McClure Family Limited Partnership et al v. Texas Legal Apps, LLC et al

Filing 1

COMPLAINT against All Defendants (Filing fee $ 350 receipt number 0541-9770549) filed by McClure Family Limited Partnership, JMP Interests, L.P. d/b/a Jones McClure Publishing. (Attachments: # 1 Exhibit, # 2 Exhibit)(Easterby, Edwin)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
McCLURE FAMILY
LIMITED PARTNERSHIP, and
JMP INTERESTS, L.P. d/b/a
JONES McCLURE PUBLISHING
Plaintiff,
v.

TEXAS LEGAL APPS, LLC,
TEXAS LEGAL APPS, INC.,
TEXAS-LEGAL-APPS,
JONATHANJ. PAULL,
ALEX TORRY,
RICHARD MCNAIRY, and
DOES 1-5
Defendants.

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CASE NO. _ _ _ __

ORIGINAL COMPLAINT
COMES NOW, Plaintiffs, McClure Family Limited Partnership and

JMP

Interests, L.P., dlbla Jones McClure Publishing, fIling this Original Complaint
("Complaint"), complaining of Texas Legal Apps, LLC; Texas Legal Apps, Inc.; TexasLegal-Apps;JonathanJ. Paull; Alex Torry; and Richard McNairy's ("Defendants") use of
copyrighted material, and in support thereof would respectfully show the following:

I. NATURE OF THE ACTION
1.

Plaintiffs own copyrights to and publish the popular O'Connor'sTM law

books, and seek injunctive and monetary relief for copYTight infringement under the
Copyright Act, 17 U.S.C. § 134.001 et seq.
2.

Defendants, jointly and severally, copied multiple editions of eleven (11) of

Plaintiffs' O'Connor'sTM books. Defendants market and sell infringing mobile deskbooks

on a mobile application (an "app"), which is available on the Apple App Store®, Google
Play®, and the BlackBerry App World®. Defendants also market the infringing mobile
deskbooks on their website, www.pushlegal.com. As shown in this Complaint,
Defendants' acts of copying are flagrant and willful.

II. THE PARTIES
3.

Plaintiff, McClure Family Limited Partnership ("McClure F.L.P.") is a

Texas family limited partnership with its principal place of business in Houston, Harris
County, Texas. McClure F.L.P. owns the copyrighted books at issue in this case.
4.

Plaintiff JMP Interests, L.P., which does business as Jones McClure

Publishing ('Jones McClure"), is a Texas limited partnership with its principal place of
business in Houston, Harris County, Texas. Jones McClure is the beneficial owner of the
copyrights to the books at issue in this case. Jones McClure is responsible for authoring
and updating the copyrighted books and other materials belonging to McClure F.L.P.,
and enforcing and defending the McClure F.L.P. copyrights.
5.

Defendant Texas Legal Apps, LLC is a Texas limited liability company

that conducts business in the state of Texas, with its principal place of business located at
The Commercial Bank Building, 917 Franklin, Suite 250, Houston, Texas 77002. Texas
Legal Apps, LLC can be served by serving its registered agent for service of process,
Jonathan]. Pauli, at this same address.
6.

Defendant Texas Legal Apps, Inc. is a Texas corporation that conducts

business in the state of Texas, with its principal place of business located at The
Commercial Bank Building, 917 Franklin, Suite 250, Houston, Texas 77002. Texas Legal
Apps, LLC can be served by serving its registered agent for service of process, Jonathan].
Paull, at this same address.

Plaintiffs' Original Complaint

2

7.

Defendant Texas-Legal-Apps is a Texas unincorporated association that

conducts business in the state of Texas, with its principal place of business located at The
Commercial Bank Building, 917 Franklin, Suite 250, Houston, Texas 77002. TexasLegal-Apps can be served by serving its registered agent for service of process, Jonathan].
Paull, at this same address.
8.

DefendantJonathanJ. Paull is an individual, currently residing in Harris

County, Texas, who is the President and founder of Defendants Texas Legal Apps, LLC;
Texas Legal Apps, Inc.; and Texas-Legal-Apps. Paull may be served at 1646 Milford,
Houston, Texas 77006.
9.

Defendant Alex Torry is an individual, currently residing in Harris

County, Texas, who is described as the Chief Operating Officer of Push Legal. Torry
may be served at 5206 Paisley, Houston, Texas 77096-4126.
10.

Defendant Richard McNairy is an individual, currently residing in Harris

County, who is described as the Chief Financial Officer of Push Legal. MeN airy may be
served 'at 3803 Hanberry, Pearland, Texas 77 584-4952.
11.

On information and belief, there are five individuals or entities whose

identities and addresses are unknown who are referred to here as Does I through 5. On
information and belief, Does I through 5 materially participated in, contributed to,
and/ or induced the violations described in this Complaint.
12.

Collectively, for purposes of this Complaint, Texas Legal Apps, LLC;

Texas Legal Apps, Inc.; Texas-Legal-Apps; Jonathan]. Paull; Alex Torry; Richard
McNairy; and Does I through 5 are referred to as "Defendants."

Plaintiffs' Original Complaint

3

III. JURISDICTION AND VENUE
13.

This Court has original jurisdiction over this action under 28 U.S.c. §

1331 (federal question) and §1338 (copyright).
14.

This Court has personal jurisdiction over Defendants because they

committed the acts described in this Complaint in this District and have sufficient
minimal contacts with this District.
15.

