Unification Church On a School Campus Raises Concerns

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HOMICIDE: Vampire of Paris: The story of Nico Claux by David Lohr

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https://murderpedia.org/male.C/c/claux-nicolas.htm

A.K.A.: "The Vampire of Paris" - "Nico"

Classification: Murderer
Characteristics: Necrophilia - Cannibalism - Claim to be a practicing satanist
Number of victims: 1 +
Date of murder: October 4, 1994
Date of arrest: November 15, 1994
Date of birth: March 22, 1972
Victim profile: Thierry Bissonnier, 34
Method of murder: Shooting
Location: Paris, France
Status: Sentenced to 12 years in prison in May 1997

In custody, Claux confessed to one murder, claiming to be a practicing satanist. A search of his apartement turned up unidentified skeletal remains, blood bags stolen from a hospital's blood bank, funeral jars filled with human ashes, and hundreds of hardcore S/M videotapes.

Described by court psychatrists as being a "nearly psychotic sadist", Nico shocked investigators when he described how he enjoyed eating strips of muscles from the corpse lying on the slab of the St. Joseph hospital mortuary. He also described how he enjoyed prowling Parisian cemetaries, digging up fresh graves, and drinking human blood mixed with human ashes and powder protein.

Due to the lack of evidence connecting him to the other crimes, Nico was only charged with one count of premeditated murder and six counts of grave robberies. During his trial, psychatrists confirmed that he couldn't be held entirely responsible for his crimes. In may 1997, he unrepentant necrophilic cannibal was found guilty of murder and sentenced to 12 years of prison. He will be eligible for parole in late 2000.


Vampire of Paris: The story of Nico Claux

by David Lohr

Lurking in Graveyards

On Nov. 15, 1994, officers of the Parisian "Brigade Criminelle" arrested 22-year-old Nicolas Claux outside the world famous cabaret Moulin Rouge on suspicion of the murder of Thierry Bissonnier, 34.

Bissonnier's October 4 killing was one of a string of homosexual murders, seven of which occurred in October alone. The murder squad's preliminary investigator, Gilbert Thiel, believed that a single killer was responsible and was eager to get Claux back to headquarters for questioning. Claux says that Thiel, veteran of several high-profile cases, was not prepared for the web of murder, cannibalism, and sadistic acts that he had woven in his short lifetime.

The following account includes several narrations by Mr. Claux to provide a better window on a killer's life and crimes. Some of Claux's commentaries, delivered in writing, have been edited, polished, and arranged for a more narrative flow.

Claux: "Following my arrest I was taken back to the Parisian Crime Department for questioning. Unbeknownst to me, crime scene investigators were already in the process of exercising a search warrant on my apartment at 9 Rue Coustou. Inside they found a .22-caliber handgun under my bed, which they immediately sent off for ballistics tests. While they were probably not surprised to have found the pistol, they were almost certainly not prepared for the grisly scene that welcomed them.

"Throughout my apartment, bone fragments and human teeth were scattered about like loose change; vertebras and leg bones hung from the ceiling like morbid mobiles, and hundreds of videocassettes, mostly slasher and hardcore S&M flicks, filled my shelves. One can only imagine what went through the minds of the investigators as they looked around my living quarters.

On one wall hung a bullet-riddled target, while across the room sat a TV set with jars of human ashes resting on top of it. Several bondage magazines were piled in a far corner, and nearby my backpack was found, which contained handcuffs, surgical instruments and duct tape. In addition to my tastes and choice of décor, investigators also discovered several stolen blood bags inside of my refrigerator."


Why?

It did not take long for the ballistic test results to come back, and when confronted with the evidence that the tests were positive, Nico confessed to Bissonnier's murder. Claux claimed that while investigators were happy to have solved a brutal crime, they were understandably concerned with all of the human bones scattered throughout his apartment, and the blood bags, which filled his refrigerator.

Claux: "With little hesitation on my part, I informed them that I had been robbing the graves of several Parisian gothic graveyards and mutilating the mummified remains. When asked the reason why I was storing stolen blood bags inside my refrigerator, I simply answered that I drank the blood on a regular basis. Working as a mortuary assistant for 10 months, I had been using my position as a means to fulfill a lifelong fantasy of mine revolving around cannibalism. When left alone to stitch the bodies after the autopsies, I would cut strips of meat from the ribs and eat them. On some occasions, I would bring pieces of flesh back to my place, where I would cook and eat those pieces as well."

Upon hearing his confessions, Claux claimed investigators asked, "WHY? Why did you kill? Why did you eat flesh and drink blood? And why did you dig up corpses?" As simple as those questions may seem, the answers were not readily found. Perhaps some clues exist in Nico's past.


Early Obsessions

Nicolas Claux was born on March 22, 1972 in the African nation of Cameroon. Nico's father was a French citizen who worked in a bank and was often sent with his family to foreign countries for long periods of time. While Nico was too young to remember his early years in Cameroon, he does recall the family moving to London around the age of five, and then off to the southern most part of Paris when he was seven, where they remained until he was 12.

Claux: "My childhood was basically normal, except that I was very withdrawn and only had a few friends. I was a lonely child, lacking brothers and sisters to play with, so I spent most of my time alone in my room.

"While my parents were very kind and gave me everything that I needed, I never really felt a strong bond between us. They never hugged me or kissed me, they just let me be on my own most of the time. Eventually I grew emotionally cold. I had difficulties feeling empathy for other people, just indifference most of the time.

"This is the time when I also developed a fascination for death and the occult. I would spend hours reading books on vampires and werewolves. A photo of the statue of the Sumerian demon Pazuzu especially fascinated me. I found it in a book my parents had bought in England. For me, it symbolized something extremely ancient and powerful -- something that I respected. A few years later, I saw the same statue used in the movie Exorcist, and my interest in the occult grew stronger."


Fascination with Death

When Nico was 10, his grandfather died as a result of a cerebral embolism. The two had been arguing at the time and Nico always felt that his family blamed him for the untimely death. This was a very critical moment in his life; one that he claims made him become literally obsessed with physical death. From then on he says that he was fascinated with burial rites, wakes, and the atmosphere of morgues.

At the age of 12, Nico and his parents moved to Lisbon, Portugal, where they remained for four years. While the setting may have changed, Nico's obsessions remained the same. None of his fellow classmates shared his interests and he was once again without friends. His feelings of loneliness became more intense, and he began to feel an utter hatred for everyone around him.

