Thursday, December 02, 2010

The ABS-CBN versus Willie Revillame case: What is a TRO?

(Note: Please read my Salt and Light blog post Relationship tips for Shalani and other single men and women.)

Due to the wide media coverage of this case and the popularity of the “Willing Willie” show, people have been hearing the term “TRO” over and over again. What exactly is a TRO?


Lets deal first with the background facts. ABS-CBN filed last week of November with the Makati Regional Trial Court a 127 million peso case of infringement of copyright against Willie Revillame and TV5. According to a Starmometer report, “ABS-CBN claimed that Revillame and his co-defendants unlawfully infringed on ABS-CBN’s copyright over its show, Wowowee, citing section 172.2(l) of the Intellectual Property Code (IP Code). ABS-CBN stated that as the producer of Wowowee, it is the legal owner of a valid and subsisting copyright over each and every one of the Wowowee episodes and is thus entitled to protection against those who steal its work.”

The Starmometer report also stated: “Aside from seeking an award of damages in the amount of more than P127 Million, ABS-CBN also seeks for the issuance of a Temporary Restraining Order (TRO) and/or a Writ of Injunction to restrain Revillame, ABC and their other co-defendants from further producing and airing the infringing show Willing-Willie.”

Let me try to explain briefly these things in the vernacular:

Idinemanda ng ABS-CBN si Willie Revillame at TV5 sa Makati Regional Trial Court ng paglabag sa copyright law ng Filipinas. Humihingi ang ABS-CBN ng damyos na 127 million pesos. Upang mapigilan ang patuloy na paglabag sa karapatan nito, hinihiling ng ABS-CBN sa husgado na maglabas ng Temporary Restraining Order (TRO) o kaya ay writ of preliminary injunction laban kay Willie at TV5. Kung maglabas ng TRO o writ of preliminary injunction ang husgado, hindi na pwedeng ipalabas ng TV5 ang Willing Willie.

Free PDF legal procedures provisional remedies preliminary injunctionWhat is a preliminary injunction?

Rule 58 of the Rules of Court covers the provisional remedy of preliminary injunction. The term “provisional” means “while the case is going on”. Once the court hands down its decision in the case, the writ of “preliminary injunction” may either become permanent or be done away with (if such writ or order was issued in the first place, that is).
Rule 58 Preliminary Injunction - an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by the said court or any member thereof.

A preliminary injunction may be granted when it is established:

(a) that the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) that the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(c) that a party, court, agency or person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

Free PDF legal procedures provisional remedies TRO temporary restraining orderWhat is a Temporary Restraining Order (TRO)?

When a party files a case and it asks for a preliminary injunction, it usually also asks the court to issue a “Temporary Restraining Order” because time is of the essence. If the party only asks for a writ of preliminary injunction, the hearing will usually be scheduled weeks or months from the filing of the case. The hearing can be scheduled, for example, as part of the pre-trial conference. But if the party also asks for the issuance of a TRO, the court must schedule a hearing within 24 hours from the filing of the case. Here are the rules:

[1] The executive judge of a multiple sala court may issue a TRO ex-parte but it is good for seventy two (72) hours only. The term “ex-parte” means that the executive judge can grant the TRO immediately without any hearing.

[2] Within twenty four (24) hours after receiving the records of the case and/or from the sheriff’s return, the trial judge must, after a summary hearing, either grant or deny the application for a TRO.

[3] If granted, the TRO it is effective only for twenty (20) days and is automatically lifted after such period. During the effectivity of the TRO, the hearing for the issuance of a writ of preliminary injunction may be held.

[4] If the TRO is not granted, the court will schedule hearings to determine whether a writ of preliminary injunction should be issued or not.

[5] A TRO issued by the Court of Appeals or any of its members is good for sixty (60) days from service on the party sought to be restrained. On the other hand, a TRO granted by the Supreme Court or any of its member is effective until lifted by order.

In layman’s terms, a party wants a TRO or a writ of preliminary injunction so as to preserve his rights or to prevent damage. Without a TRO or a writ of preliminary injunction, the party, even if he eventually wins the case, may be left holding an empty bag, so to speak. (This may be illustrated by a dismissed employee winning a case with the NLRC against his employer. But if the company has become bankrupt while the case is going on, the employee may not be able to collect what the NLRC has awarded to him.)

Makati RTC refuses to grant the TRO; what happens next?

As you may know by now, the Makati RTC judge handling this case denied the ABS-CBN motion for the issuance of the TRO. What will happen next? The court will conduct hearings on:
(1) whether to grant a writ of preliminary injunction, and

(2) the main case of the alleged infringement of copyright.
Please take note that if a court does not grant a TRO, this does not necessarily mean it will not also grant a writ of preliminary injunction. Simply stated, a party may not get from the court a TRO but it may possibly get a writ of preliminary injunction. So, if the Makati RTC enjoins (stops) TV5 from airing Willing Willie, it will be through a writ of preliminary injunction and not by a TRO.

Motion to inhibit against Makati judge

The lawyers of TV5 and Willing Willie have also filed a Motion To Inhibit” (also called “Motion To Recuse”) against the Makati RTC judge for his alleged ties to the lawyers of ABS-CBN. This motion has to be resolved first by the judge (or resolved together with the matter of the issuance of a writ of preliminary injunction.) If the judge refuses to inhibit himself, the lawyers of TV5 and Willing Willie will most likely bring this matter up to the Court of Appeals. They will ask the CA to order the judge to inhibit himself and to stay or suspend the hearings of the Makati RTC. (One other action that is often taken by lawyers is to file an administrative case against the judge with the Office of the Court Administrator of the Supreme Court.)

