                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1509



TELETRONICS INTERNATIONAL, INCORPORATED,

                                               Plaintiff - Appellant,


           versus

CNA INSURANCE COMPANY/TRANSPORTATION INSURANCE
COMPANY,

                                                Defendant - Appellee.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-03-1348-AW)


Argued:   October 28, 2004                 Decided:   January 20, 2005


Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Frederick Ngosi Samuels, CAHN & SAMUELS, L.L.P.,
Washington, D.C., for Appellant. William H. White, Jr., BONNER,
KIERNAN, TREBACH & CROCIATA, Washington, D.C., for Appellee. ON
BRIEF: Maurice U. Cahn, CAHN & SAMUELS, L.L.P., Washington, D.C.,
for Appellant. Rina Niyogi, BONNER, KIERNAN, TREBACH & CROCIATA,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     After being sued by a competitor for copyright infringement

and related claims, Teletronics International, Inc. ("Teletronics")

brought     suit     against     Transportation         Insurance     Company

("Transportation"), claiming that Transportation breached its duty

to defend Teletronics under an "advertising injury" provision of an

insurance policy between the parties. On cross motions for summary

judgment,     the   district   court        granted   summary   judgment   for

Transportation on the grounds that the activities giving rise to

the infringement action were not "advertising" activities under the

policy. For the reasons that follow, we reverse the order granting

summary judgment to Transportation, and remand with instructions

for the district court to enter summary judgment in favor of

Teletronics.

                                       I.

     Teletronics     is   a    Delaware       corporation   engaged   in   the

manufacture, distribution, and sale of high-technology wireless

communications products.        Teletronics purchased a comprehensive

general liability insurance ("CGL") policy from Transportation

effective from August 8, 1998 to August 8, 1999.                  Teletronics

later renewed this policy for the period of August 8, 1999 to

August 8, 2000.     Relevant to this appeal, the policy contained an

"advertising injury" provision, in which Transportation agreed to

defend and indemnify Teletronics against third-party claims for


                                       2
damages caused by Teletronics "in the course of advertising [its]

goods, products or services."1            J.A. at 85.

         Teletronics is a direct competitor of Young Design, Inc.

("Young Design"), a Virginia manufacturer and seller of radio

amplifiers for wireless data communications.                        In January 1998,

Teletronics contacted Young Design for the purpose of exploring an

original equipment manufacture ("OEM") relationship, sometimes

known as a "private labeling arrangement."                       Under the proposed

agreement, Teletronics would purchase Young Design's amplifiers and

resell    them    under   its    own    name,       bundled     together      with     other

Teletronics products.           Over the next twelve months, Teletronics

purchased several amplifiers from Young Design for the purpose of

evaluating       them   and   deciding        whether     to    enter    into    the    OEM

contract.         Young   Design       also       provided     Teletronics       with    an

electronic,       editable      copy    of        its   Model    AMP2440        User    and

Installation       Manual     ("Installation            Manual"),       and   authorized

Teletronics to remove all references to Young Design so as to

facilitate the private label sales.

1
 The Business Liability section of the insurance policy provides in
relevant part that:

     We will pay those sums that the insured becomes legally
     obligated to pay as damages because of “bodily injury,”
     “property damage,” “personal injury” or “advertising
     injury” to which this insurance applies. We will have
     the right and duty to defend any “suit” seeking those
     damages.

J.A. at 85.


                                              3
      Approximately one year later, Young Design discovered that

Teletronics was producing wireless amplifiers that were similar to

its own products.         After examining a Teletronics amplifier, Young

Design concluded that Teletronics was selling "knock-off" versions

of   its   amplifier.        Teletronics,    however,     denied    the    charge,

explaining that it had designed its own amplifier in the summer of

1997, and that it had completed its first amplifier prototype in

August 1998. In addition, Young Design asserted that Teletronics

was distributing a user manual with its amplifiers that was nearly

identical    to    Young    Design's    copyrighted     Installation       Manual.

Confronted with this accusation, Teletronics admitted that the

manual used for its amplifiers included portions copied directly

from Young Design's Installation Manual.

      On June 14, 2000, Young Design filed a five-count complaint in

the United States District Court for the Eastern District of

Virginia,    asserting       claims    for   breach     of     contract,    fraud,

misappropriation of trade secrets, copyright infringement, and

trover.      The   lawsuit     culminated    in   a    three-day    bench    trial

conducted in January 2001.             In light of the court's pre-trial

rulings,    the    only    claims   presented     at   trial    were   those   for

misappropriation of trade secrets and copyright infringement.                   On

July 31, 2001, the district court issued a memorandum opinion

dismissing the trade secrets claim.             However, the court ruled in

favor of Young Design on the copyright infringement claim, and


                                        4
entered an order permanently enjoining Teletronics from copying

Young Design's Installation Manual.

