               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

ASAD KHAN,                                   )
                                             )
              Appellant,                     )
                                             )
v.                                           )       Case No. 2D16-5288
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed April 6, 2018.

Appeal from the Circuit Court for Lee
County; Thomas Reese, Judge.

Spencer Cordell of Law Office of Spencer
Cordell, Fort Myers, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee; Cornelius C. Demps,
Assistant Attorney General; and Jason M.
Miller, Assistant Attorney General, Tampa,
for Appellee.

LUCAS, Judge.

              Asad Khan appeals his judgment and sentence for robbery with a deadly

weapon. § 812.13, Fla. Stat. (2015). He raises two issues on appeal. Finding merit in
his arguments, we reverse the circuit court's judgment and sentence and remand his

case for a new trial.

              Shortly after midnight, on March 2, 2015, a man with some kind of a black

cloth around his face entered a 7-Eleven convenience store in Fort Myers, held a knife

to the clerk's neck, and robbed the store of all the cash in the registers. The clerk,

although unhurt, was obviously distraught. When first interviewed by Lee County

Sheriff's Office detectives, she could only identify the robber as a man with "medium

brown" skin who stood about six feet, two inches in height and spoke with an "Indian" or

"Middle Eastern" accent.

              Utilizing surveillance video footage obtained from both the 7-Eleven and a

Speedway convenience store across the street, and with the assistance of a

knowledgeable employee at a local Car Max auto dealership, detectives were able to

identify the make and model of the vehicle that the robber had driven to and from the

scene. Its license tag was indecipherable (because of where the vehicle was parked),

but it was determined that the vehicle was a Volkswagen Routan van. Lee County

Sheriff's Detective Sean Mukaddam then reviewed the State Driver and Vehicle

Identification Database (DAVID) to cross-reference Lee County registrations for

Routans that might reflect a Middle Eastern family surname. The only match, he

concluded, was a Routan registered to one Attia Mobeen—who, as it turned out, was

Mr. Khan's wife.1

              While detectives developed their investigation, a local television station

began airing a brief clip of the robbery taken from the 7-Eleven surveillance video. Two

              1Both     Mr. Khan and Ms. Mobeen are of Pakistani descent.

                                             -2-
former coworkers of Mr. Khan's, Messrs. Harris and Soperak, believed they recognized

Mr. Khan as the robber depicted in the video based upon what could be seen of the

man in the footage—and on what they described as the man's peculiar gait.2 They

contacted the television station's "Crime Stoppers" phone number and were put in touch

with the sheriff's office's investigators. In addition to identifying Mr. Khan in the video,

both Mr. Harris and Mr. Soperak corroborated Mr. Khan's general, physical description,

his manner of speech (which was described as an "Indian" or "Middle Eastern" accent),

that Mr. Khan sometimes drove a Volkswagen Routan van, and that he had stopped at

this particular 7-Eleven in the past.

              Armed with this information, detectives obtained search warrants for Mr.

Khan's home, his DNA, and Ms. Mobeen's Routan. They found nothing of interest in

the house and were unable to match Mr. Khan's DNA or fingerprints to anything

meaningful in the case. They seized the van from a repair shop. In it, they discovered

a black hijab headscarf as well as a bag of cash.3 Mr. Khan was then taken into

custody and interviewed by Detective Mukaddam. The interview was video recorded,

but the recording abruptly ceased, apparently the moment before Mr. Khan was given a

Miranda4 warning. From what we can glean of this brief interchange between Mr. Khan

and Detective Mukaddam, it appears that Mr. Khan was in custody for the entire

              2A  copy of the surveillance video was not included in our record, but at
trial, Mr. Khan's walk was described by these witnesses as a unique kind of "swagger"
with his "feet landing outwards when he walks."
              3Ms. Mobeen would later testify at her husband's trial that the cash was
from tips she had received at her job and the hijab belonged to the couple's daughter.
              4Miranda   v. Arizona, 384 U.S. 436 (1966).

                                             -3-
duration of the interview and had exercised his right to remain silent within a few

minutes of its commencement.

              The focal point of Mr. Khan's jury trial revolved around the identity of the

robber. The State maintained it was Mr. Khan; Mr. Khan argued it was someone else.

In presenting its case, the State introduced the evidence described above, including a

detailed description by Detective Mukaddam of the DAVID research that led his

investigation to Mr. Khan's wife's van. When the defense objected on hearsay grounds

to Detective Mukaddam relaying his investigative inquiries and what he had read in

DAVID to the jury, the State responded, alternatively, that the information was not being

offered for its truth, but rather to explain the progression of the robbery's investigation,

and that the information in DAVID was simply "data" (which, presumably, made it

admissible, according to the State). The circuit court expressed misgivings, but allowed

the testimony. The State also played a portion of the videotaped interview between Mr.

Khan and Detective Mukaddam for the jury, representing to the court that it was for the

limited purpose of identifying Mr. Khan's voice and accent.

              Mr. Khan elected to testify in his defense. During direct examination, he

denied having even entered that 7-Eleven on the night of the robbery. He explained

that he had driven his wife's van to the Speedway convenience store across the street

from the 7-Eleven to buy cigarettes that night. Before he could reach that store, though,

he recalled accidentally driving his wife's van into a ditch (because, he claimed, he had

been drinking at an earlier birthday party). According to Mr. Khan, some passersby

stopped to help him pull his van out of this ditch, whereupon Mr. Khan continued on to

the Speedway to purchase his cigarettes before returning home. While at the

                                             -4-
Speedway, Mr. Khan recalled that that store's clerk and some patrons expressed

concern to Mr. Khan about his now-smoking automobile. When the State cross-

examined Mr. Khan on this testimony, the following exchange ensued:

              Q.     So these are people who saw you at the Speedway
              very shortly before midnight on the night of the robbery with
              the wrecked car?

              A.     They seen me on the night of my daughter's birthday
              at the Speedway gas station with a car that was smoking,
              and had front end damage.

              Q.    Why didn't you tell Detective Mukaddam to go talk to
              them, why not?

              A.     He never came and asked me.

              Defense counsel immediately moved for a mistrial on the ground that the

State's last question constituted an impermissible comment on Mr. Khan's right to

remain silent. In response, the State pointed out that Mr. Khan had spoken, albeit

briefly, to Detective Mukaddam during the prior investigatory interview. The assistant

state attorney appeared to acknowledge "it was an inadvertent question that was

asked," but since there had been a prior conversation between Detective Mukaddam

and Mr. Khan, the question's reference would not necessarily have been to Mr. Khan's

silence after he had been given his Miranda warning. The circuit court recognized that it

was a "close" question, but denied the defense's motion. The defense did not request,

nor did the court give, any curative instruction to the jury.

              At the conclusion of the trial, the jury returned a guilty verdict. The circuit

court adjudicated Mr. Khan guilty and sentenced him to five years in prison, followed by

five years of probation. This is Mr. Khan's appeal of that judgment and sentence.

                                             -5-
              Mr. Khan raises two issues for our consideration. First, he contends that

the circuit court reversibly erred when it allowed the State to introduce, over his hearsay

objection, the details of Detective Mukaddam's investigation, including his statements

about what the DAVID database revealed. "A trial judge's ruling on the admissibility of

evidence will not be disturbed absent an abuse of discretion." Hayward v. State, 24 So.

3d 17, 29 (Fla. 2009). That discretion, however, must be exercised within the

constraints of the rules of evidence and principles of stare decises. Id. Second, Mr.

Khan argues that the court should have granted his motion for mistrial following the

State's improper reference to Mr. Khan's Fifth Amendment right to remain silent. With

respect to Mr. Khan's second issue, the Florida Supreme Court has explained that "any

comment which is 'fairly susceptible' of being interpreted as a comment on silence will

be treated as such." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). An appellate

court must then apply a harmless error analysis to the "fairly susceptible comment" at

issue. Id. at 1136. Thus, regardless of whether there was "overwhelming evidence of

guilt," an impermissible comment on a defendant's right to remain silent can only be

affirmed if the State can "prove beyond a reasonable doubt that the error complained of

did not contribute to the verdict." Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010)

(emphasis omitted) (quoting DiGuilio, 491 So. 2d at 1136, 1138-39).

              We begin with the evidentiary issue. Allowing Detective Mukaddam to

relay at length his entire investigative process and everything he had read in DAVID that

eventually led him to Mr. Khan was erroneous in this case. Plainly, this line of

testimony, including the recital to the jury that the driver registration information in

DAVID reflected only one "Middle Eastern" sounding owner of a Volkswagen Routan in

                                             -6-
Lee County—who was Mr. Khan's wife—was hearsay offered to buttress the State's

claim that Mr. Khan was the robber who had driven a vehicle of the same make and

model near the 7-Eleven. See § 90.801(1)(c), Fla. Stat. (2015); Keen v. State, 775 So.

2d 263, 274 (Fla. 2000) (holding that detective's testimony about the "sequence of

events" in his investigation that led to the defendant's arrest was impermissible hearsay,

and noting that "[w]hen the only possible relevance of an out-of-court statement is

directed to the truth of the matters stated by a declarant, the subject matter is classic

hearsay even though the proponent of such evidence seeks to clothe such hearsay

under a nonhearsay label"). And it was a particularly pernicious kind of hearsay in the

context of a criminal prosecution. As the Fourth District observed:

              In spite of substantial authority condemning this attempt to
              adduce prejudicial hearsay, the [S]tate often persists in
              offering this kind of hearsay to explain the "state of mind" of
              the officer, or to explain a logical sequence of events during
              the investigation leading up to an arrest. This type of
              testimony occurs with the persistence of venial sin. The
              [S]tate's insistence on attempting to adduce this particular
              brand of hearsay requires trial judges to be constantly on
              their guard against it. . . . [A] "police officer's state of mind is
              generally not a material issue in a criminal prosecution."