Claux: "When I was 16, we moved back to Paris, where I lived alone with my father. As far back as I can remember I have been obsessed by graveyards. Before long I knew every single cemetery in Paris like the back of my hand. Between 1990 and 1993, I spent the majority of my free time in graveyards. As a botanist studies plants and flowers, I would examine rusty locks and evaluate the weight of cement lids. My favorite things were mausoleums. The most impressive ones can be found at Pere-Lachaise, Montmartre, or Passy cemeteries. I would peek through their windows to see the inside. Some were decorated with furniture, paintings, or statues. It was not long before I began working on a plan to get a much closer view."

Eventually Nico crafted his own lock-picking tools, his favorite being an L-shaped key. If a lock on one of the mausoleums was too rusty to pick, he would use a crowbar, or enter through a window. Once inside, he says he "felt like an emperor reigning in Hell." The place would become his kingdom. Often times he said he would enter a mausoleum during the day, only to resurface at night, when the gates were closed, and he could continue his activities without fear of being discovered.


Exploring His Kingdom

Nico Claux said that over time, simply lurking in graveyards and breaking into mausoleums was not enough to satisfy his desires. His fantasies became sadistic blueprints — tools for fulfilling his new cravings. Whether this change began at this point or years earlier is a matter of speculation, but it is clear that he believed that he had stepped up to an entirely new level.

Within this chapter, the subsequent narrations have been translated from one of many statements that Nico said that he eventually gave to Parisian authorities while in custody.

"I woke up one day feeling this sinister urge to dig up a corpse and mutilate it. I gathered a small crowbar, a pair of pliers, a screwdriver, black candles and a pair of surgical gloves in a backpack. Then I took the subway until the Trocadero station. It was nearly noon. The gates of the Passy Cemetery were wide open, but nobody was inside. The undertakers were out for lunch.

"Passy is a small Gothic graveyard with plenty of huge mausoleums, which were built during the 19th century. It is located right between two large avenues, so it is impossible to climb inside at night. But anyway, nobody could ever imagine that there was someone robbing graves at noon.

"I had this special grave in mind. It was a small mausoleum, the burial site of a family of Russian immigrants from the 1917 revolution. I had already pried open the iron door a few days before, and I had closed it afterwards so it would seem that nobody had ever touched it. All I had to do was kick it open ... At this point, my mind was in total chaos. I had flashes of death in my head. I took a deep breath, and I climbed down the steps leading to the crypt.

"It was a rather small one, with damp walls, buried deep inside the cemetery ground. There was no other source of light than the candles I had brought. To begin, for more than an hour, I removed one of the heavy coffins from its stone casing. It was especially hard not to let the coffin fall all of sudden to the ground, but somehow I managed to slowly lay it down without making too much noise. However, one edge of the coffin scratched my lower leg when it touched the ground. But that didn't stop me at all.

"I examined the casket for a while. It was solid oak and sealed with big screws. It looked like brand new, so I expected to find a recently deceased corpse. First, I unscrewed the coffin, which took me less than 10 minutes. Then I pried it open with the crowbar. Once opened, a horrible stench of putrefaction came out of the box. It smelled like Thanatyl, the product embalmers use on a corpse in order to delay the process of decay.

"Then I saw the body inside. It was a half rotten old woman, shrouded in a white sheet, covered with brown stains. Her face seemed to be smeared with oil, but it was simply the death fluids oozing from her skin. The stench was so intense that I nearly fainted. I tried to lift one side of the sheet, but it was glued to her petrified skin. The teeth were protruding from the mouth, but her eyes were gone. I stared into the empty eye sockets, and all of a sudden something broke into my mind. I felt like I was falling into a whirlwind.

"That's when I picked up a screwdriver. The corpse inside the coffin started to move slightly, like if it had guessed what would happen next. So I began to stab the belly, the rib area and the shoulders. I stabbed her at least 50 times. I really can't remember. All I can remember is that when I woke up my forearms were covered with corpse slime."

After violating his first grave, Nico said that he spent the much of his free time searching the cemetery for new graves to desecrate. This is a pattern he said would continue up until the time of his arrest.


A New Career

At 20, Nico joined the military, where he was trained as a gunsmith, cleaning and repaired weapons. But he soon found this lifestyle boring. His only satisfaction came from fantasizing about murder. After serving just a year, Nico moved on and said that he began to consider a career as a mortician.

Claux: "In 1993, the one and only local school for embalming declined my application, so I began working at Saint Vincent-de-Paul Hospital in Paris, a hospital for children. This was the only way I could really do what I wanted for a living and I also found out that it was the best way to be in contact with corpses. I was given the job of a morgue attendant and my first contact with a corpse there was when I assisted the autopsy of a 10-year-old girl. The other attendant showed me how to stitch up her belly, and that was the first time I ever got to touch a fresh corpse. I was amazed by how red and clean her organs were."

Nico did not stay at Saint Vincent-de-Paul for long, and in December 1993, he took a position as a morgue attendant and stretcher-bearer at Saint Joseph Hospital, which is also in Paris. His duties involved helping with autopsies, cleaning up the morgue slabs, and prepping the bodies for wakes. A small chapel was located up the stairs where bereaved relatives could later view the bodies of their loved ones.


Fantasy Becomes Reality

Claux: "Most of the autopsies were done by us, the morgue attendants. We would do the Y-shaped incision, cut the ribs at the joints, and open the skull with an electric saw. The pathologist only dissected the organs and put them in a box.

"I would be left alone with the body after the autopsy to do the stitches, which were my specialty. This is when I began eating strips of muscles from the bodies. I always checked out their medical files first. I talked with a butcher once who told me that meat is better three or four days after death. This was something I had always dreamed of doing, and it was the opportunity to do it on a regular basis.

"Sometimes I brought select meats home with me to be cooked, but my preference was to eat them raw. It tasted like tartar steak, or carpaccio. The big muscles of the thighs and back were good, but there was no good meat in the breasts, only fats. People often ask me what went through my mind the first time I indulged my cannibalistic fantasy. Well, to be honest, I said to myself: 'Wow! Now I'm a cannibal. Cool!'"

Nico's other job at Saint Joseph Hospital involved working in the digestive surgery unit. One of his duties involved delivering the blood bags from the hospital's blood bank to the surgery room. He claimed that it did not take long for him to notice that it was not unusual for bags to be left over and eventually he devised a scheme in which he would rip the sticker off of the unused bag, making it appear to have been opened, and then hide it in his locker.

At the end of his shift, he said that he would transfer the bag to his backpack, take it home, and begin cooling it in his fridge. Once the desired temperature was reached, he would mix the blood with powder proteins, or human ashes, and then drink it. Since there was no plasma within the bags, the blood was extremely thin, which was why he chose to thicken it up.


