TaubmanSucks.com
WillowBendSucks.com
WillowBendMallSucks.com
ShopsAtWillowBendSucks.com
TheShopsAtWillowBendSucks.com
GiffordKrassGrohSprinkleSucks.com

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Act 82: We Respond to
Taubman's Discovery Requests

Although Taubman refuses to provide meaningful responses to even the most elementary discovery requests, they have no problem in asking me to provide them with everything they can think of, whether or not it has anything to do with the case. And at this time, they're supposed to be limiting their requests only to items that are relevant to the copyright infringement charge, but that seems to have slipped their minds. At any rate, we responded to their discovery requests on May 29, 2002, and here's what we had to say.


UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY
LIMITED PARTNERSHIP,
 
Plaintiff, 
 Civil Action No. 01-72987
v.
 District Judge Zatkoff
WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives
 
Defendants. 


ANSWERS AND RESPONSES
TO PLAINTIFF'S INTERROGATORIES
AND REQUESTS TO PRODUCE


INTERROGATORY NO. 1
For the past two years, give the annual gross dollar sales of products and/or services provided by Defendants which are promoted on the Internet, or which use any of Defendants' websites.

ANSWER
Objection because the interrogatory is overbroad. The requested annual gross dollar sales are not relevant to the claim or defense of any parties to the copyright claim in this case, which is the only matter that remains open for discovery; nor is the requested information reasonably calculated to lead to the discovery of admissible evidence. In furtherance of its claim for damages based on Mishkoff's gross profits attributable to the alleged infringement, plaintiff is entitled only to obtain information about the gross revenues attributable to or produced by the infringement; to the extent that the interrogatory seeks such information, Mishkoff answers that there are no such gross revenues.


[Note: As previously shown in this case, WebFeats is Mishkoff's DBA and has no separate existence. References to Mishkoff include WebFeats.]


INTERROGATORY NO. 2
If you contend Plaintiff's copyright is invalid, identify and describe all facts and documents which support your claim.

ANSWER
Mishkoff has not yet decided whether he contends that plaintiff's copyright is invalid. Mishkoff notes that plaintiff appears to have registered the copyright in two graphics that were authored by another, based on the claim that plaintiff had received an assignment, but the assignment that was provided was not made until after the copyright was registered. Plaintiff claims ownership of the graphics based on an assignment from JPRA and Associates, which claims, in turn, that the graphics were prepared for JPRA as a work for hire; however, no evidence supporting the claim of work for hire has been produced. In addition, the document provided as the claimed assignment gives a different name than the name of the artwork that was registered, and we have received no disclosures showing that the artwork that was registered is, in fact, the same as that which was assigned. Moreover, the great variety of artwork and other materials posted on plaintiff's web sites pertaining to The Shops at Willow Bend creates a real possibility that the assigned work is not the same as the registered work. The documents establishing these facts are the copyright registration attached to the complaint, the assignment provided in response to discovery requests, plaintiff's responses to the written discovery requests, and materials printed from plaintiff's web sites.


INTERROGATORY NO. 3
If you contend that Defendants' actions in downloading the work from Plaintiff's website and copying onto Defendants' site do not constitute copyright infringement, identify and describe all facts and documents which support your position.

ANSWER
Subject to the defense of fair use and to the possible defense that plaintiff did not own the copyright, defendant acknowledges that he committed an infringement.


INTERROGATORY NO. 4
Identify all persons who cooperated with you in copying/downloading the allegedly copied works.

ANSWER
Nobody.


INTERROGATORY NO. 5
Have you ever copied/downloaded any other works which you believe to be from Plaintiff/its agents?

ANSWER
Yes.


INTERROGATORY NO. 6
Have you incorporated any copied works of Plaintiff/its agents in any work or medium other than your website?

ANSWER
No, other than matters published in connection with this litigation.


INTERROGATORY NO. 7
Identify and describe what facts and documents you are aware of to support any claim of fair use you claim.

ANSWER
A complete answer cannot yet be provided because plaintiff has not responded to discovery, but the following is a summary of the facts and documents on which the defense of fair use may be based.

The two graphics that Mishkoff copied are part of a significantly larger body of work that was prepared for Taubman and used by Taubman to publicize its shopping malls (including but not limited to The Shops at Willow Bend). Part of this body of work are the web sites that Taubman has posted, but it is believed that there are additional materials; these have been requested in discovery and will be furnished by Mishkoff when they are obtained. In disseminating these materials, it is believed that Taubman explicitly or implicitly encouraged the recipients to copy the materials and disseminate them further.

The graphics do not represent a creative work in the sense that they are intended to be admired for their appearance or design. Their function is strictly utilitarian, as what purports to be a factual portrayal of the intended appearance of the interior of the shopping mall. Mishkoff's use of the graphics was thus entirely consistent with the purpose for which they were created for Taubman and used by Taubman.

And, so far as is known, Taubman did not have any market for the graphics, and the graphics had no value except insofar as they might inform their viewers about the desirable qualities of the mall. Mishkoff's use thus did not have any adverse impact on the market for or the value of the works; if anything, his use enhanced that value.

Mishkoff's use was entirely non-commercial – he received no income and no revenues from the use of the graphics, either directly or indirectly. His purpose in using the graphics was to express his admiration for and to publicize what promised to be a nice new neighborhood amenity, and in this regard his use of the graphics was similar to other web sites that he maintained without any remuneration pertaining to other business entities in the Dallas area. Not only did he not receive any revenue or other things of value from the existence of the web site on which the graphics were displayed, but he has not acquired any clients through either that web site or the WebFeats web site or any other web site during the period in question. Any new clients he acquired were either related to existing clients or referred by existing clients.


Next: Document Requests

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