     While the Young Design suit was pending, Teletronics demanded

that Transportation defend it pursuant to the "advertising injury"

clause in the CGL policy.    Transportation refused on the grounds

that the injury caused by Transportation to Young Design did not

occur "in the course of advertising" and thus did not qualify as an

"advertising injury" under the policy.         Teletronics subsequently

requested   that   Transportation       reconsider   its   disclaimer   of

coverage.   In particular, Teletronics argued that it posted an

electronic copy of the infringing manual on its website to provide

potential customers with information about its amplifiers, and

asserted that this conduct was "advertising" sufficient to trigger

the "advertising injury" provision in the insurance policy.         After

Transportation again disclaimed coverage, Teletronics filed an

action for breach of contract against Transportation in a Maryland

state court.   Transportation thereafter removed the lawsuit to the

United States District Court for the District of Maryland based on

diversity jurisdiction under 28 U.S.C. § 1332.

     The parties filed cross motions for summary judgment, agreeing

that the coverage dispute turned solely on whether the infringement

of Young Design's Installation Manual occurred in the course of

Teletronics' "advertising" activities.         On February 2, 2004, the

district court concluded that the policy did not afford coverage


                                    5
for the copyright infringement claim, and accordingly granted

summary judgment in favor of Transportation.    The district court

rejected Teletronics' argument that posting the Installation Manual

on its website brought the infringement claim within the policy's

"advertising injury" provision.   Specifically, the court reasoned

that:

     The manual was not prominently displayed on the web site,
     and its mere presence on the website is not sufficient to
     convert it into "advertising." To find otherwise would
     require this Court to term "advertising" anything that is
     posted on a company's website.

Teletronics Int'l, Inc. v. CNA Ins. Co./Transportation Ins. Co.,

302 F. Supp. 2d 442, 450 (D. Md. 2004).

     The district court also found that Teletronics' practice of

referring potential customers to the manual on its website for

product information was more indicative of one-on-one solicitation

than advertising.2   See Monumental Life Ins. Co. v. U.S. Fidelity

and Guaranty Co., 617 A.2d 1163, 1174 (Md. Ct. Spec. App. 1993)

(holding that advertising must involve "widespread distribution or

announcements to the public," rather than personal solicitation).

Subsequently, the district court denied Teletronics' motion for

reconsideration, and Teletronics filed a timely appeal.




2
 For example, in response to an e-mail inquiry from one potential
customer, Teletronics wrote: "Thank you for your interest in our
products. The easiest way to get information on our products is
via the internet. You can download a complete user manual on all
our products." J.A. at 41.

                                  6
                                      II.

     We review the district court's order granting summary judgment

de novo.      Smith v. Continental Cas. Co., 369 F.3d 412, 417 (4th

Cir. 2004).     Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law."          Fed. R. Civ. P. 56(c).      Here,

the parties agree that there are no material issues of fact in

dispute, that Maryland law governs our interpretation of the

insurance policy, and that the dispositive issue in this appeal is

whether the injury to Young Design occurred "in the course of

advertising" activities.

     Under Maryland law, a liability insurer must defend its

insured in a tort action3 if the injury claimed is potentially

covered by the insurance policy. Brohawn v. Transamerica Ins. Co.,

347 A.2d 842, 850 (Md. 1975).          The insurer must defend if there

exists even a "potentiality that the claim could be covered by the

policy."      Litz v. State Farm Fire & Cas. Co., 695 A.2d 566, 570

(Md. 1997) (internal quotations omitted). As a result, the duty to

defend   is    broader   than   the   duty    to   indemnify,   since    "any


3
 "Copyright infringement . . . is an intentional tort." Bucklew v.
Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 931 (7th Cir. 2003);
see also Gnossos Music v. Mitken, Inc., 653 F.2d 117, 120 (4th Cir.
1981) (stating that "copyright infringement is a tortious
interference with a property right").

                                       7
potentiality of coverage, no matter how slight, gives rise to a

duty   to     defend."        Id.    (emphasis     added).    We   determine    the

potentiality of coverage under the policy based on the allegations

in the underlying complaint, as well as any "extrinsic evidence"--

that is, evidence outside the complaint--relied upon by the insured

to establish coverage. Id. Finally, under Maryland law, any doubt

concerning the potentiality of coverage must be resolved in favor

of the insured.         Zurich Ins. Co. v. Principal Mut. Ins. Co., 761

A.2d 344, 348 (Md. 2000).

       In this case, the CGL policy requires Transportation to defend

Teletronics      only    if    the    underlying     action   resulted   from   an

"'[a]dvertising injury' caused by an offense committed in the

course of advertising your goods, products or services."                 J.A. at

85.     The    policy    lists      four   types   of   "advertising   injuries,"

including:

       a. Oral or written publication of material that slanders
       or libels a person or organization or disparages a
       person's or organization's goods, products or services;

       b. Oral or written publication of material that violates
       a person's right of privacy;

       c.   Misappropriation of advertising ideas or style of
       doing business; or

       d.   Infringement of copyright, title or slogan.