Fatal Twist

On the morning of Oct. 4, 1994, Nicolas Claux said that he decided it was time to turn another one of his fantasies into reality. This fantasy was a special one to Nico, one that would, in his mind, put him on a far greater level than petty grave robbing and corpse mutilations. He had been waiting for just the right time, and he was finally ready to cross the line, an irreversible step that can change a man forever.

Nico spent his morning searching for a victim, any victim -- nothing mattered, not age, race, or sex, he said. He was looking for death, nothing more, and nothing less. By the early afternoon, Nico decided to try his luck on Minitel (an early version of the Internet) and soon began chatting with a man named Thierry about bondage and S&M. After a while the two decided to get together and the man gave Nico the address to his home. Little did Thierry know, sex was the last thing on Nico Claux's mind.

Claux: "Back then it was a common practice in the gay community to meet on Minitel. They would establish contact through this means since it was quick and easy for them. I found out that it was an easy way for me to kill them without any witnesses, plus I had the guarantee of remaining anonymous, since there was no possibility of tracing back the discussions on Minitel.

"So I agreed on meeting Thierry around noon. With me I carried a single shot 22-caliber handgun, which I hid under my jacket. When I arrived at his place, a one-room apartment under the roof of an old building, I knocked on the door and gave him the fake first name that I had given him on Minitel. He opened the door, I stepped inside, quickly turned around while he was closing the door and pulled out the gun.

"I looked at his face just as he turned his head towards me and saw the gun pointed at his eye. After a few awkward moments passed, I pulled the trigger. He instantly fell face down without a word. It was really eerie. It all happened like in slow motion. Then I watched him bleed on the carpet. Soon I decided to see what the apartment was like and wandered around a bit.

"When I returned to where he was lying I observed that he was still moving and making horrible breathing noises on the floor, like if he was breathing through a straw. I reloaded the gun and shot again, this time striking him in the back of the head. I reloaded and fired a few more times, but he was still alive and making noise. I was surprised that he was still holding on, I had expected the first shot to kill him.

"After a few minutes, I went into his kitchen and found some cookies to eat and then sat in a corner of the room and watched him as I ate. When I was finished, I decided to get out of there quickly, so I shot him one last time in the back. I also lifted a huge plant container and smashed it on his head, crushing it some. I then wiped down my fingerprints; picked up his checkbook; a credit card and a wallet (with ID papers); his driving license; an alarm clock, and an answering machine, and finally left the scene."


Investigation

Thierry Bissonnier's body remained on the floor of his apartment for three days, until his parents, distraught at not being able to get in touch with him, went to his apartment and discovered the grisly scene. Reports on the life Thierry led are rather sketchy. Claux claims that ittle was said in the press following the discovery of Bissonier's body, and during Claux's subsequent trial a "black out" was placed on the press, meaning that no members of the media or public were allowed inside the courtroom.

Claux believes that the family of the victim did not want the life of their relative to be exposed in public, and that there was elements in that case that were too "sensitive" for the general public. Regardless, it is known that the 34-year-old victim was a restaurateur and part-time classical musician, involved in a steady relationship with an older man.

One of the first investigators to arrive at the scene was Brigade Criminelle Investigator Gilbert Thiel. As shocking as the murder appeared, it was nothing new to Thiel. The victim was one of many homosexuals murdered every year in Paris, and that month alone there had already been seven others in almost identical circumstances. According to Agence France-Presse, homosexual murders represent about a third of all murders in the Paris. The victims usually have the same profile and similar habits, including a liberal view on sexuality, which incorporates risks as a part of the ultimate pleasure. During the early 1990s, the majority of these encounters started with messages on Minitel.

According to Thierry Bissonnier's autopsy report, the first bullet had entered the eyeball and stopped just short of the brain. The following rounds crushed against the skull, except one, which slightly penetrated the brain. The final shot entered through Bissonnier's back and pierced his heart, causing almost immediate death. Only two questions remained for investigators: who and why?


Captured

Nico Claux might have gotten away with Thierry Bissonnier's murder had he not made a very crucial mistake. In mid-October, Claux attempted to forge one of Bissonnier's bank checks to buy a VCR. When asked for identification, Claux presented the shop clerk with Bissonnier's driver's license, which he had attempted to forge by inserting his own picture. But the scam was quickly noticed when the clerk compared the signatures. Nico Claux took off before the police arrived. Thus the search began.

Claux: "On Nov. 15, 1994, I was arrested in front of the Moulin Rouge cabaret following an altercation with a woman. The police had recognized me from the photograph on Bissonnier's forged driving license and while under custody I confessed to the murder when I was shown the ballistic evidence. Further investigation showed I had been robbing the graves of several Parisian gothic graveyards, stealing the bones, and mutilating the mummified remains. When asked the reason why I was storing stolen blood bags inside my refrigerator, I simply answered that I drank it on a regular basis. I also confessed to being on a very special diet and went on to describe my mortuary job and the cannibalism.

"The murder investigation itself was centered on the motive, and whether or not there was premeditation. Why did I begin to kill? At first, I claimed that the motive was robbery. But the coldly calculated modus operandi I used, as well as the unnecessary overkill, and the careful removal of fingerprints, proved that something far more sinister was involved, thus indicating a clearly senseless, yet premeditated, murder. With the victim being homosexual, investigators at first wondered if there was a sexual component to the case. But there was none. It simply turned out that I was just looking for death. I was soon sent to Fleury-Merogis, a jail south of Paris. Fleury is a remand center, a place where convicts are locked up before their trial. The problem is that you can wait up to three or four years in France before going to court. Then you have to wait one more year until they find you a room in a prison."


Diminished Responsibility

For the next two years, Claux says a court-ordered team of specialized psychiatrists and psychologists examined him. Dozens of tests were made, which in the end, he says, revealed a borderline psychotic personality disorder. In addition, Claux says that the experts also diagnosed him as suffering from necrophilia and sexual sadism. However, they did not detect any psychic or neuropsychic disorders, which could have interfered with his discernment or control of his actions.

Claux: "At one point, Thiel asked for a reconstruction of the murder. I was led to the victim's apartment, where I showed my version of the events. I said that I accidentally fired the first shot, and continued shooting until the victim died. I stuck to this version until the trial.

"The first motive I gave him was robbery, but when I realized that I could benefit from a diminished responsibility plea, I told him that I had an argument with a homosexual in a section of Père Lachaise Cemetery on the morning before the murder, over the fact that it was my territory, and not theirs. So, according to that version, I decided to contact a gay on the Minitel to "scare" him and get my revenge."