Venue is proper in this district pursuant to 28 U.S.C. § 1391 because a

substantial part of the acts described in this Complaint took place in this district.

IV. FACTS
A.

The O'Connor'sTM Copyrighted Books
16.

Plaintiffs publish many well-known and highly regarded legal reference

books in the United States that, over the last twenty years, have become known simply as
the O'Connor'sTM books. With some notable exceptions, the O'Connor'sTM books
generally come in three content types: practice guides, annotated rules and codes, and
forms. Of the twenty-four titles published by Plaintiffs, fourteen contain annotated rules
or statutes. At issue in this case are nearly all of the O'Connor'sTM annotated rules and
codes.
17.

In the early 1990s, Michol O'Connor conceived of the idea to utilize a

limited selection of edited quotations from judicial opinions to create annotations for
Texas rules of civil procedure and evidence. She knew from her experience, both in
practice and on the bench, that the actual language from a judicial opinion could be
more valuable to practitioners than a paraphrased or summarized version, which was the
most prevalent method for annotating rules and statutes at the time. She believed that

Plaintiffs' Original Complaint

4

edited, direct quotes from the opinions would permit an attorney to easily quote relevant
case law, both in a brief and in open court.
18.

O'Connor's concept was to provide practitioners with an expert selection

of on-point court opinions, including relevant seminal opinions, which were edited to
ensure quick readability, easy comprehension, and rapid application. By limiting the
number of annotations, the concept ensured that attorneys would focus on the most
important issues and not get lost in a sea of summaries like the old digest systems. Use of
the court's actual language was meant to avoid debates that inevitably resulted from poor
case summaries used in other works or difficult-to-understand author commentary. The
various O'Connor'sTM annotated rules and codes books have been an unparalleled
success and are familiar companions to trial lawyers and practitioners throughout the
United States.
19.

Plaintiffs' books represent a substantial financial investment and are the

product of thousands of hours of work contributed over the last twenty years. Even after a
new O'Connor'sTM annotated rrues or codes book is published, an enormous amount of
work is required to keep the annotations current and relevant. Plaintiffs' employees, who
are lawyer-editors, conduct extensive research each year to identify the most relevant and
important case law for each rule and statute. After new cases are identified for possible
inclusion, Plaintiffs' employees draft a concise annotation for each case; the employees
then analyze each new annotation to confirm that it conveys the most significant aspects
of law relevant to a specific code section or rule. The employees further assess whether
the new annotation provides the reader with enough context to determine if he or she
should spend money and time to access the case for further review.

Plaintiffs' Original Complaint

5

20.

When drafting an annotation, Plaintiffs' employees frequently splice

together language from different paragraphs or pages within an OpInIOn. In certain
instances, the language of an important opinion is not readily annotatable; when that
happens, Plaintiffs' employees will draft lead-in language or summarize the holding to
make the annotation more meaningful. Plaintiffs' employees frequently append string
cites of other cases to annotations to provide the reader with additional cases that have a
similar or related holding or suggest a split between courts.

This selection process is

highly evaluative and creative; even among Plaintiffs' employees, the meaning and
content of the same annotation could vary. In short, drafting annotations is an analytical
art form.
21.

Over the years, Plaintiffs have developed a comprehensive and

documented set of rules dedicated solely to editing and verifying the format of its
annotations. These detailed rules include, but are not limited to, the use of brackets to
indicate a change in the court's language, paragraph symbols and jump cites to help the
reader locate the quoted language in the case, ellipses to indicate quoted language that
has been deleted, and the provision of party identifiers to avoid use of proper names of
the parties. Thus, each O'Connor'sTM annotated rules and code book represents the
author's unique and original expression relating to the subject-matter covered by that
work.
22.

Once the drafting procedure is completed, the new annotations go

through no fewer than two reviews to confirm that all of Plaintiffs' annotation rules have
been applied correctly. Then the annotated cases must be weighed against the cases
already in the books to determine whether the new case is better, more reliable, and more
important than one of the older cases. If the courts, Legislature, or Congress have

Plaintiffs' Original Complaint

6

amended the rules, statutes, or codes, the annotated cases must also be read against those
changes to confirm whether they are still applicable.
23.

Despite all of this work, Plaintiffs' annotations are but merely one of many

ways to "annotate" statutes, codes, and rules. l Some of the more common practices
among established legal publishers include the use of(l) headnotes (e.g., West Publishing,
Lexis), (2) summarized or paraphrased holdi?-gs (also known as a "squibs" or "notes of
decision"), (3) author commentary or explanatory notes, and (4) a concordance of citing
references and related secondary sources, such as treatises and law reviews. The amount
of material included from judicial opinions will obviously vary by the method of
annotation selected. Legal publishers also vary on the selection of annotations they will
offer readers; some cover "the waterfront" and others, like Plaintiffs, provide a more
refined selection of annotations to avoid overwhelming the reader with too much
information. Legal publishers also organize their annotations differently; some have
complex taxonomies and others simply list cases in order of authority and date. Anyone
of

these

presentations

of

expression-drafting,

summarization,

selection,

or

organization---sets one legal publisher's product apart from another and is the basis for
rather heated competition in the annotated rules and codes markets.
24.

The following is a list of Plaintiffs' copyrighted works 2 that are at issue in

this case (the "O'Connor'sTM Copyrighted Books"):

Importantly, Plaintiffs are not the only legal publisher that utilizes quotations from judicial opinions.
Publishers such as LexisNexis and ALM's Texas Lawyer have followed this form of annotating rules and
codes in various competing works.

