Viesti Associates, Inc. v. Pearson Education, Inc.
Filing
49
ORDER. Defendant's 13 Motion to Dismiss Plaintiff's Complaint is granted in part and denied in part as indicated in this Order. Plaintiff's Second and Third claims for relief are dismissed without prejudice. By Judge Philip A. Brimmer on 8/12/13.(mnfsl, )
Viesti Associates, Inc. v. Pearson Education, Inc.
Doc. 49
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-02240-PAB-DW
VIESTI ASSOCIATES, INC.,
Plaintiff,
v.
PEARSON EDUCATION, INC.,
Defendant.
ORDER
This matter is before the Court on the Motion to Dismiss [Docket No. 13] filed by
defendant Pearson Education, Inc. (“Pearson”). The Court has subject matter
jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1338.
I. BACKGROUND1
Plaintiff Viesti Associates, Inc. (“Viesti”) is a stock photography agency that
licenses photographs for editorial and advertising purposes. Docket No. 1 at 1, ¶ 2.
Pearson is a textbook publisher located in Delaware whose publications are sold and
distributed throughout the country. Id. at 2, ¶ 3.
The complaint alleges that the “photographers identified in Exhibits 1-16 (the
‘Photographers’) assigned their copyrights to the photographic images depicted in
Exhibits 1-16 (the ‘Photographs’)” to Viesti. Docket No. 1 at 2, ¶ 7; see also Docket
1
The following allegations are drawn from Viesti’s Complaint [Docket No. 1] and
are taken as true.
Dockets.Justia.com
Nos. 1-4 to 1-20. The complaint asserts that the photographs are “registered with the
United States Copyright Office, except some in Exhibits 3 and 13” marked “Not
registered - Non-US work.” Docket No. 1 at 2, ¶ 7; see also Docket Nos. 1-6, 1-16.
The complaint avers that the photographs in Exhibit 3 and Exhibit 13 that are not
registered with the Copyright Office are “non-United States works” and, as such, are
exempt from the registration requirements of the Copyright Act. Docket No. 1 at 2, ¶ 7.
The complaint alleges that, between 1991 and 2003, Pearson purchased limited
licenses to use the photographs identified in Exhibits 1 to 16 in numerous educational
publications. Id. at 2-6, ¶¶ 8-23. The complaint asserts that the limited licenses
imposed express limitations on Pearson’s use, such as the number of permissible
copies Pearson could sell, the distribution area in which Pearson could sell, and the
duration of Pearson’s use of the photographs for each publication. Id. The complaint
contends that, “[u]pon information and belief,” Pearson exceeded the use permitted by
the terms of the licenses or, in some cases, used the photographs without first seeking
permission. Id. at 7, ¶¶ 28-29. Plaintiff alleges that it did not know of Pearson’s
unauthorized use of the photographs because Pearson “never disclosed its
unauthorized use[] . . . nor did Pearson seek additional permission to use” the
photographs. Id. at 8-9, ¶ 34. Plaintiff further asserts that it requested that Pearson
disclose the full extent of its unauthorized use of the photographs before it filed this
case, which Pearson declined to do. Id. at 6, ¶ 26.
As a result of these events, Viesti brings claims for relief against Pearson for
copyright infringement, contributory copyright infringement, and vicarious copyright
2
infringement in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. Docket
No. 1 at 10-11. Pearson now moves to dismiss Viesti’s complaint pursuant to Fed. R.
Civ. P. 12(b)(6). Docket No. 13.
II. STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Rule 12(b)(6), the complaint need not
allege specific facts, but need only give the defendant fair notice of what the claim is
and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007).
However, “where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678.
III. ANALYSIS
A. Copyright Infringement
Pearson argues that Viesti fails to state a claim of copyright infringement
because Viesti does not sufficiently allege that all of the photographs identified in the
complaint are registered with the Copyright Office. Docket No. 13 at 10-11. Second,
Pearson claims that Viesti does not sufficiently allege that it owns the copyrights for the
photographs because Viesti does not describe the terms of the assignments. Id. at 6-7.
Third, Pearson contends that Viesti does not have standing to raise its claims because
3
it does not allege that it owned the copyrights for the photographs “at the time of the
alleged infringement.” Id. at 9. The Court addresses these arguments in turn.
