JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon both parties' motions for summary judgment (Dkts. 43 & 54) and responses thereto (Dkts. 47 & 55). Upon review of the motions, responses, record evidence, and being otherwise advised in the premises, the Court concludes that the motions should be granted in part and denied in part.
Plaintiff 3Lions Publishing, Inc. is a corporation that provides, among other things, information, solutions, and guidance to the healthcare industry regarding the implementation of safeguards to comply with the Health Insurance Portability and Accountability Act ("HIPAA"). 3Lions owns a website entitled the HIPAA Survival Guide ("HSG") located on the Internet at
Defendant Scriptnetics, LLC is a "developer of quality electronic medical records to match medical providers' workflow, rather than fitting everyone to the same mold, achieved by early adoption of the best tablet technologies." On or about April 25, 2014, 3Lions discovered that Scriptnetics' website located at
On or about April 27, 2014, 3Lions sent Scriptnetics a "First Notice of Copyright Infringement." Subsequently, on or about June 21, 2014, 3Lions discovered that another entity, Private Practice, LLC, also appeared to have copied content from 3Lions' website. The content (copied from 3Lions' website) on Private Practice's website was identical to the copied content on Scriptnetics' website; it also referenced Scriptnetics' product, Medscribbler.
Subsequently, 3Lions filed this action against Scriptnetics alleging copyright infringement, contributory copyright infringement, and unfair competition. Both parties move for summary judgment on various grounds. The Court concludes that issues of material fact preclude summary judgment in either party's favor on the copyright infringement count. The record is clear, however, that 3Lions is entitled to summary judgment on some of Scriptnetics' affirmative defenses (as explained in more detail below) and Scriptnetics is entitled to summary judgment on 3Lions' claims of contributory copyright infringement and unfair competition.
Motions for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Throughout this analysis, the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
This Court may not decide a genuine factual dispute at the summary judgment stage. Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). "[I]f factual issues are present, the Court must deny the motion and proceed to trial." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
Both parties move for summary judgment on 3Lions' copyright infringement claim. The elements of a copyright infringement claim are "(1) ownership of a valid copyright; and
(2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). There is apparently no dispute concerning 3Lions' ownership of the copyright at issue. Therefore, the next inquiry is whether Scriptnetics copied elements of the work that were original.
The record appears undisputed that Scriptnetics copied the text outlined above from 3Lions' website. The critical issue, however, is whether the copied text was sufficiently original. "Originality is the touchstone of copyright protection." Palmer v. Braun, 155 F.Supp.2d 1327, 1332 (M.D. Fla. 2001) (citing Feist, 499 U.S. at 345). In Feist, the Supreme Court explained:
499 U.S. at 345-46. Bare facts are not copyrightable "because facts do not owe their origin to an act of authorship." Id. at 347. A compilation of facts, however, may entail the requisite creativity if it features original selection or arrangement. See id. at 348. Original selection or arrangement means that the author did not copy the selection or arrangement from another work and the selection or arrangement was not mechanical or routine. See id. at 358. A minimal level of creativity must be involved. See id. The standard is not high and "does not require that facts be presented in an innovative or surprising way." Id. at 362.
Here, the infringing content was obtained from three pages on 3Lions' website. The content is an analysis or description of the American Recovery and Reinvestment Act ("ARRA"). Although it involves legislative facts that are in the public domain, there is a minimal degree of creativity in 3Lions' analysis, description, and interpretation of the ARRA. The Court cannot determine as a matter of law, however, that the copied content was "substantial."
To prove a case of copyright infringement, 3Lions must show, not only that it had copyright protection, but also that Scriptnetics copied "`so extensive[ly] that it rendered the offending and copyrighted works substantially similar.'" Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 (11th Cir. 1996) (quoting Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st Cir. 1995)). "Two works are substantially similar if `an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.'" Palmer v. Braun, 287 F.3d 1325, 1330 (11th Cir. 2002) (quoting Leigh v. Warner Bros., 212 F.3d 1210, 1214 (11th Cir. 2000)). This issue presents a jury question because reasonable minds could disagree on the outcome. See Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F.Supp.2d 1352, 1358 (N.D. Fla. 2010).
Specifically, whether the copying was substantial, as opposed to de minimis, involves quantitative and qualitative considerations. "Quantitative refers to the amount of the plaintiff's total work that has been reproduced, whereas qualitative refers to the importance of the portion taken to the value of the original work." Palmer, 155 F. Supp. 2d at 1337. "This standard, like so many others in copyright law, is far from clear and thus presents the `classic jury question.'" Id. (quoting Roy Export Co. Establishment v. Columbia Broad. Sys., Inc., 503 F.Supp. 1137, 1145 (S.D.N.Y. 1980)).
The record reflects that the copied content represented a very small percentage of 3Lions' website. However, there is evidence supporting 3Lions' position that the content, although seemingly insubstantial in the context of 3Lions' website, was taken from 3Lions' "keystone pages" on its website, pages that have been visited over 250,000 times and account for approximately twenty-five percent of the website's traffic. Accordingly, both parties' motions for summary judgment are denied with respect to the copyright infringement claim. See Higgins v. Baker, 309 F.Supp. 635, 637 (S.D.N.Y. 1970) ("Similar material, however small in quantity, may still be deemed substantial if qualitatively important . . . and the determination of the copied material's qualitative importance is an issue of fact that can best be determined at trial.").
