Cite as 907 F.Supp. 1383 (C.D.Cal. 1995)
B. Likelihood of Success
The court finds that plaintiffs have not met their burden of showing a likelihood of success on the merits as to either Netcom or Klemesrud. The only viable theory of infringement is contributory infringement, and there is little evidence that Netcom or Klemesrud knew or should have known that Erlich was engaged in copyright infringement of plaintiffs’ works and was not entitled to a fair use defense, especially as they did not receive notice of the alleged infringement until after all but one of the postings were completed. Further, their participation in the infringement was not substantial. Accordingly, plaintiffs will not likely prevail on their claims.
C. Irreparable Injury
The court will presume irreparable harm for the copyright claim where plaintiffs have shown a likelihood of success on their claims of infringement. Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1174 (9th Cir.1989). Here, however, plaintiffs have not made an adequate showing of likelihood of success. More importantly, plaintiffs have not shown that the current preliminary injunction prohibiting Erlich from infringing plaintiffs’ copyrights will not be sufficient to avoid any harm to plaintiffs’ intellectual property rights.
D. First Amendment Concerns
There is a strong presumption against any injunction that could act as a “prior restraint” on free speech, citing CBS, Inc. v. Davis, – U.S. —, — – —, 114 S.Ct. 912, 913–14, 127 L.Ed.2d 358 (1994) (Justice Blackmun, as Circuit Justice, staying a preliminary injunction prohibiting CBS from airing footage of inside of meat packing plant). Because plaintiffs seek injunctive relief that is broader than necessary to prevent Erlich from committing copyright infringement, there is a valid First Amendment question raised here. Netcom and Klemesrud play a vital role in the speech of their users. Requiring them to prescreen postings for possible infringement would chill their users’ speech. Cf. In re Capital Cities/ABC, Inc, 918 F.2d at 144.
E. Conclusion
Plaintiffs have not shown a likelihood of success on the merits of their copyright claims nor irreparable harm absent an injunction against defendants Netcom and Klemesrud. Accordingly, plaintiffs are not entitled to a preliminary injunction.
IV. Order
The court denies Netcom’s motion for summary judgment and Klemesrud’s motion for judgment on the pleadings, as a triable issue of fact exists on the claim of contributory infringement. The court also gives plaintiffs 30 days leave in which to amend to state a claim for vicarious liability against defendant Klemesrud, if they can do so in good faith. Plaintiffs’ application for a preliminary injunction against defendants Netcom and Klemesrud is denied.
The parties shall appear for a case management conference at 10:30 a.m. on Friday, January 19, 1996. The deadline for completing required disclosures is January 5, 1996. The joint case management conference statement must be filed by January 12, 1996.
DOGLOO, INC., a California corporation, Plaintiff,
v.
NORTHERN INSURANCE COMPANY OF NEW YORK, a New York corporation, and Cigna Property and Casualty Co., a Connecticut corporation, Defendants.
No. CV95-3591 ABC (CTx).
United States District Court,
C.D. California.
Dec. 1, 1995.
