Doe v. Geller et al

Filing 31

Declaration of Kurt Opsahl in Support of 30 Memorandum in Opposition to Defendants' Motion to Dismiss filed byJohn Doe. (Attachments: # 1 Exhibit A-D# 2 Exhibit E-H# 3 Exhibit I-L# 4 Exhibit M# 5 Exhibit N# 6 Exhibit O-P# 7 Exhibit Q-T# 8 Exhibit U-V)(Related document(s) 30 ) (McSherry, Corynne) (Filed on 11/15/2007)

Case 3:07-cv-02478-VRW

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EXHIBIT U

Case 3:07-cv-02478-VRW

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EXHIBIT V

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

E X P L O R O L O G IS T LIMITED, P l a in tif f , v. B R I A N SAPIENT, D e f e n d a n t.

C iv . No. 07-1848

M E M O R A N D U M / ORDER A s discussed at oral argument on October 24, 2007, (1) defendant Sapient's 1 2 (b )(1 ) motion to dismiss for lack of subject matter jurisdiction will be denied, and (2) d e f e n d a n t 's 12(b)(6) motion to dismiss various aspects of plaintiff Explorologist L im ited 's complaint will be granted in part and denied in part. A s to the issue of where the alleged infringement took place, the motion will be d e n ie d without prejudice, and defendant will be granted leave to re-file a motion making th is argument within 30 days of this order.1 This issue is important because copyright law s generally do not operate extraterritorially; therefore, the law that applies is generally th e law of the country of infringement. According to the treatise defendant cites, in in ter n e t-f ile-p o stin g cases, it is the file-posting service's act of making the file available

If defendant requires easily ascertainable facts outside of the pleadings to make this argument, defendant may file instead a motion for summary judgment.

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fo r downloading, not the user's act of posting it, that constitutes "making a work a v a ila b le " under British law. Kevin Garnett et al., Copinger & Skone James on Copyright § 7­115 (15th ed. 2005) [hereinafter "Copinger"]; see also Copyright, Designs and P a te n ts Act, 1988 c. 48, § 20(2)(b) (U.K.) [hereinafter "CDPA"] (prohibiting "the making av ailab le to the public of the work by electronic transmission in such a way that members o f the public may access it from a place and at a time individually chosen by them").2 P lain tiff is quick to point out that authorizing the file-posting service to make the work a v a ila b le is also actionable.3 CDPA § 16(2). T h e court agrees with plaintiff that authorization is properly alleged, but it seems im p o rta n t to note that, under this theory, plaintiff's claim is derivative in nature--and thus e n tirely dependent on YouTube's conduct being actionable.4 But, according to d e f en d a n t's treatise, "it is suggested that the place where the apparatus is situated and f ro m where access to the work can be obtained is the place where the restricted act o c c u rs." Copinger § 7­117. The wording here is somewhat obtuse, but it is certainly a rg u a b le that the "apparatus" in this case would be the YouTube server on which This section is available only in unofficial copy. It reflects an amendment to the 1988 statute effected by the Copyright and Related Rights Regulations, 2003, S.I. 2003/2498, ¶ 6 (U.K.), which implemented a 2001 European Union directive. A question that neither party has addressed is whether this authorization must take place in the United Kingdom to give rise to liability under British law. Section 16(2) of the CDPA prohibits "authorisi[ng] another to do[] any of the acts restricted by the copyright [law]." Given this text, it would appear that if the authorized act is not actionable under British law, neither is its authorization. If, however, this reading is incorrect, the parties are welcome to submit authorities rebutting it. 2
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S a p ie n t's files were stored. Thus, the argument would go, if that server were not in the U n ite d Kingdom, then YouTube's conduct would not be actionable under United K in g d o m law, and, derivatively, neither would defendant's. Given that there would seem to be some likelihood that the YouTube server was not located in the United Kingdom, th i s reading of British law could prove fatal to plaintiff's copyright claim under British la w . Therefore, the court will not accept this reading of British law--or any o th e r-- w ith o u t being informed of additional authority.5 A s to plaintiff's commercial disparagement/corporate defamation claim, because it w a s pleaded as a commercial disparagement claim, and because special damages--an e le m e n t of that claim--were not pleaded with specificity, defendant's motion to dismiss w ill be granted. If plaintiff wishes, it may re-plead the claim, or plead a different cause of a c tio n , within 30 days. As to all other claims and issues, the motion to dismiss will be denied for the re a s o n s given at oral argument. ***** A N D NOW, this 25th day of October, 2007, it is hereby ORDERED that: (1 ) D e f en d a n t's motion to dismiss, as to defendant's argument regarding the p lac e of infringement, is DENIED without prejudice, and defendant is G R A N T E D leave to re-file that motion in accordance with the above within 3 0 days of this order;

In this context, counsel are reminded of Federal Rule of Civil Procedure 44.1, which allows the court, "in determining foreign law, [to] consider any relevant material or source, including testimony . . ." on the substance of foreign law. 3

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(2 )

Defendant's motion to dismiss Count II of plaintiff's complaint is G R A N T E D , and that claim is DISMISSED without prejudice; plaintiff may r e -p l e a d , as specified above, within 30 days; In all other respects, defendant's motion to dismiss is DENIED.

(3 )

B Y THE COURT: /s / Louis H. Pollak ___________________ P o l la k , J.

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