1. Registration Requirement
Pearson argues that the Court should dismiss Viesti’s complaint because it does
not allege specific facts regarding the registration of each individual photograph.
Docket No. 13 at 10.
To state a claim for copyright infringement, Viesti must allege: “(1) ownership of
a valid copyright, and (2) copying of constituent elements of the work that are original.”
Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012). The owner of a valid copyright
“is entitled, subject to the requirements of section 411, to institute an action for any
infringement of that particular right committed while he or she is the owner of it.” 17
U.S.C. § 501(b). Section 411(a) provides, among other things, that “no civil action for
infringement of the copyright in any United States work shall be instituted until
preregistration2 or registration of the copyright claim has been made in accordance with
this title.” 17 U.S.C. § 411(a).
In Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), the Supreme Court held
that § 411(a) imposed a non-jurisdictional precondition – copyright registration – that
plaintiffs must satisfy before filing copyright infringement claims. Id. at 157. However,
the Supreme Court declined to address “whether § 411(a)’s registration requirement is
a mandatory precondition to suit” that district courts may enforce sua sponte by
dismissing copyright infringement claims involving unregistered works. Id. at 171.
2
Preregistration is applicable to works being prepared for commercial distribution.
See 17 U.S.C. § 408(f).
4
The Tenth Circuit has held that a plaintiff can only bring a suit for copyright
infringement after “a copyright is registered, and such registration occurs when the
Copyright Office approves the application.” La Resolana Architects, PA v. Clay
Realtors Angel Fire, 416 F.3d 1195, 1203-04 (10th Cir. 2005), abrogated on other
grounds by Reed Elsevier, 559 U.S. at 166-68. The Tenth Circuit rejected the
proposition that a work is registered within the meaning of § 411(a) upon submission of
a copyright application and found that the statute requires “actual registration by the
Register of Copyrights.” Id. at 1205.
The complaint in this case alleges that, “Viesti, by assignment, is the owner and
exclusive copyright holder of the Photographs” at issue in this case. Docket No. 1 at 2,
¶ 7. The complaint further states that the photographs assigned to Viesti are
“registered with the United States Copyright Office, except some in Exhibits 3 and 13”
marked “Not registered - Non-US work.” Id.
Pearson argues that Viesti’s factual allegations do not satisfy Rule 8 because
they provide no information “pertaining to the registration of the hundreds of
photographs at issue, or attach the copyright registrations” for these photographs.
Docket No. 13 at 10. Pearson claims that Viesti’s allegations are conclusory and
contends that Viesti must attach the relevant copyright registrations to the complaint or
detail when and how each photograph was registered. Id. at 11-12. In support of this
argument, Pearson cites three cases: Muench Photography, Inc. v. The McGraw-Hill
Cos. Inc., No. 12-cv-06595-LAP (S.D.N.Y. Oct. 9, 2012) (attached as Exhibit 2, Docket
No. 23-1); Curington v. UMG Recordings, Inc., 2011 WL 3568278 (M.D.N.C. Aug. 12,
5
2011); and Vargas v. Pfizer, Inc., 418 F. Supp. 2d 369, 373-74 (S.D.N.Y. 2005). The
Court finds that these cases do not support Pearson’s argument.
First, Muench involved a different procedural posture than this case. The court
in Muench denied the plaintiff’s request to file an amended complaint for copyright
infringement based on two of its previous orders: Muench Photography v. Houghton
Mifflin Harcourt Publ’g Co., 712 F. Supp. 2d 84, 94 (S.D.N.Y. 2010) (“Muench I”); and
Muench Photography v. Houghton Mifflin Harcourt Publ’g Co., 2012 WL 1021535, at *1
(S.D.N.Y. March 26, 2012) (“Muench II”). In Muench I, the defendant had filed a motion
to dismiss the plaintiff’s copyright infringement claim for failure to register the subject
photographs with the Copyright Office. 712 F. Supp. 2d at 86. Because the parties
attached documents and other materials to their briefs that were not referenced in the
complaint, the court converted the defendant’s motion to dismiss into a motion for
summary judgment, id. at 89, and ruled that plaintiff’s individual images were not
registered with Copyright Office because the plaintiff was not listed as an author on the
registration form and copyright protection for “the registration of a collective work
reaches the individual works only when the author of the collective work [listed on the
registration form] authored each of the individual works.” See id. at 94.