Claux claims that explanation pleased the psychiatrists, and they granted him diminished responsibility under Rule 242 alinéa B of the penal code. However, the documents in the case do not confirm this. In December, 1996 Gilbert Thiel closed the preliminary investigation when he decided that there was enough evidence for a trial.

It is interesting to note that in the middle of the preliminary investigation, which lasted nearly two years, Thiel was promoted to the Anti-Terrorist Squad, following the 1995 series of attacks in Paris by Islamic terrorists. While he was no longer required to work on the case, Thiel chose to stay on, and all remaining interrogations took place in his office, the Anti-Terrorist Squad headquarters, at 36, Quai des Orfèvres. Perhaps it was because he believed that Claux was responsible for other similar murders and did not want to lose the opportunity to gather additional evidence.


The Prosecution

Nico Claux's trial began on May 9, 1997, at the Cour d'Assises de Paris. The nine-member jury had already been chosen by presiding Judge W. Waechter. Claux's defense lawyer, Irène Terrel, entered a plea of not guilty. The prosecution's opening move was to shock the jury with grisly photographs of the crime scene and of Claux's apartment.

Claux: "The purpose of the photos was to make a parallel between the murder, and the environment where I lived -- the old 'Does fiction influence reality' debate?"

The prosecution charged that Nico had voluntarily killed Bissonnier, and they felt that he had acknowledged that it was premeditated. Following this, they presented the jury with a list of crimes Claux had committed during the act; theft of a check book; credit card; wallet; driving license; alarm clock, and an answering machine. Prosecutors implied that the items were stolen prior to the murder. The prosecution then pointed out the use of the forged license, and the forged check, which included the falsifying of Bissonnier's signature. While all of the above was damning in its own right, the case took a sudden turn when the prosecution attempted to establish that Bissonnier's murder was in fact one in a series, which had taken place in Paris during 1994.


Judgment

Claux: "The prosecution called me a 'death addict' and a 'real-life vampire'. Their theory was that I was a copycat of serial killer Rémy R. ('Le tueur du Minitel Rose'). The main testimony in their 'serial murders' theory came from two of the leading investigators on my case. One of them, Inspector Garcin, testified that even though there was no solid evidence against me, I fitted the psychological profile of a serial murderer. His other claim was that witnesses in bars where other murder victims hung out had previously spotted me there."

Regardless of the prosecution's "serial killer theory," there was simply not enough physical evidence to back it up. Thereafter, the arguments revolved around the murder of Thierry Bissonier. Claux says that several of the experts who had interviewed him over the years took the stand and a long debate began as a variety of diagnoses were presented.

Claux: "Psychosis was established, mostly because of acts of cannibalism that I was accused of having practiced in the morgue where I worked, and acts of mutilation of dead bodies that I had done during grave robberies. Those acts alone were, according to psychiatrists, proof of a total loss of reality. This was completed by the results of the Rorschach tests, which showed an 'inner void' typical of schizophrenia. For them, I could benefit from Rule 242, concerning diminished responsibility, because my medical condition reduced my capacity to control my impulses."

Jurors deliberated for just three hours. Nicolas Claux was found guilty of premeditated murder, armed robbery, fraudulent use of a bank check, falsification of his drivers license photo, and an attempt to defraud the retailer of the video camera. He was then sentenced to 12 years in prison.

Contrary to Claux's version of events, he was never convicted of grave robbery or the theft of bags containing blood.


Nico in Prison

Nico Claux's early prison years were spent in Fleury-Merogis, just south of Paris, where he remained for four years and two months until February 1999, when he was transferred to Maison Centrale Poissy, about 15 miles northwest of Paris. In all, there are six "Maison Centrales" in France, each holding at least 200 inmates. Considered maximum security, Poissy has a reputation among inmates as being the place where they lock up serial killers and terrorists. During his stay there, Claux says that he shared his block with at least six serial killers.

Claux: "For two years I studied computer programming at the state's expense, but in reality, I spent more time in the gym, paint room and recreation yard than I did in the class rooms. I had started painting in 1997, and soon learned that I had a natural talent. I was also part of the prison's video team, where I learned filming and editing with DV camcorders. We would film concerts, football games, and boxing fights."

When asked by Angry Thoreauan Magazine (yes, there really is a publication by that name) about the emotional experience of eating human flesh, Nico stated that, "It feels like touching the face of God. It makes you feel like you don't belong to the human race anymore."

In an interview with the Great Falls (Mont.) Tribune , Clancy McKenzie, a professor of psychology at Capital University in Washington, D.C., stated that cannibalism is a psychotic behavior, which is almost always related to a previous trauma, often in infancy. McKenzie maintained that during the second half-year of life, when children are weaned from the breast, they fantasize about devouring their mother. In later years, some sort of trauma, especially if suffered at a critical young age, may trigger the regression to this stage of development. When such individuals are eventually arrested, and on rare occasions eventually returned to society, with all its "emotional expression," it makes them all the more likely to repeat the problem behavior. "I shudder when they let people out of institutions and send them back home," McKenzie said.

Dr. Park Dietz, a national expert on criminal psychosis who testified at the Jeffrey Dahmer trial, has a different theory. He said that one should not look too closely at early childhood, as millions of people who suffer childhood trauma never become psychotic criminals. "Another motivation could be a desire to take a life of crime to an ultimate level. Cannibalism is beyond the pale -- the last frontier of being a bad boy," Dietz said.


Nico Claux Hoax?

After serving just seven years and four months of a 12-year sentence, Nicolas Claux was released from prison on March 22, 2002.

What to make of this story?

I'm having some trouble harmonizing Nico's stated bizarre behavior with his coldly rational intellect. Immersing oneself in the putrefying remains of a corpse and eating the flesh of a dead person are at odds with that intellect, which would, at a minimum, be able to appreciate the incredible threat to one's health if that behavior really occurred. Frankly, I'm tempted to view these sensational accounts as either hallucinations or outright fabrications.

The only thing we know for sure was that Nico Claux robbed and killed a man in cold blood and then tried to use one of his victim's checks to buy a video camera. In the actual documents of the case that there is no mention of any grave robbing, necrophilia, vampirism or cannibalism, nor does there appear to be anything in the French media about Claux being anything but a thief and a murderer. One would expect that the French press would have a heyday with the case had there been any real evidence of the perversions that Nico Claux claimed.

Shortly after release from prison, Claux used his prison training in computer programming to create a web site to promote his drawings and painting of famous killers. His stories of grave robbing, cannibalism, etc. got him booked on talk shows, which further boosted his macabre celebrity status.

