Judge Sorokin denied IvyMedia’s motion to dismiss the amended complaint, asserting that it is not responsible for the conduct alleged in the complaint. At the pleadings stage, where all factual allegations must be accepted as true, the Court cannot make the determination that IvyMedia is the improper party. He also denied both defendants’ motions to dismiss for failure to state a claim, finding the arguments to be factual in nature rather than a legal assertion that the alleged conduct fails to violate any of the cited copyright statutes.
Judge Saris denied Jonathan Monsarrat’s motion for reconsideration of her grant of Zaiger’s motion to dismiss. Monsarrat became aware of Zaiger’s publication of an alteration of a copyrighted photograph of Monsarrat, dressed in an MIT mascot costume, at least as early as 2013, yet did not file suit until 2017, beyond the three-year statute of limitaitons. Monsarrat argued that the “discovery rule,” whereby the statute of limitations does not begin to run until the plaintiff knows or should reasonably know of the claim, keeps the statute of limitations from starting until after the identity of the infringer is known. Judge Saris rejected this proposition, noting that First Circuit law clearly states that a copyright claim accrues when the plaintiff knows or should reasonably know about the conduct on which the claim is based. She also noted that complaints are often filed against unknown defendants. In a separate ruling, Judge Saris rejected Zaiger’s motion for attorney’s fees, finding that Monsarrat had objectively reasonable infringement and timeliness arguments and that Zaiger’s motion was untimely, coming beyond the two-week period of time laid out in FRCP 54. Finally, Judge Saris noted that Zaiger’s conduct had been “unduly nasty.” Zaiger, who was accused of altering the photograph to associate Monsarrat with pedophilia, indicated his intention to repost the offensive photograph, and had filed the photograph to the public record before the Court could rule on Monsarrat’s known objections.
Judge Hillman dismissed all counts of James Fischer’s amended complaint with prejudice for failure to state a claim. Fischer, acting pro se, brought claims of false association, false advertising, violation of rights of publicity, unfair competition, and tortious interference with prospective economic advantage in connection with online communications criticizing his theories relating to beekeeping made between the defendants and the Organic Beekeepers Discussion Group and BeeSource Forum. The gist of the complaint is that defendants Dean Stiglitz and Laurie Anne Herboldsheimer fabricated and published negative reviews, which they attributed to Fischer, of their book “The Complete Idiots Guide to Beekeeping” in an attempt to gain attention and notoriety within the beekeeping community for the book – Fischer himself being an oft-published beekeeper. Fischer had previously been allowed to amend his complaint to add additional factual pleadings relating to damages and supporting the elements of his claims, but Judge Hillman found (in fairly summary fashion) that the amended complaint failed to factually assert all of the elements of any of the asserted claims; there was no likelihood that the public would perceive Fischer as sponsoring or endorsing the book, no discussion of Fischer’s commercial activity in anything other than a satirical way, no allegations that the defendants sought to exploit Fischer’s name to exploit its value for advertising or trade purposes, no indication of any actual or prospective actual customer that was lost by Fischer, and with respect to the unfair competition claim, no allegation that Fischer is located in Massachusetts or claims an injury occurring in Massachusetts.
Judge Saris denied in part and granted in part PaperPop’s motion to dismiss copyright claims relating to three-dimensional pop-up cards. PaperPop contended that the card designs consisted largely of unprotectable elements under the merger and/or scènes à faire doctrines. Judge Saris had previously denied the motion with respect to three card designs; she here rejected these arguments with respect to cards depicting a French flower cart and a bouquet of balloons extending from a decorative box to have ample room for interpretation, and that the accused designs were similar enough to merit trial. She determined that a nativity design was a closer question, as such a design is virtually certain to contain elements such as a manger, a Baby Jesus, Mary, Joseph, the three Wise Men, and livestock in a barn; however, there are many different ways to present these elements, and enough similarities existed in the presentations to survive a 12(b)(6) challenge. Judge Saris granted the motion with respect to a Menorah design, finding all of the similar elements to be substantially dictated by the indispensable elements of a menorah and the remaining elements so dissimilar as to preclude a finding of copying of protectable elements. With respect to several cards depicting willow trees or the like, Judge Saris noted that reproduction of natural phenomena such as a tree can enjoy copyright protection, but that proof of copying is difficult, as the alleged copier may well have drawn inspiration from the natural phenomenon itself rather than the copyrighted work. She determined that these cards presented a close call better resolved by the trier of fact, and denied the motion to dismiss as to these designs. Finally, LovePop challenged six promotional videos depicting PaperPop cards being slowly opened to reveal the pop-up design. PaperPop asserted that the cards being opened were its own, and that the videos differed in lighting, camera angle, etc., so as not to be copies of LovePop’s videos. At oral argument, LovePop shifted its argument to derivation, arguing that the similarity of the cards depicted rendered the PaperPop videos unauthorized derivative works. Judge Saris found that this reframing raised issues not adequately briefed, and denied the motion to dismiss without prejudice.
