author: HAROLD H. GREENE, District Judge.

text:
    Parviz C. RADJI, Plaintiff, v. Javad KHAKBAZ, et al., Defendants.
    Civ. A. No. 84-0641.
    United States District Court, District of Columbia.
    April 30, 1985.

      Claudia Ribet, Grove, Engelberg & Gross, Washington, D.C., Sheldon Bardach, Los Angeles, Cal., for plaintiff.
    William A. Dobrovir, Dobrovir & Ge-bhardt, Washington, D.C., for defendants.
   MEMORANDUM ORDER

HAROLD H. GREENE, District Judge.

Parviz C. Radji, the last Ambassador to Great Britain for the government of the late Shah of Iran brought this copyright infringement action against the Iran Times Corporation and Javad Khakbaz, the sole owner and editor of the Iran Times, a newspaper printed in English and Farsi which is published here in the District of Columbia and distributed throughout the United States, Canada, and various other countries. Plaintiff alleges that defendants copied and translated substantial excerpts from his book entitled In the Service of the Peacock Throne, which were published in the Sunday Times of London, and that they reprinted these excerpts in the Iran Times without plaintiffs permission and without compensating him. The parties have filed cross-motions for summary judgment on the issue of liability. For the reasons stated below, plaintiffs motion will be granted and defendants’ motion will be denied.

I

There are no genuine issues of material fact. While plaintiff was serving as the Shah’s Ambassador to Great Britain, i.e., from June 4, 1976 to January 26, 1979, he kept a daily diary of his experiences. In January of 1983, he published these diaries under the title In the Service of the Peacock Throne. The book was registered on January 14, 1983, under the copyright laws of the United Kingdom, and it was later registered with the United States Register of Copyrights.

In January and February of 1983, the Sunday Times ran a series of three articles consisting of verbatim excerpts from plaintiffs book. These excerpts comprised over eighty days of daily entries from plaintiffs diary (approximately ten percent of the book) and covered nine pages of newspaper text. In exchange for the exclusive right to publish these excerpts, the Sunday Times paid plaintiff 15,000 pounds. The articles also acknowledged and identified plaintiff as the owner of the copyright.

After reading the Sunday Times articles, defendants decided that the excerpts from plaintiffs book would also be of interest to the readers of the Iran Times. Although defendant Khakbaz called the Sunday Times in order to secure permission from plaintiff to reprint the articles, he never received such permission either from that newspaper or from the plaintiff. Nevertheless, defendants proceeded to copy 86 percent of the excerpts from plaintiffs book quoted in the Sunday Times articles, translated them into Farsi, and reprinted them in a series of articles in 12 separate editions of the Iran Times. Upon learning of these articles, plaintiff demanded that defendants cease any further publications, and he thereafter filed this lawsuit. See note 6, infra.

II

There are essentially two elements in a copyright infringement action: ownership of the copyright by the plaintiff, and copying by the defendant. 3 Nimmer on Copyright § 13.01 at 13-3 (1984). Defendants here concede that plaintiff owns the copyright in the book and that they copied and translated verbatim excerpts from plaintiff’s book reprinted in the Sunday Times, so that they could reprint them in their own newspaper, the Iran Times. Notwithstanding these concessions, defendants maintain that their copying is not actionable under the Copyright Act because (1) the similarity between the works is insubstantial; and (2) the use of passages from plaintiffs book constituted fair use. Neither point has merit.

III

Defendants’ argument relating to substantial similarity and appropriation of expression is premised upon the erroneous assumption that because they translated portions of plaintiffs book from English to Farsi, and because the Court does not read or understand Farsi, plaintiff has failed to provide a basis upon which the Court could determine whether the Iran Times articles were substantially similar to the excerpts from plaintiffs book and whether defendants copied plaintiffs protected expression.

The Court need not be fluent in Farsi to find that defendants have infringed plaintiffs copyright where, as here, they have admitted that the Iran Times articles were composed entirely of translated quoted passages from plaintiffs book reprinted in the Sunday Times. A translation, by definition, uses different language than that in the original. That, however, does not exempt translations from the provisions of the Copyright Act. To the contrary, the Act gives the copyright holder the exclusive right to prepare derivative works, which includes the right to make translations. 17 U.S.C. § 106(2). Thus, in the absence of authorization, only the plaintiff had the right to translate and reprint his book into Farsi.

IV

The fair use doctrine, now embodied in section 107 of the Copyright Act, permits the limited use of copyrighted material, without the author’s consent for purposes “such as criticism, comment, news reporting, teaching ..., scholarship, or research ...” In determining whether a particular use is fair, the Court must consider the following four factors:

(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use on the potential market for or value of the copyrighted work.

17 U.S.C. § 107. After considering these factors in the context of this case, the Court concludes that defendants’ copying cannot be considered fair use.

First. Defendants’ reprinting of the 80 days of diary entries in a commercial publication was presumably intended to boost sales and thus was for commercial rather than non-profit educational purposes. To be sure, defendants regarded plaintiff's book as newsworthy, and they reprinted the excerpts because they thought it would be of interest to their readership. However, an argument of newsworthiness can always be made where the author of the original work is a well-known person or where the book or article describes political or other events of significance, but that is not per se a defense to an infringement action.

To be sure, newsworthy items may be entitled to less protection than purely fictional works, but the “expression” of such works is still protected from wholesale copying. See also, pp. 1301-1302, infra.

Because the fair use doctrine presupposes that defendants acted in good faith, the propriety of their conduct must also be weighed in analyzing the purpose and character of the use. Marcus v. Row ley, 695 F.2d 1171, 1175-76 (9th Cir.1983). Here, defendants state that they knew the material in question was copyrighted and that permission from the copyright holder was needed; yet they decided to copy the article anyway. This fact further undercuts their reliance on the first element of the fair use doctrine.

