Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Hyperquest, Inc. v. N’Site Solutions, Inc., No. 08 C 483, 2008 WL 3978310 (N.D. Ill. Aug. 22, 2008) (Shadur, Sen. J.)

Judge Shadur continued defendants’ motion for fees as a prevailing party in this copyright case pursuant to 17 U.S.C. §505, after previously requiring additional briefing as to the reasonableness of defendants’ requested fees – click here to read about that opinion in the Blog’s archives. Defendants collectively requested approximately $260K in fees. The Court dismissed plaintiff’s argument that defendants did not offer proof that defendants had paid their counsels’ fees. But the Court set a hearing to discuss an appropriate award, noting that plaintiff’s counsel’s fees, approximately $110K, were a more appropriate sum, with some adjustment for the fact that there were two defendants.

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Hyperquest, Inc. v. N’Site Solutions, Inc., et al., No. 08 C 483, --F. Supp. 2d--, 2008 WL 2446206 (N.D. Ill. Jun. 18, 2008) (Shadur, Sen. J.)

Judge Shadur granted defendants’ motion for attorney’s fees pursuant to 17 U.S.C. § 505, after previously dismissing plaintiffs’ copyright claims for lack of standing – click here for the Blog’s post about that opinion. Plaintiff agreed that defendants were not § 505 “prevailing parties” because the case was dismissed for lack of subject matter jurisdiction. But the Court explained that its opinion and the parties’ underlying briefs used imprecise language, citing an Abraham Lincoln pearl of wisdom:

If you call a tail a leg, how many legs has a dog? Five? No, calling a tail a let don’t make it a leg.

The case was not dismissed for lack of a properly registered copyright (subject matter jurisdiction), but because plaintiff lacked sufficient right to assert the copyright (standing). Because the case was dismissed with prejudice for lack of standing, defendants were prevailing parties and an attorney’s fee award was warranted.

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HyperQuest, Inc. v. N'Site Solutions, Inc., No. 08 C 483, 2008 WL 1968554 (N.D. Ill. May 1, 2008) (Shadur, Sen. J.).

Judge Shadur dismissed plaintiff's copyright infringement case for lack of subject matter jurisdiction. Plaintiff argued that it was the exclusive licensee of the copyright. But the Court held that plaintiff's license was nonexclusive because licensor retained various rights, including, the rights to:

• Make derivative works;
  
• Reproduce the work; and
  
• Sell the copyrighted software.

But the Court's adoption of defendants' reply was its most notable feature:

To that end [defendants’] Reply addressed fully every aspect of [plaintiff’s] attempt to characterize itself as an exclusive licensee . . . and it completely scotched HQ's position. Because the Reply has covered the waterfront so thoroughly and persuasively, this Court finds it unnecessary to reiterate the analysis there piece by piece-instead it simply adopts [defendants’] presentation as proffered in the Reply.

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