Consistent with this ruling, in Muench II, the court denied plaintiff’s request to file
an amended complaint submitting supplementary registration documents, finding that a
supplementary registration did not cure the issues with plaintiff’s complaint as none of
the individual images were previously registered with the Copyright Office. See Muench
II, 2012 WL 1021535, at *3 (rejecting plaintiff’s attempts to file “supplementary
6
registration[s]” because the court had “previously determined that ‘the registrations at
issue [ ] cover only the [Corbis] database as a whole (the compilation) but do not cover
Plaintiff’s individual contributions’ and that ‘[t]he individual works . . . are not
registered’”) (citation omitted). By the time the court in Muench II denied Muench’s
request to file an amended complaint, the court had already reviewed the copyright
registrations themselves. That is not the case here. Moreover, Pearson provides no
other support for its contention that, to satisfy Rule 8’s plausibility standard, Viesti must
attach copyright registrations to its complaint.
Second, the court in Curington dismissed the plaintiffs’ complaint because the
plaintiffs had not sufficiently alleged that they owned the copyright to the sound
recording of the song “Last Night Changed It All” by Esther Williams. 2011 WL
3568278, at *3. Plaintiffs attached an exhibit to their amended complaint showing that
plaintiff Curington owned the copyright to the musical composition of an Esther Williams
song, but not the sound recording. Id. at *2. The court dismissed the plaintiffs’
copyright infringement claim because it concluded that a copyright for the musical
composition of a song is not equivalent to the copyright for the sound recording and,
therefore, the plaintiffs’ own attachment contradicted their factual allegations in the
complaint. Id. at *3-4. In this case, because neither party has attached documents to
their pleadings contradicting Viesti’s allegation that the photographs are registered with
the Copyright Office, Pearson’s reliance on Curington is misplaced.
Third, the court in Vargas granted the defendant’s motion for summary judgment
on the plaintiff’s copyright infringement claim because the plaintiff did not attach a
7
certificate of registration to its complaint. 418 F. Supp. 2d at 373-74. However, the
court granted the plaintiff leave to file an amended complaint attaching the relevant
copyright registration. Id. at 374. Because the Vargas court issued its ruling on a
motion for summary judgment, it says little about the pleading requirements under Rule
8.
Accordingly, the Court will deny Pearson’s request to dismiss the complaint and
finds that Viesti’s allegation that the “Photographs have been registered with the United
States Copyright Office” satisfies Rule 8’s notice pleading requirements. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting that Rule 8(a)(2) “requires only a
‘short and plain statement of the claim showing that the pleader is entitled to relief,’ in
order to give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests”).
2. Assignment
Pearson argues that the Court should dismiss Viesti’s claims of infringement
because the complaint’s limited allegations regarding the assignment agreements do
not satisfy Rule 8’s pleading requirements. Docket No. 13 at 7-8; Docket No. 23 at 2-4.
Under the Copyright Act, for a plaintiff to assert a claim of copyright infringement,
he or she must be (1) the “legal or beneficial owner of an exclusive right under a
copyright” and (2) entitled “to institute an action for any infringement of that particular
right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Rule 8 of the
Federal Rules of Civil Procedure requires that a pleading contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
8(a)(2). The Supreme Court has held that a claim has “facial plausibility when the
8
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
In this case, Viesti alleges that it is the owner of the copyrights by virtue of
assignments from the photographers. Docket No. 1 at 2, ¶ 7. Viesti claims that
Pearson infringed its copyrights when it exceeded the scope of its licenses. Id. at 7,
¶¶ 28-29. Taking these allegations as true, the Court finds that Viesti’s allegations are
sufficient to state a valid claim of copyright infringement. See Blehm, 702 F.3d at 1199
(to state a claim of copyright infringement, plaintiff must allege “(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original”).