Second. Plaintiffs book is in essence a diary, a introspective and highly subjective account of his experiences as the Shah’s Ambassador to Great Britain during the two and one-half years immediately preceding the overthrow of the Shah’s government. To be sure, many entries in plaintiff’s book contain factual and historical information which is not copyrightable, but the expression of that information is, particularly in a case such as this where the expression of those facts is highly anecdotal. Thus, while defendants were free to recount historical and biographical facts described in plaintiff’s book, or to comment thereon, they could do so only in their own words — they could not expropriate plaintiff’s expression.

The case of Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir.1983), cert. granted, — U.S. -, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984), upon which defendants rely heavily, is not to the contrary. In that case, Harper & Row, the publisher of former President Ford’s memoirs, sued The Nation magazine for copyright infringement for its use of materials contained in Ford’s memoirs, particularly that information relating to the pardon of former President Nixon. The Second Circuit, reversing the decision of the District Court, held that The Nation’s use of such material constituted fair use. The court made it plain that it ruled as it did because The Nation merely drew upon scattered parts of Ford’s memoirs, noting specifically that

If The Nation had taken ... all of the book or all of a chapter and merely changed the language here and there, paraphrasing would not and should not suffice to protect it.

723 F.2d at 203.

Moreover, although the memoirs of former President Ford also contained information concerning private aspects of his life and his personal reflections, the court found that “[a]ll the information contained in [The Nation ] article dealt with Ford’s public and political life.” 723 F.2d at 199. By contrast, the defendants here made no attempt to ferret out the newsworthy or historical facts in plaintiff’s book; they simply copied virtually all the excerpts appearing in the Sunday Times, historical and personal alike. '

It is finally worthy of note that much of the information in The Nation article concerning the Nixon pardon had already been presented by President Ford during a 1974 Congressional committee investigation and printed in government documents. 723 F.2d at 198, 205. There is no evidence in this case that the biographical and other personal information contained in plaintiff’s book was otherwise available to the public.

Third. The Iran Times articles at issue consisted entirely of excerpts from plaintiff’s book which were reprinted in the Sunday Times. Although these excerpts amounted to a little less than ten percent of plaintiff’s book, they represented 86 percent of the Sunday Times articles — the only portions of plaintiff’s book to which the defendants had access. Moreover, defendants’ copying of the authorized articles was virtually complete in that all defendants did was to translate them into Farsi. The Court finds that both the quantity and the quality of this copying was substantial.

Fourth. Where, as here, the use of the copyrighted work is for commercial gain, the likelihood of harm to the potential market for or the value of the copyrighted work is presumed. Sony Corp. v. Universal City Studios, 464 U.S. 417, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984). The defendants’ publication of excerpts from plaintiff’s book may have adversely affected the potential market in two ways.

In the first place, as indicated above, plaintiff published his book in English in January 1983, and in article form, likewise in English, in the Sunday Times in January and February of the same year. Plaintiff translated his book into Farsi in late 1983. By that time defendants’ articles had already been circulated in Farsi in marketplaces where plaintiff wished to sell his book, and this was bound to injure substantially many of the same marketplace sales of plaintiff’s own Farsi version. Moreover, defendants’ publication may have precluded plaintiff from selling those portions of his book for which the Sunday Times paid 15,000 pounds to another publication, if not to defendants themselves.

The fair use doctrine is based on the concept of reasonableness. Sony Corp., supra, 104 S.Ct. at 792 n. 31. A virtual wholesale lifting of extensive excerpts from plaintiffs book quoted in another authorized serialization cannot be considered reasonable as a matter of law. See Quinto, supra, 506 F.Supp. at 560, and cases cited therein.

Accordingly, it is this 30th day of April, 1985

ORDERED that defendants’ motion for summary judgment be and it is hereby denied; and it is further

ORDERED that plaintiff’s motion for summary judgment on the issue of liability be and it is hereby granted; and it is further

ORDERED that a trial on the sole issue of damages shall be held on June 4, 1985 at 10:00 a.m. in Courtroom No. 1.

      . Plaintiff first registered his book in the United States on January 10, 1984. However, the book registered here was slightly different from the book which was first published in Great Britain and upon which this lawsuit is based. It appears that shortly after his book was published in Great Britain, plaintiff was sued for libel by Afshar, a former minister of the Shah’s regime, over approximately 20 sentences in the book. In order to settle this libel action, plaintiff agreed to remove the allegedly libelous edition from the market. In March or April of 1983, a second printing of plaintiffs book which deleted the allegedly libelous material and inserted some new, additional material was distributed. It was this second printing that was registered in the United States in January of 1984.
      On the basis of the slight differences between the two printings, which both parties agree are not substantively relevant to this lawsuit, defendants moved to dismiss the action on the ground that plaintiff failed to comply with 17 U.S.C. § 411(a) (which provides that the registration of a work is a prerequisite to maintaining an infringement action). The Court, however, need not decide this issue since shortly before oral argument on the parties’ motions, plaintiff cured whatever technical defect there was by depositing and registering the first printing of his book with the United States Copyright Office.

      . Khakbaz deposition at 32-33.

      . Defendants’ first article appeared on January 28, 1983. This article contained an English version as well as Farsi translations of excerpts from plaintiffs book.

      . The fact that defendants copied the material from the Sunday Times articles rather than from plaintiffs book directly is irrelevant. The Copyright Act gives the owner of the copyright the exclusive right to distribute copies of the copyrighted work to the public by sale or other transfer of ownership. Thus, plaintiff has the exclusive right to control publication of his book. 17 U.S.C. § 106(3). See generally, 2 Nimmer on Copyright § 8-11 at 8-115.

