ALLIANCE OF ARTISTS AND RECORDING COMPANIES, INC. v. GENERAL MOTORS LLC et al
Filing
73
MEMORANDUM AND OPINION denying Defendants Ford Motor Company and Clarion Corporation of America's #30 Motion to Dismiss, and denying Defendant General Motors LLC's #48 Motion for Judgment on the Pleadings. Signed by Judge Ketanji Brown Jackson on February 19, 2016. (lckbj3, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALLIANCE OF ARTISTS AND
RECORDING COMPANIES, INC.,
Plaintiff,
v.
GENERAL MOTORS COMPANY, et
al.,
Defendants.
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Civil Action No. 14-cv-1271 (KBJ)
MEMORANDUM OPINION
The Audio Home Recording Act of 1992 (“AHRA”), 17 U.S.C. §§ 1001 et seq.,
requires manufacturers, importers, and distributers of “digital audio recording devices”
(“DARDs”) to incorporate certain copying control technology into their devices and pay
a set royalty amount for each device. The AHRA is part of federal copyright law, and a
non-profit organization called the Alliance of Artists and Recording Companies
(“AARC”) assists the U.S. Copyright Office in enforcing the AHRA’s provisions by,
among other things, collecting AHRA royalties and distributing them to featured
recording artists and sound recording copyright owners. (See Compl. (“GM Compl.”),
ECF No. 1, ¶ 8); see also Justin M. Jacobson, What Is the AARC?, 56 J. Copyright
Soc’y U.S.A. 213, 215 (2008). In the instant action, the AARC contends that
automobile suppliers DENSO International America, Clarion Corporation of America,
and Mitsubishi Electric Automotive America have developed certain audio technology
that car manufacturers General Motors Company, Inc., Ford Motor Company, and FCA
US (collectively, “Defendants”) have been installing in certain car models since 2008. 1
The AARC believes these audio devices qualify as DARDs for AHRA purposes; its
five-count complaint seeks an injunction, a declaratory judgment, and monetary
damages, claiming that Defendants should be paying royalties and implementing
copying control technology when vehicles equipped with these devices are made and
marketed, and that Defendants have violated the AHRA because they have done no such
thing to date. (See GM Compl. ¶¶ 52-70; FCA Compl. ¶¶ 53-70.) 2
Before this Court at present are a motion to dismiss that Ford and Clarion have
filed jointly under Federal Rule of Civil Procedure 12(b)(6), and a motion for judgment
on the pleadings that General Motors has submitted pursuant to Rule 12(c). (See ECF
Nos. 30, 48.) Both dispositive motions make essentially the same argument: that none
of the devices at issue, as described in the complaint, satisfies the AHRA’s multifaceted DARD definition, and thus the statute’s mandated royalty payments and
technology limits do not apply. This Court largely agrees with these defendants’
interpretation of the statute for the reasons explained below, but it also concludes that
the allegations that the AARC makes regarding the devices at issue are sufficient to
survive the Rule 12 motions. Accordingly, and as set forth in the separate order that
accompanies this Memorandum Opinion, these motions will be DENIED.
1
Defendant FCA US LLC originally appeared in this case as “Chrysler Group LLC.” (See Complaint
(“FCA Compl.”), Alliance of Artists & Recording Cos. v. Chrysler Group et al., No. 14-cv-1920
(D.D.C. Nov. 14, 2014), ECF No. 1).) This Court granted FCA leave to change its name on February
12, 2015. (See Minute Order of February 12, 2015, Alliance of Artists & Recording Cos. v. Chrysler
Group et al., No. 14-cv-1920 (D.D.C. Feb. 12, 2015).)
2
The AARC’s allegations are contained in two substantively identical complaints that the organization
filed against two different groups of automakers. (See GM Compl.; FCA Compl.) This Court has
consolidated the two complaints into a single action (see Minute Order of Feb. 10, 2015), and this
Memorandum Opinion will treat the two pleadings as if AARC had filed a single complaint, with the
exception of citation references.
2
I.
BACKGROUND
A.
The Audio Home Recording Act Of 1992
In the 1980s, the music industry faced a growing problem in the form of
emerging digital technology that allowed users to create multi-generation copies of
sound recordings without losing sound quality. This was a new issue for the industry
because, with older analog technology, each successive copy of the same sound
recording sounded worse; consequently, consumers always had an incentive to purchase
the original recording from its manufacturer. See Recording Indus. Ass’n of Am. v.
Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1073 (9th Cir. 1999). By contrast,
Digital Audio Tape (“DAT”) machines and other new digital recording technology
could produce a copy of an original audio recording, then copy that copy of the
original, then copy the copy of the copy of the original, and so forth and so on, and the
copies sounded just as good as the original recording, leading the music industry to fear
that it could lose significant revenue. See H.R. Rep. No. 102-873, pt. 1, at 18 (1992). 3
At the same time, the high-tech manufacturers and users of DAT machines and other
digital audio recording technology were becoming increasingly concerned that the
production and use of devices that could produce such high-quality copies of protected
material would expose them to liability for copyright infringement on a massive scale.
See Jacobson, supra, at 213. These various concerns led to protracted negotiations in
Congress, which ultimately culminated in the Audio Home Recording Act of 1992
3
For the uninitiated, “[a] DAT machine[] function[s] much like a CD player” insofar as it “converts a
digital signal to an analog format for playback[.]” Note, Aaron L. Melville, The Future of the Audio
Home Recording Act of 1992: Has It Survived the Millennium Bug?, 7 B.U. J. Sci. & Tech. L. 372, 378
(2001) (citations omitted). But it also “contains an important feature not previously available on
consumer music devices: the ability to digitally record music. Such technology would allow consumers
to record a CD using a DAT recorder, resulting in a ‘perfect’ replica of the original.” Id. (emphasis
added).
3
(“AHRA”), 17 U.S.C. § 1001 et seq.
