Frost-Tsuji Architects v. Highway Inn, Inc. et al

Filing 394

ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER FILED ON NOVEMBER 7, 2014 re 326 , 354 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/21/2015. "Because Frost-Tsuji fails to demonstrate any reason this court should re consider its previous order granting summary judgment in favor of Defendants on Count V, Frost-Tsuji's motion for reconsideration, ECF No. 354, is denied." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FROST-TSUJI ARCHITECTS,

)
)
Plaintiff,
)
)
vs.
)
)
HIGHWAY INN, INC.; HO`OLA
)
MAU, LLC; BRYCE UYEHARA,
)
A.I.A., INCORPORATED; J.
)
KADOWAKI, INC.; FESTIVAL
)
MANAGEMENT CORPORATION; et
)
al,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00496 SOM/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION OF ORDER
FILED ON NOVEMBER 7, 2014

ORDER DENYING MOTION FOR RECONSIDERATION
OF ORDER FILED ON NOVEMBER 7, 2014
I.

INTRODUCTION.
Plaintiff Frost-Tsuji Architects seeks reconsideration

of the order of November 7, 2014, granting summary judgment
against Frost-Tsuji on the copyright management information
removal claim asserted in Count V of the Second Amended
Complaint.

Frost-Tsuji asserts but does not establish clear

error in that order.

Accordingly, the court denies the motion

for reconsideration.
II.

RECONSIDERATION STANDARD.
Frost-Tsuji seeks reconsideration of an interlocutory

order.

That is, Frost-Tsuji seeks reconsideration of an order

granting partial summary judgment on a single claim that left
other claims for further adjudication.

Such a motion is governed

by Local Rule 60.1, which allows such motions based on

“(a) Discovery of new material facts not previously available;
(b) Intervening change in law; and (c) Manifest error of law or
fact.”

“Mere disagreement with a previous order is an

insufficient basis for reconsideration.”

White v. Sabatino, 424

F. Supp. 2d 1271, 1274 (D. Haw. 2006). “Whether or not to grant
reconsideration is committed to the sound discretion of the
court.”
III.

Id. (internal quotation marks omitted).
FROST-TSUJI’S MOTION FOR RECONSIDERATION IS DENIED.
In relevant part, Count V of the Second Amended

Complaint asserts that, in violation of 17 U.S.C. § 1202(b)(1),
Defendants intentionally removed Plaintiff Frost-Tsuji
Architects’ copyright management information from architectural
drawings Frost-Tsuji had created for the construction of a
restaurant.

See Second Amended Complaint, Count V, ECF No. 53,

PageID # 406.
The statute on which Count V is based, 17 U.S.C.
§ 1202(b)(1), states:
No person shall, without the authority of the
copyright owner or the law-(1) intentionally remove or alter any
copyright management information
. . . .
knowing, or, with respect to civil remedies
under section 1203, having reasonable grounds
to know, that it will induce, enable,
facilitate, or conceal an infringement of any
right under this title.

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This provision has been read as containing three elements:
To state a claim for removal of [copyright
management information] under 17 U.S.C.
§ 1202(b)(1), a plaintiff must allege that a
defendant: (1) without authority of the
copyright owner or the law; (2) intentionally
removed or altered [copyright management
information]; (3) knowing or having
reasonable grounds to know that the removal
will induce, enable, facilitate, or conceal
an infringement of the federal copyright
laws.
Imageline, Inc. v. CafePress.com, Inc., 2011 WL 1322525, *6 (C.D.
Cal. Apr. 6, 2011) (citing 17 U.S.C. § 1202(b)(1)); accord
Intellectual Prop. Litig. Comm., Am. Bar Assoc., Model Jury
Instructions: Copyright, Trademark and Trade Dress Litig.
§ 1.8.17 (2008) (requiring proof that a defendant “Intentionally
removed or altered plaintiff’s copyright management information
without plaintiff’s authority or the authority of law” and “that
Defendant did such action knowing, or having reasonable grounds
to know, that doing so would induce, enable, facilitate or
conceal copyright infringement”).
On November 7, 2014, the court granted partial summary
judgment in favor of Defendants with respect to the copyright
management information removal claim asserted in Count V.
ECF No. 326.

See

First, the court reasoned that Frost-Tsuji

submitted no evidence that any Defendant had removed copyright
management information from Frost-Tsuji’s copyrighted work.
court was not persuaded that mere possession of plans lacking

The

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Frost-Tsuji’s copyright management information was sufficient to
raise a genuine issue of fact as to whether a particular
Defendant had removed or altered copyright management information
from a copyrighted work.