      . The Court considers defendants’ additional argument — that they did not copy plaintiffs expression but only reported historical and biographical facts — under the fair use rubric.

      . Equally without merit are defendants' affirmative defenses of laches and estoppel. Defendants published the infringing articles in editions dating from January 28, 1983 through April 15, 1983. Approximately one month after the last article was published, defendants received a letter from plaintiffs attorney demanding that they “cease and desist" from publishing any additional excerpts from plaintiffs book. Plaintiff filed suit on March 1, 1984. The Court finds that plaintiff diligently pursued his rights. In any event, defendants were not prejudiced by the short delay in bringing this suit. Defendants have admitted that they knew that the work was copyrighted, that plaintiff owned the copyright; and that, despite the lack of consent, they decided to reprint excerpts from plaintiffs book.

      . Deposition of Khakbaz at 96-97. Defendants not only borrowed virtually the entire portion of plaintiff’s book reprinted in the Sunday Times; they also copied the daily diary format used in plaintiffs book and the Sunday Times articles.

      . A "derivative work” is defined as "a work based upon one or more existing works, such as a translation_” 17 U.S.C. § 101.

      . See Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 204 (2d Cir.1983), cert. granted, — U.S. -, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984). See also Quinto v. Legal Times of Washington, Inc., 506 F.Supp. 554, 560 (D.C.C.1981) (“The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance,” quoting Iowa State University Research Foundation, Inc. v. American Broadcasting Co., 621 F.2d 57, 61 (2d Cir.1980).

      . For example, plaintiff wrote on April 29, 1977, that:
      I am filled with self-reproach, bordering on disgust, for my half-hearted, unconvincing, totally wet defense of Iran’s human rights record at the House of Commons. I have been arrogant enough to think that my personal honesty and credibility are more important than the instructions I am given by Tehran. I must present the official line, whether I find it convincing or not, and it is stupid and pretentious of me to try single-handedly to change the rules. I haven’t received a single word or letter praising my defense of Iran. It must have been a pathetic performance.

        Sunday Times (January 23, 1983) at 34. Exhibit 2 to plaintiffs memorandum.

      . Thus, plaintiff writes that
      Mrs. Thatcher and her husband Denis come to dinner at the embassy. Mrs. Thatcher asks about Iran’s oil figures and shows herself informed and interested on the subject. Both husband and wife strike me as very pleasant, but I notice that every time Mr. Thatcher tries to say something she interrupts him to say: "But dahling, the ambassador already knows that.”

        Id. at 33.

      . If defendants had reprinted these excerpts for purposes of criticism or review, they would have been permitted to quote substantial passages because a review merely'supplements but does not replace the function of the work being reviewed. That, however, was not the defendants’ purpose. Rather, they copied those passages of plaintiff’s book which were reprinted in the Sunday Times for noncritical purposes. Thus, the Iran Times articles did not perform a different function than the book. See 3 Nimmer on Copyright § 13.05[B] at 13-81 to 13-82.

      . Courts have tolerated more extensive paraphrasing and greater use of works of news or history, confining the concept of the author’s “expression” to its barest elements. See Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 204 (2d Cir.1983). None, however, has gone so far as to negate the principle that
      Copyright protects the author’s manner of expression, his analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words, and the emphasis he gives to particular developments.

        Quinto, supra, 506 F.Supp. at 560.

      . The Nation took only "scattered pieces of information from different pages and different chapters, and then described that information in its own words.” 723 F.2d at 203.

      . In fact, the article largely concerned the events leading up to Ford’s decision to pardon Nixon — "political events of major significance.” 723 F.2d at 204.

      . It is also interesting to note that the Ford memoirs were written with the assistance of a professional writer who gathered information from a variety of sources, including interviews with Alexander Haig, Nelson Rockefeller, and Henry Kissinger. And it was the professional writer, not Ford, who wrote the first draft of the book. These facts further support the Court of Appeals’ finding that the memoirs contained, in large part, historical and newsworthy factual information.

      . Defendants’ argument that the amount copied was insubstantial because the infringing material amounted to only 2.6% of the Iran Times editions in question (¿a, 6 pages in 12 editions with a total of 230 pages) is frivolous. It obviously does not matter, in law, what proportion of a particular publication consists of bootleg material; what is significant is how much of a copyrighted article or book is being reprinted.

      . See Roy Export Co. Establishment v. CBS, Inc., 503 F.Supp. 1137, 1145 (S.D.N.Y.1980), aff’d, 672 F.2d 1095 (2d Cir.1982).

      . Contrary to defendants’ assertion, plaintiff does not have to establish actual harm to the potential market as “such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result.” Sony Corp. v. Universal City Studios, 464 U.S. 417, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984).

      . His Farsi version was published by Ithaca Press in London and distributed in Great Britain and the United States.

      . Defendants argue that their articles may have actually improved the market for plaintiffs book by generating interest among their readers — a natural audience for plaintiffs book. Plaintiff, on the other hand, claims that because defendants’ Farsi translation was not as good as his own, some Farsi readers may have decided not to buy the book on the basis of defendants’ articles. In any event, even if defendants are right and their articles did not prejudice sales of plaintiffs book, they certainly prejudiced the sale of a serialization of his book in Farsi in a different magazine or newspaper.

      . As in the case of Quinto, defendants’ publication may have been the entire market, for a Farsi serialization of plaintiff s work.


source: Caselaw Access Project

author: JOSEPH H. YOUNG, District Judge.

license: Public Domain

text:
    Vivian Anderson SMITH, et al. v. MONTGOMERY COUNTY, MARYLAND, et al.
    Civ. No. Y-82-1323.
    United States District Court, D. Maryland.
    April 30, 1985.
    Robert H. Symonds, Lanham, Md., Clau-sen Ely, Jr., Ellen J. Flannery, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., for plaintiffs.
    Carole A. Jeffries, Suzanne Levin, Silver Spring, Md., Robert G. Tobin and Jennifer Evans, Rockville, Md., for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

I. BACKGROUND

This case involves the constitutionality of the policy of conducting indiscriminate strip searches, with or without probable cause, of all persons detained at the Montgomery County, Maryland Detention Center. The plaintiff, Vivian Smith, originally brought this action pursuant to 42 U.S.C. § 1983 on behalf of herself and purportedly as a representative of two classes of similarly situated- persons alleging that the County Detention Center’s policy of across the board strip searches violates the Fourth Amendment. Plaintiff and the class she currently represents initially sought declaratory and injunctive relief and damages against defendants Paul McGuckian, County Attorney for Montgomery County; Charles Gilchrist, County Executive of Montgomery County; Gary Blake, Director of the Department of Correction and .Rehabilitation of Montgomery County, Denise Dodson, a guard at the Center who conducted a strip search of the plaintiff; and Montgomery County. All individual defendants are being sued in both their individual and official capacities.

This case initially was assigned to Judge Jones, formerly of this District. In a Memorandum and Order dated September 17, 1982, Judge Jones summarized the relevant facts as follows:

Vivian Smith was arrested at her home at about 10:00 p.m. on November 12, 1981 for contempt of court, in failing to appear in the Circuit Court for Montgomery County on October 28, 1981 in connection with a child support action originating in Essex County, New Jersey. She was taken to the Rockville District police station, where she was photographed and an arrest report was filed. She was then taken, at about 11:40 p.m., to the Montgomery County Detention Center (MCDC), where she remained overnight. The next day she was transported to the Circuit Court for Montgomery County and, after some delay, appeared before a judge, who dismissed the charge against her.
Upon arriving at the detention center, plaintiff was taken to the women’s receiving and discharge area, an open room approximately 15 feet by 20 feet containing a shower, desk, and one cell normally used as a holding cell. She was ordered to, and did, remove all her clothing. She then had to move her arms, open her mouth, bend over and squat, while a female correctional officer conductéd a visual inspection of her body, including her oral, vaginal and anal cavities. This search took place in the presence of another female detainee, who was in the cell in the room. No weapon or contraband was found. Ms. Smith then showered and was placed in the holding cell with the other female detainee overnight.

Smith v. Montgomery County, 547 F.Supp. 592, 593-94 (D.Md.1982) (Jones, J., hereinafter “Smith /”).

In the same Memorandum and Order, Judge Jones granted plaintiff’s motion for a preliminary injunction which stated:

That defendants are enjoined during the pendency of this litigation, from permitting, promulgating a policy permitting, and enforcing the present policy permitting, a visual strip search of a temporary detainee at the Montgomery County Detention Center, as defined herein, except upon probable cause to believe such detainee has weapons or contraband concealed on his or her person. Defendants are likewise enjoined from permitting, promulgating a policy permitting, and enforcing the present policy to the extent that it permits the conducting of visual searches other than in private.

Smith I, 547 F.Supp. at 599.

Thereafter, plaintiff filed a motion for partial summary judgment seeking a declaration that the Center’s strip search policy is unconstitutional and an order permanently enjoining defendants from strip searching short-term detainees absent probable cause to believe that they are concealing weapons or contraband and from strip searching short-term detainees other than in private. This motion for partial summary judgment was denied by this Court' in a subsequent Memorandum Opinion and Order, Smith v. Montgomery County, 573 F.Supp. 604, 614 (D.Md.1983) (Young, J.) (hereinafter “Smith II”), because the plaintiff lacked standing to receive either declaratory, id., at 607-609 (citing Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), or injunctive relief. Smith II, 573 F.Supp. 607-609 (citing Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Accordingly, this Court dissolved the preliminary injunction against the defendants and declared plaintiffs motion for compliance with the preliminary injunction moot. Smith II, 573 F.Supp. at 609.

While this Court refused to grant plaintiffs permanent injunctive relief, it did, nonetheless, concur with Judge Jones’ determination that Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), is controlling on the merits of this case and consequently that the strip search policy at the Montgomery County Detention Center is unconstitutional. Smith II, 573 F.Supp. at 609-10. The Court noted, in certain terms, that:

[when] squarely faced with the issue of the constitutionality of the Center’s indiscriminate strip search policy and failure to conduct strip searches in private ..., the Court holds that, based on Logan, the Center’s indiscriminate strip search policy and failure to conduct strip searches in private is unconstitutional.

Defendants subsequently have moved, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, for this Court to reconsider its determination that the Montgomery County Detention Center’s across the board strip search policy is unconstitutional in light of Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) and Block v. Rutherford, — U.S. -, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984), two recently decided Supreme Court cases. Defendants also seek summary judgment in their favor and an award of costs based on Hudson. However, the Court finds that Hudson does not require the reversal or modification of its prior holding that the detention center’s strip search policy is unconstitutional and, thus, defendants’ request for relief from this holding and summary judgment in their favor will be denied.

II. DISCUSSION

Defendants contend specifically that this Court’s prior holding is erroneous because “[i]n two recent cases, the Supreme Court of the United States examined the parameters of the Fourth Amendment rights of persons incarcerated in the nation’s prisons and held that none exist.” In the Court’s view, this is neither a correct characterization of the Supreme Court’s recent decisions nor is it a correct statement of prior Fourth Amendment law.

A.

In Hudson, the Supreme Court dealt directly with the question of whether a “shakedown” search of an inmate’s cell violated the Fourth Amendment protection against unreasonable searches and seizures. The Court held that it did not and “that the Fourth Amendment has no applicability to a prison cell.” 104 S.Ct. at 3205 (emphasis added). This holding comports with the Supreme Court’s prior indication that a prisoner may not have had a reasonable expectation of privacy in his cell, Bell v. Wolfish, 441 U.S. 520, 556-57, 99 S.Ct. 1861, 1883-84, 60 L.Ed.2d 447 (1979), but it does not follow therefrom that the prisoner is unprotected from unreasonable invasions of his or her personal privacy. In Wolfish, the Supreme Court expressly permitted irregular and unannounced shakedown searches. The Court acknowledged the plausibility of the argument that “a person confined in a detention facility has no reasonable expectation of privacy with respect to his room or cell ...” 441 U.S. at 556-57, 99 S.Ct. at 1883 (emphasis added). Clearly, this proposition recognized by the Court in Wolfish and the holding in Hudson applies to the search of a prisoner’s papers, effects, and property located in the cell and not to the most intimate searches of the inmate’s person. Id.; see Hudson, 104 S.Ct. at 3200-3201 and n. 8; 104 S.Ct. at 3216 n. 31 (Stevens, J., dissenting opinion joined by Brennan, Marshall, and Black-man, JJ.). Hudson does not evicerate the requirement articulated by the Supreme Court in Wolfish that personal body searches of inmates be reasonable under the circumstances and therefore provides no basis for defendants’ conclusion that the Fourth Amendment is ineffective in preventing unreasonable searches of a prisoner’s person. Id. 104 S.Ct. at 3216 n. 31.

Although the Supreme Court held that the Fourth Amendment protections do not extend to a prisoner’s property, it did not hold that prisoners have no constitutional rights. The Court explicitly acknowledged that prisoners retain a variety of express rights guaranteed under the Constitution, including the right of due process, Hudson, 104 S.Ct. at 3198 (citing Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974)) and the Eighth Amendment guarantee that they nbt be subject to “cruel and unusual punish-merits.” 104 S.Ct. at 3198. More significantly, the Court also reaffirmed the principles it announced in Wolfish where, inter alia, it applied a balancing test to determine whether strip'searches of inmates and pre-trial detainees were unreasonable in light of the circumstances and therefore violative of the Fourth Amendment. Thus, defendants have incorrectly characterized Hudson as holding that inmates and pre-trial detainees — or temporary detainees as in this case — retain no Fourth Amendment protection against unreasonable strip and body cavity searches.

B.

Defendants have similarly misconstrued Block v. Rutherford, — U.S. -, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). In Block, the Supreme Court, consistent with its holdings in Hudson and Wolfish, upheld the Los Angeles County Jail practice of conducting random, irregular “shakedown” searches of cells. The Court found that this practice did not violate the Fourteenth Amendment. 104 S.Ct. at 3229. Moreover, Block did not overrule the balancing test applied or the reasonableness requirement announced in Wolfish. The Court in Block simply did not engage in a Fourth Amendment analysis because plaintiffs’ claim of a right to observe from a distance shakedown searches of their cells was brought under the due process clause of the Fourteenth Amendment. See 104 S.Ct. at 3235. In the instant case, plaintiffs’ claim of unconstitutional strip searches must be analyzed under the Fourth Amendment balancing test of Wolfish. Finally, the Supreme Court noted with some emphasis in Block that the detainees involved there had been denied bail pending trial and therefore would not be released before trial. See id. 104 S.Ct. at 3228, 3221, 3222. In contrast, the instant case involves “temporary detainees” who are held at the Montgomery County Detention Center for 24 hours or less, during which time they will have an opportunity to post bail, and, if not released beforehand will have their first appearance before a judge.

Consequently, neither Hudson or Block provide any basis for setting aside this Court’s prior decision that the Montgomery County Detention Center’s policy of conducting indiscriminate and nonprivate strip searches is unconstitutional. Instead, these recent decisions reaffirm the principles of Wolfish which were construed and applied by the Fourth Circuit in Logan, 660 F.2d at 1107, 1013 and followed by this Court in both Smith I, 547 F.Supp. at 598 and Smith II, 573 F.Supp. at 609-610. Thus, the Fourth Circuit’s use of the balancing test prescribed by the Supreme Court in reaching its determination that an indiscriminate strip search policy applied to temporary detainees is unconstitutional, Logan, 660 F.2d at 1013, remains good law and controls the resolution of the instant case.

Finally, defendants contend that the county detention center’s policy of conducting across the board strip searches of all detainees is constitutional because temporary detainees are intermingled with the general population of convicted inmates and pre-trial detainees and because information from other jurisdictions indicates that such searches have revealed weapons and contraband. Nonetheless, the Court finds that in light of the record now before it, these contentions do not justify the center’s indiscriminate strip search policy and this policy is, therefore, unconstitutional. See Logan, 660 F.2d at 1013.

An indiscriminate strip search policy routinely applied to detainees such as the named plaintiff here and all other detainees “cannot be constitutionally justified simply on the basis of administrative ease in attending to security considerations.” Id. (citing Tinetti v. Wittke, 479 F.Supp. 486, 490-91 (E.D.Wisc.1979), aff'd, 620 F.2d 160 (7th Cir.1980)). In determining whether such policies are reasonable -in light of the significant governmental interest in maintaining security and order within a correctional facility or detention center, courts must remain mindful that such considerations are primarily within the province and professional expertise of corrections officials. Cf. Wolfish, 441 U.S. at 554-56, 99 S.Ct. at 1882-83; Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974) (these cases deal with an assessment of the reasonableness of various institutional policies and restrictions under the due process clause). However, where there is substantial evidence in the record which indicates that officials have exaggerated their response to legitimate institutional concerns, courts need not defer to their judgment. See Wolfish, 441 U.S. at 540-541 n. 23, 99 S.Ct. at 1874-1875 n. 23 (quoting Pell, 417 U.S. at 827, 94 S.Ct. at 2806).