It is well-established that the AHRA was a “grand compromise” between the
stakeholders insofar as the statute was designed to address both the serial copying
problem that concerned the music industry and the high-tech industry’s fear of
widespread copyright infringement liability. Lee A. Hollaar, Legal Protection of
Digital Information 150 (2002); see also The Audio Home Recording Act of 1991:
Hearing on S. 1623 Before the S. Subcomm. on Patents, Copyrights & Trademarks of
the S. Comm. on the Judiciary, 102d Cong. 1 (1991) [hereinafter 1991 Senate Hearing]
(statement of Sen. Dennis DeConcini) (“[This bill] represents a historical compromise
among opposing segments of the entertainment and electronic industries. As in all such
compromises, all parties had to give a little to gain a little.”). Significantly for present
purposes, one by-product of the extensive negotiations is the particular and carefully
defined scope of the statute: rather than “prohibit[ing] digital serial copying of
copyright protected audio recordings” altogether, “the Act [instead] places restrictions
only upon a specific type of recording device[,]” Diamond, 180 F.3d at 1075, and it
provides immunity from copyright infringement lawsuits if the manufacturers of those
particular devices comply with the statutory restrictions.
To this end, the AHRA contains a lengthy “Definitions” section that prescribes
the statute’s reach by laying out the intended meaning of a “digital audio recording
device” (a.k.a. DARD), which is the only type of recording device to which the
statutory requirements pertain. See 17 U.S.C. § 1001. Then, on the restrictions side of
the AHRA balance, the statute imposes two limitations on electronics manufacturers
and distributers with respect to the production of DARDs. First, it requires that DARDs
4
be manufactured to “conform to the Serial Copy Management System [or] a system that
has the same functional characteristics[,]” 17 U.S.C. § 1002(a)(1)-(2); that is, DARDs
must contain technology that “allows the making of unlimited copies from an original
digital recording but prevents any copies being made from those copies.” Hollaar,
supra, at 151. 4 Second, every manufacturer or importer of a DARD is required to pay a
royalty fee for the manufacture, importation or distribution of each device. See 17
U.S.C. §§ 1003, 1004. The statute also makes clear, on the copyright-protection side of
the statutory compromise, that DARD manufacturers who produce and distribute the
devices in accordance with these two requirements cannot be sued for copyright
infringement based on their manufacture, importation, or distribution of such devices,
nor can consumers be sued for noncommercial use of DARDs. See 17 U.S.C. § 1008.
However, copyright owners (typically, musicians, producers, and other members of the
music industry) are entitled to sue DARD manufacturers and distributors for violations
of the AHRA’s requirements. See id. §§ 1009(a), 1009(d)(1)(A)-(B).
Thus, the AHRA is best characterized as a carefully crafted “legislative
solution[],” S. Rep. No. 102-294, at 31, that seeks to “ensure the right of consumers to
make . . . digital audio recordings of copyrighted music for their private,
4
The Senate Report explains that the Serial Copy Management System works by manipulating “the
digital subcode” of the recording that is being made, S. Rep. 102-294, at 36 (1992) (citations omitted),
to wit:
[T]he SCMS limits copying to one copy [if the source is an original copyright protected
source], or no copies [if the source is a previously made digital copy], or permits
unlimited copies [if the source is coded as not copyright protected]. A simple numbers
code is utilized to trigger the system. The input signal is categorized and materials which
are identified as copyright protected are “flagged.” The recording device then responds
accordingly depending upon the code found in the recording.
Id.; see also Jacobson, supra, at 215-16.
5
noncommercial use[,]” and at the same time “provide[] modest compensation to the
various elements of the music industry for the digital home recordings of copyrighted
music[,]” all while effectively “prohibit[ing] the digital serial copying of copyrighted
music[,]” id. at 30.
B.
The AHRA’s DARD Definition
The instant case involves the remarkably complex question of which audio
recording devices qualify as DARDs under the AHRA. As noted, Congress has
furnished an answer in the statute itself, but discerning its intended meaning requires
navigation of an intricate set of interlocking (and “non-intuitive”) definitions. Hollaar,
supra, at 151. The undisputed bird’s-eye view is that any machine for private use that
has a recording function that is capable of, and has the primary purpose of, making a
“digital audio copied recording” by reproducing a “digital music recording” qualifies as
a DARD under the AHRA. See 17 U.S.C. § 1001. But the statute also parses the terms
“digital audio copied recording” and “digital music recording”; therefore, with respect
to application of the AHRA’s DARD definition, the devil is in the details.
To start, the statute expressly defines a “digital audio recording device” as
any machine or device of a type commonly distributed to individuals for
use by individuals, whether or not included with or as part of some other
machine or device, the digital recording function of which is designed or
marketed for the primary purpose of, and that is capable of, making a digital
audio copied recording for private use. . . .
17 U.S.C. § 1001(3) (emphasis added). 5 Put another way, this provision plainly
establishes that a DARD is a machine intended for private, individual use that has a
5
The DARD definition includes exceptions for both “professional model products,” 17 U.S.C. §
1001(3)(A), and “dictation machines, answering machines, and other audio recording equipment that is
designed and marketed primarily for the creation of sound recordings resulting from the fixation of
nonmusical sounds,” id. § 1001(3)(B). Neither of these is at issue in this case.
6
digital recording function that is (1) capable of making a digital audio copied recording
(or DACR), and (2) designed or marketed for the primary purpose of making a DACR.
The statute also defines a DACR (i.e., the DARD’s output): a DACR is “a
reproduction in a digital recording format of a digital musical recording, whether that
reproduction is made directly from another digital musical recording or indirectly from
a transmission.” Id. § 1001(1) (emphasis added). In other words, a DACR is a
“reproduction” of a “digital musical recording” (“DMR”) in a digital recording format.
And, finally, the statute makes clear that the DARD’s input—i.e., the “digital
musical recording” (“DMR”) that the DARD reproduces to make a DACR—must be
a material object—
(i) in which are fixed, in a digital recording format, only sounds, and
material, statements, or instructions incidental to those fixed sounds,
if any, and
(ii) from which the sounds and material can be perceived,
reproduced, or otherwise communicated, either directly or with the
aid of a machine or device.
Id. § 1001(5)(A). Notably, the statute also (somewhat helpfully) specifies what a DMR
is not. It states that a DMR is not
a material object-(i) in which the fixed sounds consist entirely of spoken word
recordings, or
(ii) in which one or more computer programs are fixed, except that a
digital musical recording may contain statements or instructions
constituting the fixed sounds and incidental material, and statements
or instructions to be used directly or indirectly in order to bring about
the perception, reproduction, or communication of the fixed sounds
and incidental material.