J.A. at 93.      The copyright infringement claim is the sole ground

upon which Teletronics bases its claim for coverage.




                                            8
      Although the policy defines advertising "injury," it does not

define "advertising."4      Nor have the Maryland courts construed the

term in the context of a liability insurance policy providing

coverage for claims arising out of an advertising injury.            We are

unpersuaded by Transportation's assertion that the Maryland Court

of   Special   Appeals     comprehensively   defines   "advertising"     in

Monumental Life.       That case holds that one-to-one solicitation and

advertising are "mutually exclusive, the difference being that

advertising must be of a public nature." Monumental Life, 617 A.2d

at   1173.     Thus,    while   Monumental   Life   holds   that   personal

solicitation is not advertising, it does not appear to define what

advertising actually is under Maryland law.

4
 Transportation contended for the first time at oral argument that
we need not reach the question of what constitutes "advertising"
under Maryland law because the injury to Young Design--that is, the
infringement of its copyright--occurred when Teletronics reproduced
and distributed paper copies of the Installation Manual, not when
Teletronics later placed an electronic copy of the manual on its
website.     Stated differently, Transportation argues that,
irrespective of whether the activity constituted "advertising"
under Maryland law, no infringement, and thus no "injury" to Young
Design, occurred when Teletronics posted a copy of the Installation
Manual on its website. We find this argument unpersuasive. The
owner of a copyright enjoys the exclusive right to make copies of
a protected work, and anyone who produces copies, through whatever
medium, is subject to an action for copyright infringement under
federal law. Horgan v. MacMillan, Inc., 789 F.2d 157, 162 (2d Cir.
1986) (reproduction of copyrighted work in different medium "is not
a defense to infringement."); see also Oriental Art Printing, Inc.
v. Goldstar Printing Corp., 175 F. Supp. 2d 542, 545 (S.D.N.Y.
2001) (The Copyright Act "protects against unauthorized copying not
only in the work's original medium but also in any other medium.").
Thus, Teletronics committed an independent act of copyright
infringement by posting an electronic copy of the Installation
Manual on its website.


                                     9
     Generally, when state law on an issue is unsettled, a federal

court sitting in diversity must attempt "to predict how [the

state's highest] court would rule if presented with the issue."

Private Mortgage Inv. Servs., Inc. v. Hotel & Club Assocs., Inc.,

296 F.3d 308, 312 (4th Cir. 2002); see also Liberty Mut. Ins. Co.

v. Triangle Indus., 957 F.2d 1153, 1156 (4th Cir. 1992) (federal

diversity    court   must   predict   how   state   court   would   rule   on

unsettled question of state law).           To this end, we may examine

cases from other jurisdictions for guidance in determining what law

Maryland would adopt.       Lexington Ins. Co. v. Rugg & Knopp, Inc.,

165 F.3d 1087, 1092 (7th Cir. 1999) (in the absence of state

authority on point, federal courts may seek guidance from other

jurisdictions).

     The vast majority of jurisdictions have defined advertising as

"the widespread distribution of promotional material to the public

at large."    Erie Ins. Group v. Sear Corp., 102 F.3d 889, 894 n.2

(7th Cir. 1996) (collecting cases and identifying majority rule);

Solers, Inc. v. Hartford Cas. Ins. Co., 146 F. Supp. 2d 785, 793

(E.D. Va. 2001) (same); Select Design, Ltd. v. Union Mut. Fire Ins.

Co., 674 A.2d 798, 801-02 (Vt. 1996) (same); see also USX Corp. v.

Adriatic Ins. Co., 99 F. Supp. 2d 593, 618 (W.D. Pa. 2000) ("The

overwhelming majority of reported cases have interpreted the plain

and ordinary meaning of 'advertising' to mean the widespread

distribution of promotional material to the public for the purpose


                                      10
of generating business.").            On the other hand, a relatively small

number of courts have held that advertising also encompasses the

personal or one-to-one solicitation of potential customers.                        See,

e.g., Sentex Sys., Inc. v. Hartford Accident & Indem. Co., 882 F.

Supp. 930, 939 (C.D. Cal. 1995) (defining advertising as "any oral,

written, or graphic statement made by the seller in any manner in

connection       with   the    solicitation         of    business.");     see    also,

Merchants Co. v. American Motorists Ins. Co., 794 F. Supp. 611, 619

(S.D.    Miss.    1992)    (holding      that       advertising   encompasses       the

solicitation of individual customers); cf. Elizabeth D. Lauzon,

Annotation, Advertising Injury Insurance, 98 A.L.R.5th 1, at *2

(2002)    (discussing         split     in        authority   concerning         whether

advertising       activity         "requires       widespread     distribution       of

promotional material to the public . . . or can include one-on-one

or targeted group solicitations").

