Sylvia Scott Gibson et al v. Amazon.com

Filing 142

ORDER by Judge Otis D Wright, II: Granting Defendants Pacific Lutheran University, Amazon.com and Urban Dictionary LLC MOTIONS FOR SUMMARY ADJUDICATION 103 , 104 , 109 AND DENYING PLAINTIFFS MOTION 128 . (lc) Modified on 9/9/2011 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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SYLVIA SCOTT GIBSON, et al.,

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Plaintiffs,
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vs.
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AMAZON.COM, et al.,
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Defendants.
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___________________________________ )

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CASE NO. CV 11-0021-ODW (DTBx)
ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY
ADJUDICATION [103, 104, 109] AND
DENYING PLAINTIFFS’ [128]

INTRODUCTION

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This action concerns Plaintiff Sylvia Scott Gibson’s self-published 1991 book

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Latawnya, The Naughty Horse, Learns to Say “No” to Drugs. Defendants Pacific Lutheran

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University (“PLU”), Amazon.com and Urban Dictionary LLC now move separately for

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summary judgment arguing, among other things, they are not liable for copyright

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infringement. (See Docket Nos. 103, 104, 109.) Although Plaintiff filed opposition briefs,

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these motions remain largely unopposed. (See Docket Nos. 107, 108, 128.) After

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considering the parties’ briefs, the court finds this matter suitable for decision without oral

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argument. See Local Rule 7-15.

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As discussed below, Defendants’ motions are GRANTED.

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II.

DISCUSSION

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Pacific Lutheran University’s Motion (Docket No. 103.)

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PLU offers three undisputed facts. First, the web pages which Plaintiff challenges

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were not real. (UF 1) (“They were created by three PLU students as a final team project in

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Professor Robinson’s Spring 2007 Publishing Procedures Class (English 312). Each team

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was to create a Web site for an imaginary publishing house featuring real books. The

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books were not part of the reading for the class, but were just used to create the Web site

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project.”). Second, “[n]one of these books were actually offered for sale on the Web site.”

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(UF 2) (“The fake ordering form does not actually do anything.”). And finally, those

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responsible for the web pages not only never utilized them commercially but had actually

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forgotten about them until Plaintiff filed this action.

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PLU neither published nor sold the book. And, insofar as the students used a photo

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of the cover, they may do so under the doctrine of fair use. See Perfect 10, Inc. v.

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Amazon.com, Inc., 487 F.3d 701, 719-20 (9th Cir. 2007). Here, the use was clearly

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educational and nonprofit. The students merely made a thumbnail image of the cover of

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the book. And, since the book has been out of publication since 1990-and PLU students’

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use of the book was not disparaging-there cannot be any negative impact on the value of

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the work. As for the fraud claim, it suffices to note that Plaintiff fails to raise a genuine

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issue as to either personal reliance or damages. PLU’s motion is accordingly GRANTED.

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Amazon.com’s Motion (Docket No. 104.)

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Amazon.com makes an equally compelling showing. To begin, Amazon.com has

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neither published nor sold the book. (UF 1.) “The only sales of the Latawnya book on

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Amazon.com’s Web site have been 35 used copies sold by third-party sellers. (UF 2.)

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Plaintiff’s opposition offers no evidence to the contrary, and these third-party sales are

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legal and proper under the First Sale Rule, which allows a person to freely resell a

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previously-purchased book as he or she wishes. See 17 U.S.C. § 109; see also

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Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908).

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Amazon.com also moves for, and the court enters summary judgment as to several

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other alleged violations. Among other things, Amazon.com is not liable for selling “birth

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names” or for allegedly entering “the Latawnya book into porn.” These allegations, much

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like Plaintiff’s claim for fraud, are completely without support.

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Urban Dictionary’s Motion (Docket No. 109.)

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“Plaintiffs claims against Urban Dictionary also fail.

“An unknown Urban

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Dictionary user posted a dictionary entry for the term “Latawnya the Naughty Horse”

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sometime prior to November 23, 2010.” (Mot at 4.) Urban Dictionary did not create the

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dictionary entry, did not edit the entry, and had no actual knowledge of the entry prior to

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receiving a cease and desist notice from Plaintiffs on November 23, 2010. (Id.)(“Despite

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[ ] deficiencies in Mrs. Gibson’s notice, Urban Dictionary complied with her takedown

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request on November 29, 2010.”).

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In short, because Urban Dictionary is an online service provider appropriately

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registered under and in full compliance with the statutory requirements of the Digital

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Millennium Copyright Act’s safe-harbor provision for online service providers, and

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because Urban Dictionary acted expeditiously to remove the allegedly infringing content

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(despite Plaintiffs’ failure to provide proper notification of claimed infringement), Urban

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Dictionary cannot be liable to Plaintiff. Urban Dictionary’s motion for summary judgment

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is therefore GRANTED.

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Plaintiffs’ Motion [128]

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Along with her husband, James E. Gibson, Plaintiff appears to have misidentified

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the opposition to Urban Dictionary’s motion as their own motion for summary judgment.

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To the extent Plaintiff intended to file such a motion, it is hereby DENIED.

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III.

CONCLUSION

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Plaintiff demonstrates a fundamental misunderstanding of the facts, the Internet, and the law.

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PLU, Amazon.com and Urban Dictionary’s motions for summary judgment are

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GRANTED. Plaintiff’s motion is DENIED.

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SO ORDERED

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September 8, 2011

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_________________________
OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE

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