Scriptnetics argues that any copying from 3Lions' website constituted "fair use" under the Copyright Act. Fair use is an affirmative defense to a claim of copyright infringement; Scriptnetics included this defense in its answer. Under this affirmative defense, a defendant can refute a claim of copyright infringement if it establishes that it engaged in fair use of the work. See 17 U.S.C. § 107 ("Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.").
"The fair use doctrine . . . seeks to balance First Amendment concerns with the protections otherwise afforded authors by the Copyright Act." Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010). Fair use "requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (internal citations, quotation marks omitted).
Courts weigh the following four statutory factors to determine whether a defendant's use of a copyrighted work is "fair": "(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 upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107. The fair use doctrine "is an equitable rule of reason; neither the examples of possible fair uses nor the four statutory factors are to be considered exclusive." Peter Letterese And Assocs., Inc. v. World Inst. Of Scientology Enters., 533 F.3d 1287, 1308 (11th Cir. 2008).
The first factor, the purpose and character of the use, weighs in favor of 3Lions because the record reflects that Scriptnetics used the copied work to promote its "Medscribbler" product on its website. The remaining factors, however, are not dispositive in either party's favor because they involve disputed facts that the Court cannot resolve. For example, as explained above, it is unclear if the copied content from 3Lions' website was "substantial;" a jury could find that any copying was de minimis. This disputed issue is material to the second and third factors. See Home Design Servs., Inc. v. Hibiscus Homes of Florida, Inc., No. 603CV1860ORL19KRS, 2005 WL 3445522, at *10 (M.D. Fla. Dec. 14, 2005) (denying summary judgment on defendant's fair use defense because there were disputed facts regarding the amount and substantiality of the portion used in relation to the copyrighted work as a whole); see also Thornton v. J Jargon Co., 580 F.Supp.2d 1261, 1284 (M.D. Fla. 2008) (denying summary judgment on defendant's fair use defense due to "underlying issues of material fact" that impacted the relevant factors). Accordingly, the parties' motions for summary judgment are denied with respect to the fair use defense.
Scriptnetics argues that any use of 3Lions' work was permitted under a creative commons license located on 3Lions' website. Specifically, 3Lions' website states in relevant part:
(Dkt. 49-2). The Court cannot determine this issue as a matter of law because the record presents evidence that Scriptnetics was not operating under any express or implied license to use the subject work. For example, the CEO of Scriptnetics testified clearly during his deposition that Scriptnetics' use of the copied work was not based on 3Lions' creative commons license — rather, Scriptnetics believed its use of the subject work constituted fair use. Moreover, there are disputed facts related to whether Scriptnetics' use was "non-commercial." Accordingly, neither party is entitled to summary judgment on this defense.
3Lions' motion for summary judgment moves for judgment on various defenses alleged in Scriptnetics' Answer and Affirmative Defenses in defense of the copyright infringement claim (Dkt. 17). Scriptnetics did not address the majority of these purported affirmative defenses in its response. And the record does not show any facts in support of the following affirmative defenses: equitable estoppel; unclean hands; statute of limitations; and misuse of copyright. Thus, these affirmative defenses fail as a matter of law.
Scriptnetics moves for summary judgment on 3Lions' contributory copyright infringement claim. It appears that the only factual basis in support of this claim is that a third party, Private Practice, LLC, had the same copied content on its website and referenced Scriptnetics' product, Medscribbler. This evidence, standing alone, is insufficient to establish a claim as a matter of law. This is because a "contributory infringer is one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." Klein & Heuchan, Inc. v. Costar Realty Info., Inc., 707 F.Supp.2d 1287, 1295 (M.D. Fla. 2010), aff'd, 425 Fed. Appx. 833 (11th Cir. 2011) (internal quotations and citations omitted).
In its response, 3Lions does not point to any evidence establishing that Scriptnetics induced, caused, or materially contributed to Private Practice's infringing conduct. Indeed, 3Lions addresses the claim in one paragraph of its response, arguing: "Why else would a third party have Defendant's exact content on its website unless it had a relationship with Defendant and intended to use said content to promote Defendant's product?" (Dkt. 55). Such a question that is tantamount to supposition is woefully deficient to establish a genuine issue for trial. Simply put, 3Lions needs to and has failed to point to evidence in support of this claim. Accordingly, Scriptnetics' motion is granted to the extent that it is entitled to summary judgment on the contributory copyright infringement claim.
Scriptnetics moves for summary judgment on 3Lions' unfair competition claim. "To a [sic] state a claim for unfair competition under Florida common law a party must plead (1) deceptive or fraudulent conduct of a competitor and (2) likelihood of consumer confusion." Third Party Verification, Inc. v. Signaturelink, Inc., 492 F.Supp.2d 1314, 1324-25 (M.D. Fla. 2007) (citations omitted). Like the contributory copyright infringement claim, 3Lions points to no record evidence establishing a genuine issue with respect to this claim. Accordingly, Scriptnetics' motion is granted to the extent that it is entitled to summary judgment on the unfair competition claim.
It is therefore ORDERED AND ADJUDGED that:
