Enterprise, Chronicle file suit against Police News for copyright violations

Marilyn Tennissen Apr. 28, 2008, 7:51am

HOUSTON -- A Galveston journalist is facing a federal lawsuit after the Associated Press, the Beaumont Enterprise and other Texas newspapers say he has posted unauthorized copies of their stories on his news Web sites.

The media outlets allege that Breck Porter published complete and unedited copies of their news stories through the Police News Publishing Co.

Hearst Newspapers including the Beaumont Enterprise, the Houston Chronicle and the San Antonio Express News; the Associated Press; the Galveston County Daily News; the Brazosport Facts; the Baytown Sun; and the Bay City Daily Tribune filed the suit April 25 in federal court in the Houston Division of the Southern District of Texas.

The suit alleges the Police News publications have committed copyright infringement, false association and endorsement, misappropriation and trademark infringement.

"Plaintiffs have made several attempts to work with defendants in order to curtail defendants' wholesale misappropriation of plaintiffs' original news content," the suit states.

The plaintiffs claim they have encouraged Porter to use a Web link to their stories instead of copying the entire text onto the Police News Web sites.

"But defendants have refused to remove the complete copies of plaintiffs' news content," the suit states. "Defendants' refusal to curb their wholesale copying of plaintiffs' news stories has left plaintiffs with no alternative to bringing this suit to enforce their right."

Porter, a Galveston resident, is the editor of the Police News Publishing Co. which includes ThePoliceNews.net, FamilyBadge.org, TexasPoliceNews.com, NationalPoliceNews.com, GCPolices.com and TexasPoliceNetwork.com.

"Plaintiffs' news reports are original works created through significant professional, personal and economic investment and sacrifice by plaintiffs and their employees," the lawsuit states. "The creation of the reports requires exercise of great skill, ingenuity and improvisation."

The plaintiffs are also complaining that they are losing revenue from subscribers, licensees and advertisers and that the Police News is selling advertising space on its Web sits and profiting off the plaintiffs' proprietary reports.

Content that the plaintiffs list as being republished and archived by the defendant without permission include "Bewildering Election Law Needs Fixing, Orange County DA Says," Beaumont Enterprise, Aug. 23, 2007; "Lovers' Scuffle Costs TV Reporter Her Job," San Antonio Express-News, Aug. 1, 2007; and "Prison Warden Found Dead in Swimming Pool," The Associated Press, Aug. 20, 2007.

"Defendants are improperly using the Newspaper Plaintiffs' proprietary content in the exact same manner and context for the same purpose that the Newspaper Plaintiffs use them," the suit alleges. "In doing so, defendants are in direct competition with the Newspaper Plaintiffs."

The lawsuit focuses on allegations that copyright infringement is occurring on Porter's Web sites, and does not specifically mention violations in any Police News print editions.

The Southeast Texas Record was contacted by Porter via e-mail in November 2007, seeking permission to reprint an issue of the Legally Speaking column, which is written by Dallas attorney John G. Browning for the Record and a few other Texas newspapers. Porter wrote that he planned to publish the column in the Gulf Coast and Piney Woods editions of the Police News, which is distributed in Galveston, Brazoria and Montgomery counties. The Record granted permission to the Police News to reprint the column.

The plaintiffs claim the Police News has violated their copyright or otherwise misappropriated their proprietary content "hundreds if not thousands of times," and continues so that "new works are potentially infringed every day."

The improper conduct is likely to usurp plaintiffs' business relationships and opportunities and will result in a "substantially adverse impact on the actual and potential market for plaintiffs' service," the suit states.

"Defendants' use of plaintiffs' proprietary content is a free-ride on plaintiffs' costly efforts to gather information and create news reports under well-honed editorial procedures and practices," the plaintiffs claim. The use of their content, they allege, "so reduces the incentive to create the proprietary works that it threatens the existence and/or quality" of their materials and services.

The plaintiffs claim that they have made numerous attempts to "reach out to defendants in order to bring an end to the unlawful activity."

The suit details an example from September 2007 in which an editor from the Beaumont Enterprise e-mailed Breck Porter requesting that he remove the paper's full stories from www.policenews.net, while "emphasizing that the paper encourages him to link to its stories."

In response, the suit alleges, Porter agreed not to post further Beaumont Enterprise stories, "but refused to take down existing stories."

"After some back and forth, an attorney at The Hearst Corporation, wrote Beck Porter on behalf of the Houston Chronicle and Beaumont Enterprise on Oct. 2, 2007, demanding that he take down the newspapers' articles from thepolicenews.net Web site," the suit continues. "Porter agreed to take down content from The Hearst Corporation newspapers, apparently relying on advice from counsel. However, Porter failed to remove the content and continued to post more content."

The suit says that The Galveston Daily News had a "similar experience with Porter," in which he initially agreed to take down the paper's articles, "but in fact took no action."

The plaintiffs also claim Porter has refused to provide contact information for his attorney.

In addition, the newspapers say that the public is likely to believe that they have provided, approved or sponsored the Police News services, or that the Police News is somehow affiliated with the plaintiffs.

The suit claims that because the plaintiffs have "no control over the quality of services offered by the defendants" that their "valuable goodwill" is "at the mercy of the defendants."

The "free-riding" of the Police News, the plaintiffs claim, gives the Police News a special competitive advantage because it is "not burdened with the expenses incurred by plaintiffs in generating and gathering the information."

The Newspaper Plaintiffs say they cannot be adequately compensated "by monetary damages alone" and are seeking a permanent injunction against the defendants and all the plaintiffs' materials be deleted from the Police News computers.

The plaintiffs are also seeking punitive damages, treble damages, costs, attorneys' fees and other relief, as well as a court order that the defendants file a written statement under oath detailing how they are complying with the order.

Charles A. Daughtry of Daughtry & Jordan in Houston is representing the plaintiffs. Jonathan Donnellan of New York, N.Y., is representing The Hearst Corp. and Laura Malone of New York, N.Y., is of counsel for The Associated Press.

Court assignment is pending.

Case No. 4:08-cv-1268

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