NITZA I. QUIÑONES ALEJANDRO, District Judge.
Before this Court is a motion to dismiss filed pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) by Defendants Amazon.com, Inc., and Amazon Web Services, Inc., (together, "Moving Defendants"), [ECF 38], which seeks the dismissal of the claims for copyright infringement, unfair competition under the Lanham Act, misappropriation of likeness, breach of contract, and unjust enrichment asserted against them by pro se Plaintiff Gordon Roy Parker
Plaintiff initiated this action on September 6, 2016. [ECF 1]. The complaint was amended several times. On January 24, 2017, this Court granted Plaintiff's motion for leave to amend the complaint, [ECF 46], and the Corrected Amended Complaint was docketed nunc pro tunc. [ECF 47]. In his Corrected Amended Complaint, Plaintiff asserts claims for copyright infringement, unfair competition under the Lanham Act, misappropriation of likeness, breach of contract, and unjust enrichment against Moving Defendants. [ECF 47 ¶¶ 68-108].
In the motion to dismiss, Moving Defendants argue that Plaintiff, inter alia, has failed to state a claim of copyright infringement or a claim under the Lanham Act against them, that the contract claim is preempted by the Copyright Act, 17 U.S.C. § 101, et. seq. (the "Copyright Act"), and that the remaining claims of misappropriation of likeness and unjust enrichment are barred by the Communications Decency Act, 47 U.S.C. § 223 et. seq. (the "CDA"). (Mov. Defs.' Br. at 2-9). Plaintiff opposes these contentions. These arguments will be addressed separately.
When ruling on Moving Defendants' motion to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in the Corrected Amended Complaint and construe these facts in the light most favorable to Plaintiff. See Fowler v. UMPC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). Notably, the factual allegations in Plaintiff's Corrected Amended Complaint are largely rambling and, at times, incoherent and difficult to follow. However, liberally construed, the factual allegations are summarized as follows:
When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler, 578 F.3d at 210-11. The court must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a `plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679). The complaint must do more than merely allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Id. (citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct the complaint has alleged — but it has not `show[n]' — `that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)) (alterations in original). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. To survive a motion to dismiss under Rule 12(b)(6), "a plaintiff must allege facts sufficient to `nudge [her] claims across the line from conceivable to plausible.'" Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570).
Even though pleadings and other submissions by pro se litigants are subject to liberal construction and the court is required to accept the truth of a plaintiff's well-pleaded allegations while drawing reasonable inferences in a plaintiff's favor, Wallace v. Fegan, 455 F. App'x 137, 139 (3d Cir. 2011) (citing Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam)), a pro se complaint must still "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
As noted, Moving Defendants argue that Plaintiff fails to state claims for copyright infringement and unfair competition under the Lanham Act, that Plaintiff's breach of contract is preempted by the Copyright Act, and that the remaining claims asserted against them of misappropriation of likeness and unjust enrichment are barred by the Communications Decency Act. This Court agrees.
At Count One of the Corrected Amended Complaint, Plaintiff asserts that despite being placed on notice, Moving Defendants nonetheless committed "direct, contributory, and vicarious copyright infringement against Plaintiff, in violation of [t]he Copyright Act," by hosting the infringing work on their servers on behalf of third parties. (Cor. Am. Compl. ¶¶ 56, 64-65, 72, 75(a)). Moving Defendants argue that Plaintiff's allegations are insufficient to state an infringement claim under the Copyright Act.
