Consumer law -- Debt collection -- Action alleging that
defendant debt collector violated Florida Consumer Collection Practices Act and
Fair Debt Collection Practices Act by sending plaintiff a letter stating that
“Unless you, within 30 days of receipt of this notice, dispute the validity of
the debt, or any portion thereof, the debt will be assumed to be owed” --
Complaint stated claim that letter violated FDCPA because it did not state that
if plaintiff did not dispute the debt within 30 days the only entity to assume
the debt to be valid is the debt collector -- Defendant's substitution of the
word “owed” for the word “valid” in the letter is not a basis for FDCPA claim
-- Complaint stated claim that letter violated FCCPA provision that a person
shall not assert the existence of a legal right when such person knows that the
right does not exist by asserting the misleading communication regarding who
could assume that the debt was owed -- Complaint stated claim that letter
violated provision of FDCPA that debt collector shall not use any false
representations or deceptive means to attempt to collect any debt by stating
that if federal bankruptcy discharge has been entered, an In Rem judgment will
be entered -- Language could be perceived by the least sophisticated consumer
to mean that the consumer will not be allowed to contest an In Rem judgment
before it is entered -- Plaintiff may seek declaratory and injunctive relief
ERICA MARTIN, on behalf of herself and others similarly
situated, Plaintiff, v. BUTLER & HOSCH, P.A., Defendant. U.S. District
Court, Middle District of Florida, Tampa Division.
Copyrights -- Infringement -- Academic works -- Three
publishing houses brought copyright infringement action alleging members of the
Board of Regents and officials at state university infringed plaintiffs'
copyrights by maintaining a policy which allows professors to make digital
copies of excerpts of plaintiffs' books available to students without paying
plaintiffs -- Immunity -- Argument that defendants are immune from suit
pursuant to Eleventh Amendment, which was not raised on cross-appeal, is not
properly raised -- Fair use -- District court abused discretion in granting
declaratory and injunctive relief to plaintiffs where court's grant of
injunctive relief was predicated on its finding of infringement, which was in
turn based on court's legally flawed methodology in balancing four fair use
factors and erroneous application of factors two and three -- District court
did not err in performing a work-by-work analysis of individual instances of
alleged infringement in order to determine the need for injunctive relief --
However, district court did err by giving each of four fair use factors equal
weight, and by treating the four factors mechanistically, rather than undertaking
a holistic analysis which carefully balanced the four factors -- District court
did not err in holding that first fair use factor, the purpose and character of
the use, favors a finding of fair use, notwithstanding nontransformative nature
of the use, where defendant's use was for nonprofit educational purposes, which
are favored under fair use statute -- District court erred in holding that
second fair use factor, the nature of the copyrighted work, favors fair use in
every case -- Because the digital copies of excerpts in question contained
evaluative, analytical, or subjectively descriptive material that surpasses the
facts, or derives from the owner's own experiences or opinions, district court
should have held that second factor was neutral or even weighted against fair
use where such material dominated -- In analyzing the third fair use factor,
the amount used in relation to the copyrighted work as a whole, district court
erred in setting a 10 percent-or-one-chapter benchmark, rather than performing
this analysis on a work-by-work basis, taking into account whether the amount
taken, qualitatively and quantitatively, was reasonable in light of the
pedagogical purpose of the use and threat of market substitution -- District
court did not err in its application of fourth fair use factor, the effect of
defendants' use on potential market for or value of copyrighted work --
District court erred by not affording fourth factor more significant weight in
overall fair use analysis, where defendants' unpaid copying was
nontransformative and plaintiffs' works were used for one of purposes for which
the works were marketed and threat of market substitution was severe --
District court erred by separating two additional considerations from its
analysis of first and fourth fair use factors -- Although it is within district
court's discretion to go beyond considerations set forth in four factors,
district court's supplemental considerations of whether limited unpaid copying
of excerpts will deter authors from creating new academic works and whether
slight limitation of permissions income caused by defendants' fair use would
promote spread of knowledge and would not appreciably diminish plaintiffs'
ability to publish scholarly works, were not actually supplemental, and as such
should have been considered within existing statutory framework -- Attorney's
fees -- Prevailing party -- Because district court's designation of defendants
as prevailing party and consequent award of attorney's fees and costs were
predicated on its erroneous fair use analysis, reversal of award of attorney's
fees and costs to defendants is appropriate
CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS,
INC., SAGE PUBLICATIONS, INC., Plaintiffs-Appellants, v. CARL V. PATTON, et
al., Defendants, J. L. ALBERT, in his official capacity as Georgia State
University Associate Provost for Information System and Technology, MARK P.
