Food for Thought: Cook’s Copyright Case

sneaky-chef            deceptively_delicious

The U.S. Court of Appeals for the Second Circuit has ended the food feud between two cookbook authors. Missy Lapine sought damages for copyright and trademark infringement from Jessica Seinfeld, comedian Jerry Seinfeld’s wife. Lapine alleged Seinfeld stole her solution for getting children to eat their fruits and vegetables and her book’s trademark, a winking chef.

Lapine included the idea to puree fruits and vegetables and hide them from children in their everyday foods in her book, The Sneaky Chef. A winking chef is featured on the cover. The guide was published in April of 2007.

Seinfeld’s book, Deceptively Delicious, was published in October of 2007. Her guide shared the same basic concept of Lapine’s by providing recipes that concealed fruits and vegetables in kid’s dishes. Her book cover also displayed a winking chef. Oprah invited Seinfeld on the show to explain the cuisine philosophies encompassed in her book.

Lapine filed a lawsuit against Seinfeld in January of 2008.The District Court of New York ruled in favor of the defendant, Seinfeld.The court asserted that Lapine’s concept was not exactly novel and maintained that an idea is not protected by copyright.As for the trademark, the court held that the cover drawing of the winking chef on each book appeared amply different and distinctive and readers would not confuse the two.The Court went on to examine the content, design and arrangement of the books.They judged that Lapine’s book focused more on the texts and explanations while Seinfeld’s contained more visual and graphic elements to aid the text. The plaintiff appealed the decision and the case went to the Second Circuit, where the ruling of the lower court was affirmed and the complaints were thrown out.

I concur with both the decision and dicta of the two courts.Copyright does not protect ideas and Lapine’s concept is not an exception to this rule.Lapine cannot simply claim ownership over the puree idea.In addition, after evaluating the covers myself, I also found them to be very unlike one another.It would be difficult for readers to confuse them.Thus, while Lapine may have been able to prove that Seinfeld got a hold of her work, she did not show that the two books were considerably alike.Without the satisfaction of these two requirements, one cannot win a copyright infringement case..

The free flowing of ideas has always been an integral component of American society.Allowing for the copyright of ideas would significantly obstruct the free marketplace of ideas.While Lapine may be after damages, I believe another intention (if not her main intention) was to generate publicity and consequently greater sales for her own book.She is also currently involved in a lawsuit against Jerry Seinfeld for defamation.On the Late Show with David Letterman Seinfeld referred to Lapine as, “a nut job,” “a wacko” and “hysterical.”The outcome of this case is pending.

The original decision can be found at http://www.loeb.com/files/Publication/87c18ac3-165e-4728-b769-3f50600060f8/Presentation/PublicationAttachment/02b19f0b-60f1-4d09-b0a0-4108cc8bed07/Lapine%20v%20Seinfeld%20SDNY%20Sept%202009.pdf

The appeal case can be found athttp://www.ca2.uscourts.gov/decisions/isysquery/bcb565fe-4de6-45cf-ba5a-b0456e3729fc/1/doc/09-4423_so.pdf

A preview of The Sneaky Chef can be found online at http://books.google.com/books?id=OLTPuzhIzFYC&pg=PA252&dq=sneaky+chef+vs+deceptively+delicious&hl=en&ei=ITTZS9zLJISBlAfVotnRAQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDoQ6AEwAA#v=onepage&q&f=false

LimeWire: Still Hanging In There

According to the 2009 edition of “Communication and the Law”, after Metro Goldwyn-Mayer Studios Inc., et al. v. Grokster, Lts., 545 U.S. 913, 918-19 (2005). also know as MGM Studios v. Grokster, the Court suggested that when “a widely shared product” is suspected of infringement, it’s unrealistic to go after every single person directly who has used or is using the software or program. So, the next best option is to sue the distributor for contributory or vicarious infringement. According to the Supreme Court contributory infringement is when the distributor “intentionally induces or encourages direct infringement” (155). Vicarious infringement suggests that the distributor is profiting from the direct infringement while refusing to “stop or limit it”.