Saintilus v. State, 869 So. 2d 1280, 1282 (Fla. 4th DCA 2004) (quoting State v. Baird,

572 So. 2d 904, 907 (Fla. 1990)). Because the State failed to establish an applicable

hearsay exception, the State should not have been allowed to elicit this hearsay through

the detective's testimony.5

              5In its answer brief, the State also urges us to consider the applicability of
sections 90.803(6) or (8), Florida Statutes (2015), granting hearsay exceptions for
business records or public records respectively, to the detective's testimony about his
investigation with DAVID. We are not persuaded that the DAVID records in this case
could qualify as a hearsay exception under section 90.803(6) because nothing in the
record before this court would permit us to conclude that the business records hearsay

                                              -7-
              More troubling is the question the State posed to Mr. Khan during his

cross-examination. The State challenged Mr. Khan as to why he never relayed to

Detective Mukaddam—the detective who arrested Mr. Khan—any details about the

people Mr. Khan claimed would have seen him at the Speedway on the night of the

robbery. The question that was posed to Mr. Khan by the State was more than "fairly

susceptible" to being construed as a comment on Mr. Khan's prior silence while in

custody; the whole point of the question was to highlight the fact that Mr. Khan had

remained silent following his arrest and brief interview with Detective Mukaddam.

              We find the supreme court's decision in State v. Hoggins, 718 So. 2d 761

(Fla. 1998), controlling here. In Hoggins, a man armed with a gun entered a

convenience store, threatened to kill the clerks who were working, and stole a cash

register drawer and cigar box filled with lottery tickets. Id. at 762. Later that same

evening, police officers found and pursued a suspect they observed carrying a cash

exception would have been applicable. See Butler v. Yusem, 44 So. 3d 102, 105 (Fla.
2010) ("Under the tipsy coachman doctrine, where the trial court 'reaches the right
result, but for the wrong reasons,' an appellate court can affirm the decision only if 'there
is any theory or principle of law in the record which would support the ruling.' " (first
emphasis added) (quoting Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002))). So,
too, we have significant reservations that the record before us would render this
testimony admissible under the public records hearsay exception. But even assuming
that the DAVID records could have qualified as a public records exception under section
90.803(8), Detective Mukaddam's testimony about the records' content would still
remain inadmissible hearsay for which there was no exception. See, e.g., Holborough
v. State, 103 So. 3d 221, 222–23 (Fla. 4th DCA 2012) (concluding that testimony from
the investigating officer that he identified the victim based on a Florida ID was
inadmissible hearsay because "[e]ven if the ID qualified as a public record for the
purpose of the section 90.803(8) exception to the hearsay rule for public records, the
officer's in-court testimony about what the ID said was hearsay falling under no
exception"); Tillman v. State, 964 So. 2d 785, 787-789 (Fla. 4th DCA 2007) (concluding
officers' testimony regarding the contents of BOLOs and that appellant and his vehicle
matched the description of the person suspected for the armed kidnapping described
therein was prejudicial and inadmissible hearsay).

                                            -8-
register drawer and cigar box on his bicycle. Id. Following a trail of lottery tickets and

food stamps, the officers eventually found the defendant hiding in an apartment where

they arrested him. Id. at 762-63. When his case went to trial, Mr. Hoggins testified that

he was neither the robber nor the man police had chased on the bicycle; instead, he

testified he had been sitting on the apartment porch when he saw "someone hide

something" in a nearby playground. Id. at 763. He went to investigate and found the

register drawer and cigar box, which he took back to the apartment—which, he claimed,

was why he had the store's stolen property. Id.

              At trial, Mr. Hoggins testified in his defense and relayed the foregoing

account about how he happened across a cash register drawer and cigar box in a

playground. Id. The State on re-cross examination put it to Mr. Hoggins: "[W]hen you

were in the upstairs bedroom and the police came up there, you never gave them the

version that you have just given us today?" Id. Mr. Hoggins admitted he had not and

was found guilty. Id. Approving the Fourth District's reversal of his judgment and

conviction and answering a certified question from that court, the Hoggins court

distinguished between a defendant's prearrest and postarrest silence with respect to

permissible cross-examination impeachment. Id. at 765-69. Using postarrest silence to

impeach a testifying defendant, the court held, violated article I, section 9 of the Florida

Constitution, "regardless of whether Miranda warnings [had] been given." Id. at 770.6

              6Infashioning this distinction, the court explained that Florida courts do not
recognize a defendant's election to testify in his or her defense as a waiver of a prior
exercise of postarrest, pre-Miranda silence. Hoggins, 718 So. 2d at 769. Moreover, the
court was troubled by the prospect of "treating differently defendants who are aware of
their Miranda rights and those who are not." Id. at 770.

                                            -9-
               Here, the only pertinent interaction Mr. Khan ever had with Detective

Mukaddam was when Mr. Khan was in custody and under arrest. The question—"why

didn't you tell Detective Mukaddam to go talk to" the clerk and patrons who, Mr. Khan

claimed, saw his smoking car on the night of the robbery—referenced the very

postarrest, pre-Miranda silence Hoggins held was constitutionally impermissible. And,

indeed, it appears that that reference may have been readily understood as a query into

Mr. Khan's silence, since at the conclusion of Mr. Khan's testimony, one juror sought to

pose the follow-up question: "Did the defense get written testimony from the clerk at

Speedway whom the defendant claimed witnessed the damage to the van and the

smoke coming from it? If not, why not?"

                      [C]omments on silence are high risk errors because
             there is a substantial likelihood that meaningful comments
             will vitiate the right to a fair trial by influencing the jury verdict
                            { "pageset": "S11
             and that an                   appellate court, or even the trial
             court, is likely to find that the comment is harmful under
             Chapman[ v. California, 386 U.S. 18 (1967)].

DiGuilio, 491 So. 2d at 1136-37. From our review of this record, we have no hesitation

concluding that the State's question to Mr. Khan about his silence while in custody was

both improper and harmful. Accordingly, we reverse his final judgment and sentence

and remand his case for a new trial.

             Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

                                                - 10 -


898 N.E.2d 1226 (2008)
SOLEK
v.
SOLEK.
Supreme Court of Indiana.
September 30, 2008.
Transfer denied. All Justices concur, except Sullivan and Boehm, JJ., who vote to grant transfer.


562 S.E.2d 568 (2002)
STATE of North Carolina
v.
Stephen Artemus CHRISTIAN.
No. COA01-77.
Court of Appeals of North Carolina.
May 7, 2002.
*570 Attorney General Roy Cooper, by Assistant Attorney General Daniel S. Johnson, for the State.
Cunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T. Cunningham, Jr., Southern Pines, for defendant-appellant.
CAMPBELL, Judge.
The relevant facts, based on the State's evidence, are as follows: On the afternoon of 14 June 1999, Kobie Wilson ("Kobie") was in Troy, North Carolina visiting the mother ("Mother Jones") of his fiancee, Jenny Jones ("Jenny"). Also in Troy that day were Jenny's minor son, Jaquarius French (also known as "Jay"), and Jenny's sister, Demetrius Ratliff ("Demetrius").
Throughout that afternoon, defendant's twin brothers ("the Christian twins") and Mitchell Hall ("Mitchell") repeatedly drove past Mother Jones' house in a green Honda Accord (the "Honda"). This action stemmed from a confrontation that had taken place earlier that day between Kobie and Mitchell, when Kobie had accused Mitchell and the Christian twins of sexually abusing his sister, resulting in a fight between the two men. At approximately six o'clock that evening, Demetrius spotted the Christian twins outside Mother Jones' house calling for Kobie to come outside. Demetrius, believing that the Christian twins and Mitchell (who had remained inside the Honda) intended to cause trouble, threatened to call the police if they did not leave. The police were eventually called, but the men left before the police arrived.
Approximately two hours later, Lecia Christian ("Mother Christian"), the mother of defendant and the Christian twins, arrived at Mother Jones' house. Mother Christian was waving a handgun and taunting Kobie and the Jones family. Mother Christian drove away after Kobie threw a bottle at her vehicle.
Shortly thereafter, Mother Christian told the Christian twins about her encounter with Kobie. The Christian twins, who appeared angry and who were now accompanied in the Honda by David Horne ("David"), drove to Wadeville, North Carolina and picked up Christopher Christian ("Chris") and defendant. While these men proceeded to drive back to Troy, Chris stated, "we [are] going to get Kobie." Chris and defendant were each carrying a gun and loaded them during the drive.
The four Christian brothers and David arrived at Mother Jones' house several minutes later. They used the Honda to block in Jenny's vehicle just as it was backing out of the driveway. Jenny was the driver of the vehicle, with Kobie in the front passenger's seat, Jay in the rear seat behind Jenny, and Kobie's cousin, Devon Jones ("Devon"), in the rear seat behind Kobie.
Defendant and Chris were seen exiting the Honda carrying long-barreled weapons. Defendant fired the first shot into the hood of Jenny's vehicle, then both he and Chris proceeded to shoot into the Honda. Kobie was shot twice. Jay was shot in the face, which resulted in severe injuries including a split tongue, obliteration of his hard palate, and loss of bone from his jaw. Once the shooting stopped, defendant ran from the scene, while the other Christian boys and David left in the Honda. The Honda was subsequently stopped by the police.
Defendant was eventually apprehended and indicted for: (1) assaulting Jay with a deadly weapon with intent to kill inflicting serious injury (99 CRS 2489); (2) assaulting *571 Kobie with a deadly weapon with intent to kill inflicting serious injury (99 CRS 2490); (3) conspiracy to murder Kobie (99 CRS 3360); (4) discharging a weapon into occupied property, namely, Jenny's vehicle (99 CRS 3361); (5) assaulting Jenny with a deadly weapon with intent to kill (99 CRS 3362); and (6) assaulting Devon with a deadly weapon with intent to kill (99 CRS 3363). Defendant was tried before Judge James M. Webb and a jury at the 24 July 2000 Criminal Session of Montgomery County Superior Court. He pled not guilty and presented no evidence in his defense. On 28 July 2000, the jury found defendant guilty as charged. Defendant received active prison sentences for the convictions. Defendant appeals.
Defendant brings forth six assignments of error. For the following reasons, we find that the trial court committed no error.