There is reason to believe that Claux's public image is undergoing some serious re-engineering from the scary portrait of Nico that his own words created in earlier chapters of this feature story. For example, clearly stated on his web site:

"This website is my only official website. The other unnofficial sites you might find online focus on a past that I am now a long way away from. I have worked hard to improve myself through the development of artistic abilities. I cannot erase the past, but my goal is to channel the negativity that I have caused into pure creativity. I do not endorse any other sites than this one. I do not profit from my past, and I do not encourage other people into doing the things that I have done. The spiritual and social prices to pay are far too high."

He says that he will not practice cannibalism again -- which is certainly a plus.

For a period of time, Nico lived in Sweden and England, but he returned to Paris in September, 2004 and lives with his girlfriend in an apartment there.

Looking at his recent photos from his web site, it appears as though he has settled into a lifestyle that is a kind of campy Goth, filled with artwork and photography about serial killers and the occult. The overriding theme is that he does not appear to be a loner anymore. He has many friends, albeit unusual-looking ones, but friends nevertheless. In reading what Claux says about his childhood lonliness and the inability of his parents to physically demonstrate affection, it appears as though that emotional vacuum has been filled with a number of friends and many acquaintances made through his web site and Internet groups.

He has decorated his body extensively with tatoos and attends fetish, Goth and tattoo conventions.

His celebrity status as the "Vampire of Paris," while it has its downsides as a resume item for conventional positions, provides him opportunities for television and magazine interviews which allows him to travel around Europe and sell his artwork.

He's clearly an intelligent man. I wonder what the next step in his evolution will be -- after he gets bored with his current goth lifestyle. There's no future it being an aging vampire.

CrimeLibrary.com





Full Name: Nicolas Claux, aka "Nico", aka "Vampire of Paris".

Birthdate: March 22, 1972

Likes: Autopsys, gothic graveyards, slasher movies, stench of opened coffins, human vertebraes, dismemberment, formaldehyde & plasma, watching some stupid bastards legs violently shake during his death spasms.

Dislikes: Cars, Team Sports, Technology, Overpopulation, Fat people, uneducated people, poseurs, uniforms, "Modern Primitaves", People who think they are cool because they have rings in their nipples, Jerks.

Do you have a S&M fetish? I have a fetish for girls who kill.

Did you ever participate in any S&M activities? I dated a girl who was into S/M. I nearly killed her incidently 3 days before my arrest.

For what reasons did you drink blood? Blood is my life.

Do you consider yourself a vampire? I prefer the word "Ghoul"

Can you describe the taste of human meat? Tastes pretty good. It depends on what part you eat. The big muscles of the thighs and back are good. There's no meat in the breasts, only fats.

What was going thru your head the first time you tasted flesh/blood/human meats? I said to myself "Wow! Now I'm a cannibal...Cool!"

Describe the first time you mutilated a corpse: I opened this coffin inside a crypt in a Parisian Graveyard. I found embalmed remains inside, oozing with death fluids. It was a woman, and she was wrapped in a white shroud. The shroud sticked to her skin like fly paper. I stabbed her with a screwdriver. I tried to sever her head, but I did not have the right tools. I took polaroid snapshots.

What was your childhood like? My mom said in the courtroom that I never cried or laughed. They thought at first that I was autistic. I don't have brothers or sisters so I was a lonely child. I don't remember much about my childhood. I don't like kids. They are dumb and they have no sense of humour.

Can you describe your relationship with your family before, and after the murders? I think they hate me. I'm indifferent to them.

What are your opinions on:

Religion: I worship the devil.

S/M: When you're engaged in a S&M relationship, your mate is more or less willing I'm not interested in those mind games anymore. Last time I did it, I nearly killed her. I need the real thing.

Serial Killers: Some are good. Some are bad. I like girls who kill. There should be more of them.

Government: I live in a zionist government. Tel-aviv pulls the strings of this country. I've heard it's the same in the U.S...Oh well.

Describe your first murder: I didn't kill anybody. I just killed some insects. Not people. Insects.

How often did you think about killing before you actually killed? I have murder fantasies since I was a little kid. Then I had fantasies about eating human meat. It became an obsessional appetite. Everyday.

Did you have a reason to kill, or was it a spur of the moment situation? I had to experiment the effectiveness of .22 caliber bullets on human targets at point-blank range. It didn't work well. I had to crush the guy's skull to put an end to his misery.

What do you like to read? True crime books. Forensic textbooks. The "NecroErotik" 'zine.

Recommend any books?

"The Gresham Colour Atlas of Forensic Pathology" A.Gresham
"Tool" Peter Sotos
"Killer Fiction" G.J. Schaefer
"Manson Family Picnic" Ricky Downey

Favorite things to draw/paint? Autopsys. Gothic Graveyards. Killers.

Feelings on Anton LaVey: I'm indifferent to Anton LaVey. I like to kill pets, so I guess Anton LaVey would have hated me. I don't care.

Favorite Music/Musicians: I'm into black metal, death metal, and straight edge. I like bands like Mortician, Integrity, Morbid Angel, Emperor, Earth Crisis, Whitehouse, Grimlock...The Murder Junkies :-)

What killers stick out in your mind?

--Cannibals who eat women:

Issei Sagawa


Richard Chase


Ed Gein

--I am filled with admiration for these 2 grave robbers/esthetes:

Sgt. Bertrand


Ely "Erszebeth" Dervillers

Opinions on homosexuality: Queers were an easy prey when I experimented different murder techniques on human targets. But the bad side was that I couldn't mutilate them and eat some of their meat, because I don't like to touch men, and they have diseases. Lesbians are okay.

Will you kill again when you are released? I never killed anybody.

What were you charged with? I was charged with 1 count of premeditated murder and 6 counts of grave robbery.

Did you ever have sex with a corpse? Yeah. So what?

Did you talk to any of the corpses you dug up? I'm no psycho!

What are some of your hobbies: I like to paint, watch horror flicks, work out, draw tattoo flash, write with other killers, read detective magazines, watch documentaries on freaks or amputees.

What did you do with the corpses after you dug them up: If there were only bones left, i brought them to my apartment and i built totems with them. If i found decomposed or embalmed remains, i stabbed them and I took polaroid snapshots. i stabbed them in the chest or eyes. then blackout.

