Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2005

Okocha v. Amazon.com
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4125




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"Okocha v. Amazon.com" (2005). 2005 Decisions. Paper 266.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/266


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                                           NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                    NO. 04-4125
                  ________________

                 BASIL E. OKOCHA;
            BASIL PUBLISHING COMPANY

                              v.

                      AMAZON.COM


                   Basil E. Okocha,
                            Appellant
       ____________________________________

     On Appeal From the United States District Court
               For the District of New Jersey
                (D.C. Civ. No. 04-cv-02115)
       District Judge: Honorable Faith S. Hochberg
     _______________________________________


       Submitted Under Third Circuit LAR 34.1(a)
                    June 21, 2005

Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES

               (Filed: November 3, 2005)


              _______________________

                     OPINION
              _______________________
PER CURIAM

       Appellant Basil E. Okocha appeals from an order of the United States District

Court for the District of New Jersey granting summary judgment in favor of

Amazon.com. We will affirm.

       The procedural history of this case need not be discussed at length as it is well-

known to the parties and set forth in the District Court’s opinion. In 1993 Okocha wrote

and published a book in Nigeria entitled The Old Man Who Refused to Die. In 2001

Okocha moved to the United States. In 2002 Okocha decided to self-publish his book in

the United States through his publishing business, Basil Publishing Company. Okocha

planned to publish the book in 2006. In conjunction with his publishing company,

Okocha created two websites using his name as a key word for internet search engines.

Okocha subsequently visited a search engine and submitted his name as a search term.

The search returned a link to the title of his book on Amazon.com. By clicking on the

link, Okocha discovered that copies of his book were listed for sale by several third-party

sellers on the Amazon.com website. However, there were no listings for the sale of

Okocha’s book by Amazon.com itself.

       In May 2003, Okocha filed a complaint against Amazon.com in the United States

District Court for the District of New Jersey alleging, inter alia, copyright infringement,

conspiracy, fraud, negligent/intentional infliction of emotional harm, and loss of future

wages. Amazon.com filed a motion to dismiss for failure to state a claim, which the



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District Court converted into a motion for summary judgment. Okocha then filed a

motion for summary judgment. By order entered October 13, 2004, the District Court

granted summary judgment in favor of Amazon.com. Okocha appeals.

       After careful review of the record and consideration of the arguments on appeal,

we agree with the District Court that Amazon.com was entitled to judgment as a matter of

law. With regard to the copyright claim, Okocha failed to show that he owned a valid

United States or foreign copyright for The Old Man Who Refused to Die, or that

Amazon.com copied the material. See Masquerade Novelty, Inc., v. Unique Indus., Inc.,

, 667 (3d Cir. 1990) (setting forth the elements of a copyright infringement

claim). Even assuming that Okocha owned a valid copyright,1 Amazon.com did not

interfere with Okocha’s exclusive right to distribute his book because reselling a copy of

a previously purchased book does not infringe upon the right of distribution. See 17

U.S.C. § 109.

       The internet printouts submitted by Okocha to prove that Amazon.com listed

several copies of his book for sale also clearly indicate that the books listed for sale were

published in 1993, the year the book was originally published in Nigeria. The fact that

the books listed for sale were published in 1993 indicates that they were not published at

a later date and redistributed internationally by Amazon.com as Okocha asserts. The



       1
         On appeal, Okocha submitted documents purporting to prove that he owned a valid
foreign copyright for The Old Man Who Refused to Die. We will not review the documents
because they were submitted for the first time on appeal.

                                              3
evidence instead established that the independent third-party sellers were selling used

copies of Okocha’s 1993 book. Summary judgment thus was properly granted in favor of

Amazon.com with respect to the copyright claim.

       Amazon.com was likewise entitled to judgment as a matter of law with respect to

Okocha’s conspiracy claim. A conspiracy involves an intent to achieve a common

improper goal and an agreement to work together toward that improper goal. See, e.g.,

United States v. Pressler, 

, 149 (3d Cir. 2001). Okocha failed to provide

admissible evidence to show that Amazon.com and the third-party sellers conspired to

violate his copyrights. As for Okocha’s remaining claims alleging, inter alia, fraud,

negligent/intentional infliction of emotional harm, and loss of future wages, we have

thoroughly reviewed the record and conclude that Amazon.com was entitled to judgment

as a matter of law.

       Accordingly, we will affirm the order of the District Court. Okocha’s motion to

expedite is denied. His motion to file supplementary proof and a supplemental appendix

is granted.




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