As the record in this case sufficiently demonstrates, newly arrived detainees, both male and female, are housed in areas that are physically separate from the housing areas for the general population. Although the existing administrative practice in the women’s section of the Montgomery County facility is such that a temporary detainee may have some limited access to the general population during meals or early morning hours before the temporary detainee is taken to court, this access may easily be eliminated by leaving the temporary detainees in their cells. See Dodson Deposition, pp. 77-78. Moreover, the fact that weapons or contraband might sometimes be found during strip searches of pre-trial detainees or convicted inmates does not justify an indiscriminate strip search policy that includes strip searches of temporary detainees. Indeed, other local jurisdictions have successfully implemented policies which prohibit strip searches of temporary détainees in the absence of probable cause.

These considerations inevitably lead this Court to conclude that, like Logan, the indiscriminate strip searches of temporary detainees bear no reasonable relationship to security needs at the detention facility that, when balanced against the “ultimate invasion of personal rights involved,” would justify it. Logan, 660 F.2d at 1013. Additionally, the recent decisions of the Supreme Court in Hudson and Block do not vitiate the Fourth Amendment analysis utilized by the Court of Appeals in Logan nor do they demand reversal of this Court’s prior determination in this matter.

      .Plaintiff's motion for class certification under Rule 23(b)(2) for injunctive relief eventually was denied by this Court in an Opinion and Order dated October 23, 1983. Smith v. Montgomery County, 573 F.Supp. 604, 615 (D.Md.1983) (Young, D.J.). However, a class for damages was certified under Rule 23(b)(3) and was defined to include:
      All persons who were "temporary detainees" at the Montgomery County Detention Center since May 20, 1979 (the date the strip search policy became effective), and were strip searched absent probable cause to believe that they possessed either weapons or contraband. The term "temporary detainees” is defined to include all persons arrested and held for 24 hours or less.

        Id. (parenthetical added).

      . Ms. Smith was taken into custody by two officers of the Montgomery County Sheriff's Department on a civil body attachment issued to answer a contempt charge. Affidavit of James A. Young, Sheriff, ¶ 7 and Attachment A-2. She was arrested and booked on a charge of contempt. Affidavit of James A. Young, Sheriff, ¶ 10 and Attachment A-3. Smith v. Montgomery County, 547 F.Supp. 592, 593 n. 3 (D.Md.1982) (Jones, J.).

      . Smith had failed to appear because she believed, correctly as things eventually turned out, that the proceeding had been dismissed in New Jersey. Smith, 547 F.Supp. at 593 n. 4.

        . In Logan, a DWI arrestee sought damages and injunctive and declaratory relief for having been strip searched at the Arlington County, Virginia Detention Center pursuant to a policy which required that all persons being held at the center be strip searched for weapons or contraband regardless of the offense, the circumstances or probable duration of their detention. Logan, 660 F.2d at 1010. The Fourth Circuit held that this strip search policy promulgated by the Sheriffs Department was unconstitutional under the standards enunciated by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and that the plaintiffs strip search 'bore no discernable relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of personal rights involved, it could reasonably [be] thought justified.” 660 F.2d at 1013.

      . Defendants have based their motion for reconsideration on Rule 60(b)’of the Federal Rules of Civil Procedure. However, Rule 60(b) applies only to a final judgment or order, see Rule 60(b), Fed.R.Civ.P. (relief “from a final judgment, order, or proceeding”); Advisory Committee Notes, 1946 Amendment, and the Fourth Circuit has already determined that this Court’s decision was an interlocutory order. Smith v. Montgomery County, 740 F.2d 963 (4th Cir.1984). Nonetheless, the Court will exercise it’s inherent power to reconsider it’s prior interlocutory ruling and will resolve defendants’ motion on it’s merits.

        . Defendant’s Memorandum at 1.

      . Indeed, defendants’ argument to the contrary proves too much, and if applied vigorously could have so undiscriminating an appetite for justifying the exercise of excessive and intrusive executive and police power and authority, that it could readily consume well established notions of privacy in Anglo-American law. There are many places in which an individual may not enjoy a legitimate expectation of privacy and where his property may not be insulated from search and seizure, see, e.g., United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1979) (case remanded to determine if defendant had a legitimate expectation of privacy in apartment belonging to his mother); Rakas v. Illinois, 439 U.S. 128, 149, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978) (passenger had no legitimate expectation of privacy in car driven by owner). However, it does not follow therefrom that an individual’s mere presence in these areas suspends Fourth Amendment protections entirely and subjects them to unreasonable searches of their physical person without constitutional recourse.

      . In Wolfish, the Court reasoned that:
      The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope, of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted, [citations omitted].
      441 U.S. at 559, 99 S.Ct. at 1884.

      . The plaintiff in Hudson was a convicted prisoner at a state prison and not a pre-trial or temporary detainee.

      . Defendants contend that all arrestees, taken to the Montgomery County Detention Center are "pre-trial detainees” in that they are “committed to the detention facility only because no less drastic means can reasonably assure [their] presence at trial.” Defendants’ Memorandum, at 8 (quoting Wolfish); but see Plaintiffs Memorandum at 6-7 ("temporary detainees” are distinguishable from pre-trial detainees in that they have not yet had a full opportunity to post bond and secure their release, and there has been no determination by a judge that they must be committed to the detention center pending trial).

      .Many persons taken to the county detention facility were released within a few hours of their arrival but were nonetheless subjected to an intrusive strip search. Plaintiffs Memorandum in Opposition to Defendants’ Motion to Reconsider (“Plaintiffs’ Memo.”) at 4 n. 4. (citing as example the deposition of defendant Gary Blake, Montgomery County Director of the Department of Corrections and Rehabilitation).