1

2

Plaintiff alleges that Defendants copied the editions included in Table I. Plaintiff reserves the right to

supplement and amend this list in the future.

Plaintiffs' Original Complaint

7

No.
I

2
3
4
5
6

7
8

9
10
11

B.

Table l. Infringed Materials
BookNrune
Edition(s) Copyright Registration No.
O'Connor's Federal Rules * Civil
TX0007280501 /2011-01-11
2009
Trials
2010
2011
O'Connor's Texas Criminal
TX0007126668 / 2010-0 I-II
2009
Codes Plus
2010
TX0007280505 / 2011-0 I-II
O'Connor's Texas Rules * Civil
2010
TX0007307625 / 2011-01-11
Trials
2011
TX0007499443 / 2012-03-14
O'Connor's Federal Criminal
2010
TX0007280489 / 2011-01-11
Rules & Codes Plus
2011
TX0007499947 / 2012-03-14
O'Connor's Family Code Plus
TX0007128857 / 2010-01-11
2009
2010
TX0007306465 / 2011-01-11
O'Connor's Probate Code Plus
TX00070958 I I /2010-01-11
2008
2009
TX0007127912 / 2010-01-11
2010
TX0007312259 / 2011-0 I-II
O'Connor's Business &
TXOO07499944/2012-03-14
2011
Commerce Code Plus
O'Connor's CPRC Plus
2008
TX0007130621 /2010-01-11
2009
TX0007307550 / 2011-01-11
2010
O'Connor's Property Code Plus
2010
TX0007306452 / 2011-01-11
O'Connor's Business
2010
TX0007307621 /2011-01-11
Organizations Code Plus
O'Connor's California Practice
2011
Not yet available from the
copyright office
* Civil Pretrial
.

Defendants' Business Model and Infringelllent

25.

Two years ago, DefendantJonathanJ. Paull, a local criminal law and civil

litigation attorney, allegedly conceived the idea for a mobile app that would "give lawyers
the ease of access to law documents and rules from their phones." This app, dubbed
"Push:Legal," sought to distinguish itself by proclaiming to be the first platform to offer
annotated deskbooks for mobile phones. The app was competing against both traditional
book publishers and other mobile app developers that offered access to rules, statutes, and
codes. Push:Legal wanted to be different by offering the one thing print publishers did not
have-mobile access--and two things the digital competitors did not have-annotations

Plaintiffs' Original Complaint

8

("leading cases tied to the rules and statutes they interpret") and a hyperlink to search for
cases on Google Scholar.
26.

Because it is difficult to convince consumers to buy something new without

at least giving them a taste of what's in store, Defendants packaged Push:Legal with a
freebie: a fully annotated Federal Rules of Civil Evidence. The "try it before you buy it"
approach is a good hook to get the customer in the door, and Defendants executed on it
successfully, taking in over 18,000 reported subscribers since Push:Legal's launch in
November of 2011. Since then, Defendants have offered other mobile deskbooks on an
annual subscription basis for prices ranging from $12.99 to $149.99.
27.

On or about March 16,2012, the Houston BusinessJoumal published an

article regarding Push:Legal's mobile app. In that article, Defendant Paull was quoted as
saYIng:
Lawyers rely on desk books, and it occurred to me this was an opportunity
to have a desk book in the form of a mobile application [.J A lot of times,
when you walk into court, you don't have all the facts. This app allows you
to quickly look up what you need.
28.

Mter reading the Houston Business Journal article, Plaintiffs downloaded

the Push:Legal app and performed a cursory review of the annotations contained in the
free Federal Rules of Civil Evidence title. Plaintiffs found that several of Defendants' case
annotations were virtually identical to annotations contained in Plaintiffs' O'Connor'sTM
books, including the two annotations featured in screen shots on Defendants' website.

C.

Plaintiffs' Forensic Investigation
29.

Plaintiffs then undertook a forensic analysis comparing the content of the

O'Connor's ™ books with Defendants' mobile deskbooks.

Plaintiffs' Original Complaint

9

30.

In order to complete a thorough forensic investigation, Plaintiffs reviewed

each and every annotation in the Infringing Mobile Deskbooks to determine whether
they were substantially similar to content appearing in any of the O'Connor'sTM
Copyrighted Book(s) (in various editions). This laborious process to roughly a month to
complete.
31.

The forensic analysis revealed Defendants copied each and every unique

aspect of the O'Connor'sTM Copyrighted Books, including: (i) copying the overall
arrangement of each book, which was to use case law annotations to express the current
state of law for the relevant statute section or rule number; (ii) copying the same judicial
opinion---out of hundreds or thousands of relevant opinions-that Plaintiffs had selected
to make that expression; (iii) copying the same quoted language from those cases; (iv)
choosing the same organization of facts by removing sentences, paragraphs, or citations
and adding important contextual information; (v) copying Plaintiffs' narrative descriptions
of the case; (vi) copying the order of selected cases even when it didn't make sense in the
Infringing Mobile Deskbooks; (vii) copying Plaintiffs' unique editorial marks, such as
using bracketed identifiers and ellipses; and (viii) copying Plaintiffs' citations to other cases
in the annotation that do not appear in the main case (in other words, copying a string
cite that one of Plaintiffs' lawyer-editors had independently evaluated and created).
32.

