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A swing at infringement

Copyright infringement cases targeting the hosts of websites are notoriously hard to win. But a Boston law firm recently convinced a South Carolina jury that a search engine optimization firm should pay hundreds of thousands of dollars in damages after it hosted and advised a website that sold counterfeit golf clubs.

Lawyers at Nelson, Mullins, Riley & Scarborough represented the maker of Cleveland golf clubs. While the jury found the defendant who sold the phony Cleveland clubs on a site called copycatgolfclubs.com liable only for $28,000 in statutory damages, it determined that Bright Builders Inc., a SEO company that helped construct and host the site, had to pony up more than $770,000.

The legal team believes it is the first time that a SEO or hosting company has been found liable for contributory infringement without having first received actual notification of the counterfeit sales from a third party.

Initially, Cleveland intended to take action against the site’s owner. But during discovery, owner Christopher Prince explained that he had used Bright Builders to help build the site and that it had advised him on how to run his business, which claimed to be “Your one stop shop for the best copied golf clubs on the Internet.”

Nelson Mullins attorney Jeffrey S. Patterson says the case against Bright Builders was bolstered by the fact that the name of the site should have been a tip-off that copyright infringement was involved. He says that, during mediation, company officials made it clear they believed they could host and advise any site without being found liable for contributory infringement.

“The fact that the domain name was such a clear indication of nefarious activity, and also that the web host took such an absolutist position that they had no duty absent actual notice, really differentiated this case,” Patterson says. “Our client decided it was worth the investment to take this to trial because we felt that the host was not taking their obligation seriously.”

Patterson attributes the sizeable gap between the pair of verdicts to the testimony that the two defendants offered at trial.

“I suspect the overriding factor was the question of whether there was likely to be repetition,” Patterson says. “Mr. Prince said in his testimony that he had screwed up and would never do something like this again. That was contrasted by Bright Builders, who said they had done nothing wrong here.”

Bright Builders has filed a post-trial motion for a new trial or a reduced verdict. If it is unsuccessful, it has indicated that it will appeal the case, according to Patterson.

Bright Builders attorney Paul J. Doolittle could not be reached for comment.

Christopher S. Finnerty, another Nelson Mullins attorney who worked on the case, says the result puts SEO advisers, website hosts and website builders on notice that they can be held liable for their clients’ copyright infringement.

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