Michael M. Edelstein v. Google Inc.

Filing 20

ORDER RE PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION by Judge Dolly M. Gee denying 12 Plaintiff's Ex Parte Application for TRO and Preliminary Injunction. (pp)

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On March 22, 2010, Plaintiff filed a complaint in this Court alleging violations of 17 U.S.C. § 106A and 17 U.S.C. § 1202. On May 24, 2010, Plaintiff filed the Ex Parte Application. Defendant filed an opposition on May 25, 2010.
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION MICHAEL M. EDELSTEIN, Plaintiff, v. GOOGLE INC., Defendant. ) ) ) ) ) ) ) ) Case No. CV 10-01847 DMG (SHx) ORDER RE PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

This matter is before the Court on Plaintiff's Ex Parte Application for a temporary restraining order and a preliminary injunction, which was filed on May 24, 2010.1 The Court held a telephonic hearing on May 28, 2010. Having duly considered the respective positions of the parties, as presented in their briefs and during the hearing, the Court hereby DENIES Plaintiff's Ex Parte Application. In an order dated March 10, 2010 (the "March 10 Order"), the Hon. Audrey B. Collins denied Plaintiff's Application for Leave to File Action without Prepayment of

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Full Filling Fee ("IFP Request") in Case No. CV 10-1648. In the March 10 Order, Judge Collins explained that Plaintiff's IFP Request was denied because Plaintiff failed to state a claim against Defendant. Plaintiff subsequently re-filed this action. This Court finds that Plaintiff's complaint continues to suffer from the same defects identified in Judge Collins' March 10 Order.2 Plaintiffs seeking a preliminary injunction in a case involving the public interest must show that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Dominguez v. Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir. 2010), petition for cert. filed, 78 USLW 3581 (Mar. 24, 2010); see also Winter v. Natural Res. Def. Council, Inc., __ U.S. __, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). As Plaintiff fails to state a claim for relief against Defendant, Plaintiff is unable to demonstrate likelihood of success on the merits. He therefore does not make the requisite showing for either a temporary restraining order or a preliminary injunction. Furthermore, in the Ex Parte Application, Plaintiff seeks removal of Plaintiff's copyrighted image and name from "Google Inc., www.google.com (search engines); www.blogspot.com websites, posting or maintaining on the Internet and World Wide Web, any web page, directly or indirectly, that includes in its file name, URLs, Metags [sic] or text, all Internet search engines, registers or other persons, wherever located, in concert with them associated links at michaeledelsteinslandercampaigns.blogspot.com."
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In the March 10 Order, the Court found that "[o]nly the author of a work of visual art has the rights conferred by [17 U.S.C. § 106A(a)], whether or not the author is the copyright owner," and that Plaintiff failed to allege that he is the "author" of a work of visual art. March 10 Order at p. 2 (citing 17 U.S.C. § 106A(b)). The March 10 Order further explained that 17 U.S.C. § 1202 prohibits any person, knowingly and with intent to induce, enable, facility or conceal infringement, from providing false copyright management information or distributing or importing for distribution false copyright management information. Plaintiff's complaint, however, failed to specify the "copyright management information" at issue or the conduct of Defendant that constituted a violation of 17 U.S.C. § 1202 relative to such copyright management information.

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(Ex Parte Application at p. 2.)

It appears from the complaint and the Ex Parte

Application that at the crux of Plaintiff's allegations are the "libelous postings to injure, annoy, hinder and harass plaintiff . . . ." (Compl. ¶ 6.) Plaintiff's complaint, however, does not allege a cause of action for libel against the perpetrator of the offending postings on the website, but rather, seeks relief only against Google under the Copyright Act. Plaintiff seeks relief in the Ex Parte Application that is broader than that requested in his complaint, i.e., the complaint seeks only removal of Plaintiff's copyrighted image. The grounds for Plaintiff's request for relief in the Ex Parte Application are also outside of what is included in his complaint, i.e., Cal. Civ. Code § 980, Cal. Civ. Proc. Code § 527.6, 15 U.S.C. § 1125, and 47 U.S.C. § 223 are not alleged in the complaint. In addition to the defects in the complaint previously identified by Judge Collins, the Court cannot consider claims for relief that extend beyond the scope of Plaintiff's complaint. In light of the foregoing, the Court DENIES Plaintiff's Ex Parte Application for a temporary restraining order and a preliminary injunction. IT IS SO ORDERED. DATED: May 28, 2010

DOLLY M. GEE UNITED STATES DISTRICT JUDGE

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