Although Pearson argues that Viesti must attach the assignments to its
complaint in order to satisfy Rule 8’s pleading requirements, Pearson cites no cases
that stand for the proposition that a plaintiff must attach or specifically describe the
language of its assignments in order to satisfy Twombly’s plausibility standard. As
noted by the Supreme Court, “[s]pecific facts are not necessary; the statement [in the
complaint] need only ‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson, 551 U.S. at 93. In this case, because Viesti
alleges that it is the owner of the copyrights and that its claims of infringement are
based on Pearson’s use of the licences, the Court finds that these allegations provide
Pearson with sufficient notice of Viesti’s claims. See Fed. R. Civ. P. 8(a)(2).
To the extent that Pearson argues that Viesti’s averments are conclusory, the
Court disagrees. Because Viesti’s factual allegations allow “the court to draw the
reasonable inference” that Viesti owns the copyrights at issue based on the
9
assignments, Viesti’s allegations nudge its claims across the line from conceivable to
plausible. Iqbal, 556 U.S. at 678. The question of whether the assignments actually
transfer ownership of the copyrights to Viesti necessarily requires an analysis of the
language of the assignments and consideration of other relevant evidence on the
merits, which the Court finds is not appropriate for a motion to dismiss. See, e.g.,
Righthaven LLC v. Wolf, 813 F. Supp. 2d 1265, 1268 (D. Colo. 2011) (converting the
Rule 12(b)(1) motion into one for summary judgment). Accordingly, because Viesti is
not required to allege facts about the specific language of the underlying assignments
in order to satisfy Twombly’s plausibility standard, the Court will deny Pearson’s request
to dismiss the complaint on this basis. See Erickson, 551 U.S. at 93 (noting that a
complaint “need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests”) (citation omitted).
3. Accrued Right of Action
Pearson argues that Viesti does not have standing to assert claims of copyright
infringement that accrued before Viesti secured assignments from the photographers.
Docket No. 13 at 10. In response, Viesti claims that an assignee of a copyright can
assert accrued claims of copyright infringement so long as the assignment transfers
both ownership of the copyright and the accrued claims. Docket No. 17 at 8.
In ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir.
1991), the Second Circuit held that the assignment of a copyright does not transfer the
right to assert accrued causes of action unless this right is expressly included in the
assignment. In Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 890 (9th Cir. 2005),
10
the Ninth Circuit held that the bare assignment of an accrued cause of action for
copyright infringement is impermissible under the Copyright Act. The Ninth Circuit in
Silvers acknowledged, in dicta, that an assignee of a copyright could assert accrued
causes of action if the copyright owner assigned both ownership of the copyright and
the accrued copyright infringement claims. Id. at 890 n.1. The Tenth Circuit has yet to
rule on this issue.
Pearson argues that Viesti cannot assert copyright infringement claims because
the complaint does not specifically allege that Viesti was “the owner of the exclusive
rights at the time of the alleged infringements.” Docket No. 13 at 10. As noted above,
the Court finds that Viesti has sufficiently alleged a claim of copyright infringement
against Pearson.3 17 U.S.C. § 501(b); Blehm, 702 F.3d at 1199 (to state a claim of
copyright infringement, plaintiff must allege “(1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are original”). Accordingly, because
Viesti’s complaint meets the pleading requirements of Rule 8, the Court will deny
Pearson’s motion to dismiss.
3
Pearson argues that the Court must dismiss Viesti’s complaint because Viesti
does not allege that its assignment gave it the right to sue on accrued claims. Docket
No. 23 at 5-6. Assuming Viesti must allege the assignment of accrued claims, its failure
to do so would not warrant dismissal as this deficiency could easily be cured by an
amendment. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.
2006) (noting that dismissal with prejudice is appropriate only if “it would be futile to
allow the plaintiff an opportunity to amend his complaint”). Moreover, Viesti seeks
damages and prospective relief in the form of a “permanent injunction against
Defendants and anyone working in concert with them from copying, displaying,
distributing, selling or offering to sell Plaintiff’s Photographs described in this
Complaint.” Docket No. 1 at 11, ¶ 1. Thus, regardless of whether Viesti is entitled to an
award of damages for accrued claims, Viesti’s allegations are sufficient to state a claim
for Pearson’s copyright infringement that occurred after the filing of the complaint and
for prospective injunctive relief.