Upon information and belief, Defendants' Infringing Mobile Deskbooks

also include annotations copied without authorization from other copyrighted books of
other publishers. It appears that Defendants' business model is nothing more than an
orchestrated rip-off-exploiting years oflegal publishing experience, financial investment,
and development from multiple publishers of annotated rules and codes.

Plaintiffs' Original Complaint

10

33.

The following table summanzes the "Infringing Mobile Deskbooks" and

the extent of Defendants' copying:
Table 2. PushLegal's Infringing Mobile Deskbooks
1

Push Legal E·Book
California Evidence Code

2

Federal Rules of Civil Procedure

3

Federal Rules of Criminal
Procedure

4

Federal Rules of Evidence (Civil)

5

Federal Rules of Evidence
(Criminal)

6

10

Texas Business & Commerce
Code
Texas Business Organizations
Code
Texas Civil Practice & Remedies
Code
Texas Code of Criminal
Procedure
Texas Family Code

11

Texas Health & Safety Code

12

Texas Penal Code

13

Texas Probate Code

14

Texas Property Code

15

Texas Rules of Civil Procedure

16

Texas Rules of Civil Evidence
(Criminal)
Texas Transportation Code

7
8
9

17

Title 7, subtitle B, ch. 524
Title 7, subtitle C, ch. 550, subch. B
Title 7, subtitle,T, ch. 724

34.

Plaintiffs' Book
O'Connor's California Practice
* Civil Pretrial
O'Connor's Federal Rules *
Civil Trials
O'Connor's Federal Criminal
Rules & Codes Plus
O'Connor's Federal Rules *
Civil Trials
O'Connor's Federal Criminal
Rules & Codes Plus; aod
O'Connor's Federal Rules *
Civil Trials
O'Connor's Business &
Commerce Code Plus
O'Connor's Business
Orgaoizations Code Plus
O'Connor's CPRC Plus
O'Connor's Texas Criminal
Codes Plus
O'Connor's Family Code Plus
O'Connor's Texas Criminal
Codes Plus
O'Connor's Texas Criminal
Codes Plus
O'Connor's Probate Code Plus
O'Connor's Property Code
Plus
O'Connor's Texas Rules *
Civil Trials
O'Connor's Texas Criminal
Codes Plus
O'Connor's Texas Criminal
Codes Plus

No. of Copied Annotations
299, or about 45% of Push
Legal's Annotations
286, or about 62% of Push
Legal's Annotations
369, or about 58% of Push
Legal's Annotations
78, or about 43% of Push
Legal's Annotations
139, or about 67% of Push
Legal's Annotations

413, or about 40% of Push
Legal's Annotations
292, or about 79% of Push
Legal's Annotations
810, or about 51 % of Push
Legal's Annotations
740, or about 67% of Push
Legal's Annotations
780, or about 55% of Push
Legal's Annotations
59, or about 70% of Push
Legal's Annotations
309, or about 56% of Push
Le~'s Annotations
653, or about 73% of Push
Legal's Annotations
564, or about 68% of Push
Legal's Annotations
530, or about 39% of Push
Legal's Annotations
68, or about 53% of Push
Legal's Annotations
50, or about 50% of Push
Legal's Annotations

Given the number, selection, and substantial similarity of the annotations

in Defendants' Infringing Mobile Deskbooks to the O'Connor'slM Copyrighted Books, it
is inconceivable that Defendants selected and created the annotations without access to
Plaintiffs' Copyrighted Works, which are for sale on the Internet, in book stores, and

Plaintiffs' Original Complaint

11

available for use in law school libraries. It is likewise statistically impossible that
Defendants created the annotations by independent authorship, which would require the
mammoth coincidence of using exactly the same method for expressing cases as Plaintiffs,
selecting exactly the same cases to annotate as Plaintiffs (out of the thousands of potential
cases for each statute and rule), selecting exactly the same quotations and eliminating
exactly the same material from those cases as Plaintiffs, and applying exactly the same
editorial rules as Plaintiffs (including references to cases not cited in the original case,
bracketed identifiers for parties, ellipses, and many others). The only rational conclusion
is that Defendants engaged in wholesale, willfnl copying of the O'Connor'sTM
Copyrighted Books in an effort to gain a competitive advantage over other publishers of
annotated rules and codes.
35.

The following examples are illustrate the scope and breadth of

Defendants' copying and copyright infringement:
First exantple of infringeIl1ent

O'Connor's Criminal Codes Plus (10-11)
Penal Code §37.02

PUSH: legal App
Penal Code §37.02

State v. Salinas, 982 S.W.2d 9, 11-12
(Tex.App.-Houston [1st Dist.] 1997, pet.
refd).

State v. Salinas, 982 S.W.2d 9, 11-12
(Tex. App. Houston 1st Dist. 1997)

"[T]he Election Code provides: 'This code The Election Code Provides: "This code
supersedes a conflicting statute outside this
supersedes a conflicting statute outside this
code unless this code or the outside statute
code unless this code or the outside statute
expressly provides otherwise.' Because
expressly provides otherwise." Because
neither the Election Code nor the perjury
neither the Election Code nor the perjury
statute expressly provides otherwise, the
statute expressly provides otherwise, the
Election Code supersedes the perjury
Election Code supersedes the perjury
statute." Held: Prosecution for inaccurate
statute. Held: Prosecution for inaccurate
contribution and expenditure reports must contribution and expenditure reports must
be conducted under Election Code.
be conducted under Election Code.
Plaintiffs' Expression:
• Plaintiffs selected where to begin and end the annotation.