"To allege a claim for copyright infringement, a plaintiff must state: `(1) ownership of a valid copyright; and (2) unauthorized copying of original elements of plaintiff's work.'" Parker v. Google, Inc., 242 F. App'x 833, 836 (3d Cir. 2007) (quoting Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 203 (3d Cir. 2005)). "Additionally, to state a direct copyright infringement claim, a plaintiff must allege volitional conduct on the part of the defendant." Id. The Third Circuit Court of Appeals, when it affirmed the district court's dismissal of Plaintiff's
Here, Plaintiff's sole allegation against Moving Defendants that relates to an alleged participation in the infringing activity is that Moving Defendants stored the infringing work on their cloud server on behalf of Defendants Payloadz and Sofield. (Cor. Am. Compl. ¶ 56). While Moving Defendants' storage of the infringing work is less transitory than Google, Inc.'s caching of websites in Parker v. Google, Inc., 242 F. App'x 833 (3d Cir. 2007), Moving Defendants' storage of electronic materials on their servers, like Google, Inc.'s caching of websites in that case, is, by its nature, passive conduct performed automatically at the instigation of others, and does not render Moving Defendants liable for any direct copyright infringement. See Google, 242 F. App'x at 836; see also CoStar, 373 F.3d at 551 (holding that the storage and transmission of data as part of an internet facility does not constitute "copying" for purposes of the Copyright Act and those that perform these services are not copyright infringers); Field, 412 F. Supp. 2d at 1115 (holding that defendant's automatic copying of cached websites in response to user's request is passive conduct that does not constitute direct copyright infringement because it is the user's request, and not defendant conduct, that created the infringing copy of the protected work); Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F.Supp. 1361, 1370 (N.D. Cal. 1995) (holding that the "element of volition or causation [] is lacking where a defendant's system is merely used to create a copy by a third party.").
To state "a claim of contributory copyright infringement, a plaintiff must allege: (1) direct copyright infringement of a third-party; (2) knowledge by the defendant that the third-party was directly infringing; and (3) material contribution to the infringement." Google, 242 F. App'x at 837. To plead sufficient facts to show that a defendant materially contribute to the infringement, a plaintiff must allege that the defendant "authorized or assisted that third party [infringer]." Parker v. Google, Inc., 422 F.Supp.2d 492, 499 (E.D. Pa. 2006). The authorization or assistance `"must bear some direct relationship to the infringing acts, and the person rendering such assistance or giving such authorization must be acting in concert with the infringer.'" Id. (quoting 3-12 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.04[A][2][a] (2005)).
Here, Plaintiff's claim that Moving Defendants committed contributory copyright infringement is conclusory and entirely unsupported by any factual allegations showing that Moving Defendants acted in concert with the alleged infringers. As previously noted, Moving Defendants' conduct was entirely passive, and does not support that Moving Defendants acted in concert with the infringer. Consistent with the case law cited, Moving Defendants' motion to dismiss is granted as to Plaintiff's claim for contributory copyright infringement. To allege vicarious copyright infringement, a plaintiff must plead sufficient facts to show that the defendant "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities." Google, 242 F. App'x at 837. "Financial benefit exists where the availability of infringing material acts as a draw for customers." Id. (citing Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004)).
As with his claim for contributory copyright infringement, Plaintiff's claim that Moving Defendants committed vicarious copyright infringement is premised on conclusory allegations. Plaintiff does not allege any facts that, if true, would support that customers are drawn to Moving Defendants' cloud storage business due to the availability of infringing work or the ability to store infringing work on the servers. Thus, this Court cannot conclude that Moving Defendants have an "obvious and direct financial interest in the exploitation of copyrighted materials," such that they can be found liable for vicarious copyright infringement. See Google, 422 F. Supp. 2d at 500. Consistent with the case law cited, Moving Defendants' motion to dismiss is granted as to Plaintiff's claim for vicarious copyright infringement.
At Count Two, Plaintiff asserts that when PUA Media sold Foxes, it attempted to pass off the book as if it were written by a "C. Kellogg" and/or a "Hunting Fox." (Cor. Am. Compl. ¶¶ 37(d), 63, 80). Plaintiff asserts that each act of advertising and/or shipping the infringed copy of Foxes under the wrong author's name constitutes a separate act of selling Plaintiff's work with a false designation of origin and, therefore, a violation of the Lanham Act. (Id. ¶¶ 81-82). Moving Defendants argue that Plaintiff has failed to allege sufficient facts to state a claim under the Lanham Act. (Mov. Defs.' Br. at 8).
"To state a claim pursuant to 15 U.S.C. § 1125(a) of the Lanham Act, a plaintiff must allege: (1) that the defendant uses a false designation of origin; (2) that such use of a false designation of origin occurs in interstate commerce in connection with goods or services; (3) that such false designation is likely to cause confusion, mistake or deception as to the origin, sponsorship or approval of the plaintiff's goods and services by another person; and (4) that the plaintiff has been or is likely to be damaged." Google, 242 F. App'x at 838 (citing Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1428 (3d Cir. 1994)).