So what does this court decision have to do with anything? Well a couple of weeks ago we covered the copyright infringement of file sharing services. Although many cases involving the Recording Industry Association America (RIAA) were discussed in class, there was one P2P service that wasn’t mentioned. It’s one that I consider to be one of the most popular file sharing services, LimeWire. We’ve all either used it or at least heard of it; but how has a peer-to-peer giant such as LimeWire continue to run? Has this service found a way to escape copyright infringement? Well, it has an interesting case.

Like other P2P services such as Bearshare and WinMx, LimeWire received the “cease and desist” letters in 2005 from the RIAA asking it to “…immediately cease-and-desist from enabling and inducing the infringement of RIAA member sound recordings”. Unlike Bearshare and WinMx, LimeWire didn’t cease or desist, it instead put word out that it would install a copyright filter to block illegal files. As time passed, new user friendly features surfaced but no copyright filter. Then the RIAA sued.

In 2006, The RIAA sued Lime Group, LLC (the company that LimeWire belongs to), LimeWire, LLC, the CEO Mark Gorton and the CTO Greg Bildson. For the first since MGM studios v. Grokster, the RIAA also sued for “inducing direct infringement”. Meaning, LimeWire was sued for encouraging its users to share or download illegal files. The file sharing service was also sued for vicarious infringement and common law infringement.

LimeWire continued to set itself apart, as it wasn’t going down without a fight. First, LimeWire tried to reason with the RIAA and become a licensed music service but the RIAA declined and suggested that it use a filtering service approved by the record labels, or join forces with the P2P file sharing service iMesh. LimeWire didn’t like either suggestion so in 2006 LimeWire’s CEO and CTO filed a countersuit against the RIAA inArista Records LLC v. Lime Group LLC. 532 F. Supp. 2d 556. (S.D.N.Y 2007). They claimed that the record industry group “conspired to restrain trade and monopolize the market for the distribution of copyrighted sound recordings over the internet” In other words, LimeWire was accusing the RIAA of trying to put them out of business. The P2P giant also denied the RIAA’s allegations against them in the counterclaim.

Unfortunately, LimeWire accusations against the RIAA didn’t hold weight, as U.S. District Judge Gerard E. Lynch in New York tossed out the counterclaim in December 2007 and disallowed the case to continue in state court. He said that LimeWire failed to prove that the RIAA had any ulterior motives aimed at putting them out of business, and that the RIAA’s actions were “independent decisions”.

With the counterclaim out the window, attention turned back towards the first lawsuit against LimeWire. As of now, this is case is still pending but LimeWire has added some disclaimer information to it’s website. In fact it has a copyright page that gives users warnings about “downloading unlawful material” and notifies them about the repercussions of taking part in copyright infringement. There is also an interesting line that says “LimeWire is not responsible for the content on the P2P network and does not monitor it”.

Perhaps, the disclaimer will work in LimeWire’s favor when a decision is finally made by the court. However, the file sharing service’s refusal to give up their assets to the RIAA and their decision to countersue them was bold and should be appreciated. Yes, it didn’t work out for LimeWire in court but at least they tried. If anything, it was a smart move as they’ve bought themselves more time and if you haven’t noticed LimeWire is still up and running!

Links/Sources:
LimeWire Counter-claim:http://www.lexisnexis.com.libproxy.temple.edu/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T9269642569&homeCsi=6323&A=0.3105255992679483&urlEnc=ISO-8859-1&&citeString=532%20F.%20Supp.%202d%20556&countryCode=USA
LimeWire official website: http://www.LimeWire.com/legal/copyright
Articles: http://www.foxnews.com/story/0,2933,314977,00.html
http://www.slyck.com/story1299_LimeWire_Counter_Sues_the_RIAA
http://www.slyck.com/story1258_LimeWire_Sued_by_the_RIAA

Copyright Infringement and Architecture

This 2nd Circuit case involves a dispute that arose between plaintiff (Peter F. Gaito Architecture) and defendant (Simone Development Corp). Gaito pulled his designs and involvement out of a project called the “Church Street Project” in New York. The defendant decided to go ahead with the plans and the plaintiff believed that the “new” plans were too similar to his own. Rather than answering the complaint and seeking summary judgment, the defendant asked the court to dismiss the complaint immediately on the theory that there were not enough similarities between the two sets of plans.