7
Id. § 1001(5)(B). This means, in essence, that a DMR is a material object that contains
only fixed sounds (and various data incidental to those sounds), and that neither
material objects that contain spoken word recordings nor those that contain computer
programs count as DMRs for AHRA purposes.
When all this is put together, a relatively clear picture of the general relationship
between the various defined terms emerges:
The parties in the instant case do not dispute this characterization (at this level of
generality); instead, their disagreement centers on whether, and to what extent, the
defining characteristics of a DMR must apply to DACRs under the statute.
Specifically, and as referenced above, the AHRA establishes that only certain
media qualify as DMRs for AHRA purposes; namely, those that are material objects in
which “only sounds” and data incidental to those sounds are fixed in a digital recording
format. Id. § 1001(5)(B); see S. Rep. No. 102-294, at 46 (“The intention is for the term
. . . to cover objects commonly understood to embody sound recordings and their
underlying works, such as recorded compact discs (CDs), digital audio tapes (DAT’s),
audio cassettes, and long playing albums (LP’s) . . . ; conversely, the term is intended to
exclude objects such as recorded videocassettes and multimedia products (i.e., unitary
8
products which integrate several prominent components such as text, video clips,
computer graphics, speech and music).”); see also id. (noting that, “if the material
object contains computer programs or data bases that are not incidental to the fixed
sounds, then the material object would not qualify”). Furthermore, the statute applies
only to devices whose recording functions are designed or marketed primarily for
making reproductions of these qualifying media. See 17 U.S.C. § 1001(3); see also S.
Rep. No. 102-294, at 46 (explaining that the statute was intentionally designed “to
delineate clearly the types of devices and media subject to [the statute], and to ensure
that devices dedicated to the recording of motion pictures, television programs[,] or
multimedia works are not covered”); see also id. at 48 (noting that, under the prescribed
definitions, “neither a personal computer whose recording function is designed and
marketed primarily for the recording of data and computer programs, nor a machine
whose recording function is designed and marketed for the primary purpose of copying
multimedia products, would qualify”).
The various restrictions contained in the definitions section of the AHRA were
most certainly intended to clarify which recording devices should be excluded from the
DARD definition pursuant to the compromise that Congress struck to protect the
interests of music industry and high tech industry professionals. However, in practice,
the definitions and their limitations raise a host of questions when applied to modern
recording technology that did not exist at the time was statute was enacted. Indeed, the
prototypical example of a DARD in 1992, when the AHRA was passed, was the Digital
Audio Tape (“DAT”) machine, mentioned above, which could copy a music CD (a
DMR) in digital format directly onto a digital audio tape cassette (the DACR), and was
9
designed and marketed primarily for this type of copying. See S. Rep. No. 102-294, at
17 (“Currently, the predominant type of [digital audio recording] device offered for sale
in the United States is that DAT recorder[.]”). That device is no longer widely utilized
for making individual copies of copyrighted music, and what is at issue in the instant
case is whether the statute’s DARD definition applies to modern audio technology that
permits users to copy digital music recordings onto a hard drive for subsequent
playback inside an automobile but does not create a new CD or cassette tape.
C.
Facts And Procedural History
The Alliance of Artists and Recording Companies (“the AARC”)—the core
purpose of which is to collect and distribute royalties under the AHRA, see Jacobson,
supra, at 215—initially filed the instant action against four vehicle manufacturers and
automobile parts suppliers (GM, Ford, DENSO, and Clarion) on July 25, 2014. (See
GM Compl. ¶¶ 9-12.) On November 14, 2014, the AARC filed a second, substantially
identical lawsuit against two other manufacturers of vehicles and auto parts: FCA US
LLC (formerly Chrysler Group) and Mitsubishi Electric Automotive Company. (See
FCA Compl. ¶¶ 9-11.) The latter case was assigned to the undersigned as a related case
and consolidated with the former matter. (See Minute Order of Feb. 10, 2015.)
The gravamen of the AARC’s complaint is that Defendants have run afoul of the
AHRA by installing covered digital audio recording devices in the dashboards of
certain vehicles without paying the required royalties or complying with the SCMS
restriction. (See GM Compl. ¶ 3; FCA Compl. ¶ 3.) Specifically, the AARC claims
that, since at least 2011, GM and DENSO have designed, manufactured, and distributed
a “Hard Drive Device” (HDD) in some GM cars, and that this device “records songs
from CDs to the device’s hard drive.” (See GM Compl. ¶¶ 24-26.) To use this device,
10
according to the AARC, a user inserts a CD into the vehicle’s HDD and the device
copies the audio files onto the hard drive, after which the user can play the audio files
directly from the hard drive inside the vehicle, without the original CD. (See id. ¶ 27.)
Likewise, Plaintiff alleges that, since at least 2011, Ford and Clarion have designed,
manufactured, and distributed a similar device called “Jukebox” for certain Ford
vehicles. (See id. ¶¶ 38-42.) Like the HDD, the Jukebox allegedly copies songs from
CDs onto the device’s hard drive for later listening. (See id. ¶ 43.) The AARC also
alleges that Mitsubishi has designed a similar device called the “Media Center” that has
been installed and distributed in FCA’s vehicles since 2008. (See FCA Compl. ¶¶ 2542.) As alleged, each device is also capable of “automatically identify[ing] the album
name, artist name, song title, and genre for each copies song.” (See GM Compl. ¶¶ 27,
43; FCA Compl. ¶ 34.)
Notably, the AARC does not contend that vehicle dashboard devices such as the
HDD, the Jukebox, and the Media Center can reproduce the songs that have been copied
onto the hard drive onto a new CD—it is undisputed that once the songs are copied onto
the device’s hard drive, that is where they stay. Nevertheless, the AARC maintains that
the initial copying function suffices to make these devices DARDs for AHRA purposes,
and the organization seeks a permanent injunction and declaratory relief to prevent
Defendants from manufacturing and distributing their allegedly offending devices
unless they pay the required royalties and conform to the SCMS. (See GM Compl. ¶¶
66, 74, 80; FCA Compl. ¶¶ 56, 64, 70.) The AARC also seeks the damages that are
authorized by statute: an amount equal to the unpaid royalties plus an additional 50%,
as well as $2,500 per device manufactured, imported, or distributed within three years
11
of the filing of their complaint. (See GM Compl. ¶¶ 71, 77; FCA Compl. ¶¶ 61, 67
(citing 17 U.S.C. § 1009(c)(2), (d)(1)(A), (d)(1)(B)(i)).)