     Here,    we    find      it   unnecessary       to   speculate   as    to    which

definition of "advertising" the Maryland courts would prefer, since

the activities of the insured in this case would satisfy either the

majority or the minority rule.5              With respect to the minority view,

5
 Although "conservatism is in order" when relying on the practice
of other jurisdictions to predict how the highest court of another
state might rule, Lexington Ins. Co., 165 F.3d at 1093, we have
some confidence that the Maryland courts would prefer the majority
rule. In Grosman v. Real Estate Comm'n, 297 A.2d 257 (Md. 1972),
the Maryland Court of Appeals, in an effort to define "advertising"
for the purposes of a Maryland statute prohibiting false
advertising in real estate transactions, observed that advertising
has been defined as:


                                             11
Teletronics clearly engaged in conduct that amounts to personal

solicitation.       As noted earlier, the district court found, and

Transportation does not dispute, that after receiving inquiries

from potential customers about its amplifier products, Teletronics

referred    customers         to   the     installation      manual    posted    on     its

website.    Thus, Transportation concedes that Teletronics solicited

potential customers in connection with its amplifier products, and

that this conduct would satisfy the minority view of "advertising"

as encompassing one-on-one solicitation.                      Appellee's Br. at 26

(stating that the insured's activities amounted to "one-on-one

sales communications").

     With    regard      to    the    majority      view,    Teletronics       similarly

engaged in activities that amount to the widespread distribution of

promotional material to the public.                  First, there is no genuine

dispute    that    Teletronics           employed   the     installation       manual   to

promote    the    sale    of       its     amplifiers.        The     manual    contains

information       concerning         the     product's       basic     specifications,


     Any form of public announcement intended to aid directly
     or indirectly in the sale of a commodity, . . . [and] the
     act or practice of calling public attention to one's
     product, service, need, etc., esp. by paid announcements
     in newspapers and magazines, over radio or television, on
     billboards, etc. . . .

Id. at 266 (emphasis added). We believe that this definition is
consonant with the prevailing view that advertising must be
directed towards the public at large. In addition, Monumental Life
is a well-reasoned opinion rejecting the minority view that one-to-
one solicitation constitutes advertising.     Monumental Life, 617
A.2d at 1174.

                                             12
advantages over other types of wireless amplifiers,           compatibility

with   other   kinds   of   technology,   as   well   as   installation   and

warranty information.        J.A. at 700-10.      Second, by posting the

installation manual on the Internet, Teletronics distributed the

document to a large audience of potential customers. Consequently,

through placing a copy of the infringing manual on its website,

Teletronics engaged in "the widespread distribution of promotional

material to the public at large."6         Playboy Enterprises, Inc. v.

St. Paul Fire & Marine Ins. Co., 769 F.2d 425, 428-29 (7th Cir.

1985).

       We disagree, however, with the district court's view that our

conclusion necessarily means that any information posted on a

website constitutes advertising.          While any information about a

product or service that is posted on a publicly-accessible webpage

is widely distributed, such information--under either the majority

or the minority rule--is not advertising unless it is for the

purpose of "generating" or "soliciting" business.             USX Corp., 99

F. Supp. 2d at 618 (majority view); Sentex Sys., 882 F. Supp. at

939 (minority view).        Furthermore, the promotional aspect of an


6
 For this reason, we reject Transportation's argument that it was
not obligated to defend Teletronics because there was no causal
connection between the injury to Young Design and Teletronics'
advertising activities. Appellant's Br. at 20-21. Since we have
held that the particular manner in which Teletronics used Young
Design's   copyrighted    Installation   Manual    constituted   an
"advertising" activity, there is no valid argument that Teletronics
failed to establish the required nexus between the asserted
liability and its advertising activities.

                                    13
activity must be more than merely incidental.              In other words,

under both the majority and the minority view, an activity must

involve, at a minimum, "actual, affirmative self-promotion of the

actor's goods or services" in order to constitute advertising.

Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1193 (11th

Cir. 2002) (quoting Erie Ins. Group, 102 F.3d at 894).             Thus, with

these constraints in mind, it is apparent that information does not

become "advertising" simply by virtue of its dissemination via the

Internet.

                                      III.

     Accordingly, we hold that Teletronics' activities in this case

constituted advertising, and that Transportation was therefore

obligated to defend Teletronics under the liability insurance

policy   between   the   parties.      We    therefore   reverse   the   order

granting    summary   judgment   to    Transportation,    and   remand    with

instructions for the district court to enter summary judgment in

favor of Teletronics.

                                                     REVERSED AND REMANDED




                                       14