Plaintiffs' Original Complaint

12

•

•
•
•

Plaintiffs bracketed the first letter of the first word in this annotation to indicate
that the annotation begins in the middle of the sentence found in the court's
opmlOn.
Plaintiffs deleted from this annotation a citation used in the court opinion. This
deletion makes the annotation more concise and easier to read.
The last sentence is not a quotation from the judicial opinion; instead, Plaintiffs
summarized the holding of the case for the reader.
Plaintiffs provided a jump cite in the case citation to help the reader locate the
quoted language in the court's opinion. Defendants are inconsistent in how it
formats case citations and infrequently provides jump cites.

Second exantple ofinfringeIllent

O'Connor's CPRC Plus (2009-10)
CPRC §14.004

PUSH: legal App
CPRC §14.004

In re Taylor, 28 S.W.3d 240,247
(Tex.App.-Waco 2000), disapproved on other
grounds, In re Z.L.T., 124 S.W.3d 163
(Tex.2003).

In re Taylor, 28 S.W.3d 240, 247 (Tex.
App. - Waco 2000) disapproved on other
grounds, In re ZL. T., 124 S. W3d 163 (Tex.
2003).

"[T]he provisions of[CPRC] ch. 14 ...
[T] he provisions of[CPRC] ch. 14 ...
regarding inmate litigation apply 'only to a regarding inmate litigation apply only to a
suit brought by an inmate in a district,
suit brought by an inmate in a district,
county, justice of the peace, or small claims county, justice of the peace, or small claims
court." Therefore, because this is an
court.' Therefore, because this is an
original proceeding filed in a court of
original proceeding filed in a court of
appeals, the declaration of previous
appeals, the declaration of previous
litigation mandated by §14.004 is not
litigation mandated by §14.004 is not
required." See also Nabelek v. Garrett, 94 required. See also Nabelek v. Garrett, 94
S. W3d 648, 649 (Tex. App. - Houston [14th
S.W.3d 648, 649 (Tex.App.-Houston
Dist.) 2002, pet. dism'd).
[14th Dist.] 2002, pet. dism'd).
Plaintiffs' Expression:
• Plaintiffs selected where to begin and end the annotation.
• Plaintiffs bracketed the first letter of the first word in this annotation to indicate
that the annotation begins in the middle of the sentence found in the court's
opmlOn.
• Plaintiffs used the second set of brackets to give the reader relevant context that
does not appear here in the court's opinion. This change makes the annotation
easier to understand.
• Plaintiffs abbreviated "chapter," which is spelled out in the quoted portion of
court's opinion, to "ch." to make the annotation more concise.

Plaintiffs' Original Complaint

13

•
•
•
•

•

Plaintiffs use ellipsis to indicate that text has been deleted from the quoted
sentence.
Plaintiffs abbreviated the word "section," which is spelled out in the quoted
portion of court's opinion, to a section symbol "§." This was done to make the
annotation more concise.
Plaintiffs deleted a citation used by the court in its opinion; this change makes the
annotation more concise and easier to read.
Plaintiffs selected an additional relevant judicial opmlOn for the reader to
consider and appended its citation to the end of the annotation. The Nabelek
opinion is not referenced in the In re Taylor opinion.
Plaintiffs format the case citations for both the annotated opinion and the opinion
at the end of the annotation uniformly and includes jump cites to help the reader
locate the quoted language from the opinions. Although Defendants are
inconsistent in how it formats case citations and infrequently provides jump cites,
both Defendants' case citations here are identical to Plaintiffs' citations.

Third exantple of infringe:ment
O'Connor's Probate Code Plus (2008-09)
Probate Code §41

PUSH: legal App
Probate Code §41

Sifnon v. Dibble, 380 SW.2d 898, 899
Simon v. Dibble, 380 SW 2d 898 (Tex.
(Tex.App.-San Antonio 1964, writ rerd).
App.- San Antonio 1964, writ redd)
Can "an insane husband who shoots and
[A]n insane husband who shoots and kills
kills his wife ... receive the proceeds of
his wife ... receive the proceeds of insurance
policies taken out by her with him as
insurance policies taken out by her with
him as beneficiary, and [can he] inherit her beneficiary, and [can he] inherit her share
share of the community property[?]" Held: of the community property. [?]" Help: Yes.
Yes.
Plaintiffs' Expression:
• Plaintiffs selected this judicial opinion to annotate because it is related to the
subject matter of Texas Probate Code §41(d), but importantly, the opinion does
not actually cite to that code section. Only a lawyer who knew both the subjectmatter of the statute and had read this case would have knowledge of this
substantive relationship and would have selected it for inclusion.
• Plaintiffs selected where to begin and end the annotation.
• The first word of this annotation is not a quotation from the court's opinion;
instead, Plaintiffs created a one-word lead-in to present the issue in the form of a
question. This is a concise presentation that is easy for the reader to understand.
Defendants mistakenly left off the lead-in word when copying this annotation, so
the question framework does not make sense in Defendants' annotation.

Plaintiffs' Original Complmnt

14

•
•

•
•
•

Plaintiffs used ellipsis to indicate that text has been deleted from the sentence.
Plaintiffs used the first set of brackets to replace a word in the opinion with
language that furthers the question format of the annotation. The language in
the brackets does not appear in the court's opinion.
Plaintiffs used the second set of brackets to insert a question mark to facilitate the
question format ofthe annotation.
The last two words of the annotation do not appear III the court's opllllOn;
instead, Plaintiffs gave a one-word holding statement in answer to the question
posed by the annotation.
Note that Defendants mistakenly typed "writ redd" instead of "writ ref d" and
"Help" instead of "Held" when copying this annotation.