On October 10, 2014, Ford and Clarion filed a joint Motion to Dismiss the
AARC’s complaint against them. (See Mem. in Supp. of Ford and Clarion’s Mot.
(“Ford’s Mem.”), ECF No. 30-1.) These defendants assert that their Jukebox device—
which they prefer to call a “navigation system”—is not a DARD at all, but instead, “is a
complex computer” that “includes a central processing unit” and “a 40 GB hard drive
for storage of an operating system, computer software programs, databases, and other
information[.]” (Ford’s Mem. at 5.) Moreover, the motion maintains that, even
accepting the complaint’s allegations as true, the device “do[es] not reproduce digital
music recordings in material[] objects addressed by the statute, that is, CDs, LPs,
cassettes, or digital audio tapes.” (Id. at 6; see also id. at 4 (“Plaintiff admits that
Defendant’ complained of ‘device’ stores music on a hard drive—a hard drive that
houses software programs and other data”). Thus, according to these defendants, their
device is “not capable of making a ‘digital audio copied recording’ of a ‘digital music
recording’ as defined under the [AHRA]” (id. at 5), and “[a]s such, the device falls
outside of the AHRA’s statutory reach, requiring dismissal of Plaintiff’s claims” (id.
at 4).
For its part, GM opted to file an answer and a counterclaim on October 31, 2014,
seeking a declaratory judgment that its HDD device did not fall under the AHRA. (See
Def. Gen’l Motors LLC’s Counterclaim and Am. Answer, ECF No. 40.) Then, after the
AARC answered the counterclaim, GM filed a motion for judgment on the pleadings.
(See Mem. in Supp. of GM’s Mot. (“GM’s Mem.”), ECF No. 48-1.) Meanwhile, both
12
DENSO and Mitsubishi filed motions for summary judgment (see Def. DENSO Int’l
Am. Inc.’s Mot. for Summ. J., ECF No. 58; Def. Mitsubishi Elec. Auto. Am. Inc.’s Mot.
for Summ. J., ECF No. 61), and on March 24, 2015, this Court stayed all briefing on the
summary judgment motions until the resolution of the pending Rule 12 motions. (See
Minute Order of March 24, 2015.) 6
This Court held a hearing on Ford and Clarion’s joint motion to dismiss and
GM’s motion for judgment on the pleadings on May 5, 2015.
II.
LEGAL STANDARDS
A.
A Motion to Dismiss The Complaint Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to
dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can
be granted.” Fed R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint
must contain factual allegations that, if true, “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
In deciding whether to grant a motion to dismiss under Rule 12(b)(6), “[t]he
court must view the complaint in [the] light most favorable to the plaintiff and must
accept as true all reasonable factual inferences drawn from well-pleaded factual
allegations.” Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 134 (D.D.C. 2013).
6
FCA has filed an answer, and, to date, has not filed any dispositive motions. (See Def. FCA US
LLC’s Answer, ECF No. 54.)
13
Even so, “the court need not accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). Nor is the court “bound to accept as true a legal
conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (internal
quotation marks and citation omitted).
B.
A Motion For Judgment On The Pleadings Under Rule 12(c)
Federal Rule of Civil Procedure 12(c) permits “any party” to file a motion for
judgment on the pleadings “[a]fter the pleadings are closed but within such time as not
to delay the trial[.]” Fed. R. Civ. P. 12(c). A motion brought under 12(c) “is designed
to dispose of cases where the material facts are not in dispute and a judgment on the
merits can be rendered by looking at the substance of the pleadings and any judicially
noted facts.” Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th
Cir. 1990). Such a motion “only has utility when all material allegations of fact are
admitted or not controverted in the pleadings and only questions of law remain to be
decided[.]” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1367 at 208 (3d ed. 2004). To prevail, “[t]he moving party must show that
no material issue of fact remains to be solved and that it is entitled to judgment as a
matter of law.” Judicial Watch, Inc. v. U.S. Dep’t of Energy, 888 F. Supp. 2d 189, 191
(D.D.C. 2012).
The applicable standard of review for motions filed under Rule 12(c) “is
essentially the same as that for motions to dismiss under Rule 12(b)(6).” Fay v. Perles,
484 F. Supp. 2d 12, 14 (D.D.C. 2007). This means that the non-movant’s factual
allegations must be accepted as true and all reasonable inferences must be drawn in the
non-movant’s favor. Baumann v. District of Columbia, 744 F. Supp. 2d 216, 222
14
(D.D.C. 2010). It also means that any claim for relief “must offer more than ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action[.]’” Doe v.
De Amigos, LLC, 987 F. Supp. 2d 12, 15 (D.D.C. 2013) (quoting Iqbal, 556 U.S. at
678). A claim for relief must be “plausible” to satisfy Rule 12(c), just as it must be to
satisfy Rule 12(b)(6). Hall v. District of Columbia, 73 F. Supp. 3d 116, 199 (D.D.C.
2014)
In deciding a motion to dismiss or a motion for judgment on the pleadings, a
court may generally consider only “the facts alleged in the complaint, documents
attached to the complaint as exhibits or incorporated by reference, and matters about
which the court may take judicial notice.” Allen v. U.S. Dep’t of Educ., 755 F. Supp. 2d
122, 125 (D.D.C. 2010). However, “a court may consider . . . documents upon which
the plaintiff’s complaint necessarily relied even if the document is produced . . . by the
defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehabilitation Servs.,
768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation marks and citation omitted).
III.
ANALYSIS
The AARC’s complaint alleges that GM’s HDD, Ford’s Jukebox, and FCA’s
Media Center are “digital audio recording devices” (DARDs) insofar as they are
“capable of making a digital audio copied recording for private use” and are “designed
for the primary purpose” of making such copies. (GM Compl. ¶¶ 27-28, 43-44; FCA
Compl. ¶¶ 31-32.) In AARC’s view, these facts give rise to these car manufacturers’
obligations to pay royalties and to limit the copying capabilities of these devices
pursuant to the AHRA. (GM Compl. ¶¶ 27-28, 43-44; FCA Compl. ¶¶ 31-32.)