Anything else you want to add? Yeah, I have a message for people who smoke, do drugs, eat junk food, and drink alcohol. You are slowly poisoning your blood. You draw the vileness into your lungs. Cancer ravages your veins. You have no respect for your own body and flesh. I saw many of you lying on the slab. You make me feel sick. Your body is a walking trash can. Your meat disgusts me. This is specially aimed at girls: Do some sports, quit smoking, go on a protein diet, take care of your arterys. You will feel a lot sexier.

Nicolas Claux (born March 22, 1972 in Cameroon) is a French serial killer and cannibal. He is sometimes referred to as Nico Claux or even the Vampire of Paris. After his release from prison, he has been doing paintings showing portraits of serial killers or crime scenes. He is currently residing in Dublin, Ireland.

In 2006, a company in the USA began marketing a 2007 calendar showcasing Claux's paintings. Demand was so high, the company is considering a 2008 calendar and a line of posters.

Microsoft v. Harmony Computers & Electronics, 846 F. Supp. 208 (E.D.N.Y. 1994)

Microsoft v. Harmony Computers & Electronics, 846 F. Supp. 208 (E.D.N.Y. 1994)

US District Court for the Eastern District of New York - 846 F. Supp. 208 (E.D.N.Y. 1994)
February 11, 1994

---

846 F. Supp. 208 (1994)

MICROSOFT CORPORATION, Plaintiff,
v.
HARMONY COMPUTERS & ELECTRONICS, INC., and Stanley Furst, Defendants.

No. CV 94-123 (RJD).

United States District Court, E.D. New York.

February 11, 1994.

*209 Brian W. Brokate, Beth M. Frenchman, Gibney, Anthony & Flaherty, New York City, for plaintiff.

Benjamin H. Segal, New York City, for defendants.

 
MEMORANDUM OF DECISION

DEARIE, District Judge.

This is an action for copyright infringement, trademark infringement, and related statutory and common law claims. Plaintiff Microsoft Corporation, a developer, manufacturer, and marketer of computer software programs, seeks declaratory and injunctive relief and treble damages against Harmony Computers & Electronics Inc. ("Harmony") and its president, Stanley Furst (together the "defendants"), for allegedly selling, without license or authorization, copyrighted Microsoft MS-DOS and Microsoft Windows software programs and accompanying materials ("Microsoft Products" or "Products").

 
BACKGROUND

On January 12, 1994, upon plaintiffs ex parte application and based on plaintiffs evidence that defendants were illegally copying and distributing Microsoft Products in violation of plaintiffs exclusive rights as the copyright holder, the Court ordered the seizure and impoundment of Microsoft Products and related business records at defendants' retail establishment, and temporarily restrained defendants from copying, using, distributing, secreting, or destroying any of plaintiff's copyrighted software.

Pursuant to the Court's Order, United States Marshals seized and impounded 106 *210 pieces of Microsoft software. (Frenchman Decl. ¶ 4). The Court held an initial hearing on plaintiffs motion for preliminary injunction on January 20, 1994. At that time, the parties did not identify any material facts in dispute and indeed most of the relevant facts are well established. Also at that time, the Court invited the parties to submit any supporting papers. On January 24, 1994, the Court extended the Temporary Restraining Order until February 1, 1994, pending the Court's decision on plaintiffs motion for preliminary injunction.

Plaintiff argues that because defendants are not licensed by Microsoft, they are not legitimately in possession of, and are not entitled to sell, any Microsoft Products, whether counterfeit or not. To the extent that defendants bought their Microsoft Products from legitimate Microsoft licensees, plaintiff argues that defendants violated Microsoft's licensing restrictions by distributing the Products "stand-alone," that is, by themselves rather than bundled with one of the personal computer systems manufactured by Microsoft licensees. Furthermore, plaintiff alleges, and defendants acknowledge, that defendants persisted in their sales of Microsoft Products despite being notified of the alleged illegality of their activity by plaintiff's cease and desist letters of April 19, June 16, July 14, and September 14, 1993. Plaintiff has advised the Court, by the declarations of Robert Wanezek, Program Manager of Microsoft's Replication Group, and of Lee Gates, its Software Design Test Engineer, that twenty-one pieces of the Products seized from defendants' premises were counterfeit.

Defendants do not contest that they sold Microsoft Products, or that they sold such Products stand-alone as well as loaded onto the hard disks of computers. Defendants argue, however, that because the Products they sold were purchased from Microsoft licensees, they are immune from liability for copyright infringement under the first sale doctrine. In response, plaintiff argues that the first sale doctrine does not apply to the present case because Microsoft never sells but rather only licenses its Products. Defendants also deny that any of the Microsoft Products that they sold were counterfeit. Alternatively, defendants argue, even if any of the Products were counterfeit, they bought them from Microsoft, licensees under the good faith belief that the Products were genuine.

Although the Court attempted to set a date for a potential evidentiary hearing, both parties indicated that they would have difficulties assembling the witnesses needed for such a hearing prior to the expiration of the Temporary Restraining Order. Moreover, upon review of the papers, the Court concluded that no evidentiary hearing was required to resolve the motion for preliminary injunction. By Order of February 1, 1994, the Court granted plaintiffs motion for preliminary injunction.

 
DISCUSSION 
I. Standard for Preliminary Injunction

A party seeking a preliminary injunction must establish both irreparable injury and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the movant. ICN Pharmaceuticals, Inc. v. Khan, 2 F.3d 484, 489 (2d Cir. 1993); Bourne Co. v. Tower Records, Inc., 976 F.2d 99, 101 (2d Cir.1992).

 
II. Prima Facie Case

To establish a prima facie case of copyright infringement, the plaintiff must show that (1) it is the valid owner of a copyright and (2) defendant has engaged in unauthorized "copying," see Video Trip, 866 F.2d at 51-52; Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985), where "copying" "is shorthand for the infringing of any of the copyright owner's five exclusive rights, described at 17 U.S.C. § 106." S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 n. 5 (9th Cir.1989). Section 106 of title 17 of the United States Code provides in relevant part:

 

[T]he owner of copyright under this title has the exclusive rights to do and to authorize ...

 

*211 (1) to reproduce the copyrighted work in copies ...

 

. . . .

 

(3) to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending ...

17 U.S.C. § 106 (1977). Upon establishing a "reasonable likelihood of success on the merits," in an action for copyright infringement, irreparable injury is presumed. Bourne, 976 F.2d at 101; Video Trip Corp. v. Lightning Video, Inc., 866 F.2d 50, 51-52 (2d Cir.1989); Apple Computers, Inc. v. Formula Int'l Inc., 725 F.2d 521, 525-26 (9th Cir.1984).