The court further reasoned that, once a

Defendant met its initial burden of demonstrating that it was not
responsible for any alleged removal, the burden then shifted to
Frost-Tsuji to raise a genuine issue of fact as to whether that
Defendant was responsible for any alleged removal.

The court

determined that Frost-Tsuji did not meet that burden.

The court

further reasoned that the mere sending of a Computer-Aided
Design, or CAD, lacking Frost-Tsuji’s copyright management
information did not indicate that the sending Defendant had
removed that information, and that basing a design on FrostTsuji’s work was not the same as removing copyright management
information from an original copyrighted work.
Second, the court granted partial summary judgment with
respect to Count V because Frost-Tsuji submitted no evidence
indicating that any Defendant had removed copyright management
information from a copyrighted work by Frost-Tsuji knowing or
having reasonable grounds to know that the removal would induce,
enable, facilitate, or conceal an infringement of copyright law.
Because the court had previously ruled that Highway Inn and
Ho`ola Mau had an implied nonexclusive license to use the
copyrighted work, a Defendant could not be said to have removed

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Frost-Tsuji’s copyright management information while having
reasonable grounds to know that the removal would induce, enable,
facilitate, or conceal an infringement of copyright law.
Frost-Tsuji seeks reconsideration of the order of
November 7, 2014, arguing that it did submit evidence that
Defendants removed its copyright management information.
Tsuji is unpersuasive.

Frost-

Citing “ECF No. 300-7 #4969” on page 9 of

its reconsideration motion, Frost-Tsuji says that Highway Inn and
Ho`ola Mau “asked Bargreen to send the kitchen layout, which
required Bargreen to remove [Frost-Tsuji’s copyright management]
layer.”

But ECF No. 300-7, PageID # 4969 is simply a drawing,

not a request to Bargreen.

Frost-Tsuji may have meant to refer

to PageID # 4967, which states, “Since we are no longer using
Wendy’s plans for the project, can you please resend the kitchen
layout that you’ve completed.

Thanks so much.”

Even this

evidence fails to indicate that Highway Inn or Ho`ola Mau asked
Bargreen to remove the copyright management information.

Nor can

it reasonably be inferred from that statement that Bargreen
removed copyright management information from Frost-Tsuji’s
original copyrighted work.

The statement instead refers to a

drawing that Bargreen itself completed.
The court is similarly unpersuaded that Frost-Tsuji
identifies a genuine issue of fact as to whether Bargreen removed
Frost-Tsuji’s copyright management information by citing to “ECF

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No. 300-7 #4935, ¶ 19, citing ECF No. 292-1 # 3643.”
PageID # 4935 is not part of ECF No. 300-7.

First,

Instead, PageID

# 4395 is part of the concise statement submitted by Frost-Tsuji
as ECF No. 300.

Although Frost-Tsuji is correct in noting that

paragraph 19 of its concise statement cites to “ECF No. 292-1
#3643,” the original reference to “ECF No. 292-1 #3643" was
itself incorrect.
There is no ECF No. 292-1 in the record, and ECF No.
292 is a citation to a court order denying a motion to continue
the motions for summary judgment.

Frost-Tsuji may have meant to

refer to ECF No. 239-1, PageID # 3643, a document in which
Bargreen explained that, after Frost-Tsuji was terminated,
“Bargreen sent its work (its pane of glass) electronically to
Highway Inn, Uyehara and Kadowaki.

In doing so, Bargreen did not

remove or strip [Frost-Tsuji’s copyright management information
(‘CMI’.) [Frost-Tsuji’s] CMI was included in its drawing file
(pane of glass).

Bargreen simply did not include [Frost-Tsuji’s]

drawing file in its transmissions.”

Id.

That statement does not

indicate that Bargreen removed Frost-Tsuji’s copyright management
information from Frost-Tsuji’s copyrighted work.

Instead, it

indicates that Bargreen developed its own drawing based on FrostTsuji’s work and, when Frost-Tsuji asked that its work no longer
be used, Bargreen followed that request and did not include
Frost-Tsuji’s drawing, or “pane of glass.”

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The miscitations in Frost-Tsuji’s present motion and in
underlying motions, combined with its submission of multiple
documents when one would have done the job, have complicated this
court’s review of the record.