I.
By defendant's first assignment of error he argues the trial court erred in removing a trial juror ("Juror Pollard") after a hearing in open court at which defendant's attorney was present, but not defendant. Defendant raises this assigned error based on the Confrontation Clause of the United States Constitution and our state constitution. See U.S. Const. amend. VI; see also N.C. Const. art. I, § 23. However, this constitutional issue was not raised by defendant during the trial court proceedings. Our state holds that "[t]his Court is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court." State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985) (citations omitted). Nevertheless, we shall address why we disagree with this assigned error.
Defendant's first assignment of error is based on the following trial events: In open court, but out of the presence of the jury, Juror Pollard asked to be dismissed from the jury because she had become afraid for her life. The trial court cleared the courtroom of all spectators to allow Juror Pollard to elaborate on the reason for her request. However, Juror Pollard stated that she would feel more comfortable speaking to the court if defendant was removed from the courtroom as well. Thus, the court had defendant removed from the hearing, but instructed defense counsel to remain. Neither defendant nor his counsel objected to his removal. Juror Pollard then proceeded to inform the court that she had been told by her niece that Mother Christian would give Juror Pollard $2,000.00 in exchange for finding defendant not guilty. Juror Pollard refused. She did not tell the other jurors about this conversation with her niece. Juror Pollard was then sent out of the courtroom and defendant was allowed to return. Defense counsel moved to have Juror Pollard removed and replaced with an alternate. The court granted this motion.
"It is well-established that under both the federal and North Carolina constitutions a criminal defendant has the right to be confronted by the witnesses against him and to be present in person at every stage of the trial." State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985) (citation omitted). In noncapital cases, however, a "defendant's constitutional right to be present at all stages of the trial [is] a purely personal right that [can] be waived expressly or by his failure to assert it." Id. at 559, 324 S.E.2d at 246. Additionally, "[i]n a non-capital case counsel may waive defendant's right to be present through failure to assert it just as he may waive defendant's right to exclude inadmissible evidence by failing to object." Id.
Here, we note that defendant was tried in a noncapital case. When defendant was removed from the courtroom, neither defendant nor his counsel objected. Thereafter, the defense counsel moved to have Juror Pollard removed and replaced with an alternate. The inaction of defendant and his counsel, followed by defense counsel's request to have Juror Pollard removed and replaced, amounted to a waiver of defendant's right to be present during the court's questioning of Juror Pollard. Thus, "[w]hile it is the better practice for the trial judge to obtain an explicit waiver from a defendant before conducting a[n] ... important proceeding in the defendant's absence, it [is] not error for him to fail to do so." Id.

*572 II.
By defendant's second assignment of error he argues that the Double Jeopardy Clause of the United States Constitution prohibits the doctrine of transferred intent from being used to punish him for assaulting unintended victims (Jay and Devon) with intent to kill when he has already been punished for assaulting the intended victim (Kobie) with intent to kill. We disagree.
"The constitutional right not to be placed in jeopardy twice for the same offense, like other constitutional rights, may be waived by the defendant and such waiver is usually implied from his action or inaction when brought to trial in the subsequent proceeding." State v. Hopkins, 279 N.C. 473, 475-76, 183 S.E.2d 657, 659 (1971) (citations omitted). "To avoid waiving this right, a defendant must properly raise the issue of double jeopardy before the trial court. Failure to raise this issue at the trial court level precludes reliance on the defense on appeal." State v. White, 134 N.C.App. 338, 342, 517 S.E.2d 664, 667 (1999) (citation omitted). In the instant case, defendant failed to bring his double jeopardy defense to the attention of the court. Thus, we need not address this assigned error on appeal because defendant's inaction at the trial level resulted in a waiver of his right to this defense. See id. However, had defendant properly and timely raised the double jeopardy issue, this assigned error would be without merit because our Supreme Court has held that an instruction on transferred intent is proper when both the intended victim and an unintended victim are injured and/or killed. See State v. Locklear, 331 N.C. 239, 415 S.E.2d 726 (1992) (holding that the trial court properly instructed on transferred intent when defendant killed the intended victim and, in the process, accidently wounded the victim's daughter).

III.
By defendant's third assignment of error he essentially argues that the trial court erred in denying his motion to dismiss the charge of conspiracy to commit murder on the grounds of insufficiency of the evidence. We disagree.
When ruling on a defendant's motion to dismiss, "the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense." State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Whether the evidence presented is substantial is a question of law for the court. State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 434 (1956). Furthermore, the court "must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
Defendant contends that the state's evidence, particularly David Horne's testimony that "Chris said that we were going to get Kobie[,]" was not substantial enough to constitute a conspiracy between him and any of the men in the Honda. "A conspiracy may be proved by direct or circumstantial evidence and is established by showing the existence of an express agreement or a mutual implied understanding between defendant and others to do an unlawful act or to do a lawful act by unlawful means." State v. Lyons, 102 N.C.App. 174, 183, 401 S.E.2d 776, 781 (1991). Proof of a conspiracy "may [also] be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy." State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).
At trial, the State provided sufficient evidence to prove the crime of conspiracy based on a "number of indefinite acts" and not solely on one statement made by David Horne. The evidence showed that: (1) defendant and Chris entered the Honda with guns and proceeded to load them as the vehicle traveled to Mother Jones' house; (2) defendant remained in the vehicle (with *573 Chris, the Christian twins, and David) after Chris made the statement that "we [are] going to get Kobie[;]" (3) upon arriving at Mother Jones' house, defendant was seen exiting the vehicle with a gun, which he used to shoot Jenny's vehicle; and (4) defendant did not run away until after a number of shots were fired at the vehicle, two of which hit Kobie. We find all this evidence is sufficient for reasonable minds to conclude that there was an implied understanding between defendant and at least Chris, if not all of the other men in the Honda, to murder Kobie.

IV.
By defendant's fourth assignment of error he argues the trial court erred when it gave vague and confusing jury instructions that were not in conformity with the conspiracy indictment. In particular, defendant contends that since the trial court's jury instruction on the conspiracy charge did not specifically name those individuals named in the indictment (which named the Christian twins, David, and Chris), the jury may have believed defendant conspired with someone not named in the indictment, such as Mother Christian. We find this assigned error to be without merit.
During the jury charge conference, the court suggested the pattern jury instructions on conspiracy to commit murder be used. Defendant made no objection and did not request a change to the instruction on this issue. Furthermore, defendant made no request for corrections or additions to the jury instruction after the instruction was given to the jury. "In most instances, N.C.R.App. P. 10(b)(2) precludes a party from assigning error to an unobjected-to omitted jury instruction. [Nevertheless], the `plain error' rule allows for appellate review of some assignments of error normally barred by operation of Rule 10(b)(2)" if defendant specifically and distinctly alleges that the trial court's action amounted to plain error. State v. Najewicz, 112 N.C.App. 280, 294, 436 S.E.2d 132, 140 (1993) (citation omitted). See also N.C.R.App. P. 10(b)(2), (c)(4) (2001). However, since defendant's brief failed to specifically and distinctly allege that the jury instruction amounted to plain error, he is not entitled to appellate review under this rule either. See State v. Alston, 131 N.C.App. 514, 518, 508 S.E.2d 315, 318 (1998). Thus, defendant has waived his right to have this assigned error reviewed on appeal.

V.
By defendant's fifth assignment of error he argues that the trial court erred in instructing the jury on both conspiracy to commit murder and acting in concert with another person to commit assault with intent to kill. However, "[i]t is well established that the crime of conspiracy does not merge into the substantive offense which results from the conspiracy's furtherance and that a defendant may be properly sentenced for both offenses." State v. Baker, 112 N.C.App. 410, 416, 435 S.E.2d 812, 816 (1993). In the case sub judice, the assaults on the individuals in Jenny's vehicle were the substantive offenses resulting from the furtherance of the conspiracy. Therefore, the trial court did not err in giving both of these instructions.

VI.
By defendant's final assignment of error he argues that the trial judge's questioning of Demetrius, the state's witness, was error because it violated defendant's right to an impartial judge under the Fifth and Fourteenth Amendments of the United States Constitution. See U.S. Const. amend. V, XIV. Although defendant again raises a constitutional issue that was not raised and determined in the trial court, we shall address why we disagree with this assigned error as well. See State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985).
Defendant's argument is based on the following questions asked by the trial judge:
THE COURT: [Demetrius,] [d]escribe what you saw when the shooting started for the second time.
A. Gunfire, just shots being fired. I saw [Jay] from the chest up holding on to the seat, the driver's seat of the car. And I just [ran] to get him.