This is a very recent decision by the 2nd Circuit Court of Appeals, in order to cut costs for defendants and dismiss cases when there is no “substantial similarity”. The interesting part of this case is that there are significant similarities. The plaintiff was creating a high-rise residential tower with shopping structures at the bottom of it. It included a water structure, a park, parking for residential and commercial tenants etc. These were also included in the “new” plan, and the spots in which they were to be built were also the same.

The court decided that there are so many high-rise residential spots with very similar structure and basically the same ideas that the plaintiff had in his copyrighted plans. Therefore, although the plans were very similar, based on other high-rise residencies, similarities that show between all of them cannot count toward the case. They believed the plans as a whole were substantially different and that there were no significant similarities for the court to decide upon.

In my opinion, this is a huge breakthrough because copyright infringment cases can be crushed before they even have the time to be processed through the court. A minor worry about this decision is that many more “frivolous” requests for dismissal will be made in many copyright cases and can delay court processes that need to take place. Defendants will learn to abuse this dismissal request just like all of the others in order to delay court dates and crush weak apponents in a battle of money.

Here is the case:
http://iplawwatch.foxrothschild.com/uploads/file/int4B.PDF

Here is an article I found about the case:
http://iplawwatch.foxrothschild.com/2010/04/articles/copyrights/a-faster-end-to-frivolous-copyright-infringement-cases/

In My Opinion- Shaun Gallagher- Is GQ Magazine Article Defamatory?

Marvin Harrison

In My Opinion-Shaun Gallagher
So as I’m sure you’re well aware…and if you’re not…Marvin Harrison has had ties to trouble in Philadelphia. He grew up in a bad neighborhood he ran with a rough crowd but he fought adversity to become one of the top wide receivers in the history of the NFL. So when news of a shooting at his car wash surfaced, many were shocked that this quiet, “do good” player was rumored to be involved. While it may be tough to know what exactly happened the day of the shooting, one thing that is known is that Philadelphia District Attorney Lynne Abraham has publicly stated that there are no charges against Marvin Harrison and she came to this conclusion because there are “nine or so various versions” of witness accounts (http://www.usatoday.com/sports/football/nfl/colts/2009-01-06-harrison_N.htm).
That being said, any reasonable reporter would not put together a story about what happened that day and you especially would not make Marvin Harrison guilty within an article about the topic. But Jason Fagone of GQ Magazine wrote an entire re-enactment of what happened that day. It starts out with the sentence “It was a scene* to make anybody stop and watch.” The asterisk leads to a note at the very bottom of the page, that says the story is “Re-created from interviews, court filings, and police reports, and told through the eyes of Robert Nixon.” There is no need for this note to be at the bottom of the article unless you are trying to make Harrison look guilty. Fagone could have easily had the first sentence say “This story re-creation is generated from the words of Robert Nixon, interviews, court filings and police reports,” then it could go into the story. But Fagone acted in a reckless manner by using the asterisk that the average reader would probably miss.
The article goes on to make Harrison seem like Denzel Washington in Training Day with guns a blazing. After reading Condit v. Dunne, 225 F.R.D. 100, (2004), I immediately thought of this article and that Harrison would have a good chance if he were to bring a case against Fagone. The only difference is that Harrison wasn’t really hurt by the article. He had retired from the league months before, he’s settled with his life as it is and he is known to be quiet to the media. Therefore, to not do anything about the article is atypical of Harrison because he doesn’t want to be in the public eye about the subject.
If this were to go to trial I believe that Harrison would win because he is a public figure and he would have to prove actual malice. After reviewing the Condit V. Dunne in clss, we know that if he could prove that he was hurt by the article, Harrison and company could win the case.
Fagone of GQ Magazine and Dominick Dunne wrote in a very similar medium. They both are in an area of the media that is not really considered “hard news” so they may feel they can get away with more. The only problem is they are defaming these public figures. Whether it is an athlete or public official these people are still humans who have to live with what these writers are saying about them. Dunne and Fagone are both making enormous accusations about both Condit and Harrison being murders or at the very least being a part of the murders.

In My Opinion- Jenine Pilla- Campus Free Speech in Action

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I’m sure everyone has seen these signs in various areas around campus because it’s pretty hard to miss. While walking by the bell tower on Monday morning, you could hear the screams resonating from all around. People asking how they (the anti-abortion protestors) have the right to litter our campus with’garbage like that.’ Well, thank you America for granting us the First Amendment.

