In a little-noticed case in San Diego, a federal court has declined to dismiss a copyright suit against Scribd.com filed by a financial writer whose books were uploaded to the document-storage site without permission. Scribd had moved to dismiss Larry Williams' entire complaint under Rule 12(b)(6), relying chiefly on the DMCA Section 512(c) safe harbor for "storage at the direction of a user." But, as I predicted, the court held that a ruling on the applicability of the safe harbors was not appropriate at the motion-to-dismiss stage, given the inherently fact-specific nature of the inquiry. Indeed, the major rulings on the scope of the Section 512(c) safe harbor -- Io v. Veoh, UMG v. Veoh, and Viacom v. YouTube -- all came in the context of summary judgment, after extensive discovery regarding the defendants' copyright compliance practices.
The court also made significant rulings about the adequacy of the complaint's allegations regarding direct, contributory, and vicarious infringement claims. The court -- which repeatedly criticized the poor quality of the complaint -- held that Williams did not adequately plead direct infringement under CoStar v. LoopNet's requirement of "volitional conduct"; alleging that the uploader was "friends" with Scribd's CEO didn't cut it. The court did, however, hold that Williams' complaint contained sufficient allegations of contributory and vicarious infringement to survive the 12(b)(6) motion.
So now discovery proceeds, and I'm sure a summary judgment motion will follow. Judge Burns' order contains multiple indications that he is likely to grant it.
Order on Motion to Dismiss in Williams v Scribd
Saturday, July 3, 2010
2 comments:
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Scribd's lawyers should consider "opening the kimono," that is, proactively giving the plaintiff as much informal discovery as he can handle, as a prelude to a summary-judgment motion. I did that once in a computer-software case; my client was a giant corporation sued by a former contractor. The plaintiff ended up convinced that "we didn't do it"; his lawyer's response to our motion for summary judgment said that they didn't oppose it.
ReplyDeleteMy name is Dr. Nick Begich. Scribd.com published and distributed over 27,000 copies of my book without permission. They did this since 2007. This represents over 25% of all the books I have sold since 1995 when first published. I also produced 4 copy DVDs that were taken by others and uploaded resulting in over 100,000 copies being delivered for free. The total cost to me from these thefts is greater than the income I have made from these creations.I have conducted hundreds of lectures, 3000 radio interviews dozens of documentaries only to find the theft of what I worked so hard to do. The result is I am not writing or producing any video material or books anymore. I have a family to support and this takes the food out of the mouths of my children. Thank you Scribd for stopping another independent researcher. I went into this work with the commitment to public interest research and believed as long as my books and DVDs provided my living I would continue to do this work. Now because of these unethical people I am shutting down most of my public work in researching these fields. For those who have supported my work....Thank you!
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