*574 THE COURT: Who did you see firing weapons?
A. [Defendant] and [Chris] Christian.
THE COURT: And in what direction?
A. Directly into the vehicle.
THE COURT: And from what distance was the defendant and [Chris] Christian from the vehicle at this time?
A. Five to ten feet.
THE COURT: And on which side of the vehicle?
A. On the passenger's side of the vehicle.
THE COURT: Both on the passenger?
A. Yes, sir.
Our state holds that "[a] judge may not by his questions to a witness intimate an opinion as to whether any fact essential to the State's case has been proved." State v. Lowe, 60 N.C.App. 549, 552, 299 S.E.2d 466, 468 (1983). However, the questions asked by the trial judge in the instant case did not intimate to the jury that the judge believed defendant was guilty. Instead, they ensured the proper development of Demetrius' recollection of the events that occurred on the night in question. See Vick v. Vick, 80 N.C.App. 697, 700, 343 S.E.2d 245, 247 (1986) (holding that a court my interrogate a witness to either clarify the witness' testimony or to ensure proper development of the facts). The questions were therefore proper and do not amount to error by the trial court.
Accordingly, for the aforementioned reasons, defendant is not entitled to a new trial or to remand of this matter for resentencing because the trial court did not err.
No error.
Chief Judge EAGLES and Judge McCULLOUGH concur.


837 F.2d 479
In re Westridge (Maurice)
NO. 87-2402
United States Court of Appeals,Eighth Circuit.
NOV 10, 1987

1
Appeal From:  W.D.Ark.

2
DISMISSED **.

3
---------------

** See 8th Circuit Rule 12(a).


NOTE: This order is nonprecedential

United States Court of Appeals
for the Federal Circuit

HOWMEDICA OSTEONICS CORP.,
Petitioner-Appellee,

V.

SURGICAL ORTHOMEDICS, INC. STEVEN HEWES
AND ANDREW HEWES,
Respondents-Appellants.

2012-1561

Appea1 from the United States District Court for the
District of NeW Jersey in case no. 11-CV-6544, Judge
Esther Salas. '

ON MOTION

ORDER

The court treats Appellants’ August 6, 2012 letter as a
motion to withdraw its appeal.

HOWMEDICA OSTEONICS V. SURGICAL ORTHOMEDICS 2

Upon consideration thereof,
IT Is ORDERED THAT:
(1) The motion is granted The appeal is dismissed.

(2) Each side shall bear its own costs.

FoR THE CoURT

  2012 /s/ Jan Horbaly
Date J an Horbaly
Clerk
cc: Elvin Esteves, Esq. F|LED
A C. S hl ` , E .

$25 aron c esinger sq u_S_AA'-p&§%|dgr|!:gn
AUG 2 0 2012

Issued As A Mandate:  2 0 2012 JAN HOHBALV

CLEHK


[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Frank v. Ohio State Univ., Slip Opinion No. 2020-Ohio-3422.]

                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.

                          SLIP OPINION NO. 2020-OHIO-3422
           THE STATE EX REL. FRANK v. THE OHIO STATE UNIVERSITY.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Frank v. Ohio State Univ., Slip Opinion No.
                                     2020-Ohio-3422.]
Mandamus—Public-records law—When requested records are sensitive in nature
        and subject to limitations on disclosure under federal law, it makes sense
        for certain institutions to refer the person who is making the public-records
        request to an office that will have the proper expertise for how to lawfully
        disclose the requested records and how to apply the relevant state and
        federal regulations—Writ denied.
       (No. 2019-0515—Submitted April 7, 2020—Decided June 25, 2020.)
                                       IN MANDAMUS.
                                    ________________
        Per Curiam.
        {¶ 1} Relator, Andrew Frank, brings this original action in mandamus to
compel the Ohio State University (“OSU”) to provide the documents that his
                             SUPREME COURT OF OHIO

attorney had requested in a public-records request. For the reasons set forth herein,
we deny the writ of mandamus. Also pending is Frank’s motion to strike portions
of OSU’s evidence, which we deny. However, we sua sponte order Kelly Smith’s
affidavit, Robert Moormann’s affidavit, and OSU’s exhibits L, M, and N to be
placed under seal.
                                  I. Background
       {¶ 2} On February 22, 2019, attorney Kevin L. Murphy submitted a public-
records request to OSU for certain records concerning Frank. Specifically, Murphy
requested:

       (1) any correspondence with the Clermont County Prosecutor’s
       office relating to Andrew Frank; (2) any correspondence with Scott
       O’Reilly relating to Andrew Frank; (3) any documents provided to
       the University by the Clermont County Prosecutor’s office relating
       to Andrew Frank; and (4) any documents provided to the University
       by Scott O’Reilly relating to Andrew Frank.

In a footnote, Murphy defined correspondence to mean “any disclosure, transfer, or
exchange of thoughts, opinion, or information of any nature, and by any method.”
And in a second footnote, Murphy defined document to mean “any writing,
photograph, image, and/or recording, whether in electronic form or hard copy.”
Murphy did not indicate that he was submitting the public-records request on
Frank’s behalf.
       {¶ 3} Murphy e-mailed the letter to PulicRecords@osu.edu, which is
OSU’s official e-mail address for public-records requests. Scott Hainer, OSU’s
public-records program coordinator, e-mailed Murphy acknowledging Murphy’s
public-records request and asking for some clarification regarding the scope of the
request. The public-records request was also given an identification number.

                                         2
                                      January Term, 2020

Murphy responded to Hainer’s e-mail that same day and provided some additional
details.
           {¶ 4} On March 19, 2019, Hainer e-mailed Murphy letting him know that
his public-records request was denied on the ground that the requested records were
exempt from disclosure under R.C. 149.43(A)(1)(v), which exempts “[r]ecords the
release of which is prohibited by state or federal law.” Hainer cited the Family
Education Rights and Privacy Act, 20 U.S.C. 1232g (34 C.F.R. 99) (“FERPA”),1
as the prohibitive federal law and advised Murphy to contact the Office of Student
Life Student Conduct “[t]o the extent [that he was] seeking student disciplinary
records.”
           {¶ 5} The next day, Murphy responded and informed Hainer that the
requested records were not exempt from disclosure under FERPA because Frank
“provided the University with a FERPA release.” On April 8, OSU’s director of
public records responded, indicating that “the records [Murphy was] seeking to
obtain continue to be subject to the requirements of FERPA despite [his]
submission of a waiver to [OSU].” The public-records director also advised
Murphy to contact OSU’s Office of Student Life Student Conduct for records
relating to student-disciplinary proceedings.
           {¶ 6} On April 10, 2019, Frank filed a complaint for a writ of mandamus in
this court.2 On September 25, 2019, we issued an alternative writ and ordered the
filing of briefs and submission of evidence pursuant to S.Ct.Prac.R. 12.05. 157
Ohio St.3d 1413, 2019-Ohio-3797, 131 N.E.3d 940. Both parties filed merits briefs

1. Hainer also cited R.C. 2907.322, which, among other things, prohibits the dissemination of
sexually oriented material involving a minor, as the prohibitive state law. Frank later clarified that
he was not seeking any documents containing child pornography, so the applicability of R.C.
2907.322 is not at issue in this case.

2. Frank’s complaint sought relief in connection with two public-records requests sent by Murphy—
the request that was made on February 22, 2019, and a second request that was made on March 12,
2019. But due to “events that have transpired since the filing of” the complaint, Frank indicates in
his merit brief that he now seeks relief concerning only the February 22 request.

                                                  3
                              SUPREME COURT OF OHIO

and submitted evidence. OSU’s evidence consisted of two affidavits and 14
exhibits. Frank filed a motion to strike both affidavits and two of the exhibits. OSU
opposes Frank’s motion.
                                  II. Legal Analysis
                    A.The merits of Frank’s public-records request
          {¶ 7} To be entitled to a writ of mandamus, a party must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Cleveland Right to Life v.
Ohio Controlling Bd., 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.
“Mandamus is [an] appropriate remedy to compel compliance with the Ohio Public
Records Act, R.C. 149.43, and a relator need not demonstrate the absence of an
adequate remedy in the ordinary course of the law.” State ex rel. Cincinnati
Enquirer v. Pike Cty. Gen. Health Dist., 154 Ohio St.3d 297, 2018-Ohio-3721, 114
N.E.3d 152, ¶ 12; see also State ex rel. Caster v. Columbus, 151 Ohio St.3d 425,
2016-Ohio-8394, 89 N.E.3d 598, ¶ 15-16; R.C. 149.43(C)(1)(b). Ohio’s Public
Records Act “ ‘ “is construed liberally in favor of broad access, and any doubt is
resolved in favor of disclosure of public information.” ’ ” State ex rel. Physicians
Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio
St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6, quoting Gilbert v. Summit Cty.,
104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel.
Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334
(1996).
          {¶ 8} A “public record” does not include “[r]ecords the release of which is
prohibited by state or federal law.” R.C. 149.43(A)(1)(v). FERPA provides that
“[n]o funds shall be made available under any applicable program to any
educational agency or institution which has a policy or practice of releasing, or
providing access to, any personally identifiable information in education records.”