However, as Ford, Clarion (the maker of Ford’s device), and GM view the statute, the
15
AHRA is addressed to the problem of “serial copying”—i.e., “the creation of copies of
a musical recording from another copy of that recording” (Ford’s Mem. at 1)—and
because the devices at issue here merely “store[] music on a hard drive . . . that houses
programs and other data” as described in the complaint, these Defendants assert that
“the[ir] device[s] fall[] outside the AHRA’s statutory reach[.]” (Id.) Thus, the
overarching question before this Court is whether the HDD and Jukebox devices, as
described in the complaint, qualify as DARDs for the purpose of the AHRA.
A quick recap of the key statutory terms will help to crystallize the particular
issue of statutory construction that this Court must now resolve. As explained above,
the statute is quite clear that, in order to be a DARD, the device must have a recording
function that is capable of, and has the primary purpose of, making a DACR (a digital
audio copied recording), which is defined as “a reproduction in a digital recording
format of a digital musical recording” (DMR). Based on this definition, Defendants
insist that the DACR—i.e., the DARD’s output—must itself be a DMR, just like the
input; that is, Defendants maintain that the DARD’s output must be a “material object”
containing, in a digital format, “only sounds” and other data incidental to those sounds,
id. § 1001(5)(A)(i), and it cannot be a material object “in which one or more computer
programs are fixed,” except for programs incidental to the fixed sounds or needed “to
bring about their perception, reproduction, or communication[.]” Id. § 1001(5)(B). (See
Ford’s Mem. at 5 – 6). The AARC squarely rejects the contention that the DACR must
be a DMR. (See, e.g., Plaintiff’s Mem. in Opp. to Mot. to Dismiss by Ford and Clarion
(“Pl.’s MTD Opp.”), ECF No. 52, at 39 (arguing that the correct statutory focus is “on
whether the recording made by the device is a reproduction in a digital music format,
16
not whether a separate material object is produced or whether the reproduction meets
the definition of ‘digital musical recording’”).)
The issue of whether or not a DACR must also be a DMR is not only the primary
bone of contention between the parties, it is a crucial question of statutory
interpretation at this point in the litigation, because if the device must be capable of
producing a DACR that also qualifies as a DMR in order to count as DARD under the
statute, and if the HDD and Jukebox devices do not make DACRs that also qualify
DMRs as these devices are described in the instant complaint, then Defendants’ devices
are not DARDs as a matter of law. (See Ford’s Mem. at 13 (asserting that “the Nav
System is, by the Act’s definitions, incapable of making a digital audio copied
recording and therefore is not a DARD” (emphasis omitted)); GM’s Mem. at 20
(“[W]hat few facts AARC has pled establish without dispute that the only material
objects on which GM’s systems store music are hard drives, and that all hard drives
used in GM’s systems contain computer programs and materials that are not incidental
to the music files stored on them. Those hard drives therefore do not satisfy the
definition of digital musical recordings, and GM’s systems are therefore outside of the
AHRA” (emphasis omitted)).)
After careful consideration of the parties’ arguments and for the reasons
explained below, this Court agrees with Defendants that a DACR must itself be a DMR
under the plain terms of the AHRA. Therefore, the statute applies to the devices at
issue here only if those devices have a recording function that is capable of creating a
material object that satisfies the conditions of 17 U.S.C. §§ 1001(1) and 1001(5) and
has the primary purpose of doing so. See 17 U.S.C. § 1001(3). However, the Court
17
also finds that Plaintiff has plausibly alleged that at least some version of the described
devices satisfies these conditions and, at the very least, there remains “a material issue
of fact to be solved” regarding whether the output of some of these devices qualifies as
a DMR. Judicial Watch, 888 F. Supp. 2d at 191. Therefore, the Defendants’ motion to
dismiss and motion for judgment on the pleadings must be denied.
A.
Under The AHRA, A DACR Is Itself A DMR
The battle lines regarding the parties’ views of Congress’s intent with respect to
audio devices that are subject to the AHRA’s restrictions have been clearly drawn.
Defendants’ quiver has two arrows: first, Defendants argue that, to be a DARD, a
device’s output must be a DMR, meaning that it must be a material object containing
only sounds and no unrelated computer programs. (See Ford’s Mem. at 10 (“In order to
be a DARD, the Nav System must be able to reproduce a digital music recording.”);
GM’s Mem. at 16 (“That is, both the [DARD’s] source and . . . target must be digital
musical recordings.”).) Then, moving in for the kill, Defendants claim that their
particular devices cannot be DARDs because the only output here (the device’s hard
drive with the copied digital music files on it) is not a DMR, given that it contains
additional computer programs that are not incidental to any copied music. (See Ford’s
Mem. at 11-13; GM’s Mem. at 21-22.) The AARC responds by disputing Defendants’
statutory construction, arguing that a DARD need only create a DACR, which need not
itself be a DMR. (See Pl.’s MTD Opp. at 35-40; Plaintiff’s Mem. in Opp. to GM’s Mot.
for Judgment on Pleadings (“Pl.’s MJP Opp.”), ECF No. 53, at 30-33.) Therefore,
according to the AARC, even if the HDD and Jukebox devices do not create DMRs,
they still fall under the statute because they do create DACRs. Although this case
presents a strikingly close question that is debated here by able parties, this Court
18
believes Defendants have the better of the statutory interpretation argument, in several
respects.
1.
The Text Of The Statute Supports The Conclusion That A DACR Is
A DMR
First, and foremost, the plain text of the AHRA indicates that a DACR must also
be a DMR. See POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2236 (2014)
(reiterating that a court looks primarily to the statutory text when addressing a question
of statutory interpretation). The most revealing textual clue appears in the definition of
a DACR itself: section 1001(1) states that a DACR is “a reproduction in a digital
recording format of a digital musical recording, whether that reproduction is made
directly from another digital musical recording or indirectly from a transmission.” 17
U.S.C. § 1001(1) (emphasis added). As Defendants point out, Congress’s use of the
word “another” when describing a DMR as the source of a DACR indicates that the
DACR itself is also a DMR. See Merriam-Webster’s Collegiate Dictionary 51 (11th ed.
