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Plaintiffs' Reply re motion for third party enforcement

Plaintiffs' Reply re motion for third party enforcement

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Published by Ben Sheffner
Blockowicz v. Williams
Blockowicz v. Williams

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Published by: Ben Sheffner on Dec 24, 2009
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12/23/2009

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISEASTERN DIVISIONREPLY BRIEF IN SUPPORT OF MOTION FORTHIRD PARTY ENFORCEMENT OF INJUNCTION
The Court’s injunction explicitlyorders Defendants to remove their defamatorystatements from the websites where they were posted. (Dkt. No. 19.) Consistent with theirdeclaration that “the postings will remain,” (Dkt. No. 16, p. 2), Defendants are violating theinjunction with the assistance of Xcentric. Rule 65(d)provides the Court the power to orderXcentric, which is in privitywith Defendants, to stop this flagrant violation of its order. Xcentrichas not identified a single case which suggests otherwise. Instead, Xcentric improperly attemptsto place itself into the shoes of the Defendants, so that it can try to shield itself with an overbroadreading of the Communications DecencyAct (CDA). However, the Seventh Circuit has rejectedoverlybroad constructions of the immunityprovided to website operators by the CDA.
I.Xcentric Is In Privity With The Defendants.
Rule 65(d) “is derived from the common law doctrine that a decree of injunction not onlybinds the parties defendant but also those identified with them in interest, in ‘privity’ with them,represented by them or subject to their control.”
 Rockwell Graphic Sys., Inc. v. Dev Indus., Inc.
,91 F.3d 914, 919 (7th Cir. 1996) (citations omitted). “[P]arties otherwise without an injunction’sDavid Blockowicz, Mary Blockowicz, and LisaBlockowicz, individuals,Plaintiffs,v.Joseph David Williams and Michelle Ramey,individuals,Defendants.)))))))))))Civil Action No. 1:09-cv-03955Judge HoldermanMagistrate Judge Cox
Case 1:09-cv-03955 Document 31 Filed 11/13/2009 Page 1 of 12
 
2coverage maysubject themselves to its proscriptions should theyaid or abet the named parties ina concerted attempt to subvert those proscriptions.”
 Id 
. “[T]he reach of an injunction willaccord with its purpose(s), subject to the limitations of due process.”
 Id 
. “Nonparties who resideoutside the territorial jurisdiction of a district court maybe subject to that court’s jurisdiction if,with actual notice of the court’s order, theyactivelyaid and abet a party violating that order.This is so despite the absence of other contacts with the forum. Jurisdiction over persons whoknowingly violate a court’s injunctive order, even those without any other contact with theforum, is necessaryto the proper enforcement and supervision of a court’s injunctive authorityand offends no precept of due process.”
S.E.C. v. Homa
, 514 F.3d 661, 674-75 (7th Cir. 2008)(citations omitted). The existence of a contractual relationship such as Defendants’ andXcentric’s is more than sufficient to establish the necessaryprivity for this court to orderXcentric, pursuant to Rule 65(d), to remove the defamatorystatements.
Wilder v. Bernstein
, 645F.Supp. 1292, 1319 (S.D.N.Y. 1986).At oral argument, Xcentric attempted to portrayitself as a purelypassive partyhaving noinvolvement with the Defendants. That is not entirelytrue. While Xcentric’s employees maynot know the Defendants personally, Xcentric’s website policies and terms of use demonstratemore than mere passive involvement.Infact, Xcentric has a “legal agreement” --a contract --with the Defendants that relatesspecifically to the defamatorystatements at issue, and Defendants have granted Xcentric an
exclusive
license to “use, copy, perform, displayand distribute [the defamatorystatements] andto prepare derivative works of, or incorporate into other works, [the defamatorystatements] andto grant and authorize sublicenses of the foregoing.” (Terms of Service, Ex. D) Defendantsagreed “to be bound bythe terms and conditions” of that legal agreement each time they
Case 1:09-cv-03955 Document 31 Filed 11/13/2009 Page 2 of 12
 
3registered for their multiple accounts at <RipoffReport.com> --
i.e.
, before theymade thedefamatoryposts at issue. (
 Id.
) Pursuant to their agreement with Xcentric, Defendants agreedthat:(a)Theyare “solely responsible for the content or information [they] publish ordisplay” on <RipoffReport.com>;(b)They “will NOT post on ROR anydefamatory, inaccurate, abusive, obscene,profane, offensive, threatening, harassing, racially offensive, or illegal material.”(c)They“warrant and represent that the information is truthful and accurate.”(d)Theywill “defend, indemnify, and hold harmless Xcentric, its officers, directors,employees, agents and third parties, for any losses, costs, liabilities and expenses(including reasonable attorney’s fees) relating to or arising out of your use of ROR, including, but not limited to, anybreach byyou of the terms of thisAgreement.”(e)Theyhave provided Xcentric “an irrevocable, perpetual, fully-paid, worldwide
exclusive
license to use, copy, perform, displayand distribute [Defendants’ posts]and to prepare derivative works of, or incorporate into other works, [Defendants’posts] and to grant and authorize sublicenses of the foregoing.”(
 Id.
(final emphasis added).) In consideration for Defendants’ promises, Xcentric promises that“material will not be removed even at your request.” (
 Id.
)This legal agreement between Defendants and Xcentric is more than mere passivebehavior –it is a contractual relationship, wherein Xcentric makes the rather extraordinarypromise to never remove Defendants’ posts, in exchange for Defendants’ warrantyof accuracy,its agreement to indemnifyXcentric, and an
exclusive license
to Defendants’ copyright rights inthe posts that Defendants authored.
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This is more than mere passive behavior on Xcentric’s part,and it is sufficient to establish active concert and participation in Defendants’ ongoing violationof the Court’s injunction. 
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Xcentric has asserted its copyright rights in users’ postings and obtained injunctions against use of those postingsby third parties.
 Xcentric Ventures, LLC v. Stanley
, No. CV-07-954-PHX-GMS, 2009 WL 113563 (D. Ariz. Jan. 16,2009) (Ex. S).
Case 1:09-cv-03955 Document 31 Filed 11/13/2009 Page 3 of 12

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