                                           4
                                      January Term, 2020

20 U.S.C. 1232g(b)(2). FERPA “unambiguously conditions the grant of federal
education funds on the educational institutions’ obligation to respect the privacy of
students and their parents.” United States v. Miami Univ., 294 F.3d 797, 809 (6th
Cir.2002). Therefore, when FERPA applies to a record, it constitutes a prohibition
on the release of the record under R.C. 149.43(A)(1)(v). State ex rel. ESPN, Inc. v.
Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 25.
         {¶ 9} There is no dispute that the records in question are student records
containing “personally identifiable information.”3 The parties therefore frame the
issue in this case as one involving the applicability of FERPA to the requested
records. But there is another issue presented in this case—whether OSU actually
denied Frank’s public-records request.
         {¶ 10} FERPA permits the release of personally identifiable information
with the consent of the student or his parents. 20 U.S.C. 1232g(b)(2)(A); 34 C.F.R.
99.30(a). The written consent must (1) specify the records to be disclosed, (2) state
the purpose of the disclosure, and (3) identify the parties or class of parties to whom
the disclosure may be made. 34 C.F.R. 99.30(b). Frank contends that he is entitled
to the requested records because he executed a valid FERPA waiver. But that
waiver was not attached to Murphy’s original public-records request, dated
February 22, 2019. From OSU’s perspective, Murphy’s February 22 public-
records request was a request from a third party for a student’s records, which were
exempt from disclosure pursuant to R.C. 149.43(A)(1)(v) and FERPA. Moreover,
Murphy did not identify himself as Frank’s agent nor did he provide OSU with a
written consent form in the February 22 public-records request. Therefore, to the

3. “Personally identifiable information” includes, but is not limited to, “the student’s name, a family
member’s name, the address of the student or family member, personal identifiers such as the
student’s social security number or student number, and personal characteristics or other information
that would make the student’s identity easily traceable.” Miami Univ., 294 F.3d at 806, fn. 9, citing
34 C.F.R. 99.3.

                                                  5
                            SUPREME COURT OF OHIO

extent that OSU’s first response (dated March 19, 2019) constituted a denial of the
February 22 public-records request, that denial was well founded.
       {¶ 11} As for OSU’s second response, dated April 8, 2019, we need not
decide whether Frank executed a valid consent form or even whether the records in
question are subject to R.C. 149.43 at all, because OSU did not deny the request.
Rather, OSU advised Murphy:

       [T]o the extent you are seeking student disciplinary records, please
       contact the Office of Student Life Student Conduct. Pursuant to
       FERPA, Student Conduct allows for inspection and review of
       records related to disciplinary proceedings by involved students, and
       as appropriate, their advisors. They can explain the process for
       inspection and review of records related to student disciplinary
       proceedings as well as documentation that may be necessary to
       allow for inspection and review.

R.C. 149.43 does not require institutions like OSU to provide records through a
specific public-records office.   But when, as here, the requested records are
sensitive in nature and subject to limitations on disclosure under federal law, it
makes sense for OSU to refer Murphy to an office that will have the proper
expertise for how to lawfully disclose the requested records and how to apply the
relevant state and federal regulations. Accordingly, in OSU’s April 8 response to
Murphy, OSU did not deny the public-records request (and we offer no opinion
whether OSU legitimately could have denied the request), it merely referred
Murphy to a different office. And there is no evidence in the record to suggest that
either Frank or Murphy followed up on this opportunity.
       {¶ 12} We conclude that OSU responded promptly and fully to Murphy’s
request and that Frank is not entitled to a writ of mandamus. It follows that Frank

                                          6
                               January Term, 2020

is also not entitled to an award of statutory damages, attorney fees, or court costs
under R.C. 149.43(B) or (C).
                           B. Frank’s motion to strike
        {¶ 13} Although Frank abandoned any claims relating to a separate public-
records request that he had made on March 12, 2019, OSU still addressed that
request in its merit brief and submitted evidence to support its arguments for
rejecting it. On October 2, 2019, Frank filed a motion to strike portions of OSU’s
evidence, specifically Kelly Smith’s affidavit, Robert Moormann’s affidavit, and
exhibits L and N. OSU opposes the motion. Frank claims that these documents
should be stricken because they include student information protected by FERPA.
Even if that were so, striking the documents is the wrong relief because that simply
means that this court will not consider them when deciding the case.            The
documents remain a part of this case’s docket and thus available for the public to
see. The proper remedy is to place the documents under seal. Erring on the side of
caution, but without expressing a view as to whether filing these documents
violated FERPA, we order that Smith’s affidavit, Moormann’s affidavit, and
exhibits L and N be placed under seal. We also sua sponte order that OSU’s exhibit
M be placed under seal.
                                 III. Conclusion
        {¶ 14} For the reasons stated, we deny the writ of mandamus and order that
Smith’s affidavit, Moormann’s affidavit, and exhibits L, M, and N be placed under
seal.
                                                                       Writ denied.
        O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
        KENNEDY, J., concurs in judgment only.
                               _________________
        Murphy Landen Jones, P.L.L.C., and Kevin L. Murphy, for relator.

                                         7
                           SUPREME COURT OF OHIO

       Dave Yost, Attorney General, Kristine L. Hayes, Senior Assistant Attorney
General, and Stephanie M. Swiger, Assistant Attorney General, for respondent.
                             _________________

                                       8


260 F.Supp.2d 1034 (2003)
NETWORK COMMERCE, INC, Plaintiff,
v.
MICROSOFT CORPORATION, Defendant.
No. C01-1991P.
United States District Court, W.D. Washington, at Seattle.
March 10, 2003.
*1035 Ramsey M. Al-Salam, Perkins Coie, Seattle, WA, for Network Commerce Inc., a Washington corporation.
Mark Steven Parris, Heller, Ehrman, White & McAuliffe, Seattle, WA, J. Christopher Carraway, Joseph T. Jakubek, Klarquist, Sparkman, Campbell, Leigh & Whinston, LLP, Portland, OR, Stephen P. McGrath, Microsoft Corp., Redmond, WA, for Microsoft Corp., a Washington corporation.

ORDER REGARDING CLAIMS CONSTRUCTION OF UNITED STATES PATENT NO. 6,073,124
PECHMAN, District Judge.
This matter comes before the Court on cross motions for construction of certain claim language in Network Commerce, Inc.'s ("NCI") patent, United States Patent No. 6,073,124. (Dkt. Nos. 19 and 20) Having considered the parties' opening *1036 claims construction briefs and supporting papers, their response briefs and supporting papers, the Joint Claims Construction Statement submitted by the parties, and having heard oral argument on the issues, the Court interprets the disputed language as explained below.

BACKGROUND
This litigation involves alleged infringement of four patents. NCI has filed suit against Microsoft Corporation ("Microsoft") for infringement of United States Patent No. 6,073,124 (issued June 6, 2000) ("the '124 patent"). Microsoft in turn asserted counterclaims against NCI for infringement of three of its patentsUnited States Patent Nos. 5,822,526, 5,999,914 and 5,794,006. Only terms of the '124 patent are presently before the Court; interpretation of claims in Microsoft's patents will be interpreted in a separate Markman hearing to be held on November 15, 2002.
Specifically at issue before the Court is the construction of several terms in claims 1, 4 through 8, and 10 through 16 of the '124 patent. The patent discloses systems and methods in e-commerce related to the purchase, license, and download of products on-line. The disputed claims are reproduced below, with the disputed terms emphasized.
What is claimed is:
1. A computer system for conducting electronic commerce including:
a store computer that receives requests for electronic data from a client computer and that, in response to receiving the request, sends to the client computer a download component that coordinates the download of the electronic data;
a supplier computer that receives a request from the download component of the client computer to download the electronic data and that, in response to receiving the request, sends the electronic data and a licensing component to the client computer, the licensing component for coordinating the licensing of the electronic data; and
a licensing computer that receives a request from the licensing component of the client computer to license electronic data and that, in response to receiving the request, determines whether access to the electronic data is to be allowed at the client computer, and when access is allowed sends a notification that access is allowed to the client computer.
2. (Not at issue)
3. (Not at issue)
4. The system of claim 1 wherein the store computer, the supplier computer, and the licensing computer are separate computers.
5. The system of claim 1 wherein the store computer, the supplier computer, and the licensing computer are separate web servers.
6. The system of claim 1 wherein the store computer, the supplier computer, and the licensing computer are separate web sites.
7. A method in a computer system for conducting electronic commerce, including:
requesting a first web server to order electronic data;
receiving in response to the request a download component for coordinating the download of the electronic data; and
under control of the download component, downloading from a second web server the electronic data.
8. The method of claim 7 wherein the download component also downloads a licensing component and including:
under control of the licensing component, requesting and receiving from a *1037 third web server a license for using the electronic data; and
using the electronic data in accordance with the received license.
9. (Not at issue)
10. (Not at issue)
11. A method in a store computer for coordinating electronic commerce, the method including:
receiving from a client computer a request to purchase electronic data; and
in response to receiving the request, sending to the client computer a download component, the download component for coordinating the download of the electronic data from a supplier computer to the client computer, the supplier computer for downloading to the client computer the electronic data when requested by the download component.
12. The method of claim 11 wherein the supplier computer downloads a licensing component that requests a licensing computer for a license to use the electronic data.
13. The method of claim 11 wherein the store computer, the client computer, and the supplier computer communicate via the Internet.
14. The first computer for coordinating electronic commerce, including:
means for receiving from a second computer a request to purchase electronic data; and
means for, in response to receiving the request, sending to the second computer a download component, the download component for coordinating the download for the electronic data from a third computer to the second computer, the third computer for downloading to the second computer the electronic data when requested by the download component.
15. The first computer of claim 14 wherein the third computer downloads a licensing component that requests a fourth computer for a license to use the electronic data.
16. The first computer of claim 14 wherein the computers communicate via the Internet.
United States Patent No. 6,073,124. Declaration of William D. Fisher, Exhibit A. (emphasis added).