Plaintiff asserts that Moving Defendants are liable for the alleged false designation of origin of Foxes directly and under an aiding and abetting theory of liability. (Id. ¶ 83). However, Plaintiff has not cited, nor has this Court found, any authority to support that aiding and abetting liability applies to an unfair competition claim brought under the Lanham Act. See Google, 422 F. Supp. 2d at 503 (noting that aiding abetting theory of liability does not apply to a trademark infringement case brought under the Lanham Act) (citing Elec. Lab. Supply Co. v. Cullen, 977 F.2d 798, 807 (3d Cir. 1992).
Instead, Plaintiff argues that Moving Defendants' storing of the infringing version of Foxes on their servers to enable the unlawful sale constitutes active participation and renders Moving Defendants directly liable. (Pl.'s Response at 11). While Plaintiff is correct that active participation can make one liable under the Lanham Act, "participation in activities merely related to the infringing acts is not enough . . . . [P]ersonal liability extends only to those persons who actively participate as a moving force in the decision to engage in the infringing acts or otherwise cause the infringement as a whole to occur." Google, 422 F. Supp. 2d at 503. Plaintiff does not allege any facts that support that Moving Defendants actively participated or were a moving force in replacing his name on the infringing work or that they participated in any way in the alleged infringers' decision to falsely designate the origin of Foxes. Accordingly, Moving Defendants' motion to dismiss Count Two of the Corrected Amended Complaint is granted.
At Count Three, Plaintiff asserts that the misappropriation of his name and likeness in promoting the infringing versions of Foxes constitute violations of his right to publicity under California law and his right to privacy under Pennsylvania law, for which Moving Defendants are vicariously liable. (Cor. Am. Compl. ¶¶ 91-93). At Count Six, Plaintiff asserts that Defendants PayPal, C2S, Payloadz, and Sofield have directly benefited from the unlawful sale of Foxes, and that the remaining Defendants, including Moving Defendants, have benefited from the misuse of Plaintiff's name and likeness. (Id. ¶ 105). Moving Defendants argue that these two counts are preempted by the CDA, and, therefore, must be dismissed. (Mov. Defs.' Br. at 8-9).
Section 230 of the CDA ("§ 230") provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). It further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Id. at § 230(e)(3). This section "precludes courts from entertaining claims that would place a computer service provider in a publisher's role, and therefore bars lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone, or alter content." Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003) (internal quotations omitted). In other words, § 230 "provide[s] immunity to [an interactive computer service provider] as a publisher or speaker of information originating from another information content provider." Obado v. Magedson, 612 F. App'x 90, 93 (3d Cir. 2015); see also Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("§ 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.").
Although Plaintiff argues that Moving Defendants are liable for a third party's misappropriation of his work and likeness when Moving Defendants merely hosted the offending work but did not publish or alter its content, he is mistaken. His state law claims are clearly preempted and prohibited by § 230. Notably, Plaintiff does not argue that § 230 does not apply, but, rather, contends that § 230 violates his right to due process and the Tenth Amendment,
Plaintiff's constitutional challenges to § 230 have been rejected by this Circuit. "[I]n passing the legislation that became section 230, Congress properly exercised its power to regulate interstate commerce," Green, 318 F.3d at 472 n.4, and where "Congress acts under one of its enumerated powers-here its power under the Commerce Clause-there can be no violation of the Tenth Amendment." United States v. Parker, 108 F.3d 28, 31 (3d Cir. 1997) (quoting United States v. Mussari, 95 F.3d 787, 791 (9th Cir. 1996)). Plaintiff's unsupported constitutional arguments are without merit. Further, suffice it to state that even if Judge Brennan's dissent applied to this case, which it does not, this Court is "not bound by a dissent to a Supreme Court opinion." In re Sch. Asbestos Litig., 921 F.2d 1310, 1329 (3d Cir. 1990). Accordingly, Moving Defendants' motion to dismiss Counts Three and Six of the Corrected Amended Complaint is granted.