While the court is able to discern

that, as Frost-Tsuji points out, it cited ECF Nos. 186-9 and 18610 in connection with the underlying motions, those documents do
not justify reconsideration.

Those documents include an e-mail

from Monica Toguchi of Highway Inn to various Defendants asking
that they use the attached documents and reminding them not to
use Frost-Tsuji’s work.

See ECF No. 186-9.

ECF No. 186-10

refers to a drawing done by Frost-Tsuji that includes FrostTsuji’s copyright management information.

A comparison of the

documents in ECF Nos. 186-9 and 186-10 indicates that they are
similar in that the building space is the same and the placements
of some items in the drawings are similar.

But the drawing by

Uyehara, ECF No. 186-9, is not identical to the drawing by FrostTsuji, ECF No. 186-10, such that this court can say that Uyehara
removed or altered Frost-Tsuji’s copyright management information
from ECF No. 186-10.
In its order of November 7, 2014, this court ruled that
basing a drawing on Frost-Tsuji’s work is not sufficient to
support a claim of copyright removal.

See ECF No. 326, PageID

# 5383 (citing Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756
F. Supp. 2d 1352, 1359 (N.D. Fla. 2010) (“An action for removal

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of copyright management information requires the information to
be removed from a plaintiff’s product or original work.”)).
Frost-Tsuji submitted no evidence that Uyehara (or any other
Defendant) removed the copyright management information from
Frost Tsuji’s original work, in this case ECF No. 186-10, or
altered what was the actual original.
Nor is the court persuaded by Frost-Tsuji’s reference
to a floor color study.

The order of November 7, 2014, discussed

the floor color study and ruled that it did not support a claim
of copyright management information removal.
PageID #s 5382-83.

See ECF No. 326,

Frost-Tsuji’s mere disagreement with the

court’s order on this point does not support reconsideration.
See White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006)
(“Mere disagreement with a previous order is an insufficient
basis for reconsideration.”).
Finally, Frost-Tsuji argues that new evidence in the
form of admissions by Bargreen establishes that Bargreen did
remove Frost-Tsuji’s copyright management information.

Once

again, the evidence to which Frost-Tsuji cites does not stand for
that proposition.

In Admission No. 34, Bargreen admits that it

“did not locate and design the spatial arrangement of the Open
Display Kitchen which was used for the Restaurant.”

In Admission

No. 4, Bargreen generally admits “that the layout and design sent
to [Bargreen] on January 10, 2013 . . . , was a prior version of

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the Restaurant layout and design currently in place at the
Restaurant.”

At most, these admissions indicate that Bargreen

based its work on the work of someone else, presumably FrostTsuji, not that Bargreen physically removed the copyright
management information from any rendition of Frost-Tsuji’s work.
Because none of Frost-Tsuji’s arguments raises a
genuine issue of fact as to whether any Defendant removed the
copyright management information from Frost-Tsuji’s original
work, rather than indicating that Defendants created derivative
work from Frost-Tsuji’s, the motion seeking reconsideration of
the court’s earlier order is denied.
The court notes that, even if Frost-Tsuji is correct in
arguing that Defendant’s derivative use of Frost-Tsuji’s drawings
could be the basis for a copyright management information removal
claim, reconsideration would not be justified.

That is, even if

a copyright management removal claim does not require that
information be removed from an original work, Frost-Tsuji makes
no attempt to demonstrate that it can satisfy the other elements
of such a claim on this motion.

In its order of November 7,

2014, this court ruled that, because Highway Inn and Ho`ola Mau
had an implied nonexclusive license to use Frost-Tsuji’s
copyrighted works, even if one or more Defendants did remove
Frost-Tsuji’s copyright management information, no Defendant
could be said to have removed copyright management information

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knowing or having reasonable grounds to know that that removal
would induce, enable, facilitate, or conceal an infringement of
the federal copyright laws.

Frost-Tsuji therefore fails to

establish that element of its claim as well.
IV.

CONCLUSION.
Because Frost-Tsuji fails to demonstrate any reason

this court should reconsider its previous order granting summary
judgment in favor of Defendants on Count V, Frost-Tsuji’s motion
for reconsideration, ECF No. 354, is denied.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 21, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Frost-Tsuji Architects v. Highway Inn, Inc., et al., Civ. No. 13-00496 SOM/BMK; ORDER
DENYING MOTION FOR RECONSIDERATION OF ORDER FILED ON NOVEMBER 7, 2014

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