11
B. Contributory and Vicarious Copyright Infringement
Pearson argues that the Court should dismiss Viesti’s claims of contributory and
vicarious copyright infringement because Viesti does not sufficiently allege that Pearson
knowingly induced or materially contributed to a third party’s copyright infringement.
Docket No. 13 at 14. In addition, Pearson contends that dismissal is warranted
because the complaint’s allegations are conclusory with regard to Pearson’s ability to
supervise the alleged third parties’ infringing activity. Id.
Secondary liability for copyright infringement may be imposed where a party has
not committed direct infringement, but nonetheless played a significant role in direct
infringement committed by others. Arista Records LLC v. Lime Group LLC, 784 F.
Supp. 2d 398, 422 (S.D.N.Y. 2011). A party is liable for contributory infringement when
it “intentionally induc[es] or encourag[es] direct infringement” by a third party. MetroGoldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). By contrast,
a party commits vicarious infringement “by profiting from direct infringement while
declining to exercise a right to stop or limit” the third party’s infringing activity. Id.
(citation omitted). Although the Copyright Act did not expressly contemplate liability
based on a third party’s infringement, these doctrines of secondary liability “emerged
from common law principles and are well established.” Id.
1. Contributory Copyright Infringement
To state a claim of contributory copyright infringement, a plaintiff must allege that
the defendant “with knowledge of the infringing activity” induced, caused, or materially
contributed to the infringing conduct of another. Wolk v. Kodak Imaging Network, Inc.,
12
840 F. Supp. 2d 724, 750 (S.D.N.Y. 2012); Gershwin Publ’g Corp. v. Columbia Artists
Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). An allegation that a defendant merely
provided the means to accomplish an infringing activity is insufficient to allege a claim
for contributory infringement. Grokster, 545 U.S. at 937. Rather, liability exists if the
defendant engages in personal conduct that encourages or assists the infringement.
Id. Thus, to state a claim for contributory copyright infringement, Viesti must allege
that: (1) Pearson infringed its copyrights in the photographs; (2) third parties infringed
its copyrights in the photographs; (3) Pearson induced, caused, or materially
contributed to the third parties’ infringement; and (4) a causal connection existed
between Pearson’s inducement and the third parties’ infringement. Columbia Pictures
Indus., Inc. v. Fung, 710 F.3d 1020, 1032 (9th Cir. 2013).
The complaint alleges that “Pearson transmitted the Photographs to other
entities, subsidiary companies, divisions, affiliates, and/or third parties, who then
translated the publications at issue into additional languages and included the
Photographs in the translated publications without permission.” Docket No. 1 at 9, ¶ 35.
In addition, the complaint claims that “Pearson had knowledge of the unauthorized use
of the Photographs” by third parties and “Pearson enabled, induced, caused, facilitated,
or materially contributed to the unauthorized use of the Photographs.” Id. at 10, ¶¶ 4445. Moreover, the complaint avers that “Pearson profited from its unauthorized
transmission of the Photographs to other entities.” Id. at 9, ¶ 37.
Taking these allegations as true, the Court finds that the complaint does not
state a plausible claim of contributory copyright infringement. Although the complaint
13
alleges that Pearson “enabled, induced, caused, facilitated, or materially contributed to
the unauthorized use of the Photographs,” Docket No. 1 at 9, ¶ 36, these allegations
are insufficient because they are nothing more than a recitation of one element of a
contributory copyright infringement claim. Iqbal, 556 U.S. at 678 (noting that “a
formulaic recitation of the elements of a cause of action will not do”). There are no
factual assertions describing how Pearson enabled, induced, or facilitated the
infringement of the photographs. Although the complaint states that Pearson
“transmitted” the photographs, simple transmission does not equate inducement
because this element “premises liability on purposeful, culpable expression and
conduct” that is shown by “affirmative steps taken to foster infringement.” Grokster, 545
U.S. at 936. Therefore, without additional factual assertions, the Court cannot draw a
reasonable inference that Pearson enabled, induced, or materially assisted the
misconduct alleged. Iqbal, 556 U.S. at 678 (noting that “naked assertion[s]” devoid of
“further factual enhancement” are insufficient to state a plausible claim). Moreover,
even though the complaint avers that Pearson had “knowledge of the unauthorized use
of the Photographs,” Docket No. 1 at 10, ¶ 44, the Supreme Court has held that “mere
knowledge of infringing potential or of actual infringing uses” is not enough to establish
liability. Grokster, 545 U.S. at 937; Wolk, 840 F. Supp. 2d at 751 (noting that
“knowledge” means “actual or constructive knowledge of specific and identifiable
infringements of individual items,” not “a general awareness that there are
infringements”). Without factual allegations describing instances of Pearson
encouraging or promoting third parties to infringe Viesti’s photographs, the complaint
does not permit the Court to infer more than the mere possibility of Pearson’s
14
misconduct. However, allegations that are merely consistent with the possibility that
Pearson is liable fail to state a plausible claim for relief. Iqbal, 556 U.S. at 678.