ANALYSIS

1. Sources to which the Court may look in the claims construction process
Claim construction is an issue of law for the Court to decide. Markman v. Westview Instruments, 52 F.3d 967, 979 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). In construing claims, the Court looks first to intrinsic evidence, and only if necessary to extrinsic evidence. In reviewing intrinsic evidence, the Court first looks to the "words of the claims themselves." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). "The general rule is that terms in the claim are to be given their ordinary and accustomed meaning." K-2 Corp. v. Salomon S.A, 191 F.3d 1356, 1362 (Fed.Cir.1999). In the alternative, "a patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history." Vitronics, 90 F.3d at 1582. The patent specification is usually dispositive, as it is "the single best guide to the meaning of a disputed term." Id. On the other hand, claims are not limited to the embodiment disclosed in the specification. "It is well established that the preferred embodiment does not limit broader claims that are supported by the written description." Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1301 (Fed.Cir. *1038 1999). In addition to the language of the claims and the specification, the final piece of intrinsic evidence available to the Court in claims construction is the prosecution history of the patent. Vitronics, 90 F.3d at 1582. "The history contains the complete record of all the proceedings before the Patent and Trademark Office, including any express representations made by the applicant regarding the scope of the claims." Id.
The Court looks to extrinsic evidence only if intrinsic evidence is insufficient to "resolve any ambiguity in a claim term." Id. at 1583. This is because "the claims, specification, and file history, rather than extrinsic evidence, constitute the public record of the patentee's claim, a record on which the public is entitled to rely." Id. Extrinsic evidence may include expert and inventor testimony, dictionaries, and learned treatises. Markman, 52 F.3d at 980. Extrinsic evidence is reviewed in claims construction at the discretion of the Court. Id. Such evidence may be helpful "to explain scientific principles, the meaning of technical terms, and terms of art that appear in the patent and prosecution history," or "may demonstrate the state of the prior art at the time of the invention." Id. "Extrinsic evidence is to be used for the court's understanding of the patent, not for the purpose of varying or contradicting the terms of the claims." Id. at 981.

2. The Court's construction of the disputed claim language
Most of the disputed terms are repeated several times throughout the claims. The Court interprets each term only once, and the Court's interpretation holds each time the specific language occurs in the claims. The Court interprets the claim language as follows.

a. "electronic commerce"
Claims 1, 7, 11, and 14 refer to computers and systems for conducting and coordinating "electronic commerce." Microsoft argues that "electronic commerce" should be limited to the "purchase and download" of electronic data over an electronic network. This interpretation is based entirely on one description in the patent specification of buying selling software over the internet, this being known as "digital commerce." '124 Patent, 1:30-37; 1:21-25.
NCI correctly responds that this definition is not in the part of the specification that describes the invention, but rather is part of a preamble describing the prior art. Instead, NCI proposes a construction that includes any commercial activity conducted by means of computer through a network.
The Court adopts NCI's interpretation. Microsoft's interpretation would not only be contrary to the ordinary meaning of the phrase, it would also improperly import a limitation from the specification. Electronic commerce is commercial activity including, for example, licensing and purchasing transactionsconducted over an electronic network, such as the Internet. This interpretation is consistent with the ordinary meaning of the phrase and is supported by the specification. '124 Patent, 1:45-51, 4:23-27, 5:62-64, 15: 40-43, 24: 38-28:2.

b. "in response to"
Claims 1, 7, 11, and 14 refer to various computers acting "in response to" requests. NCI argues that this phrase means "to take some action in reply to or in reaction to the request." NCI's arguments are based on the ordinary meaning of the words. Microsoft counters that the phrase should mean that the response occurs "as a direct result of or is "directly *1039 caused by" the request. Microsoft argues further that "in response to" cannot be unlimited in time, can not cover breaks in causation, and that NCI's construction would eliminate the Claims' requirement of what performs the response. NCI responds that Microsoft is improperly adding time and event limitations from the specification.
The ordinary meaning of the words in the claim is clear; no further interpretation is necessary. "In response to" means to take some action in reply to or in reaction to the request. Nothing in the specification or prosecution history limits the meaning of this phrase, and it is immaterial whether the response occurs immediately after the request or whether there is a time gap or intervening events prior to the response. To add limitations of time and singular causation would be to improperly import limitations from the specification. Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1301 (Fed.Cir.1999).

c. "download component"
Claims 1, 7, 11, and 14 refer to a "download component" that coordinates or controls the download of electronic information. NCI argues that a "download component" is a part of a system "involved in" the transfer of data from one device to another. Together with its definitions of "coordinate," "control," and "request," (see below) NCI proposes that a download component is
any part of a computer systemincluding a program, an application, or a data or text filethat arranges for, or works together with one or more other parts of the system to arrange for, the transfer or delivery of the requested electronic data from one computer or server to another.
Joint Claim Construction Statement, Ex. A at 3. NCI thus takes a deconstructionist approach to this phrase and argues that the ordinary meaning of the words individually makes up an ordinary meaning as a whole. NCI contends that such an ordinary meaning does not imply an active component, and therefore no executable file or program is necessarily contained within the download component as claimed.
Microsoft, on the other hand, argues that the "download component" is merchandise specific, and must contain at least an executable program for downloading merchandise. In addition, Microsoft contends that the "download component" is neither a content player nor a web browser.
The Court finds that it can adopt neither an interpretation as ambiguous and broad as NCI's preferred interpretation, nor one as specifically limited as Microsoft's. The Court finds that a "download component" by the plain language of the claims requires an executable file or program, but does not necessarily need to be merchandise-specific. The Court does not reach the issue of whether a "download component" is a content player or a web browser.
First, the grammatical structure of the claim language indicates that the "download component" contains an executable file or program. As explained below, a "component" is a constituent part or element. To "download" is to transfer data from one computer to another over some type of connection, usually a network. Together, these terms imply a part that downloads or a part that plays an active role in downloading. While the Court finds that there is no "ordinary meaning" to the phrase as is known by one of skill in the art, the combination of these two words in such a fashion produces an ordinary result.
Likewise, the plain language of the claims indicates that a "download component" "coordinates" or "controls" the download of information. It also makes *1040 requests for electronic content from a source computer. Thus, the literal terms of the claim language indicate that actions are taken by the "download component," thereby necessitating the presence of an active constituent part. In computer programming, such an active part is an executable file or program. Based on the claim language, the Court finds that the "download component" must include an executable file or program.
This interpretation of the claim language is supported by many references in the specification. '124 Patent, 4:24-27, 7:21-31, 7:44-58, 9:24-62, 11:2-13, 15:47-51. Although NCI argues that the specification represents only one embodiment of the claim language, there is nothing in the specification that indicates that the "download component" could possibly be a completely inactive data file or that the active functions referred to in the claims could be carried out by some other component.
The interpretation is also loosely supported by the prosecution history of the patent, where NCI represented to the Patent and Trademark Office that the "download component executing on the client computer then coordinates the download of electronic data from a supplier computer." Declaration of J. Christopher Carraway, Ex. E (MA 183). All these sources of intrinsic evidence make clear that the inventor envisioned the invention to contain a "download component" that could execute.
On the other hand, nothing in the claim language, specification, or prosecution history mandates an interpretation that the "download component" be merchandise-specific. Although the specification discloses an embodiment that appears to be merchandise-specific, the claims are not limited to the specified embodiment. To add a limitation of merchandise-specificity would be to improperly import limitations from the specification.
Whether the patent reads on a content player or a web browser is a matter for summary judgment or fact-finding, and the Court declines to interpret the claims in such a manner that addresses such specific limitations.

d. "coordinates" or "coordinating"
Claims 1, 7, 11, and 14 refer to the term "coordinates" or "coordinating." The Court adopts NCI's proposed interpretation of the term "coordinate." To "coordinate" means to harmonize, work together, or bring into a common action, effort or condition. This interpretation is supported by the ordinary meaning of the claim language, the patent specification, see '124 Patent, 4:16-20, 12:27-45, and dictionary definitions submitted by NCI. Fisher Decl. Ex. L. The ordinary meaning of the word "coordinate" does not connote a "dominating influence" as Microsoft proposes, and the specification does not so limit this term.

e. "download"
Claims 1, 7, 11, and 14 refer to the term "download." The Court likewise adopts NCI's proposed interpretation of this term. To "download" means to transfer data from one computing device to another over some type of connection, usually a network. This interpretation is supported by the ordinary meaning of the term, the patent specification, see '124 Patent 7:6-16, and dictionary definitions submitted by the parties. Fisher Decl. Ex. K, Carraway Decl. Exs. J, K, and L. It is also supported by Microsoft's submitted article describing streaming, which states that "[t]he file continues to be downloaded as the music begins to play." Carraway Ex. P (MA 275-276). Thus, downloading and streaming, while different, are not mutually exclusive. Nothing in the claim language, specification, prosecution *1041 history, or extrinsic evidence excludes the possibility of streaming while downloading. Within the context of the '124 patent, "download" simply means that data is transferred from one computing device to another over a connection.

f. "request"
Claims 1, 7, 11, and 14 refer to the term "request." This term is not highly contested, and the Court finds the proposed interpretations of the parties very similar. A "request" is a communication, message or directive that asks a remote computer for a response, including the download of electronic data. "To request" is to send such a message. This is an active term, not a passive one. This interpretation is consistent with the ordinary meaning of the claim language and the patent specification. '124 Patent, 3:10-14, 12:34-37.

