Asset Vision, LLC et al v. Fielding et al

Filing 80

ORDER denying 46 Sealed Motion for Preliminary Injunction. Signed by Judge Terry J Hatter, Jr. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (Hatter, Terry)

United States District Court
District of Idaho
ASSET VISION, LLC, et al.,

4:13-CV-288-BLW-E

Plaintiffs,
v.
CREG FIELDING, et al.,

Order

Defendants.

The Court has considered the motion of Plaintiff Asset Vision, LLC (“Asset
Vision”), for a preliminary injunction, together with the moving and opposing papers.
A plaintiff seeking a preliminary injunction must establish that it is likely to
succeed on the merits, that it is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in its favor, and that an injunction is
in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.
Ct. 365, 374, 172 L. Ed. 2d 249, 261 (2008).
Asset Vision may be able to establish three of the four prongs, however, it has not
established that it is likely to suffer irreparable harm. A showing of likelihood of success
Order – Page 1 of 3

on the merits in a copyright infringement claim no longer raises a presumption of
irreparable harm. Perfect 10 v. Google, Inc., 653 F.3d 976, 981 (9th Cir. 2011).
Asset Vision waited nearly eight months after discovering the alleged
infringement, and five months after filing this action, before it moved for a Preliminary
injunction. That implies a lack of urgency and irreparable harm. Oakland Tribune, Inc.
v. Chronicle, Publishing Co., 762 F.2d 1374, 1377 (9th Cir. 1985). For example, a five
month delay demonstrated the lack of irreparable harm in Playboy Enter., Inv. v.
Netscape Communications, Corp., 55 F. Supp. 2d 1070, 1090 (C.D. Cal.)(Stottler, J.),
aff’d 202 F.3d 278 (9th Cir. 1999).
Another factor courts have considered is whether the plaintiff has or will accept
compensation for its rights. The evidence shows that Asset Vision licensed the Asset
Vision source code to Deer Valley and offered a license to Brad Hall & Associates, so it
is clear that Asset Vision is willing to forgo its rights for compensation. That evidence
suggests that any injury suffered by Asset Vision would be compensable in damages
assessed as part of the final judgment in the case. High Tech Medical Inst., Inc. v. New
Image Ind., Inc., 49 F.3d 1551, 1557 (Fed. Cir. 1995). While High Tech was a patent
case, the concept has been applied to copyright cases as well. In Fox Broadcasting Co.
Inc. v. Dish Network, L.C.C., 905 F. Supp. 2d 1088, 1110 (C.D. Cal. 2012), aff’d __ F.3d
__, 2014 WL 260572 (9th Cir. Jan 24, 2014), Judge Gee found that, since Fox licensed
its copyrighted material to others, the copyrighted material had a determinable market
value and, thus, money damages would suffice.
Asset Vision asserts that money damages would be inadequate if the defendant is
not able to satisfy a judgment. Asset Vision relies upon the holding that “a district court
has authority to issue a preliminary injunction where the plaintiffs can establish that
money damages will be an inadequate remedy due to impending insolvency of the
defendant or that defendant has engaged in a pattern of secreting or dissipating assets to
avoid judgment.” In re Estate of Marcos, 25 F.3d 1467, 1480 (9th Cir. 1994). However,
other than showing that the defendant currently has an income that is nearly matched by
Order – Page 2 of 3

his expenses and a small savings account, plaintiff has not offered any evidence regarding
the amount of damages.
Asset Vision delayed seeking a preliminary injunction, money damages will
suffice, and it has not been established that the defendant will not be able to pay any
money damages, therefore,
It is Ordered that the motion for a preliminary injunction be, and hereby is,
Denied.
Date: February 26, 2014
__________________________________
Terry J. Hatter, Jr.
Senior United States District Judge

Order – Page 3 of 3