such as movies and CD-Roms to their users.
Most notably, as demonstrated at the hearing, the two services utilize many of the same screens and links.
This implies that PLAYMEN Lite and PLAYMEN Pro are not two separate and distinct services as Defendant has argued, but are actually one Service--the "PLAYMEN Internet Service"--part of which requires a password and part of which does not. In other words, PLAYMEN Lite is nothing more than an "advertisement" or "coming attractions" for the money-making PLAYMEN Pro service. This relationship is further demonstrated by the passage quoted above, which caused confusion as to how a user accesses PLAYMEN Lite. When a PLAYMEN Lite user is considering purchasing a subscription to PLAYMEN Pro, but would like to sample the product first, Tattilo will provide a temporary password that will allow the user to access the pages of PLAYMEN Pro through PLAYMEN Lite.
As such, PLAYMEN Lite represents a free distribution of Tattilo's product, a product which has been banned in this country since the 1981 Injunction. I decline to hold that Tattilo may maintain some portion of its service but shut down other portions of its Internet site. Because PLAYMEN Lite and PLAYMEN Pro are essentially one entity, they must be treated as such.
Therefore, the PLAYMEN Lite service violates the Injunction. As ordered in the Opinion, Tattilo must either shut down PLAYMEN Lite completely or prohibit United States users from accessing the site in the future. The simplest method of prohibiting access by United States users is to adopt a method of access similar to the one which I had believed was already in place: require users of the PLAYMEN Lite service to acquire free passwords and user IDs in order to access the site. In this way, users residing in the United States can be filtered out and refused access.
Because this motion raised serious issues, Tattilo may have two weeks from the date of this Order to either shut down PLAYMEN Lite or adopt procedures prohibiting United States users from accessing the site. Of course, this does not affect the time remaining for Tattilo to comply with the earlier Order.
B. The Award of Attorneys' Fees and Costs
There is no basis for reconsideration of the decision to impose attorneys' fees and costs upon Tattilo. As previously stated, Tattilo had sufficient cause to doubt the legality of establishing the PLAYMEN Internet site. Defendant cannot avoid this sanction simply because the contempt motion may raise an issue of first impression.
C. The Award of Tattilo's Gross Profits
Similarly, there is no basis for reconsideration of the decision to award PEI Tattilo's gross profits from subscriptions and sales of products to United States customers. Consistent with my decision not to reconsider attorney's fees and costs, Defendant cannot avoid this sanction simply because the contempt motion may raise an issue of first impression.
D. PEI's Request For an Additional Sanction
PEI has also failed to set forth any ground for reconsideration. As previously stated, this Court has no power to restrict Tattilo from providing its PLAYMEN Internet service outside the United States. There are many English speaking countries throughout the world. This Court has no jurisdiction to control Tattilo's activities in those countries. As a result, PEI's motion for an order prohibiting Tattilo from using English on its Internet site is denied.
For the foregoing reasons, the motion for reconsideration is denied. Tattilo must shut down the PLAYMEN Lite service in accord with this Opinion.
SHIRA A. SCHEINDLIN, U.S.D.J.
Dated: New York, New York
July 12, 1996