g. "licensing component"
Claims 1, 7, 12, and 15 refer to a "licensing component." The analysis of this phrase is analogous to that of "download component," and its interpretation must be consistent. A "component" is a constituent part or element. To "license" is to permit or authorize especially by formal license. Together, these terms imply a part that licenses. While the Court finds that there is no "ordinary meaning" to the phrase as is known by one of skill in the art, the combination of these two words in such a fashion produces an ordinary result. A "licensing component" is a part that coordinates or requests the licensing of information or products. The phrase implies action or the presence of an active constituent part. In computer programming, such an active part is an executable file or program. Thus, based on the claim language, the Court finds that the "licensing component" must include an executable file or program. This interpretation is consistent with the claim language and the patent specification. '124. Patent, 4:27-32, 5:15-20, 7:62-67, 9:50-54, 9:60-10:2, 10:14-18, 10:33-36, 10:51-55, 17:38-18:22.
On the other hand, nothing in the claim language, specification, or prosecution history mandates an interpretation that the "licensing component" be merchandise-specific. Although the specification discloses an embodiment that appears to be merchandise-specific, the claims are not limited to the specified embodiment. To add a limitation of merchandise-specificity would be to improperly import limitations from the specification.

h. "control"
Claims 7 and 8 refer to downloading or licensing under "control" of the respective components. NCI argues directly for the equation of the terms "control" and "coordinate," essentially contending that the terms have no functional difference within the context of the patent. Alternatively, NCI argues that "control" means "to direct, guide or manage the transfer or delivery of electronic data." Microsoft again argues for an interpretation that includes the exercise of a dominating influence in the download or licensing process.
The Court finds that the terms "coordinate" and "control" can not be equated. NCI used different language in different claims. The difference is presumed to be intentional, and therefore should be given effect. Yet the Court finds nothing in the claim language, patent specification or prosecution history that mandates such a narrow, limited definition as that proposed by Microsoft. The Court therefore adopts NCI's alternative definition. To "control" means to direct, guide or manage the transfer or delivery of electronic data. This is an active term, not a passive one. This interpretation is consistent with the *1042 ordinary meaning of the claim language, the patent specification, and dictionary definitions submitted by NCI. Fisher Decl. Ex. M.


256 F.Supp. 399 (1966)
SCREEN GEMS-COLUMBIA MUSIC, INC., Travis Music Co., Sea-Lark Enterprises, Inc. and Figure Music, Inc., Plaintiffs,
v.
MARK-FI RECORDS, INC., Metlis & Lebow Corp., Advertising Distributors of America Incorporated, W.M.C.A., Inc., Westinghouse Broadcasting Company, Inc., Tony Alamo, Stanley Lebow and Monte Bruce, Defendants.
No. 63 Civil 1459.
United States District Court S. D. New York.
July 18, 1966.
*400 Julian T. Abeles, New York City, for plaintiffs, Robert C. Osterberg, New York City, of counsel.
Burton Ritter, New York City, for defendants Metlis & Lebow Corp., Stanley Lebow and Monte Bruce.
Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for defendant, Advertising Distributors of America Inc., Jacob M. Usadi, Michael J. Silverberg, New York City, of counsel.
Robinson, Silverman, Pearce, Aronsohn & Sand, New York City, for defendant WMCA, Inc., Leonard B. Sand, New York City, of counsel.
Townley, Updike, Carter & Rodgers, New York City, for defendant, Westing-house Broadcasting Co., Inc., Andrew L. Hughes, John D. Canoni, New York City, of counsel.
*401 WEINFELD, District Judge.
These are motions for summary judgment by various defendants in a copyright infringement action upon the ground that as to each moving defendant there is no triable issue of fact and that each is entitled to judgment as a matter of law. The role attributed to each defendant with respect to the claimed infringement is different and each must be considered separately.
The action was brought on behalf of four music publishers, each of whom owns a copyrighted musical composition which is a subject of the infringement. The issues upon all four of the plaintiffs' claims are the same. The infringement charged is the manufacture and sale of phonograph records that reproduced mechanically a copyrighted musical composition without compliance with the statutory compulsory license provision.[1]
Mark-Fi Records, Inc. (Mark-Fi) manufactured and sold a long-playing phonograph record album entitled "Twenty Original Hits." Included in the album were the four copyrighted compositions owned by the plaintiffs. Their use was unauthorized and without plaintiffs' consent. The infringing acts of Mark-Fi allegedly were perpetrated under the direction of its executive, Tony Alamo. The plaintiffs charge that their acts were typical of a practice which has plagued the music publishing industry and has posed a serious threat to the interests of music publishers, songwriters and legitimate record companiesthe unauthorized manufacture of phonograph records by fly-by-night companies organized by unscrupulous individuals who, because of nonpayment of royalties to the copyright owners, can sell the bootlegged product at prices substantially lower than those necessarily charged for legitimate records.[2] Plaintiffs allege that Mark-Fi was such a fly-by-night company organized by Alamo who, after manufacturing and commercializing the illicit records, abandoned the company and himself absconded so that neither he nor the company could be served with process, although both are named as defendants. The plaintiffs, however, in an effort to eradicate the evil practice, have directed their shafts against the defendants who have been served with process and who are the movants herein.
The plaintiffs do not claim that these defendants had anything to do with the manufacture of the infringing records or directly infringed their copyrights, but seek to hold them liable by reason of their activities in connection with the sale and distribution of the records. These defendants and the nature of their activities are:
(1) Metlis & Lebow Corp., an advertising agency, which was engaged by and received from Mark-Fi a previously prepared electrical transcription containing advertising material for the album. Metlis & Lebow's services rendered on behalf of Mark-Fi consisted of the purchase of radio time from thirty-three stations throughout the United States, which broadcast the electrical transcription advertising the record album. The agency's sole compensation was the usual commission of fifteen per cent of the fee charged by each radio station for the time purchased. The compensation had no relation to the number of records made or sold by Mark-Fi.
Also named as defendants are Stanley Lebow, an officer and principal stockholder of the advertising agency, and Monte Bruce, one of its employees, who the complaint alleges, participated in one or more of the agency's dealings in connection with the Mark-Fi account.
(2) Westinghouse Broadcasting Company, Inc., owner and operator of radio station WINS, and WMCA, Inc., owner and operator of radio station WMCA, each of which broadcast, on various dates in late 1962 and early 1963, the previously prepared advertising material for the record album as contracted for by the advertising agency on behalf of Mark-Fi. *402 Each radio station was paid its fees in accordance with the amount and desirability of air time sold; the payment was unrelated to the sales of records. The rate was no different than that charged to other customers who had the same schedule of announcements. The advertisement of the album as broadcast by the radio stations did not include any portion of the infringing material.
(3) Advertising Distributors of America Incorporated (AD OF A), a servicing agency engaged to package and mail the Mark-Fi albums to those who responded to the radio advertising. A supply of records and cartons was made available to AD OF A by Mark-Fi. Upon receipt of orders and payments for records from purchasers, Mark-Fi retained the payments but submitted the orders to AD OF A, which then shipped the records to the purchasers in a carton which bore Mark-Fi's label. AD OF A's compensation for its services was a fixed fee of nine cents for each record mailed prepaid and fifteen and one-half cents for each record mailed C.O.D., plus postage. Its charges were payable in advance and were met through lump sum advances by Mark-Fi against which mailings as performed and expenses as incurred were credited.
The defendants, each in their own way, contend that their respective activities did not bring them within section 101(e) of the Copyright Act which makes unlawful "the unauthorized manufacture, use, or sale of"[3] phonograph records.
In urging judgment in their favor as a matter of law, the defendants emphasize first that they cannot be classed as direct participants in the infringements, since they did not perform the infringing records or otherwise use or sell them. They readily acknowledge that a direct participant in an infringement is jointly and severally liable whether or not he intended to infringe,[4] but urge that since they do not come within this category, the so-called dance hall cases[5] cited by plaintiffs are inapplicable the defendants equate their position as more akin to that of a noninfringing landlord who is without power or control over or direct financial interest in the infringing matter.[6]
Next defendants urge they do not come within the category of those who, even though not direct participants in an infringement, are held vicariously liable because of a financial interest in the infringing product coupled with the right and power to supervise the infringer's activities.[7] They contend they were without any such financial interest and supervisory power; that their relationship to Mark-Fi was too remote to impose liability. In sum, they say plaintiffs here advance a doctrine of absolute liability which exceeds the present outer limits of vicarious liability now imposed in copyright infringement casesone that *403 if accepted would fasten liability no matter how remote the relationship to the actual infringer and even though the defendant was without financial stake in the infringing product and without power to control or supervise the acts of the infringer.
The plaintiffs acknowledge that such indeed is their purpose as the only feasible means to meet the challenge of the bootleg record. Their contention is, as alleged in their complaint, that one who "contributed to or participated or was concerned in the sale" of the infringing records, whether with or without knowledge, is liable as a contributory infringer. As elaborated in their original affidavits in opposition to the summary judgment motion, the essence of their claim is that these defendants, by their respective roles in providing advertising, packaging and distribution, contributed essential services in effecting and furthering the sale of the infringing albums and so were liable under the prohibition of section 101 (e) against "the unauthorized * * * sale" of such records.
The parties earnestly urged upon the court a determination of the issue as a matter of law, since it is one of concern and importance to copyright owners, music publishers, advertising agencies and communications media. However, following argument of the motion and a study of the briefs and affidavits, it appeared that plaintiffs, in addition to their basic contention of expanded absolute liability, suggested that each defendant was chargeable at the time it rendered its particular service with either actual or constructive knowledge that the Mark-Fi album contained the unauthorized renditions of plaintiffs' four musical compositions. The court thereupon conferred with counsel, following which each party submitted an additional affidavit. However much the parties desire a determination of the basic legal issue originally posed by them, this is precluded since a fact issue is raised. Plaintiffs in their supplemental affidavit allege facts upon which it is claimed that each defendant was aware or should have been aware of Mark-Fi's illicit activities, and that each defendant knew or should have known of the infringement. Although the defendants challenge plaintiffs' assertions upon which knowledge is predicated, the effect of the challenge is to create a fact issue. Since infringement constitutes a tort,[8] common law concepts of tort liability are relevant in fixing the scope of the statutory copyright remedy, and the basic common law doctrine that one who knowingly participates in or furthers a tortious act is jointly and severally liable with the prime tort-feasor is applicable in suits arising under the Copyright Act.[9]
The factual issue raised with respect to each defendant, the verity of which the court, of course, does not pass upon *404 but which must await resolution upon a trial,[10] appears from the following:
Record piracy is not of recent origin. Since the early 1950's it has been a recognized and well publicized evil in the industry. Its existence was noted by our own Court of Appeals almost ten years ago.[11] Plaintiffs point out that the practice has taken on a particular form that usually it is carried on by small unreliable operators of dubious financial background who stay in business only long enough to reap their ill-gotten gains and disappear when legal action against them appears imminent. As already noted, plaintiffs here charge that Mark-Fi and its organizer, Tony Alamo, were such operators.