 
A. Copyright Ownership

Microsoft has submitted certificates of federal copyright registration, which constitute prima facie evidence of the validity of plaintiff's copyrights. 17 U.S.C. § 410(c) (1977).^[1] Defendants do not contest that plaintiff owns the copyrights to Microsoft Products.

 
B. Unauthorized Distribution

Defendants are not Microsoft licensees and therefore are not authorized to sell Microsoft Products. Barbara Schmidt, an accounting supervisor for Microsoft's domestic Original Equipment Manufacturer ("OEM") licensing, declares that defendant Harmony was never at any time a Microsoft licensee. See (Schmidt Decl. ¶ 3); (Schmidt Supplemental Decl. ¶ 3). Defendants do not contest this fact. Furthermore, although defendant Stanley Furst was a signatory to a license agreement dated December 2, 1993, between Microsoft and another one of Furst's companies, Everything Computers, Inc., (Schmidt Supplemental Decl. ¶ 3)^[2]; (Furst Aff. of January 25, 1994, ¶ 5), Mr. Furst was not himself a Microsoft licensee. (Schmidt Supplemental Decl. ¶ 5). The license held by Everything Computers does not authorize defendants Harmony or Furst to distribute Microsoft Products.

Defendants sold Microsoft Products, as evidenced by the fact that private investigators hired by Microsoft successfully bought various Microsoft Products from defendants, (Holmes Decl. ¶¶ 3-8), that Harmony advertised the sale of MS-Dos 6.0, (Holmes Decl. Ex. 5), and that persons who had bought Microsoft Products from Harmony had called Microsoft's Piracy Hotline to question the legitimacy of their purchases. (Erickson Decl. ¶¶ 7-8). Defendants do not contest that they sold Microsoft Products, (Furst Aff. of January 17, 1994, ¶ 2), nor do they dispute that such activity would constitute copyright infringement absent the protection of the first sale doctrine. Because defendants are not authorized by Microsoft to distribute Microsoft Products, their distribution of those Products constitutes a prima facie case, that is, a likelihood of success on the merits of plaintiff's copyright infringement claim. Irreparable harm to plaintiff is therefore presumed.

Defendants argue that they in good faith believed that they were buying Products from authorized Microsoft licensees, and that their sales of the Products were therefore lawful. It is unlikely, in this case, that defendants were innocent infringers, as they were notified by Microsoft of the unlawfulness of their activities by letters dated April 19, June 16, July 14, and September 14, of 1993. (Lowe Decl. ¶ 3, Ex. A). Moreover, good faith is no defense against liability for copyright infringement. ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310, 1331 (N.D.Ill.1990) ("there is no such thing as a bona fide purchase for value in copyright law"). Accordingly, defendants' good faith defense must fail.

Finally, it is undisputed that any sale of counterfeit Microsoft Products by defendants *212 would violate the federal copyright laws. Plaintiff has submitted the declarations of Robert L. Wanezek, Program Manager of Microsoft's Replication Group, and of Lee R. Gates, a Software Design Test Engineer for Microsoft, and samples of seized "counterfeit" Microsoft Products from defendants' premises, to support their claim that defendants sold counterfeit Products. Although defendants deny that any of the Products they sold were counterfeit, they provide no evidence to contradict plaintiffs sworn assertions. In the absence of an evidentiary hearing, and given that plaintiff is likely to succeed on the merits of its copyright infringement claim on the grounds that defendants were not licensees and therefore not authorized to distribute any Microsoft products, counterfeit or not, the Court declines at this juncture to make a finding as to the genuineness of the Microsoft Products sold by defendants.

 
III. First Sale Doctrine Does Not Apply

Defendants argue that even though they sold Microsoft Products without a license, they are immune under the first sale doctrine from liability for copyright infringement. Defendants fail to prove that the first sale doctrine applies because they do not trace their purchase of Microsoft Products to a "first sale" by Microsoft or any party authorized by Microsoft to sell the Products.

The first sale doctrine is codified at section 109(a) of title 17 of the United States Code, which provides that:

 

(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy ... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy ...

17 U.S.C. § 109(a) (1977). This statute "restates and confirms the principle that, where the copyright owner has transferred ownership of a particular copy ... of a work, the person to whom the copy ... is transferred is entitled to dispose of it by sale ... or any other means." Historical Note to 17 U.S.C. § 109. In civil actions for copyright infringement, the defendant has the burden of proving that the particular pieces of the copyrighted work that he sold were lawfully made or acquired. See Historical Note to 17 U.S.C. § 109, cited in American Int'l Pictures, Inc. v. Foreman, 576 F.2d 661, 663 n. 1 (5th Cir.1978).

Defendants argue that a "first sale" occurred when they bought their Microsoft Products from entities whom they believed to be authorized Microsoft licensees. Although a sale of a copyrighted work by a party authorized by the copyright holder may constitute a "first sale" for purposes of the first sale doctrine, see Burke & Van Heusen, Inc. v. Arrow Drug, Inc., 233 F. Supp. 881, 884 (E.D.Pa.1964), defendants have the burden of tracing the chain of title to show that their authority to sell Microsoft Products flows from the copyright holder. American Int'l Pictures, Inc., 576 F.2d at 664-65; Microsoft Corp. v. ATS Computers, Inc. et al., CV 931273, at 14 (S.D.Cal.1993).

Defendants' only evidence of a chain of title for any of their Products is an invoice of their purchase of several pieces of Microsoft Products from an entity called Innovative Datronics Corp. The fact that defendants bought their Microsoft Products from another party does not by itself establish a first sale. "Even an unwitting purchaser who buys a copy in the secondary market can be held liable for infringement if the copy was not the subject of a first sale by the copyright holder ... unless title to the copy passes through a first sale by the copyright holder, subsequent sales do not confer good title." American Int'l Pictures, Inc., 576 F.2d at 664 (emphases added). See also Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847 (2d Cir.1963) ("it has been held that sale of a book purchased from a merchant who bought it from an agent of the copyright proprietor, where the agent had been entrusted with possession of the book but not with actual authority to sell it, is infringement"). No evidence has been presented to show that Innovative Datronics or any party in the chain of title was a licensee of Microsoft and authorized to sell the product.

Defendants' failure to trace their Microsoft Products to a "first sale" by the *213 copyright holder is aggravated by the fact that plaintiff has "established a course of conduct ... consistent with an intention to retain all the rights associated with the grant of copyright" of the Microsoft Products. American Int'l Pictures, Inc., 576 F.2d at 665. Plaintiffs counsel declares that Microsoft only licenses and does not sell its Products, (Brokate Supplemental Decl. at 2). Entering a license agreement is not a "sale" for purposes of the first sale doctrine. ISC-Bunker Ramo Corp., 765 F. Supp. at 1331. Moreover, the only chain of distribution that Microsoft authorizes is one in which all possessors of Microsoft Products have only a license to use, rather than actual ownership of the Products. (Brokate Second Supplemental Decl. at 5).