36.

Neither McClure F.L.P. nor Jones McClure have ever granted any license

to Defendants to use Plaintiffs' copyrighted works, and upon information and belief, no
other legal publisher has granted a license to Defendants to use its copyrighted works.
37.

Upon information and belief, Plaintiffs have lost sales, and will continue to

lose sales, as a direct or proximate result of Defendants' illegal and impermissible copying.
D.

The Cease-and-Desist Letter

38.

On May 1, 2012, the undersigued counsel sent a cease-and-desist letter to

Defendants, which is attached hereto as Exhibit A. The cease and desist letter demanded
that Defendants take the following actions: (i) cease and desist unlawful copying of the
O'Connor's1M Copyrighted Books; (ii) remove the aforementioned Infringing Mobile
Deskbooks from Apple App Store®, Google Play®, and the BlackBerry App World®
(and otherwise remove them from any other website or means of sale whatsoever); (iii)
remove the aforementioned Infringing Mobile Deskbooks from its customer accounts, or
take steps to ensure that such customers can no longer access the Infringing Mobile
Deskbooks; (iv) remove the following web address: http://69.164.202.37; and (iv) destroy
the above-referenced Push Legal Infringing Mobile Deskbooks and return any

Plaintiffs' Original Complaint

15

unauthorized reproductions of Plaintiffs' Copyrighted Works that are m Defendants'
possession, custody, and! or control.
39.

The cease-and-desist letter requested a written assurance that Defendants

would comply with these demands within seven (7) days of receiving the letter.
E.

Defendants' "Response" to the Cease-and-Desist Letter

40.

As of the date of the filing of this Complaint, Defendants have not formally

responded to the cease and desist letter.
41.

On the afternoon of May 10, 2012-nine days after receiving the cease-

and-desist letter--the undersigned counsel received an e-mail from K.A.D. "Kiwi"
Camara, indicating he had been hired to represent Defendants Push:Legal, Paull, and
Alex Torry in connection with the cease-and-desist letter. Camara indicated that
Defendant Push:Legal had taken steps towards complying with the demands stated in the
cease-and-desist letter. Upon information and belief, Defendant Richard McNairy
remains unrepresented.
42.

Upon information and belief, Defendants have removed several of the

Infringing Mobile Deskbooks from their app bookstore, but the Federal Rules of
Evidence (Civil) is still given away freely with every download of the Push:Legal app.
Additionally, the content of all the mobile deskbooks is still available to customers that
purchased them before the removal, and infringing material is still freely available at the
web address http://69.164.203.37/.
43.

Upon information and belief, Defendants are in the process of modifYing

the mobile deskbooks and will offer them for sale again in the near future.

Plaintiffs' Original Complaint

16

F.

Possible Contributory Infringers

44.

Upon information and belief, Defendants hired several students (some of

whom are now in law school) to "create" annotations for Defendants mobile deskbooks.
Plaintiffs believe that these individuals (who are currently referred to as Does I through
5), simply obtained the O'Connor'sTM books and copied them.

v.
A.

CAUSES OF ACTION

Copyright Infringentent against all Defendants

45.

Plaintiffs reallege all allegations in the previous paragraphs as if included

verbatim here.
46.

Plaintiff McClure F.L.P. owns every copyright to the O'Connor'sTM

Copyrighted Books in Table I. Plaintiff McClure F.L.P. registered the copyright to the
copyrighted works referenced in Table I.

The Copyright Office assigned the books

registration numbers. The date of registration for each book is contained in the pertinent
Registration Certificates. Copies of the Registration Certificates are attached hereto as
Exhibit B.
47.

PlaintiffJones McClure holds a beneficial interest in every copyright to the

Copyrighted Works in Table I by virtue of an exclusive contract to publish the
O'Connor'sTM Copyrighted Books.
48.

Each of the O'Connor'sTM Copyrighted Books constitutes original material

that is copyrightable under federal law. Employees of Plaintiffs created the O'Connor'sTM
Copyrighted Books in the course of, and in accordance with, their regular duties or
assignment.
49.

The Defendants had access to the O'Connor'sTM Copyrighted Books

because each book was publicly available, either for sale, or accessible through a library.

Plaintiffs' Original Complaint

17

50.

Defendants, without authorization,

copied entire portions of the

O'Connor'sTM Copyrighted Books, including the actual copying of thousands of Plaintiffs'
annotations. The Infringing Mobile Deskbooks are both probatively and strikingly similar
to the O'Connor'sTM Copyrighted Books; there is no possibility that Defendants
independently created the Infringing Mobile Deskbooks.
51.

The Infringing Mobile Deskbooks are also substantially similar to the

O'Connor'sTM Copyrighted Books as the annotations are virtually indistinguishable
making the Defendants' infringement immediately apparent to the ordinary observer.
52.

Defendants have directly and indirectly infringed on Plaintiffs' copyrights

by inducing, causing, or materially contributing to the above-described conduct.
53.

Because of Defendants' unlawful acts, Plaintiffs have suffered and continue

to be threatened with irreparable harm, as well as economic and non-economic damages
including, but not limited to, lost profit, sales, market position, business reputation, and
goodwill, as well as other pecuniary and consequential losses, in an amount to be proven
at trial.
54.