2003) (defining “another” as “being one more in addition to one or more of the same
kind”). In other words, the only plausible reason that Congress would specify that a
DACR made via direct copy would be from another DMR is if the DACR itself is also a
DMR; otherwise, the word “another” would serve no purpose in the sentence. Cf.
Donnelly v. FAA, 411 F.3d 267, 271 (D.C. Cir. 2005) (“[Courts] must strive to interpret
a statute to give meaning to every clause and word[.]”).
Other sections of the AHRA also support this interpretation. For example, the
section of the statute that prohibits certain copyright infringement actions (see 17
U.S.C. § 1008) appears to assume that DARDs create DACRs that qualify as DMRs.
Section 1008 states, in relevant part, that no copyright infringement action can be
19
brought “based on the noncommercial use by a consumer of [a digital audio recording
device] or medium for making digital musical recordings or analog musical recordings.”
17 U.S.C. § 1008 (emphasis added). The fact that this section uses the term “digital
musical recording,” and not “digital audio copied recording,” to describe what a DARD
makes strongly implies that the latter is a species of the former, rather than a different
type of output altogether.
The statute’s enumerated civil remedies also suggest that Congress intended that
a DARD’s output must be a DMR. The AHRA empowers a court that is adjudicating a
claim under the statute to impound “any digital audio recording device, digital musical
recording, or [device for circumventing the required copying controls] that is in the
custody or control of the alleged violator and that the court has reasonable cause to
believe does not comply with [the statute].” 17 U.S.C. § 1009(f) (emphasis added).
The court can also “order the remedial modification or the destruction of any [of the
violator’s noncompliant] digital audio recording device[s], digital musical recording[s],
or [devices for circumventing the required copying controls].” Id. § 1009(g) (emphasis
added). If the AARC is right that digital musical recordings are only a DARD’s input
(not its output), then it makes little sense that Congress would only authorize a court to
seize or destroy the DARD and its input (the DMRs), while leaving the illegal copies
created by an AHRA violator unscathed, and at the very least, one would expect that the
statute would distinguish between DMRs and DACRs (if there is a material distinction,
as the AARC claims), by authorizing the seizure and destruction of DACRs in
particular, in addition to those illegal copies that also happened to qualify as DMRs.
Indeed, it is precisely because the provision at issue targets only DMRs that the far
20
more natural, and more likely, reading of the statute as a whole is that a DACR is, by
definition, a type of DMR, such that all offending DACRs would qualify as DMRs and
would be within the court’s power to impound or destroy.
2.
Reading The AHRA To Require That A DACR Satisfy The Criteria
Of A DMR Is Consistent With The Purpose Of The Statute
Because the words that Congress uses must be read “in their context and with a
view to their place in the overall statutory scheme,” King v. Burwell, 135 S. Ct. 2480,
2489 (2015) (quoting Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000)), this Court also notes that interpreting the AHRA to require that a
DACR be a DMR is consistent with the purpose of the statute and the circumstances
under which it was enacted. As explained, the AHRA was the carefully calibrated
result of extensive legislative negotiations. See 1991 Senate Hearing, supra, at 1
(statement of Sen. Dennis DeConcini); see also id. at 48-49 (statement of Ralph Oman,
Register of Copyrights and Associate Librarian for Copyright Services) (“The Audio
Home Recording Act proposal represents a potentially historic compromise among the
recording, music, and electronics industries and among the representatives of musical
performers and consumers. . . . [T]he bill apparently brings under its umbrella all
affected interests.”). The give-and-take that was required to enact this statute is
reflected in the narrowness and precision of the statute’s definitions. The AHRA does
not cover every type of audio recording or every type of audio copying device that
could possibly raise the specter of serial digital copying; in fact, the one device that
poses a clear threat to the recording industry as far as digital reproductions are
21
concerned—the personal computer 7—is quite plainly put beyond the statute’s reach.
See 17 U.S.C. § 1001(3) (requiring that a DARD’s digital recording function have the
“primary purpose of . . . making a [DACR] for private use”); see also S. Rep. No. 102294, at 48 (explaining that “the typical personal computer would not fall within the
definition of ‘digital audio recording device’” because it would not satisfy the statute’s
“primary purpose” restriction).
To be sure, it is difficult to say with certainty whether Congress would have
intended the AHRA to cover the particular devices at issue in the instant case because
audio technology has changed dramatically since 1992. That is, the DAT machines and
similar digital audio recording devices that existed at the time the AHRA was enacted
typically produced a new cassette tape or CD that contained a reproduction of the
digital music recording, in clear contrast to the devices at issue here, which do not
produce a separate material object (i.e., here, the recording device and its “output”
appear to coexist on the same hard drive). But uncertainty about what the 102nd
Congress might have thought of twenty-first century technology is all the more reason
to adhere closely to the carefully negotiated statutory text. Cf. W. Virginia Univ.
Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991) (explaining that “the purpose of a statute
includes not only what it sets out to change, but also what it resolves to leave alone,”
and that “[t]he best evidence of that purpose is the statutory text adopted by both
Houses of Congress and submitted to the President”). This Court concludes that the
plain language of the AHRA demonstrates that Congress intended for the statute to
7
It is a well-known fact that “untold millions of CD and DVD burners have been sold as standard
equipment in personal computers and are frequently used to ‘burn’ music to recordable CDs and
DVDs.” Fred von Lohmann, Fair Use As Innovation Policy, 23 Berkeley Tech. L.J. 829, 833-34
(2008).
22
cover devices whose recording function is designed and marketed primarily for the
purpose of reproducing digital music recordings, as specifically defined in the statute.
Thus, interpreting the AHRA to require that the material object the device produces
must contain only fixed sounds and not computer programs (just like the types of digital
audio copied recordings that were commonly known and available at the time of the
statute’s enactment) is entirely consistent with that legislative objective.
3.