      . In applying its dispositive Fourth Amendment analysis, the Logan court noted specifically that the strip search of the plaintiff, who like the named plaintiff here was a temporary detainee, had no "discernable relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of personal rights involved, ... [could justify it]." 660 F.2d at 1013.

      . In addition to the recent Supreme Court decisions in Hudson and Block which this Court views as having substantiated the validity of the Fourth Amendment analysis employed by the Fourth Circuit in Logan, there is further indication that Logan was correctly decided. This Court noted in Smith II that;
      Justice Rehnquist in his capacity as Circuit Justice, in staying the Fourth Circuit’s mandate in Logan stated that Logan was incorrectly decided. Clements v. Logan, 454 U.S. 1304 [102 S.Ct. 284, 70 L.Ed.2d 461] (1981). However, the alacrity with which the full Supreme Court vacated the stay entered by Justice Rehnquist is strong indication that the full Court believes that Logan was correctly decided. Clements v. Logan, 454 U.S. 1117 [102 S.Ct. 961, 71 L.Ed.2d 105] (1981) (stay vacated two days after it was imposed).

        Smith II, 573 F.Supp. at 610 n. 5.

      .Newly arrived female detainees are held in one of three intake cells designated for that purpose. Plaintiffs Memorandum at 7; Stipulation of Facts ¶ 20. These three intake cells are on one side of a hall in the intake area and are separated from other cells used to house pre-trial detainees and sentenced inmates by a locked gate and sally port. Plaintiffs’ Memorandum at 8; see deposition of defendant Denise Dodson, pp. 75-83. Thus, cells used to house newly ' arrived detainees are physically separate from those set aside for pre-trial detainees and sentenced inmates. Additionally, this cell block area is physically separate from the dormitory area that houses pre-trial detainees and sentenced inmates. Plaintiffs’ Memorandum at 8. Newly arriving male detainees are held in an "intake section” that is far removed from the cell blocks that house the general jail population. Stipulation of Facts ¶ 20. Both male and female temporary detainees may also be held in holding cells which are themselves separate from the general intake section itself. Plaintiffs' Memorandum at 8.

      . Most recently strip searches of temporary detainefes have been prohibited by court order and local ordinance in Prince George's County. Alexander v. Prince George’s County, Law No. 95, 517 (Prince George’s County Cir.Ct. Jan. 26, 1983). The District of Columbia has also entered into a judicially supervised agreement which bars strip searches of temporary detainees except upon probable cause. Morgan v. Barry, Civ. No. 81-1419 (D.C. July 22, 1981); and Arlington County, Virginia, whose strip search policy was held to be unconstitutional in Logan, has limited strip searches to those instances where there is probable cause.


author: McNAUGHT, District Judge.

text:
    UNITED STATES of America f/u/o J. Farmer and Co., Inc., Plaintiff, v. PRAUGHT CONSTRUCTION CORPORATION, American Employer’s Insurance Co., Defendants.
    Civ. A. No. 83-3426-Mc.
    United States District Court, D. Massachusetts.
    April 30, 1985.
    Edwin J. Fremder, Corwin & Corwin, Boston, Mass., for plaintiff.
    Richard J. White, Ferraro & Walsh, Cambridge, Mass., for defendants.
   MEMORANDUM AND ORDER

McNAUGHT, District Judge.

J. Farmer and Co., Inc., (“Farmer”) sued Praught Construction Corporation (“Praught”) and its Miller Act surety, American Employer’s Insurance Co., to recover amounts due Farmer on two subcontracts for planting beach grass under contracts with the federal government in Plymouth and Barnstable. The parties agreed to stay the action pending completion of arbitration, as required by arbitration agreements in the contracts between Farmer and Praught. On September 7, 1984, the arbitrator awarded Farmer $25,-595 plus interest at 12% from December 1, 1983 until the award is paid in full. On September 19, 1984, plaintiff filed motions for confirmation of the award and for judgment. On October 11, 1984, Praught and its surety objected to the confirmation on the grounds that the arbitrator had no right to award interest. The issue, therefore, before the Court is whether the arbitrator had the right to award interest on the amount he found was due Farmer.

DEFENDANTS’ ARGUMENTS

The defendants state that the plaintiff never submitted a claim for interest to the arbitrator either in its formal claim at the beginning of the arbitration proceedings or at any time during the hearings. As a result, defendants argue that “the arbitrator did not have the authority to award interest as it was never properly put before him.” Defendants rely on Chapter 251, Section 12(a)(3) of the Massachusetts General Laws for the proposition that the court shall vacate an award if “the arbitrators exceeded their powers.” Defendants contend that the arbitrator exceeded the scope of the claims presented to him in awarding interest and that the defendants were prejudiced by being denied the opportunity to rebut the plaintiff’s claim as to the amount of interest and the date from which it should be computed. Finally, defendants argue that “by failing to make the claim for interest at any time prior to the conclusion of the hearings before the Arbitrator, the plaintiff waived it’s (sic) claim for interest in this matter.” No citation is offered to support this contention.

plaintiff’s Arguments

Plaintiff states that its demand for arbitration sets forth its contract claim and includes a claim for interest. (Exhibit A, Gagne affidavit) In its post arbitration memorandum, the plaintiff also makes a claim for interest, concluding that “Farmer is entitled to be paid its full contract balance of $25,595 with interest at 12% from at least December 1, 1983 which is 6 months after it completed its work.” (Exhibit B, Farmer’s Memorandum)