Pursuant to 17 U.S.C. § 504(c), Defendants are liable for statutory

damages in a sum not less than $750 or more than $30,000 for each edition of each book
that was copied.
55.

Pursuant to 17 U.S.c. § 504(c)(2), Plaintiffs would show that Defendants'

infringement was committed willfully, and Plaintiffs seek statutory damages at the
maximum amount of $150,000 for each edition of each book that was copied.
56.

Defendants' conduct was willful, wanton, and malicious, thereby entitling

Plaintiffs to exemplary damages.

Plaintiffs' Original Complaint

18

57.

Pursuant to 17 U.S.c. § 505, Plaintiffs seek recovery of full costs and its

reasonable attorney's fees.
B.

Civil Conspiracy and Joint Liability against all Defendants

58.

Plaintiffs reallege all allegations in the previous paragraphs as if included

verbatim here.
59.

Upon information and belief, all Defendants were aware of and agreed to

make impermissible use ofthe O'Connor'sTM Copyrighted Books.
60.

As stated above, Defendants collectively engaged in a concerted action

with the intent to accomplish the unlawful act of infringing Plaintiffs' copyrights.
Defendants had a meeting of the minds on the object or course of action, which was to
unlawfully copy Plaintiffs' books and sell them as the Infringing Mobile Deskbooks. One
or more of the Defendants engaged in the unlawful, overt act of copying Plaintiffs'
copyrighted materials.
61.

Individual Defendants Paull, Torry, and McNairy were at all pertinent

times in control of Push:Legal's actions (including the actions of Texas Legal Apps, LLC;
Texas Legal Apps, Inc.; and Texas-Legal-Apps), and individual Defendants Paull, Torry,
and McNairy derived and continue to derive a direct financial benefit from the copyright
infringement.
62.

Because of Defendants' unlawful acts, Plaintiffs suffered and continue to be

threatened with irreparable harm, as well as economic and non-economic damages
including, but not limited to, lost profits, sales, market position, business reputation, and
goodwill, as well as other pecuniary and consequential losses, in an amount to be proven
at trial.

Plaintiffs' Original Complaint

19

63.

Due to their conspiracy and control, Defendants are jointly and severally

liable for all damages.
64.

Defendants' conduct was willful, wanton, and malicious, thereby entitling

Plaintiffs to exemplary damages.

VI. APPLICATION FOR TEMPORARY RESTRAINING ORDER
65.

Plaintiffs reallege all allegations in the previous paragraphs as if included

verbatim here.
66.

Pursuant to Fed. R. Civ. P. 65, Plaintiffs move for a Temporary

Restraining Order and, after a hearing, a Preliminary Injunction enjoining Defendants
against the sale, distribution, use, retention, and/or disclosure of the Infringing Mobile
Deskbooks, or any other works that infringe Plaintiffs' copyrights.
67.

Unless Defendants are enjoined from their continuous and ongomg

infringement, Plaintiffs will suffer immediate and irreparable harm, which cannot be
compensated by an award of money damages and for which the Plaintiffs have no
adequate remedy at law. There is a substantial likelihood that Plaintiffs will succeed on
the merits of their copyright infringement claim against Defendants. The injuries that
Plaintiffs have sustained from Defendants' continuous and ongoing infringement of the
O'Connor'sTM Copyrighted Books outweigh any injury Defendants may sustain as a
result of the requested injunctive relief. Granting of a temporary restraining order
enjoining Defendants from their continuous and ongoing infringement will not
substantially harm other interested parties or adversely affect public policy or the public'S
interest.
68.

Unless the Court promptly enJoms and restrains Defendants, Plaintiffs'

losses will continue to mount and will in all probability continue to irreparably harm

Plaintiffs' Original Complaint

20

Plaintiffs' business. Defendants are apparently in the process of modifYing the Infringing
Mobile Deskbooks, which will force Plaintiffs to engage in repeated investigations of
Defendants' works to determine the amount of copying for the "revised" deskbooks.
Injunctive relief is necessary and proper.
69.

Plaintiffs, therefore, request a Temporary Restraining Order restraining

Defendants, including their related entities, directors, officers, employees, agents, vendors,
and anyone involved in the distribution, sale, or use of the Infringing Mobile Deskbooks
(or other infringing works) from:
1.

11.

111.

IV.

v.

VI.

Displaying via the Internet or any other means (including the Apple
App Store®, Google Play®, and the BlackBerry App World®, or any
other source whatsoever), marketing, selling, distributing, offering for
download or use (whether for a fee or for free) or otherwise making
commercial use of or commercially benefitting from the sale and/or
transfer of the Infringing Mobile Deskbooks identified herein.
Displaying via the internet or any other means (including the Apple
App Store®, Google Play®, and the BlackBerry App World®, or any
other source whatsoever), marketing, selling, distributing, offering for
download or use (whether for a fee or for free) or otherwise making
commercial use or commercially benefitting from the sale and/or
transfer of any other works that infringe the O'Connor'sTM
Copyrighted Books.
Continuing to operate the web address 69.164.202.37.
Engaging in any future acts of copying any works that infringe on valid
copyrights.
Continuing to provide Defendants' existing customers with access to
Infringing Mobile Deskbooks that were previously purchased and/or
downloaded, and to remove Infringing Mobile Deskbooks from all
customers' mobile devices of any kind whatsoever within seven (7) days
of the date the Court signs the Temporary Restraining Order; and
Deleting, altering, destroying, or removing any e-mails, documents,
data, information, electronic postings, text messages, records, ftles,
history data or properties, contained or stored on any of Defendants'
(including their directors, officers, employees, independent contractors,
agents, vendors, or anyone else involved in the distribution, sale, or use
of the Infringing Mobile Deskbooks, or other infringing works)
computers, electronic devices, data storage devices, external devices,
computer hardware, Blackberries, iPhones, cell phones, PDAs,
software, zip drives, hard drives, and any other electronic equipment
or storage devices of any kind whatsoever, or data that is otherwise