2. Vicarious Copyright Infringement
Vicarious copyright infringement exists when a defendant profits from direct
infringement “while declining to exercise the right to stop or limit it.” Grokster, 545 U.S.
at 914. Unlike contributory infringement, knowledge is not required to show vicarious
infringement and a plaintiff need only establish that a defendant directly benefitted from
the third parties’ infringement and had the ability to control the third parties’ infringing
conduct. Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 802 (9th Cir. 2007).
The Supreme Court has also indicated that the ability-to-control test requires that a
defendant “declin[e] to exercise [its] right to stop or limit” the third party’s infringing
activity. Grokster, 545 U.S. at 930. Thus, to state a claim of vicarious copyright
infringement, Viesti must allege that: (1) a third party infringed its copyrights in the
photographs; (2) Pearson had the ability to control or supervise the third party’s
infringing activities; (3) Pearson failed to exercise its right to stop the third party’s
infringement; and (4) Pearson had a direct financial interest in the infringing activity.
Perfect 10, 494 F.3d at 802.
The complaint alleges that “Pearson had the right and ability to prevent the
infringing conduct of other entities.” Docket No. 1 at 10, ¶ 49. In addition, the
complaint claims that “Pearson received a direct financial benefit from the unauthorized
use of the Photographs.” Id. at ¶ 50.
15
Taking these allegations as true, the Court finds that the complaint does not
state a plausible claim of vicarious copyright infringement. Viesti’s allegations, just like
the ones regarding contributory infringement, are insufficient because they are nothing
more than a recitation of one element of a vicarious copyright infringement claim. Iqbal,
556 U.S. at 678. The factual averments present no evidence to support a plausible
inference that Pearson had the right or ability to prevent infringing conduct of
unidentified third parties. See Perfect 10, 508 F.3d at 1173 (noting that a person has
control over a third party if it has “both a legal right to stop or limit the directly infringing
conduct, as well as the practical ability to do so”). Given that no third parties are
identified in the complaint, Viesti’s claim that Pearson had the right to control these
unidentified third parties is speculative and conclusory. Iqbal, 556 U.S. at 678 (noting
that, although for the purposes of a motion to dismiss courts must take all of the factual
allegations in the complaint as true, courts are not bound to a legal conclusion couched
as a factual allegation). Without additional factual assertions, the Court cannot draw a
reasonable inference that Pearson vicariously infringed Viesti’s copyrights. Id. Thus,
because Viesti’s allegations do not sufficiently allege the second element of a vicarious
copyright infringement claim, the complaint has “not nudged [its] claim[ ] across the line
from conceivable to plausible.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.
2008) (citation omitted).
In summary, because the complaint does not sufficiently allege claims of
contributory and vicarious copyright infringement, the Court will dismiss Viesti’s second
and third claims for relief without prejudice. See Brereton v. Bountiful City Corp., 434
16
F.3d 1213, 1219 (10th Cir. 2006) (noting that dismissal with prejudice is appropriate
only if “it would be futile to allow the plaintiff an opportunity to amend his complaint”).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Complaint [Docket No.
13] is GRANTED in part and DENIED in part as indicated in this Order. It is further
ORDERED that plaintiff’s Second and Third claims for relief are dismissed
without prejudice.
DATED August 12, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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