VALIDITY OF ARBITRATOR’S AWARD OF INTEREST

The traditional rule is that an arbitrator’s award constitutes an unliquidated claim on which the party in whose favor the award has been made is entitled to interest from the date that party first applies to the court for confirmation of the award. Glenn Acres, Inc. v. Cliffwood Corp., 353 Mass. 150, 228 N.E.2d 835 (1967); Town of Arlington v. Local 1297, Intern. Ass’n of Firefighters, 6 Mass.App. 874, 375 N.E.2d 343 (1978); Rich, Lang & Cote, Inc. v. Town of Warren, 13 Mass.App. 972, 432 N.E.2d 119 (1982). “That rule applies only where the judgment or decree is one of a final nature which establishes or, in the case of arbitration, enforces a specific duty to pay a sum of money.” Trustees of Boston & Maine Corp. v. Mass. Bay Transportation Authority, 367 Mass. 57, 323 N.E.2d 870, 873 (1975). The Supreme Judicial Court in that case established guidelines for the Superior Court on remand to settle the matter of interest: “The underlying principle in this area is that a wrongful delay in payment of a sum of money deprives the prospective payee of the use of the money during that period, and that there ought to be compensation for this delay. Royal Paper Box Co. v. Munro & Church Co., 284 Mass. 446, 451-452, 188 N.E. 223 (1933). Johnson v. Haz en, 333 Mass. 636, 638-640, 132 N.E.2d 391 (1956).” Id., 323 N.E.2d at 875.

In the past few years the traditional rule has evolved in favor of the arbitrator’s right to award interest to avoid unjustified windfalls. In a footnote to a 1978 case, Justice Kaplan wrote for the Supreme Judicial Court:

We find a considerable body of authority elsewhere allowing interest from the date of an arbitral award. Thus in Lundgren v. Freeman, 307 F.2d 104, 112 (9th Cir.1962), the court said: “The parties selected arbitrators, rather than a court, as the body that would, in the first instance, determine the amount due. This they had a right to do; this the law encourages them to do. It should be the rule, rather than the exception, that when arbitrators hand down an award the parties will comply with it, without the necessity of court proceedings, just as it is (or should be) the normal or usual result that parties comply with a judgment, without the necessity of resort to process or appeal.” Marlborough Firefighters v. City of Marlborough, 375 Mass. 593, 378 N.E.2d 437, 441, fn. 7 (1978)

Although that case only raised the issue of allowing interest from the date of the arbitrator’s award, Justice Kaplan wrote in a later case:

We now hold that such should be the general rule for arbitrations of this kind, for the award fixes definite or ascertainable dollar amounts and is by the statute declared presumptively “binding upon the parties” when made. The rule commends itself also because it encourages swift obedience by the parties to the award.
Watertown Firefighters, Local 1347 v. Town of Watertown, 376 Mass. 706, 383 N.E.2d 494, 500 (1978)

In addition, the court stated that “we think the general rule may bend in particular cases to equitable considerations” and added that “we see no reason why a party’s offer could not itself propose a disposition of the question of interest which would control if the offer became the award.” Id., at 501.

Finally, the Massachusetts Appeals Court endorsed the trend allowing arbitrators to award interest:

An arbitrator’s award of interest, when made as a component of an award, is an integral part of the total remedy that he fashions, and as such, is not subject to the statutory provisions which apply to court-awarded interest on contract claims, (citations omitted) “Provisions of law applicable to judicial actions and proceedings do not necessarily apply to arbi-trations. Parties who submit their controversies to arbitration forgo those provisions and leave all questions of law and fact to the arbitrators. The right of interest involves questions of fact and law that are within the purview of the arbitrators.” Eager, The Arbitration Contract and Proceedings § 131 (1971). Interest included as part of the arbitrator’s award must therefore be distinguished from interest added by a court pursuant to an award which is silent on the point. Blue Hills Regional District School Committee v. Flight [10 Mass.App. 459] 409 N.E.2d 226, 235 (1980)

In that case, the court found that the arbitrator’s award of retroactive salary with interest at nine percent from the date the wrong occurred until the date of the arbitrator’s award was proper. In addition, the court stated that “interest on any damages awarded after remand should be established by the arbitrator.” Id. at 235.

DISCUSSION

Although the law in this area is still fluid, the Blue Hills case suggests that the arbitrator in the present case acted properly in awarding interest from December 1, 1983 until the award is paid in full. December 1,1983 represents not only the date the plaintiffs requested but also a reasonable outside limit — six months — for payment for work performed under the contract. After that date any interest earned on the $25,595 owed to the plaintiff belonged to the plaintiff and therefore unjustly enriched the defendant.

Although the recent case, Afcodian (International) Limited v. Brompton Air Services, 753 F.2d 176 (1st Cir.1985), is not directly on point, it raises some pertinent questions. In discussing interest earned on money held in escrow, it asks: “If the winning party is not to have it, who is? Would the bank have free use of the money? Would the trustee simply keep it?” Id., at 178. The court is clearly concerned about interest producing “unjustified windfalls.”

By analogy, in the present case the defendant (by not paying the plaintiff money owed him under the contract) has earned over three thousand dollars in interest— money which, given equitable considerations, belongs to the plaintiff. Needless to say, if the arbitrator had ruled the other way, the defendant would be entitled to keep the interest.

The twelve percent presumably represents the amount the money would have earned in a money market account. It does not seem unreasonable.

Given the current policy of encouraging arbitration, the trend of allowing arbitrators to award interest makes sense. Arbitration is a voluntary, economical alternative to litigation. If interest were only to be awarded by courts, then either successful parties will be forced to spend more time and money to recover interest or unsuccessful parties will be unjustly enriched by the use of someone else’s money. The incentive to dispute a contract and to delay resolution of any dispute is greater if interest is not part of the arbitrator’s award. Therefore, allowing arbitrators to award interest is not only in line with current case law but also helps to streamline the arbitration process and save court resources.

Motion to confirm granted.