Freedom of speech is a wonderful thing and America wouldn’t be half the country it is today without it. But when does freedom of speech get stretched too thin? When does the concept not hold up? Like we discussed in class, the limitations of speech on a college campus are similar to those in other public arenas–not many. Unfortuately for those students disturbed by the anti-abortion protestor’s graphic signs, the only possible restriction I can see on these protests would be in terms of time, place and manner.

On Monday, every class I entered was hustling and bustling with the flooding emotions that were carried in with students like the mud on their shoes.
“How could they do this?”
“Who in Temple allows this?”
“Why do they think this is a good idea?! Do they want to start a riot?”

My question is, how far would this student outrage have to go before this is this could be a situation of “material and substantial disruption of the educational process?” This is the standard outlined by the U.S Supreme Court in TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT 393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731; 1969 -Jenine Pilla

Justice Department Targets Online Piracy

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U.S. DEPARTMENT OF JUSTICE;

Father and Son Plead Guilty to Selling Counterfeit Software Worth $1 Million

This case on copyright infringement is very recent and sentencing has been scheduled for June 18th 2010. In this case, four men have been convicted for operating web sites that are engaged with the sale of pirated software. Father and son, Robert and Todd Cook pleaded guilty to criminal copyright infringement and conspiracy to commit criminal copyright infringement. According to documents from July 2006 to May 2008 the Cooks operated several websites that sold large amounts of counterfeit software with a combined retail value of $1 million. They admitted that they were selling unauthorized software without permission from the copyright owners. Both defendants face up to five years in prison and a fine of $250,000 and three years of supervised release.

This case is part of the U.S Department of Justice’s extended initiative to combat online auction piracy. Including the men that have already plead guilty in this case, the department has gained 46 convictions in similar cases.

This case highlights the importance of copyrighting one’s property and how it is common place to steal or ‘borrow’ another person’s property. It is a major issue and reading this case showed me the importance of finding these people involved with piracy and charging them criminally for their theft, especially online.

Full Story:

Can Public Schools Punish Student Speech on the Web?

I am a Facebook user as many of you are. It is becoming normal to see someone posting derogatory comments about a friend or an ex on their Facebook status. And more and more cases are cropping up in the media regarding high school students and Facebook comments. Just how much is student speech protected? Can the school intervene, even if the action in question was posted off-campus?

In this article, an Oak Grove High School student, Megan Wisemore from Missouri, went to her Facebook status to complain about another student. She posted a comment that said, “You’re a skank and I hate you with a [expletive] passion.” Now, she claims this was only meant for her and her friends to see, however, the next day in school the two girls got into a altercation. Wisemore, who wrote the comment did not throw a punch, but both girls ended up being suspended. Wisemore’s mother said the school should not intervene and it was her daughters First Amendment right to say what she said.Student speech is protected somewhat under the case, TTinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) which stated, “It is established that public school students have First Amendment rights unless there is a real threat of violence or a substantial disruption to the educational environment.” In J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002), the court affirmed that school officials had the authority to discipline a student for an off-campus website containing derogatory and threatening when they amounted to an actual or substantial disruption of education.

Since the rise of social-networking this is getting harder to define. State courts seem to be all over the place on this issue.? For example, the Layshock v. Hermitage Sch. Dist., No. 06-116 (July 10, 2007) , a student made a fake MySpace page, citing the principal as a “big whore” who smoked a “big blunt.” The court said it was within the student’s free speech rights. While in another case in Pennsylvania, J.S. v. Blue Mt. Sch. Dist., 2010 U.S. App. LEXIS 7342 (3d Cir., Apr. 9, 2010) which also concerned a student who made a fake MySpace page of their principal, calling him a “tight ass” who liked “hitting on students and their parents.” J.S. v. Blue Mountain said the student’s speech was not protected and upheld her suspension from school.

The Oak Grove High School upheld the students suspension stating, “The Missouri Association of School Boards said schools may discipline off-campus behavior, if a connection is shown between the behavior and something happening in school.” The Missouri Association of School Boards also said, “the courts go back and forth on the issue.” Missouri lawmakers are currently considering a provision to specifically include cyberbullying in school safety legislation.