TV5 and Willing Willie
s defense: the format or mechanics of a television show cannot be copyrighted

According to news reports, lawyers for TV5, citing the 1999 decision of the Supreme Court in the case of Joaquin Jr. vs. Secretary of Justice Franklin Drilon, wanted the Makati court to dismiss the case filed by ABS-CBN. That 1999 decision involved a 1970's show “Rhoda and Me” which was allegedly copied by an RPN 9 program called “It’s a Date”. Secretary of Justice (now Senator) Drilon refused to file criminal charges for infringement of copyright against the RPN 9 program producer; the Supreme Court upheld Drilon’s action. TV5 is relying on the Supreme Court’s ruling that:
“The format or mechanics of a television show is not included in the list of protected works in Section 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to cover them.”
ABS-CBNs plan of action: facts of the Joaquin vs. Drilon case not on “all fours” with the present case

Lawyers of ABS-CBN were surely aware of the Supreme Court ruling in the Joaquin Jr. vs. Drilon case. So why did they still file this case? Well, in my opinion, ABS-CBN will argue that the ruling applies only to the format or mechanics of a show and not to specific portions or segments. Meaning, ABS-CBN will argue that specific portions or segments of Wowowee like the opening song and dance routine, for example, can be copyrighted. As the legal expression goes, ABS-CBN will argue that the facts of the Joaquin vs. Drilon case are not on “all fours” with its case against Willing Willie.

The Supreme Court’s ruling in the Drilon case also faulted the producer of the “Rhoda and Me” show for its failure to present the master tapes. ABS-CBN will most probably present tapes of the “Wowowee” and “Willing Willie” for the judge to view side by side.

This conflict of opinions on the interpretation of laws and Supreme Court decisions is what makes litigation or trial practice the cutting edge of the law. Besides, there are a lot of gray areas in copyright law. Please read these articles: (1) Salient provisions of the Intellectual Property Code of the Philippines; (2) Copyright laws: too restrictive or a fair reward for creators? and Playing it safe – Internet content and copyright by Virginia Morrison; and (3) What is copyright?

Free PDF legal procedures complaint civil caseForum shopping

In simple terms, “forum shopping” takes place when a party files multiple cases in several courts, hoping that it will be able to get a favorable ruling in one court. Forum shopping is a ground for the dismissal of a case. This is why a certification on non-forum shopping is a mandatory part of any initiatory pleading (complaint or petition).

Some people are questioning why ABS-CBN filed this infringement of copyright case against Willie Revillame in Makati when there is already a case between them being heard in Quezon City. These people say that ABS-CBN is guilty of “forum shopping”. This is not true, in fairness to ABS-CBN.

In the Quezon City case, Revillame filed a petition for judicial confirmation of the rescission of his contract with ABS-CBN. He also asked for 11 million pesos in damages. ABS-CBN as counterclaim filed a 426 million peso counterclaim against Revillame for breach of his contract by signing up for a new show (“Willing Willie”) on TV5. ABS-CBN also asked the Quezon City court to issue a TRO to stop the airing of “Willing Willie”). When the court denied the motion for the TRO, ABS-CBN filed a petition for certiorari with an application for a TRO with the Court of Appeals. The CA denied the motion for a TRO.

Take note that the causes of actions in the cases filed by ABS-CBN are different; its counterclaim in Quezon city involves an alleged breach of contract while the Makati case involves an alleged infringement of copyright. Moreover, as far as I know, TV 5 did not raise the issue of “forum shopping” with the Makati court.

The question really is not of forum shopping but of venue. All the parties involved (ABS-CBN, TV5 and Willie Revillame) are based in Quezon City but ABS-CBN, for one reason or another, chose to file the copyright infringement case in Makati.
“Improper venue” is a ground for dismissal of a case (without prejudice to its refiling in the proper venue). But as far as I know, the lawyers of TV5 and Revillame did not raise this issue.

An interesting Supreme Court ruling on the issue of “improper venue” is “Irene Marcos-Araneta, Daniel Rubio, Orlando G. Reslin, And Jose G. Reslin, Petitioners, vs. Court Of Appeals, Julita C. Benedicto, And Francisca Benedicto-Paulino, Respondents”. In this case, the Court ruled that the case must be filed in the proper court of the residence of the principal complainant, as Sec. 2 of Rule 4 provides. The Court ruled:
Irene was a resident during the period material of Forbes Park, Makati City. She was not a resident of Brgy. Lacub, Batac, Ilocos Norte, although jurisprudence[44] has it that one can have several residences, if such were the established fact. The Court will not speculate on the reason why petitioner Irene, for all the inconvenience and expenses she and her adversaries would have to endure by a Batac trial, preferred that her case be heard and decided by the RTC in Batac. On the heels of the dismissal of the original complaints on the ground of improper venue, three new personalities were added to the complaint doubtless to insure, but in vain as it turned out, that the case stays with the RTC in Batac.

Litigants ought to bank on the righteousness of their causes, the superiority of their cases, and the persuasiveness of arguments to secure a favorable verdict. It is high time that courts, judges, and those who come to court for redress keep this ideal in mind.

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