The AARC’s Arguments To The Contrary Are Unpersuasive
The AARC seeks to advance several textual arguments that lead to the opposite
result, none of which succeeds. For example, with respect to Congress’s use of the
word “another” in the DACR definition, the AARC maintains that the insertion of that
term is not conclusive of whether a DACR must qualify as a DMR, because Congress
also used the word “whether” after its reference to a “digital musical recording” and
thus intended to introduce only examples of potential DACR sources, not an exhaustive
list. (Pl.’s MTD Opp. at 38-39 (“[A] straightforward and logical reading of the digital
audio recording . . . definition . . . would interpret ‘whether,’ not as introducing an
‘exhaustive list,’ but rather as examples of types of sources from which a DACR may
be produced.”) (citations omitted)). This interpretation strains credulity. The natural
reading of “whether” in the context of the provision at issue merely establishes two
mutually exclusive means of creating the “reproduction” that constitutes a DACR: it is
made either “directly” from a DMR, or “indirectly” from a transmission. There is no
indication in the text that these are only illustrative or that any other means of
reproduction are permissible. Moreover, even if direct and indirect reproduction were
merely two of many possible means of reproduction, that reading would not change the
23
role of the word “another” in the sentence: that adjective still would indicate that a
DACR is a type of DMR.
Next, the AARC argues that this Court’s interpretation would render certain
statutory text superfluous. First, it asserts that the entire definition of a DACR would
be “read out of the statute,” presumably because Congress could have defined DARDs
solely in terms of DMRs. (See Pl.’s MTD Opp. at 40; Pl.’s MJP Opp. at 33.) But this is
not necessarily so—as Defendants explain, even if DACRs are equated with DMRs, a
DACR is still an important rung in the AHRA’s chain of definitions because it denotes
a particular type of DMR: a second-generation, copied DMR.
The AARC also insists that Defendants’ interpretation renders superfluous the
phrase “in a digital recording format” in the DACR definition, given that DMRs are, by
definition, “in a digital recording format[.]” See 17 U.S.C. § 1001(5)(A)(i). In other
words, according to the AARC, if DACRs are DMRs, then there would be no need to
specify that a DACR must be in a digital recording format. (See Pl.’s MTD Opp. at 40;
Pl.’s MJP Opp. at 33.) This argument is potentially meritorious from a textual
standpoint, but the statute’s drafting history wholly undermines it. Specifically, it
appears that earlier drafts of the AHRA used the term “audiogram” instead of “digital
musical recording” to describe a DARD’s input, and this broader term encompassed
analog recordings. See S. Rep. No. 102-294, at 4 (1992); see also id. at 44 (noting that
the term “audiogram” was intended to cover analog sources such as “audio cassettes and
long-playing albums”). At the time, a DACR was defined as “a reproduction in a
digital format of an audiogram . . . regardless of whether the material is reproduced
from a digital or analog source[,]” id. at 5 (emphasis added), and in that context, the
24
phrase “in a digital format” clarified that a DARD’s output must be digital even if its
input was analog. Later in the legislative process, Congress changed “audiogram” to
“digital musical recording,” thereby requiring that both the DARD’s input and its
output be in a digital format. But the phrase “in a digital format” remained in §
1001(1)—a relic of the earlier draft, when it had meaning. (See Def. GM’s Reply, ECF
No. 64, at 11-13; see id. at 12 (“[B]ecause of the format-agnostic definition of
audiogram, the definition of digital audio copied recording [initially] required the
limitation ‘in a digital recording format’ to meet the intent of the AHRA to regulate
only reproductions into a digital format, even for analog sources.”).) Thus, while the
AARC is correct that surplusage is to be avoided, that cannot be done “at all costs,”
United States v. Ali Research Corp., 551 U.S. 128, 137 (2007), and certainly not where
the extra verbiage can be adequately explained as a simple scrivener’s error.
Finally, although it may be true that Congress clearly intended the AHRA to
cover recording devices that can create copies for consumers to listen to while driving,
as the AARC asserts (Pl. Opp. at 15 -17), this argument only goes so far, given the
relatively narrow point of statutory interpretation that is being analyzed here. That is,
this Court does not accept Defendants’ suggestion (see Ford’s Mem. at 10) that the
material object that a DARD creates must be a separate object from the recording
machine itself such that a hard drive storage device could never qualify as DARC for
the purpose of the statute. See Diamond, 180 F.3d at 1076 (observing that “[t]he typical
computer hard drive . . . is, of course, a material object”). But even so, the plain
language of the AHRA further delineates which digital audio recording machines
(whether installed inside an automobile or otherwise) are covered, and its definitions
25
establish that, in order to be a recording device that triggers the AHRA’s obligations,
the result of the device’s reproduction process (here, the hard drive upon which the
digital music recording is reproduced) must be “another” DMR. Thus, as this Court
reads it, the statutory text compels the conclusion that a car device for copying music
from CDs for later listening while inside a vehicle might possibly qualify as a DARD
under the statute notwithstanding the fact that the device does not create a removable
material object, and it so qualifies if the device satisfies the statute’s DARD
definition—i.e., it is machine for use by individuals, the digital recording function of
which is designed or marketed for the primary purpose of copying DMRs—and if its
output satisfies the definition of a DMR, because it contains only sounds and incidental
data, and not computer programs.
In short, this Court is persuaded that the text the AHRA establishes that a DACR
is, by definition, a DMR. Therefore, in order for the AARC’s complaint to survive the
pending Rule 12 motions, it must contain plausible allegations that, if true, would
demonstrate that the challenged devices are capable of creating DACRs that satisfy the
statutory conditions of DMRs. For the reasons explained below, this Court concludes
that the AARC’s complaint has mounted this basic hurdle.
B.
The AARC’s Complaint States A Claim Under The AHRA
To recap, by its plain terms, the AHRA applies only to devices with digital
recording functions that have the primary purpose of creating a “material object” that
conforms to the definition of a DMR—i.e., the object that the device produces must
contain “only sounds” and incidental data, id. § 1001(5)(A)(i), and cannot contain
unrelated computer programs, id. § 1001(5)(B)(ii). Defendants insist that their
challenged devices cannot be DARDs for AHRA purposes even as described by
26
Plaintiff, because the “material object” these devices create is the digital file on the
device’s hard drive, and the hard drive contains much more than only sounds and
incidental data; it also contains a variety of unrelated computer programs (such as
navigation systems). Defendants’ argument that the HDD and Jukebox devices do not
produce DMRs is consistent with the only published federal case to consider the limits
of the AHRA. The Ninth Circuit in Recording Industry Association of America v.