Because of the growing popularity of social-networking sites like Facebook and MySpace, the courts are going to be dealing with more and more cases like these everyday.

Article: https://firstamendmentcoalition.org/2010/03/student-first-amendment-rights-get-lost-in-schools-policing-of-off-campus-postings-on-social-media/

June Fredericks on Copyright Infringement in Cyberspace

Universal Music Sues MySpace for Copyright Infringement (2006)
http://www.nytimes.com/2006/11/18/technology/18myspace.html
I found an interesting article about a copyright infringement case dealing with Universal Music Group and Myspace. UMG attempted to sue Myspace for copyright infringement due to music from the label’s various artists being available for downloading and sharing through Myspace. Interestingly, UMG made sure to file the case in the state of California which at the time was just making provisions to its safe harbor act, which required sites to remove all material at the copyrighter’s request. In the case, UMG argued that Myspace enabled downloader’s to infringe on the company’s copyright holdings; whereas Myspace argued that they did not condone any unlawful copyright violations and made music available while still respecting creator rights.
Assessment
The case could deal with contributory infringement –being that Myspace profited from advertisements on its site, which accumulated numerous viewers from the listeners/ downloaders that accessed the pages.
Myspace may have prohibited UMG and is corresponding artists from making money on unreleased music, which was subsequently being released, shared and downloaded on myspace for free.

Questions for Discussion for class:

How could Myspace defend UMG’s claims?
Is there a definite way to stop copyright infringement from downloads on the internet or are copyrighters fighting a losing battle in regards to the net?
From the surface, what do you think would be the outcome of this case?
Could this case be classified as purely copyright infringement of contributory infringement?

Cory Victorella’s Blog Post

According to inclusion upon seclusion i believe the school is at fault. Lets look at the facts, the students did not know they were being monitored. The pictures were taking in the privacy of their homes while on the lap tops. The school paid for a specific program so they can take photos and track down stolen laptops. I think that since the school not only took pictures from the stolen laptops but also took pictures from random students laptops in a manner of 55,000 pictures they will get charged with invasion of privacy and get a huge fine. I think that they should have made the students aware of this program and only taken pictures from the stolen laptops. It also would have been better if the police monitored this program not the school district, The problem is that they invaded the privacy by using a program and took advantage of the fact that the laptops had web cams

A lot of attention has been given to the Lower Merion School District with the recent scandal of the laptop computers. Students are given laptops to work on both on campus and off campus. Lower Merion’s attorney says the tracking program, lanrev, took screen grab images and webcam photos every 15 minutes to help find computers. The school says that most of the pictures came from the stolen laptops and none of the pictures seemed to be inappropriate. But some of the pictures came from students chatting online with friends and there is currently a lawsuit against the school district saying what they did was an invasion of privacy and they shouldn’t be allowed to monitor students when they are off-campus. Also they shouldn’t be taken over 56,000 photos for a few stolen computers that just doesn’t make sense. Also students that didn’t have their laptops stolen reported that they have had their pictures taken chatting online. This definitely violates the privacy of the students at home. Mark Haltzman the attorney representing the student suing the school said, “I am not surprised,” Haltzman said. “And remember, that number, 56,000, is only what they’ve been able to recover. We know that there are many, many more pictures that we believe of even Blake Robbins alone, there’s at least another 300 to 400 screenshots and webcam pictures that they haven’t been able to recover – or say that they haven’t been able to recover.” So for the school to be taking these photos of students when they are at the privacy of their own homes is wrong. Haltzman is calling for the computer running the monitoring program to be investigated but the school has yet to turn it over to the police.

Plaintiffs Michael and Holly Robbins think that pictures were being taken while students were attempting to change and during their showers. They also compared this recent scandal with the George Orwell book 1984 calling their school district big brother. .http://www.myfoxphilly.com/dpp/news/local_news/042010_Lower_Merion_Webcam_Spying_Case

Can Testifying on a Work Matter Get You Promoted, Demoted, or Fired?

