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UTICA College v. Gordon

October 16, 2009

UTICA COLLEGE, PLAINTIFF,
v.
GARY R. GORDON & JUDITH GORDON, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

On May 9, 2008, plaintiff Utica College ("plaintiff") and defendants Dr. Gary R. Gordon and Judith Gordon entered into a consent judgment to resolve plaintiff's pending claims for injunctive relief and monetary damages. (See Consent J., Dkt. No. 23.) Plaintiff now moves pursuant to Federal Rule of Civil Procedure 70 to enforce the consent judgment. In its motion, plaintiff seeks (1) the appointment of a third party to review defendants' records to determine whether they have fully complied with the consent judgment; (2) to hold defendants in contempt; and (3) monetary sanctions against defendants, including an award of damages and attorneys' fees. Defendants oppose plaintiff's motion and cross-move for an order pursuant to 17 U.S.C. § 505 requiring plaintiff to pay their attorneys' fees for unreasonably filing copyright registrations.

Oral argument was heard on October 9, 2009 in Utica, New York. Decision was reserved.

II. BACKGROUND

In 1998, plaintiff established the Economic Crime Institute ("ECI") to provide research in the field of identity theft, commercial crimes, and information security. At that time, Dr. Gordon was appointed ECI's Executive Director. Mrs. Gordon later became the institute's Administrative Assistant in 2001.

In May 2006, plaintiff received a federal grant from the Bureau of Justice Assistance to analyze federal law enforcement data as it related to trends, patterns, and groups perpetrating identity fraud and other economic crimes. As a condition of the grant, the federal government retained a royalty-free, non-exclusive license to reproduce, publish, or authorize others to use any documents or reports created with federal funds. In June 2006, the Center for Identity Management and Information Protection ("CIMIP") was established as a partnership between academic, corporate, and governmental entities aimed towards setting a national research agenda in the field of identity theft. At that time, Dr. Gordon was appointed CIMIP's Executive Director and Mrs. Gordon became the organization's Program Administrator.

In October 2007, CIMIP published a report on identity fraud trends and patterns (the "Report") which was first presented at an ECI conference later that month. In December 2007, defendants were terminated from their employment and plaintiff assumed control of CIMIP. On January 18, 2008, plaintiff sued defendants for, inter alia, replevin, conversion, bailment, and breach of fiduciary duty. At that time, plaintiff sought injunctive relief directing defendants to turn over property used and developed over the course of their employment.

A preliminary injunction was granted on February 25, 2008, ordering defendants to deliver to plaintiff all tangible property, files, and electronic data (the "Items") that were created, produced, received, or maintained by defendants during the course of their employment. (See Order, Dkt. No. 16.) Defendants were also enjoined from "retaining copies of the Items" or "from otherwise transferring, assigning, maintaining, damaging [or] possessing" the Items. (Id.) In accordance with the preliminary injunction, defendants returned to plaintiff two cardboard boxes of documents and three computers. On March 5, 2008, plaintiff registered its copyright to the Report with the United States Copyright Office. (Ex. B to Pl's. Mot., Dkt. No. 25-5.)

The parties settled the lawsuit by entering into a consent judgment on May 9, 2008. (Consent J., Dkt. No. 23.) In addition to the same conditions included in the preliminary injunction, the consent judgment required defendants to pay for the legal costs associated with enforcing the judgment in the event they did not comply with the terms of the settlement. (Id.)

On June 12, 2008, defendant Dr. Gordon gave a presentation on the Report's findings before the United States Department of Homeland Security and SRI International ("DHS-SRI"). Having returned his files related to his role as CIMIP's Executive Director pursuant to the preliminary injunction, defendant Dr. Gordon received a copy of the Report from one of the corporate members of CIMIP in preparation for his presentation to DHS-SRI. (Gordon Aff., Ex. 2 to Defs.' Cross-Motion, Dkt. No. 29-3, ¶ 32.) DHS-SRI posted the Report on its website in advance of the presentation.

On May 21, 2009, plaintiff's attorneys sent a letter to defendants' attorneys voicing their objection to Dr. Gordon's use of the Report. In particular, plaintiff alleged that the Powerpoint presentation used in connection with the DHS-SRI presentation was virtually identical to the Powerpoint presentation used for the ECI conference in October 2007. In response via letter sent June 4, 2009, defendants' attorneys expressed their right to use the intellectual property created in the Report. On June 18, 2009, plaintiff registered its copyright to the Powerpoint presentation used at the ECI conference as a derivative work of the Report. (Ex. I to Pl's. Mot., Dkt. No. 25-8.)

III. DISCUSSION

A. Plaintiff's Motion to Enforce the ...


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