Page:Dynamic Solutions v. Planning & Control.pdf/9

 :A. Irreparable Harm

In cases of alleged copyright infringement, irreparable harm may ordinarily be presumed to follow from invasion of the “ ‘right to the exclusive use of the copyrighted material.’ ” Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1094 (2d Cir.1977) (quoting American Metropolitan Enterprises of New York v. Warner Brothers’ Records, Inc., 389 F.2d 903, 905 (2d Cir.1968)). See also Russ Berrie & Co. v. Jerry Eisner Co., 482 F.Supp. 980, 982 n. 2 (S.D.N.Y.1980).

I believe that plaintiff here satisfies the irreparable harm requirement even without the benefit of this presumption. As I stated in my Memorandum Opinion and Order dated March 13, 1986, “[i]f plaintiff owns these copyrighted computer programs, as it alleges, defendant’s continued use of them is infringing. I do not see how plaintiff could quantify the damages resulting from a wrongful deprivation of its economic leverage as sole lawful licensor.” I adhere to my view that this is sufficient to satisfy the irreparable harm requirement.

Defendants contend that DSI has brought this evil upon itself by seeking to terminate PCI’s right to use the disputed software. This argument misses the point. Despite the complications arising from these parties’ prior dealings, DSI seeks to enforce essentially the same rights that many copyright claimants pray courts to enforce: the right to use the exclusivity of its copyrights as leverage in negotiations with one who, but for a lawful license, would be barred from using that work. The monetary worth of that leverage in such negotiations would be difficult, at best, to determine. That is sufficient to satisfy the irreparable harm requirement.


 * B. Likelihood of Success on the Merits

To prove a copyright infringement claim, a plaintiff must show ownership of a valid copyright and copying by the defendant. Novelty Textile Mills, supra, 558 F.2d at 1092 (citing 2 M. Nimmer, Nimmer on Copyright § 141 at 611 (1976)).


 * 1. Ownership of a Valid Copyright

A certificate of registration from the United States Copyright Office is prima facie proof that the claimed copyright is valid and that the registrant is its legitimate owner. Id. at 1092 n. 1; Russ Berrie, supra, 482 F.Supp. at 984–85; 17 U.S.C. § 410(c). The presumption that arises upon presentation of a registration certificate is rebuttable; it “ ‘orders the burdens of proof.’ ” Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411, 414 (2d Cir.1985) (quoting H.Rep. No. 1476, 94th Cong., 2d Sess. 157, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5773). Presentation of a registration certificate thus relieves plaintiff of proving the many facts necessary to show ownership and validity “ ‘unless the defendant, by effectively challenging them, shifts the burden of so doing to the plaintiff.’ ” Id.

Here, plaintiff has introduced registration certificates for the operations management and project management source codes, establishing a prima facie case of ownership and validity. Defendants attack the prima facie case on a number of fronts.