Diamond Multimedia Systems Inc., 180 F.3d 1072 (9th Cir. 1999), concluded that
because the Rio, an early MP3 player, received its music files directly from a personal
computer that contained “numerous programs (e.g., for word processing, scheduling
appointments, etc.) and databases not incidental to any sound files[,]” the Rio’s input
was not a DMR and the Rio itself was not a DARD. Id. at 1076, 1081. Hence,
Defendants here credibly maintain that, because their devices’ hard drives are chock
full of non-music data and computer programs, the output of the HDD and Jukebox
cannot be a DMR (even after audio files from a CD have been downloaded onto it), just
like the computer hard drive in Diamond. 8
8
To be sure, the Diamond court considered whether a challenged device’s input qualified as a DMR,
whereas the instant case turns on the nature of a device’s output; however, the Ninth Circuit’s DMR
analysis is seemingly equally applicable. Furthermore, to the extent that Plaintiff relies on Atlantic
Recording Corp. v. XM Satellite Radio, Inc., No. 1:06-cv-03733-LAK, 2007 WL 136186 (S.D.N.Y. Jan.
19, 2007), which is an unpublished case out of the Southern District of New York (see Pl.’s MTD Opp.
at 27-28; Pl.’s MJP Opp. at 22-24), that reliance is misplaced. The XM case is substantially dedicated to
a thorough investigation of the scope of the AHRA’s copyright protection, and in this Court’s view, the
AARC has overread the sole footnote on which it relies. That is, rather than establishing that devices
with embedded software programs can be DMRs for the purpose of the AHRA, that footnote was
addressed primarily to the fact that the XM devices, unlike the device at issue in Diamond, could copy
digital music recordings directly from an XM broadcast, not just from personal computers. See XM,
2007 WL 136186, at *4 n.4 (noting that the XM device could “receive from transmission[s,]” as
contemplated by 17 U.S.C. § 1001(1), which includes in the definition of DACR a reproduction made
“indirectly from a transmission”). The XM court did not specifically address whether a DACR is
necessarily a DMR, nor did it consider specifically the extent to which any software on the XM devices
would have precluded such a classification, or whether such software might instead be “material,
statements, or instructions incidental to [the] fixed sounds.” Id. § 1001(5)(A).
27
It is entirely possible that the output of Defendants’ devices do, in fact, contain
computer programs and other data not incidental to the recorded audio files such that
the devices fall outside the AHRA’s DARD definition. But this Court is keenly aware
that, at this early stage in the litigation, it must take Plaintiff’s well-pled factual
allegations as true, and construe all reasonable inferences in its favor. See Busby, 932
F. Supp. 2d at 134. And applying that standard, it finds that the AARC’s complaint
contains allegations of fact that, along with reasonable inferences drawn in Plaintiffs’
favor, are sufficient to support the conclusion that at least some of the challenged
devices can produce DMRs within the meaning of the AHRA.
For example, even though the AARC admits that GM’s HDD might in some
instances be capable of “updating maps for a navigation feature,” it also alleges that “a
navigation/map feature is not . . . included on every device that has the music copying
feature,” including certain models of the Cadillac CTS Coupe. (See GM Compl. ¶ 2930.) This assertion gives rise to the inference that these navigation-less devices might
well qualify as being capable of making DACRs that count as DMRs for the purpose of
the AHRA. As for Ford’s Jukebox, the complaint quotes an owner’s manual for one
vehicle that allegedly states that “[y]our mobile media navigation system has a Jukebox
which allows you to save desired tracks or CDs to the hard drive for later access” (GM
Compl. ¶ 43), which in and of itself suggests that the Jukebox has the potential to be a
DMR (i.e., it is reasonable to infer from this statement that the hard drive of this
devices contains only reproductions of such audio files), especially given that the
complaint is devoid of any assertion to the contrary. Thus, while Defendants may well
turn out be factually correct when they describe their music-recording devices as
28
sharing a hard drive with a broader “Nav System” (Ford’s Mem. at 5) or “on-board,
multipurpose computers” (GM’s Mem. at 8) in a manner that precludes their output’s
characterization as a DMR, the exact nature of these devices—and therefore whether
they fall within the scope of the AHRA—is a question of fact that must await resolution
at the next stage of this litigation. In the meantime, this Court concludes that the
AARC has alleged enough (for now) to state a claim under the statute as this Court has
interpreted it. 9
IV.
CONCLUSION
The plain text of the AHRA supports Defendants’ assertion that, under the
statute, a “digital audio recording device” must be capable of producing “digital audio
copied recordings”; that these recordings are a type of “digital musical recording”; and
that the device’s output must therefore comport with the definition of a digital musical
recording that is established at 17 U.S.C. § 1001(5). Thus, the Court rejects Plaintiff’s
overly broad interpretation of the statute. However, and nevertheless, the Court
concludes the instant complaint has sufficiently alleged facts that, if true, could
plausibly demonstrate that Defendants’ devices are in violation of the AHRA.
9
The Court will not accede to Defendants’ request that it consider additional factual information about
the devices at this time. GM has sought to introduce an affidavit and a copy of a GM press release (see
GM’s Mem. at 19 & n.6), arguing that the AARC quoted that press release in one paragraph of the
complaint (see GM Compl. ¶ 31); likewise, Ford and Clarion seek to introduce a copy of an owner’s
manual (see Ford’s Mem. at 6 & n.3) on the grounds that the AARC quoted from that manual in another
paragraph (see GM Compl ¶ 43). This Court finds that the complaint does not “necessarily rel[y]” on
these documents, Ward, 768 F. Supp. 2d. at 119, nor does it “quote from and discuss [them]
extensively,” W. Wood Preservers Inst. v. McHugh, 292 F.R.D. 145, 149 (D.D.C. 2013), as would be
required if the Court is to consider them when evaluating Defendants’ Rule 12 motions. Instead, it
appears that the complaint quotes the two documents at issue one time each, and the bulk of its
allegations and argument do not rest on the press release or the owner’s manual. See Patterson v.
United States, 999 F. Supp. 2d 300, 307 (D.D.C. 2013) (finding that a complaint did not necessarily
rely on an affidavit that it “minimally quote[d]” for a limited purpose). That said, a full factual
accounting will occur at the next stage of litigation.
29
Therefore, as set forth in the accompanying order, Ford and Clarion’s motion to dismiss
and GM’s motion for judgment on the pleadings must be DENIED.
DATE: February 19, 2016
Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
30
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