METLIS & LEBOW CORP. and MONTE BRUCE
Plaintiffs' supplemental affidavit contains allegations that the initial course of dealings between the advertising agency and Mark-Fi readily made apparent to the agency the well known indicia of the fly-by-night operatorsmallness, lack of permanent location and financial unreliability. They also allege that the $2.98 price of the album of twenty hit records sold by Mark-Fi was so suspiciously below the usual market price of twenty licensed hit records that the very $2.98 price served as notice of the illicit operation and that the agency either deliberately closed its eyes or was recklessly indifferent thereto.
Finally plaintiffs allege that this defendant had actual notice of Mark-Fi's operation. This is based upon the defendant's pretrial deposition, from which it appears that before the Mark-Fi account was accepted the agency sought assurance from Mark-Fi that it had secured releases from the record companies but never inquired whether the copyright owners of the musical composition had licensed the manufacture of the recordings. Since the agency was alert enough in one instance to insist upon proof of rights as to the recordings, plaintiff contends that its failure to inquire as to licensing by the copyright owners was not inadvertentat least such is its contention.
The foregoing allegations, all of which are denied by the defendants, if accepted, would be sufficient to permit a finding that Metlis & Lebow had either actual or constructive knowledge of Mark-Fi's infringement, but nonetheless placed the radio advertising for the promotion and sale of the records. Under such circumstances it may be held liable as one who knowingly participated in or furthered the tortious conduct.[12] Accordingly, its motion and that of Monte Bruce, its officer and employee as to whom there are factual averments of participation in the Mark-Fi transactions, are denied.

STANLEY LEBOW
It appears without contradiction that this defendant, although he continued as an officer and stockholder of Metlis & Lebow Corp., was on leave of absence from corporate affairs from November 20, 1961 to March 18, 1963, which encompassed the period within which the infringing activities occurred. He withdrew completely from the corporate activities and had no relationship either with Metlis & Lebow Corp. or Monte Bruce, its employee who participated in Mark-Fi matters. Under the circumstances there is no basis for holding him as a party.[13]*405 Accordingly, his motion for summary judgment is granted.

WESTINGHOUSE BROADCASTING COMPANY, INC. and WMCA, INC.
The plaintiffs charge that the radio stations, intimately a part of the entertainment business, must have been fully cognizant of the record piracy problem; also, that they, like the advertising agency, must have been aware of the newness of Mark-Fi's product and its suspiciously low price. Plaintiffs' position essentially is based upon the concept which permits an inference of knowledge of the illicit nature of merchandise sold much below its market value.[14] While the factual showing against Westinghouse and WMCA is somewhat tenuous, sufficient has been set forth to permit the trier of the fact, despite these defendants' denials, to conclude that they had either actual or constructive knowledge of the infringement, but nevertheless proceeded to assist and participate therein by advertising the wares over their stations without making adequate investigation. All the defendants, of course, had it within their power to require the advertiser to present proof of the authenticity of the product.
Accordingly, the motions for summary judgment by these defendants are also denied.

ADVERTISING DISTRIBUTORS OF AMERICA INCORPORATED
This defendant, which packaged and mailed the records, denies that any one in its organization had any particular familiarity with the entertainment industry and the record piracy problem, and in particular with the characteristics or pattern of fly-by-night bootleg operations; hence it urges that it cannot be taxed with knowledge of the illicit operation based upon the excessively low sales price of the records. But whether the practice was so pervasive that a service packaging organization should have been alerted to the illicit operation upon the basis of its activities and relationship to Mark-Fi also presents an issue of fact.
Accordingly, AD OF A's motion for summary judgment is denied.
NOTES
[1]  See 17 U.S.C. §§ 1(e), 101(e).
[2]  See generally Note, 5 Stan.L.Rev. 433-43 (1953), for a discussion of the background of record piracy.
[3]  17 U.S.C. § 101(e).
[4]  See Wihtol v. Crow, 309 F.2d 777, 780 (8th Cir. 1962); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936); Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 16 (9th Cir.), appeal dismissed, 296 U.S. 669, 54 S.Ct. 94, 78 L.Ed. 1507 (1933); Peter Pan Fabrics, Inc. v. Acadia Co., 173 F.Supp. 292, 299, 302 (S.D.N.Y. 1959), aff'd, 274 F.2d 487 (2d Cir. 1960).
[5]  See Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198-199, 51 S.Ct. 410, 75 L.Ed. 971 (1931); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354 (7th Cir. 1929); M. Witmark & Sons v. Tremont Social & Athletic Club, 188 F.Supp. 787 (D.Mass.1960); Remick Music Corp. v. Interstate Hotel Co., 58 F.Supp. 523 (D.Neb.1944), aff'd, 157 F.2d 744 (8th Cir. 1946), cert. denied, 329 U.S. 809, 67 S.Ct. 623, 91 L. Ed. 691 (1947); Buck v. Pettijohn, 34 F.Supp. 968 (E.D.Tenn.1940); Buck v. Crescent Gardens Operating Co., 28 F. Supp. 576 (D.Mass.1939); Buck v. Russo, 25 F.Supp. 317 (D.Mass.1938); M. Witmark & Sons v. Pastime Amusement Co., 298 F. 470 (E.D.S.C.), aff'd, 2 F. 2d 1020 (4th Cir. 1924); Harms v. Cohen, 279 F. 276 (E.D.Pa.1922).
[6]  See Deutsch v. Arnold, 98 F.2d 686 (2d Cir. 1938). Cf. Fromont v. Aeolian Co., 254 F. 592 (S.D.N.Y.1918).
[7]  See Shapiro, Bernstein & Co., v. H. L. Green Co., 316 F.2d 304 (2d Cir. 1963).
[8]  See Leo Feist, Inc. v. Young, 138 F.2d 972, 975 (7th Cir. 1943); Ted Browne Music Co. v. Fowler, 290 F. 751, 754 (2d Cir. 1923); H. M. Kolbe Co. v. Shaff, 240 F.Supp. 588, 589 (S.D.N.Y.), aff'd, 352 F.2d 285 (2d Cir. 1965).
[9]  Harper v. Shoppell, 28 F. 613, 615 (S.D. N.Y.1886). See Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (dictum); Universal Pictures Co. v. Harold Lloyd Corp., 162 F. 2d 354, 365 (9th Cir. 1947); Claude Neon Lights, Inc. v. American Neon Light Corp., 39 F.2d 548, 550 (2d Cir. 1930). Cf. Rupp & Wittgenfeld Co. v. Elliott, 131 F. 730, 732-733 (6th Cir. 1904). See also Kalem Co. v. Harper Bros., 222 U.S. 55, 63, 32 S.Ct. 20, 22, 56 L. Ed. 92 (1911) (when defendant has knowledge that its product will be used to assist in an infringement, "it is liable on principles recognized in every part of the law.") (Holmes, J.); Underhill v. Schenck, 238 N.Y. 7, 16-17, 143 N.E. 773, 776, 33 A.L.R. 303 (1924) (one who knows his conduct will contribute to an infringement "stands in a position similar to that of a contributing infringer. * * * The controlling principle has support in a multitude of instances.") (Cardozo, J.). Compare Harper v. Shoppell, 26 F. 519, 521 (C.C.S.D.N.Y.1886).
[10]  See Homan Mfg. Co. v. Long, 242 F. 2d 645, 656 (7th Cir. 1957), cert. denied, 361 U.S. 839, 80 S.Ct. 72, 4 L.Ed.2d 78 (1959); Bridgeport Brass Co. v. Bostwick Labs., Inc., 181 F.2d 315, 316 (2d Cir. 1950); Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6th Cir. 1943), cert. denied, 320 U.S. 800, 64 S.Ct. 431, 88 L.Ed. 483 (1944).
[11]  Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260, 261-62 (2d Cir. 1957), cert. denied, 355 U.S. 952, 78 S.Ct. 536, 2 L. Ed.2d 529 (1958).
[12]  See notes 8-9 and accompanying text.
[13]  See Hagemeyer Chemical Co. v. Insect-O-Lite Co., 291 F.2d 696, 699 (6th Cir. 1961); Federal Trade Comm'n v. Standard Educ. Soc'y, 86 F.2d 692, 695 (2d Cir. 1936), modified on other grounds, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141 (1937); H. M. Kolbe Co. v. Shaff, 240 F.Supp. 588, 589-590 (S.D.N.Y.), aff'd, 352 F.2d 285 (2d Cir. 1965). Compare Claude Neon Lights, Inc. v. American Neon Light Corp., 39 F.2d 548, 550-551 (2d Cir. 1930).
[14]  Cf. United States v. Bletterman, 279 F.2d 320, 322 (2d Cir. 1960); United States v. Werner, 160 F.2d 438, 443 (2d Cir. 1947).