Defendants' failure to meet their burden of proving a chain of title distinguishes this case from Burke and precludes the applicability of the first sale doctrine to this case.

 
IV. Exceeding Scope of License Agreements

Plaintiff is likely to succeed on its claim that defendants are liable for copyright infringement for exceeding the scope of Microsoft's license agreements.

Plaintiff has traced a unit of MS-DOS 6.0 that Harmony had sold to plaintiffs undercover investigators, back to Amax Engineering, a Microsoft licensee that was authorized to distribute MS-DOS 6.0 exclusively with the sale of its personal computer systems. (Erickson Decl. ¶ 4). Plaintiff has also traced four of the MS-DOS 6.2 units seized from defendants' premises, back to Arche Technologies, a Microsoft licensee that was authorized to distribute MS-DOS and Windows only with its computer systems. (Frenchman Decl. ¶ 4). The remainder of the Microsoft software seized from defendants' premises were not traceable to a specific licensee, but plaintiffs counsel affirms that none of the Products was authorized to be sold stand-alone. (Frenchman Decl. ¶ 5).

To the extent that defendants bought their Microsoft Products from authorized Microsoft licensees, they were subject to the same licensing restrictions under which those licensees operated. See Major League Baseball Promotion v. Colour-Tex, 729 F. Supp. 1035, 1041, 1042 (D.N.J.1990). Plaintiff's counsel have represented to the Court that every Microsoft license agreement contains the same licensing language, which provides in relevant part, that licensees:

 

... shall distribute Product(s) only with [licensee's] Customer System(s) ... for the particular Product(s) and only inside the Customer System package. [The licensee] shall provide a copy of the ... Product with, and only with, each Customer System on which the corresponding Preinstalled Product Software is distributed.

(Microsoft License Agreement, ¶ 5(a) (i)). This restriction requires that Microsoft Products only be sold together with a "Customer System," that is, a "single user computer system." (Microsoft License Agreement, ¶ 1(c)), rather than on a stand-alone basis. Indeed, plaintiff's in-house counsel declares that "it is generally known in the computer software industry that except for upgrade products, Microsoft does not authorize anyone to distribute stand-alone MS-DOS product." (Lowe Supplemental Decl. ¶ 5). Plaintiff explains that Products that are sold stand-alone or otherwise outside the scope of Microsoft's license agreements, though identical in exterior appearance to authorized Microsoft Products, do not come with the product support system, warranties, and assured compatibility with their personal computer systems that Microsoft provides for its legitimately distributed Products. (Lowe Supplemental Decl. ¶¶ 6-8). Therefore, plaintiff argues, the sale of stand-alone Products irreparably harms Microsoft's goodwill and reputation as a reliable software producer. Id.

Plaintiff's private investigator purchased Microsoft Products from defendants in standalone form. (Holmes Decl. ¶ 4). Defendants admit that they sold stand-alone Microsoft Products, (Furst Aff. of January 17, 1994, at 2), but allege that they were entitled to do so because Microsoft itself or its licensees sold stand-alone Products. Id. In support of this argument, defendants have submitted invoices which purport to show that Furst's company, Everything Computers, a Microsoft licensee, purchased stand-alone units of Microsoft *214 software from plaintiff. (Furst Aff. of January 25, 1994, Ex. at 9-11).

Defendants' argument is unpersuasive. First, to the extent that defendants' argument invokes the first sale doctrine, it must fail for the reasons stated above.^[3] Second, even assuming that Microsoft sells its software to its licensees on a stand-alone basis, this does not change the fact that when the licensees in turn distribute the software, they are restricted by the license agreement in a way that the copyright holder itself is not. See (Microsoft License Agreement, ¶ 5(a) (i)) (restricting Everything Computers to distributing Microsoft Products only together with its computer systems). In fact, plaintiff's in-house counsel affirms that "[a] legitimate retail market for stand-alone MS-DOS does not exist." (Lowe Supplemental Decl. ¶ 5). Third, if defendants purchased their Products from Microsoft licensees who were acting outside the scope of their licenses by selling the Products stand-alone, any distribution of the Products by defendants, whether within the scope of plaintiffs license agreement or not, would constitute copyright infringement. Microsoft Corp. v. ATS Computers, Inc. et al., CV 93-1273 (S.D.Cal.1993); Major League Baseball Promotion v. Colour-Tex, 729 F. Supp. 1035, 1041 (D.N.J.1990) ("A licensee who has failed to satisfy a condition of the license or has materially breached the licensing contract has no rights to give a sublicensee under which the sublicensee can take cover in a copyright infringement case, and therefore, both the licensee and the sublicensee can be held liable for acting without authorization and thereby infringing the licensor's copyright.").

Finally, plaintiffs claim that defendants exceeded the scope of its license agreements states a claim for copyright infringement rather than breach of contract. Not being parties to any license agreement with Microsoft, defendants are "complete strangers" to Microsoft, and their violations of the licensing restrictions must of necessity be seen as claims arising under the copyright laws rather than the law of contracts. See Marshall v. New Kids on the Block Partnership, 780 F. Supp. 1005, 1008 (S.D.N.Y.1991). Even if defendants were seen as parties to Microsoft's license agreements, their undisputed distribution of Products outside the scope of the license agreements puts them in the same position as an infringer having no contractual relationship with the copyright holder and again makes them "strangers" to Microsoft. Id. at 1009; Kanakos v. MX Trading Corp., 1981 WL 1377, *2 (S.D.N.Y. Sept. 16, 1981). Accordingly, plaintiffs allegation that defendants exceeded the scope of the license agreement states a claim for copyright infringement.

NOTES

[1] Section 410(c) of title 17 of the United States Code provides:

(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.

17 U.S.C. § 410(c) (1977).

[2] Although Schmidt's Declaration states that the date of the agreement was "December 2, 1994," this is undoubtedly a typographical error.

[3] It is not clear from the invoices whether Microsoft in fact sold the Products to Everything Computers or was collecting only a license fee. Even if Microsoft's transactions with Everything Computers were "sales," defendants have still failed to trace their particular units of Microsoft Products to sales by either Microsoft or its authorized licensees, and the first sale doctrine remains inapplicable to the present case.

The Toronto Song by Graham Lee (1980s)