LIVE FACE ON WEB, LLC v. MEGAPREVENTIONRX LIMITED LIABILITY COMPANY et al, No. 1:2015cv07143 - Document 32 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 3/21/2017. (tf, )

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LIVE FACE ON WEB, LLC v. MEGAPREVENTIONRX LIMITED LIABILITY COMPANY et al Doc. 32 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY LIVE FACE ON WEB, LLC, HONORABLE J OSEPH H. RODRIGUEZ Plaintiff, Civil No. 15-7143 (J HR/ AMD) v. OPIN ION MARK GUERRA a/ k/ a MEGAPREVENTIONRX, Defendants. This m atter is before the Court on Defendant’s m otion to dism iss the Am ended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim . The Court has reviewed the subm issions and decides the m atter based on the briefs pursuant to Fed. R. Civ. P. 78(b). For the reasons stated here, Defendant’s m otion will be denied. Background The Court previously set forth the general background of this copyright infringement suit brought by Plaintiff Live Face on Web, LLC (“LFOW”) against then Defendants MegapreventionRx, LLC and Mark Guerra. The Amended Com plaint alleges facts consistent with those in the Court’s prior Opinion, but with further detail, and defunct entity MegapreventionRx has been dropped from the suit. 1 LFOW develops com puter software. (Am . Com pl. ¶ 9.) The copyrighted software at issue allows a website to display a video spokesperson who walks and talks on the com puter screen, directing a website visitor’s attention to certain aspects of the website. (Id. ¶ 10 .) Defendant’s website, www.m, allegedly has this video spokesperson functionality. (Id. ¶ 18-20 .) “[I]n order to display the web spokesperson video on Defendant’s website, Defendant [allegedly] used, copied, and distributed” LFOW’s software without perm ission. (Id. ¶ 21.) The Am ended Complaint alleges that each tim e a person visits Defendant’s website and views the video spokesperson, a separate violation of LFOW’s copyright occurs. (Id. ¶ 26.) LFOW explains, “[w]hen a web browser is directed to a website linked to the LFOW Software, the em bedded HTML script tag is read by the web browser and causes the automatic distribution of a copy of the LFOW Software. The LFOW Software is autom atically saved by the web browser into cache, and/ or a hard drive(s), and loaded into com puter mem ory and/ or RAM (random access mem ory). As a result of the distribution of the LFOW Software, the specific web spokesperson video is autom atically launched and displayed . . . on the . . . website.” (Id. ¶ 14.) That is, in order for the video spokesperson to appear on Defendant’s website, the website causes a copy of LFOW’s copyrighted software code to be distributed to each website visitor. (Id. ¶¶ 28-29.) According 2 to LFOW, this “volitional distribution of the infringing version of the LFOW Software by Defendant to his website visitors was seam less and transparent for the website visitors, who were able to view the video spokesperson . . . by virtue of receiving the copy of the infringing version of the LFOW Software.” (Id. ¶ 29.) The Am ended Complaint asserts only one claim : “direct, indirect and/ or vicarious” copyright infringement. (Id. ¶ 41.) Motion to Dism iss Standard Federal Rule of Civil Procedure 12(b)(6) provides that a court m ay dism iss a com plaint “for failure to state a claim upon which relief can be granted.” In order to survive a m otion to dism iss, a com plaint m ust allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (20 0 7); see also Fed.R.Civ.P. 8(a)(2). While a court m ust accept as true all allegations in the plaintiff's com plaint, and view them in the light m ost favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 20 0 8), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 90 2, 90 6 (3d Cir. 1997). The com plaint m ust state sufficient facts to show that the legal allegations are not sim ply possible, but plausible. Phillips, 515 F.3d at 234. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 3 the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twombly, 550 U.S. at 556). Analysis Defendant argues that the Am ended Com plaint fails to state a claim for copyright infringem ent in that there are no allegations of unlawful copying. “To establish infringement, two elements m ust be proven: (1) ownership of a valid copyright, and (2) copying of constituent elem ents of the work that are original.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 , 361 (1991). Only the second element is at issue in this m otion. “Copying is a shorthand reference to the act of infringing any of the copyright owner’s . . . exclusive rights set forth at 17 U.S.C. § 10 6.” Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 30 7 F.3d 197, 20 6 (3d Cir. 20 0 2) (internal citation and quotation om itted). “The exclusive rights im plicated in this suit are the first three enum erated by § 10 6: the right ‘(1) to reproduce the copyrighted work in copies . . .; (2) to prepare derivative works based upon the copyrighted work; [and] (3) to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.’” Live Face on Web, LLC v. Em erson Cleaners, Inc., 66 F. Supp. 3d 551, 554 (D.N.J . 20 14). 4 The Court finds that LFOW has sufficiently pled a claim for direct copyright infringement 1 by alleging that Defendant’s website causes a copy of the LFOW Software to be autom atically downloaded to the website visitor’s com puter in cache, m em ory and/ or hard drive. (Am. Com pl. ¶ 26.) See Em erson Cleaners, 66 F. Supp. 3d at 555. “The specific technological m echanism by which this is accom plished m ay be explored during discovery.” Id. Besides sufficiently alleging that Defendant reproduced the computer code, the Am ended Com plaint also alleges that Defendant’s website distributed copies of the code to each of the website’s visitors. (Am . Com pl. ¶¶ 21, 26.) Whether Defendant’s actions were unauthorized or unlawful is not an appropriate issue at this stage of the litigation. Of course, individuals m ay be liable for copyright infringem ent. Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154, 160 (3d Cir. 1984) (“An officer or director of a corporation who knowingly participates in the infringem ent can be held personally liable, jointly and severally, with the corporate defendant.”). The Am ended Complaint alleges: Upon inform ation and belief, Defendant Peter Guerra (“Guerra”) is a resident of New J ersey and the owner and/ or m anaging mem ber of MegapreventionRx and the subject website(s) at issue here. Guerra is the owner and/ or chief executive officer of MegapreventionRx, and Accordingly, the Court need not address whether the Am ended Com plaint pleads “access to” the infringed upon work to support an inference of copying. While the instant motion discusses direct and indirect infringement, it does not argue separately against vicarious liability. 1 5 was responsible for registering the subject website(s) at issue in this action and controlling the content of, m odification to, and distribution of infringing source code from the subject website(s) at issue in this action. Additionally, Guerra was the adm inistrative contact for the subject website(s) at issue in this action. (Am . Com pl. ¶ 3.) The Court finds this sufficient to withstand the instant m otion. Conclusion For these reasons, Defendant’s m otion to dism iss the Amended Com plaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim will be denied. An appropriate Order will be entered. Date: March 21, 20 17 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ UNITED STATES DISTRICT J UDGE 6
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