BECKER, in his official capacity as President of Georgia State University,
KENNETH R. BERNARD, JR., in his official capacity as member of the Board of
Regents of the University System of Georgia., ROBERT F. HATCHER, in his
official capacity as Vice Chair of the Board of Regents of the University
System of Georgia, W. MANSFIELD JENNINGS, JR., in his official capacity as member
of the Board of Regents of the University System of Georgia, JAMES R. JOLLY, in
his official capacity as member of the Board of Regents of the University
System of Georgia, et al., Defendants-Appellees. 11th Circuit.
Creditors' rights -- Collection efforts under Terrorism
Risk Insurance Act by victims of kidnapping by terrorist organization against
agencies or organizations of terrorist organization (claimants) to recover
default judgment entered in favor of victims against terrorist organization -- Due
process -- Claimants were entitled to actual notice and to be heard before
execution, though not necessarily before attachment -- TRIA does not preempt
Florida law, and judgment creditors seeking to satisfy judgments under it must
follow notice requirements of Florida law -- District court used proper
standard to find claimants to be agencies or instrumentalities of terrorist
organization -- Assets of claimants were blocked when Office of Foreign Assets
Control designated claimants as Special Designated Narcotics Traffickers --
OFAC's de-listing of claimants did not operate retroactively to put their
assets out of plaintiffs' reach because they were no longer blocked -- There is
no merit to contention that means by which plaintiffs moved against claimants'
assets constituted fraud -- Reassignment to different district court judge on
remand is unnecessary -- Turnover judgment against one claimant reversed, as
writ of garnishment was filed after claimant's de-listing by OFAC, so that
claimant's assets were not blocked -- District court judgment as to other
claimants affirmed
KEITH STANSELL, MARC GONSALVES, THOMAS HOWES, JUDITH G.
JANIS, CHRISTOPHER T. JANIS, GREER C. JANIS, MICHAEL I. JANIS, JONATHAN N.
JANIS, Plaintiffs-Appellees, v. REVOLUTIONARY ARMED FORCES OF COLOMBIA, (FARC),
et al., Defendants, JOSE RICUARTE DIAZ HERRERA, Claimant-Appellant, WACHOVIA
BANK, a Division of Wells Fargo Bank, N.A., et al., Garnishees, MERCURIO
INTERNATIONAL S.A., et al., Claimants. 11th Circuit.
Wrongful death -- Product liability -- Tobacco --
Evidence -- In wrongful death action against cigarette manufacturer, district
court abused discretion by excluding evidence of decedent's alcohol abuse --
District court improperly shifted burden of proof by forcing defendant to prove
that decedent's death was caused by something other than smoking -- District
court applied wrong legal standard in requiring testimony offered by defendant
regarding alternative causes be to a reasonable degree of medical certainty,
rather than the “more likely than not” standard, and placed the burden of proof
as to causation on the wrong party -- Decedent's alcohol abuse was an essential
part of defendant's attempt to show that something other than his smoking could
have caused his death -- Decedent's alcohol abuse was relevant to cause of
death, to determination of comparative fault, and to damages -- Prejudicial
effect of evidence of alcohol abuse did not outweigh probative value
THELMA AYCOCK, as Personal Representative of the Estate
of Richard Aycock, Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY,
individually and as successor by merger to the Brown and Williamson Tobacco
Corporation and the American Tobacco Company, Defendant-Appellant, PHILIP
MORRIS USA, INC., et al, Defendants. 11th Circuit.
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