At Count Four, Plaintiff asserts that he had contracted with Moving Defendants to sell copies of Foxes on their Kindle stores at a price set by Plaintiff and they would remit 70% of the purchase price to Plaintiff as a royalty. (Cor. Am. Compl. ¶¶ 97-98). Plaintiff further asserts that Moving Defendants' storing of infringing copies of Foxes on their servers and allowing such copies to be distributed constitute an "intentional breach of the e-publishing contract between Plaintiff and [Moving Defendants]." (Id. ¶¶ 96, 101). Moving Defendants argue that this alleged breach of contract claim is preempted by the Copyright Act. (Mov. Defs.' Br. at 7).
Section 301 of the Copyright Act ("§ 301") provides that:
17 U.S.C. § 301(a) (emphasis added). In other words, "[c]opyright law expressly preempts state law if the state law creates rights equivalent to the exclusive rights created by copyright." Parker v. Yahoo!, Inc., 2008 WL 4410095, at *6 (E.D. Pa. Sept. 25, 2008) (dismissing preempted breach of contract claim) (citing Orson, Inc. v. Miramax Film Corp., 189 F.3d 377, 382 (3d Cir. 1999)). Plaintiff's breach of contract claim is premised on the allegation that Moving Defendants hosted the infringing work, the same conduct Plaintiff asserts supports his copyright claim. Thus, Plaintiff's breach of contract claim is the equivalent of his copyright claim and, therefore, is preempted by § 301. See id. (concluding that Plaintiff's breach of contract claim against the defendants was preempted by § 301).
Plaintiff does not contest that § 301 applies to his breach of contract claim but argues that § 301 violates the Tenth Amendment. (Pl.'s Response at 10-11). Plaintiff provides no support for this argument, and this Court finds none. See Titan Sports, Inc. v. Hellwig, 1999 WL 301695, at *12 (D. Conn. Apr. 26, 1999) ("Congress' constitutional authority to enact copyright legislation arises under the Patent and Copyright Clause . . . .") (citing U.S. Const. art. I, § 8, cl. 8).
In his response, Plaintiff argues that pursuant to Rule 15 and because of his pro se status, he is entitled to leave to amend and cure any deficiencies. (Pl.'s Response 11-12). Rule 15 provides that a "party may amend its pleading once as a matter of course within 21 days after serving it [or after] service of a motion [to dismiss]." Fed. R. Civ. P. 15(a)(1)(A)-(B). Rule 15 further provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Plaintiff has already amended his complaint as a matter of right. Therefore, to the extent Plaintiff wishes to amend his pleading again, he must seek permission from the Defendants or seek leave from this Court by filing a motion to amend. "The decision whether to grant or to deny a motion for leave to amend rests within the sound discretion of the district court." Synthes, Inc. v. Marotta, 281 F.R.D. 217, 224 (E.D. Pa. 2012). A court should deny leave to amend only where `"it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.'" Id. (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)).
Any attempt to amend Plaintiff's copyright infringement and unfair competition claims would be futile because it "appears beyond doubt that [Plaintiff] can prove no set of facts in support" of his claims against Moving Defendants for direct, contributory, or vicarious copyright infringement or for unfair competition under the Lanham Act. See In re MicroBilt Corp., — WL 6628619, at *3 (D.N.J. Dec. 16, 2013) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). Further, because Plaintiff's misappropriation of likeness and unjust enrichment claims against Moving Defendants are preempted by § 230 of the CDA, and his breach of contract claim against Moving Defendants is preempted by § 301 of the Copyright Act, any attempt to amend would be futile. See Menkes v. Prudential Ins. Co. of Am., 762 F.3d 285, 296 (3d Cir. 2014) (affirming denial of leave to amend preempted claim); Morales-Ceballos v. First Unum Life Ins. Co. of Am., 2003 WL 22097493, at *2 (E.D. Pa. May 27, 2003) (finding amendment to be futile where claim was preempted). Accordingly, Plaintiff's request for leave to amend is denied.
For the reasons stated herein, Moving Defendants' motion to dismiss is granted, and Moving Defendants are dismissed, with prejudice, from this action.
An Order consistent with this Memorandum Opinion follows.