Plaintiffs' Original Complaint

21

Vll.

accessible through computer or other information storage or retrieval
systems, work accounts and! or any other personal, business e-mail,
social networking, or cloud-based storage accounts.
Plaintiffs request that that Defendants be ordered to immediately
return, any and all original and copies of Plaintiffs' copyrighted
materials (or other property of Plaintiffs in Defendants' possession,
custody, or control) to counsel for Plaintiffs.

VII. REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTION
Plaintiffs reallege all allegations in the previous paragraphs as if included

70.
verbatim here.
71.

Pursuant to Fed. R. Civ. P. 65 and 17 U.S.C. §502, Plaintiffs move for a

preliminary injunction and, after a final hearing on the merits, a permanent injunction
enjoining Defendants against distribution or sale of the Infringing Mobile Deskbooks,
and!or any other works that infringe the O'Connor'sTM Copyrighted Books.
72.

As stated above, injunctive relief is appropriate because: (i) Plaintiffs have

and will continue to suffer immediate and irreparable harm that cannot be compensated
by an award of money damages; (ii) Plaintiffs have a substantial likelihood of success on
the merits; (iii) Plaintiffs' injuries outweigh any injuries Defendants may sustain as a result
of the requested injunctive relief; and (iv) the requested injunctive relief is in the public's
interest.
73.

Plaintiffs, therefore, request a Preliminary Injunction, and upon Final

Judgment, a Permanent Injunction restraining Defendants, including their related
entities, directors, officers, employees, agents, vendors, and anyone involved in the
distribution, sale, or use of the Infringing Mobile Deskbooks (or other infringing works)
from:
1.

Displaying via the Internet or any other means (including the Apple
App Store®, Google Play®, and the BlackBerry App World®, or any
other source whatsoever), marketing, selling, distributing, offering for

Plaintiffs' Original Complaint

22

n.

111.

IV.

v.

Vl.

Vl1.

download or use (whether for a fee or for free) or otherwise making
commercial use of or commercially benefitting from the sale and/or
transfer of the Infringing Mobile Deskbooks identified herein.
Displaying via the internet or any other means (including the Apple
App Store®, Google Play®, and the BlackBerry App World®, or any
other source whatsoever), marketing, selling, distributing, offering for
download or use (whether for a fee or for free) or otherwise making
commercial use or commercially benefitting from the sale and/or
transfer of any other works that infringe the O'Connor'sTM
Copyrighted Books.
Continuing to operate the web address 69.164.202.37.
Engaging in any future acts of copying any works that infringe on valid
copyrights.
Continuing to provide Defendants' existing customers with access to
Infringing Mobile Deskbooks that were previously purchased and/or
downloaded, and to remove Infringing Mobile Deskbooks from all
customers' mobile devices of any kind whatsoever within seven (7) days
of the date the Court signs the Temporary Restraining Order; and
Deleting, altering, destroying, or removing any e-mails, documents,
data, information, electronic postings, text messages, records, files,
history data or properties, contained or stored on any of Defendants'
(including their directors, officers, employees, independent contractors,
agents, vendors, or anyone else involved in the distribution, sale, or use
of the Infringing Mobile Deskbooks, or other infringing works)
computers, electronic devices, data storage devices, external devices,
computer hardware, Blackberries, iPhones, cell phones, PDAs,
software, zip drives, hard drives, and any other electronic equipment
or storage devices of any kind whatsoever, or data that is otherwise
accessible through computer or other information storage or retrieval
systems, work accounts and/or any other personal, business e-mail,
social networking, or cloud-based storage accounts.
Plaintiffs request that that Defendants be ordered to immediately
return, any and all original and copies of Plaintiffs' copyrighted
materials (or other property of Plaintiffs in Defendants' possession,
custody, or control) to counsel for Plaintiffs.

VIII. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request that
the Court issue a Temporary Restraining Order, Preliminary Injunction, and
subsequently a Permanent Injunction as requested here. Plaintiffs further pray that they
receive a judgment against Defendants for actual damages, statutory damages, exemplary
damages, pre- and post-judgment interest at the maximum lawful rate, attorney's fees at

Plaintiffs' Original Complaint

23

the trial court level and through appeals, costs of court, and any such other and further
relief, at law or in equity, to which it may show itself justly entitled.

Respectfully submitted,
~LL~SKHERKHERHART

BOUNDAS, LLP
By:

/s/ Edwin Armistead Easterby
Edwin Armistead "Armi" Easterby
Texas Bar No. 00796500
Fed. ill 20598
8441 Gulf Freeway, Suite 600
Houston, Texas 77017
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

COUNSEL FOR MCCLURE FAMILY
LIMITED PARTNERSHIP AND JMP
INTERESTS, L.P.

Plaintiffs' Original Complaint

24