“It is equally well-settled that refusing to renew an employee’s contract for public employment as a result of the employee’s exercise of First Amendment rights, even where the employee does not have a right to such renewal, constitutes a form of retaliation prohibited by the First Amendment.” See e.g. Newsom v. Norris, 888 F. 2d.371. 376 (6th Cir. 1989)” (Quote from Tammy v. CVSD case)

The decision in the case 2:09cv1086, 2010 U.S. Dist. LEXIS 31605, Tammy Whitfield, Plaintiff vs. Chartiers Valley School District(CVSD) and Chartiers Valley School Board, Defendants was issued on Aug. 17, 2009 and decided on March 31, 2010 in the United States District Court for the Western District of Pennsylvania. Whitfield, an assistant superintendant at CVSD, filed this suit against her employer because she didn’t think testifying at a school board hearing would hinder the renewal of her contract with CVSD. This request for an injunction was sought to stop the defendants from retaliating against the plaintiff for using her rights granted under the First Amendment.
Whitfield has been employed with CVSD for the past twenty-one years and in Oct. 2004 she obtained the assistant superintendent position. Her contract started on Nov. 1, 2004 and was for a period of five years(until Nov. 1, 2009). Two years into serving as assistant superintendent, a matter came to light about one of CVSD’s employees, Tim McConnell. In 2006 McConnell was the basketball coach and dean of students at a middle school. As the dean of students, the Pennsylvania public school regulations require h/she to have a PA Public School Certificate or a emergency permit, which McConnell needed in order to renew his contract. He showed no interest in enrolling at a university to obtain the certification and in consequence he was suspended for twenty days without pay in 2006.
Anthony Skender, the new superintendent, asked the plaintiff to investigate enrollment policies at local universities, in order to determine the opportunities that have been available. McConnell appealed his suspension and a public hearing was held on Nov. 1, 2006, where the plaintiff was asked to testify under oath regarding background facts and events leading to his suspension. During her testimony there was a lot of disapproval being expressed, mainly by two other members on the school board. Also during her testimony, McConnell’s attorney attempted to show that there was some bias expressed against his client during a board meeting when his suspension was discussed. Over all McConnell, in Feb. 2008 settled the appeal and his suspension was reduced to ten days with back pay and elimination of requiring him to return to college.
In March 2009 the plaintiff received a letter stating that her contract is set to expire in Oct. 2009, which gave her 210 days in advance notice, but Whitfield states that her actual contract required 365 days of notice. In May 2009 she worked with the director of human resources to form a purposed contract with some stipulations that she wanted to include in her new contract. May 12, 2009 a committee was put together in order to discuss he renewal of the plaintiff’s contract. Because there were differences in her contract with CVSD, the plaintiff hired counsel and afterward no one was allowed to speak to the plaintiff about her contract only through her attorney. On Aug. 11, 2009 the committee was suppose to discuss her contract once again but several disagreed. “Board member Galluze responded: ‘she hired an attorney so I wash my hands with her.’ Board member Kelly agreed and further commented that plaintiff’s hiring attorney did not how good faith, so she had no interest further pursuing the matter.” Whitfield filed the suit on Aug. 17, 2009. In order for Whitfield to gain injunctive relief she has to prove that her contract was not renewed(retaliation from the board members) because she exercised her first amendment right by testifying against a CVSD employee and that a showing of an imminent irreparable injury has taken place.
The defendants claim that Whitfield’s testimony was given as “official duties” as assistant superintendent based upon the case Garcetti v. Ceballos, therefore her speech is not protected; “the court reasoned that limiting an employee’s speech that arises only as part of his “professional responsibilities” does not encroach on the freedoms the employee enjoys as a citizen” (Quote within case). However the courts says that she spoke as a citizen at the appeal hearing and that her speech enjoys first amendment protection. Because of the disapproval from other board members, the defendants had to show justification for treating Whitfield differently after her testimony, but they didn’t have enough proof. Therefore it shows that certain board members didn’t want to discuss her contract in retaliation for the testimony. In other words, her testimony played a huge role in determining her current state of employment. Finally, the plaintiff proved imminent irreparable injury/damage because there is already distrust and a lack of corporation between Whitfield and other board members so restoring her to assistant superintendent with a new contract is unthinkable.
For many other reasons that were detailed in the case “the plaintiff’s motion for injunctive relief will be granted. ”