In a series of consolidated cases (discussed further here and here), a large number of Boston-area cab companies accuse Uber, as well as Uber founders Travis Kalanick and Garrett Camp, of unfair competition in violation of Massachusetts state and common law, and some of the plaintiffs further allege that Uber violated state and federal antitrust law, interfered with advantageous business relationships, engaged in civil conspiracy and aided and abetted unfair competition. Kalanick and Camp both moved to dismiss the claims against them as individuals. Judge Gorton granted this motion, finding that the plaintiffs had failed to allege specific facts demonstrating either general or specific jurisdiction – the complaint alleged only that the two formed Uber while in California and that Uber had undertaken activities in Massachusetts, but failed to identify any activities the individuals, as opposed to the company, had directed towards this forum.
As to the claims against Uber, Massachusetts passed a law in August 2016, the “TNC Act,” that pre-empts local municipalities from regulating ride-sharing companies like Uber, and the plaintiffs agree that this precludes Uber’s post-enactment activity. With respect to the pre-enactment activity, Judge Gorton found that, absent the TNC Act, Uber’s activities fell within the Boston municipal taxi regulations. Accordingly, allegations that Uber did not comply with the taxi regulations or incur the concomitant costs to gain an unfair advantage and cause economic injury sufficiently stated a cause of action for the statutory and common-law unfair competition claims. The court likewise denied the motion to dismiss with respect to claims that Uber conspired with its independent contractor drivers to violate the taxi rules. Judge Gorton allowed Uber’s motion to dismiss claims that Uber and its drivers, as an employer and employees (as opposed to independent contractors – it is not yet clear what status the drivers will ultimately be deemed to have held), conspired to violate the taxi regulations, because with the individual founders having been dismissed, this would effectively allege that Uber conspired with itself to do so, a claim that is untenable. Judge Gorton dismissed claims for interference with advantageous business relationships because the complaint did not allege interference with any specific anticipated business relationship, and the plaintiffs’ allegations regarding interference with people seeking for-hire ride services generally was not sufficiently specific. Finally, Judge Gorton also dismissed the antitrust claims. Those claims were based on a predatory pricing theory whereby a company sells products or services below its costs, hoping to drive competitors out of the market, at which point the company can raise its prices due to its monopoly position. The complaint did allege that Uber had lost “billions of dollars” (which seems to be accurate), but this was found to lack the particularity required of the antitrust laws.
Jonathan Monsarrat had sued Brian Zaiger, alleged to be the owner and administrator of the website Encyclopedia Dramatica, for copyright infringement relating to a June 2000 MIT graduation photograph published on Encyclopedia Dramatica. Encyclopedia Dramatica, which Monsarrat characterizes as similar to Wikipedia but hosting offensive and unsourced articles catering to internet “trolling” culture, is accused of altering a photograph of Monsarrat in an MIT mascot costume to associate the mascot, and thus Monsarrat, with an internet meme “pedobear,” a mascot for pedophiles. Monsarrat initially served a take-down notice relating to the altered photo in January 2011; the website was then taken down in its entirety, only to resurface under a different country domain. Over the course of the next several years, Monsarrat sent several take-down notices to domain registrars and agents, but could not identify Zaiger as the owner of the site due to Zaiger’s use of anonymous acronyms to disguise his identity.
When Monsarrat ultimately filed suit on March 2, 2017, Zaiger moved to dismiss the complaint as time-barred, which Judge Saris has granted. The complaint made clear that Monsarrat knew of the alleged copyright infringement since at least 2012, well earlier than the three-year statute of limitations permits. Judge Saris rejected Monsarrat’s argument that the limitations period does not begin until the identity of the infringer is known to the accuser, noting that suits against unnamed parties are common. Zaiger’s counterclaim under 17 U.S.C. 512(f), alleging knowing misrepresentation that the photograph is infringing, remain in effect.
Janssen Biotech brought this case asserting infringement of a patent related to the manufacture of Remicade®, a biologic medicine used to treat rheumatoid arthritis, plaque psoriasis, Crohn’s disease, and other disorders involving the immune response. Celltrion moved to dismiss, on the grounds that not all co-owners of the patent were joined as plaintiffs – the assignments from some of the inventors was to “the COMPANY,” which was defined elsewhere in the assignment agreement as Centocor, the predecessor to Janssen, and Johnson & Johnson and its existing and future subsidiaries, divisions and affiliates, none of whom were named as plaintiffs. Judge Wolf, interpreting the agreement under New Jersey law, found that this language did not apply to the assignment itself. The assignment clause required assignment of any invention made by the employee “during [his] employment with the COMPANY;” yet the inventors worked for only one company and did not work for Johnson & Johnson, which created ambiguity as to what was meant. Looking to extrinsic evidence to understand what the parties to the contract intended, Judge Wolf determined that the assignment was intended to be only to Centocor, making Janssen the sole assignee. Accordingly, the motion to dismiss was denied.