Oakley v. Amazon.com, Inc. (Amazon) et al

Filing 8

ORDER dismissing 5 Amazon's Motion to Dismiss for Failure to State a Claim. All of Plaintiff's claims against the remaining Defendants are therefore DISMISSED. Denying as moot 6 Motion to Appoint Counsel and to Proceed to Grant Rights to Relatives. The Clerk is DIRECTED to close the case. Signed by Judge Richard W. Story on 1/31/2017. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
REGINALD OAKLEY,
Plaintiff,
v.
AMAZON.COM, INC.,
CREATESPACE.COM,
KINDLE.COM, PENGUIN
RANDOM HOUSE, AUTHOR
SOLUTIONS LLC, and JOHN
DOE THIRD-PARTY SELLERS,
Defendants.

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CIVIL ACTION NO.
1:16-CV-3683-RWS

ORDER
On October 7, 2016, Magistrate Judge Alan J. Baverman granted
Plaintiff Reginald Oakley leave to proceed in forma pauperis in this case. It is
now before the Court for a frivolity determination. Also before the Court are
Defendant Amazon.com, Inc.’s Motion to Dismiss [5], Plaintiff’s Motion to
Proceed and to Appoint Counsel [6], and Plaintiff’s Motion to Proceed to Grant
Rights to Relatives [7]. After reviewing the record, the Court enters the
following Order.

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Background
Plaintiff is an author and the owner of Oakley Publishing and Patents
LLC. (Compl., Dkt. [3] ¶ 4.) He has self-published two books, Murder After
Super Bowl XXXIV (U.S. Copyright No. TX 8-224-209), and Memories of
Murder: To Hell and Back (U.S. Copyright No. TX 8-131-618). (Id. ¶ 13.)
Plaintiff’s books are printed via print-on-demand (“POD”), which is a “printing
technology and business process” where an author’s books are printed only to
satisfy specific orders. (Id. ¶ 14.) Both books provide Plaintiff’s own account
of a double murder that took place after Super Bowl XXXIV. (Id. ¶ 15.)
Defendant Amazon.com, Inc. (“Amazon”) “is the world’s largest online
retailer” and owns Defendants Createspace.com (“Createspace”) and
Kindle.com (“Kindle”). (Id. ¶ 5.) Defendant Penguin Random House
(“Penguin”) sells books through Amazon’s online bookstore and owns
Defendant Author Solutions LLC (“Author Solutions”). (Id. ¶ 6.) Broadly,
Plaintiff alleges that Defendants violated federal antitrust laws and infringed
his copyrights while offering his books for sale online.
According to Plaintiff, in 2005, Amazon entered a new market by
purchasing BookSurge and other POD publishing companies. (Id. ¶ 25.)
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Penguin also entered the POD market by purchasing Author Solutions. (Id.)
No later than February of 2008, Amazon decided it would only sell POD books
directly to consumers if those books were printed using BookSurge. (Id. ¶ 27.)
In 2009, Plaintiff self-published Murder After Super Bowl XXXIV through
Amazon’s POD company Createspace. (Id. ¶ 29.) And in 2010, Plaintiff selfpublished Memories of Murder: To Hell and Back using Penguin’s POD
company Author Solutions. (Id.) Later in 2010, Plaintiff stopped the printing
and sale of both books as less than 50 copies of each were sold. (Id.)
Plaintiff alleges that Amazon, Createspace, Penguin, and Author
Solutions deceived him and other POD authors “by falsely claiming to have
given Plaintiff ‘Free’ ISBN numbers for [his two copyrighted books, and]
permanently ‘tying’ the ‘Free’ ISBN numbers to Plaintiff’s books.” (Id. ¶ 30.)
That, in turn, allowed those Defendants to later maintain ownership of the
“free” ISBN numbers to control Plaintiff’s books in the online book markets.
(Id.)
Plaintiff further alleges that, in 2010, Plaintiff stopped the printing and
sale of books through Amazon, Kindle, and Createspace, and cancelled his
contract with Penguin and Author Solutions because his unedited books were
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leaked online. (Id. ¶ 32.) Nonetheless, third-party sellers on Defendants’
websites claimed to have more used copies of Plaintiff’s books than the amount
initially sold according to Amazon’s royalty report. (Id. ¶ 33.)
Sometime later, Penguin and Author Solutions allegedly emailed
Plaintiff a corrupt and altered copy of his own book, Memories of Murder: To
Hell and Back. (Id. ¶ 34.) Then, in 2011, Plaintiff claims that Defendants used
software to circumvent his web browser and to manipulate and collect
Plaintiff’s personal information. (Id. ¶ 35.) Defendants then created a portal
on Amazon’s webpage for Plaintiff’s books by attaching excerpts of an
unrelated book. (Id. ¶ 36.) Plaintiff seems to allege that those excerpts
contained phrases that were threatening to Plaintiff personally. (Id.)
In 2012, Plaintiff alleges that Defendants took control of his books on
Amazon’s website by “tying” them together and aggressively marketing them
without his permission. (Id. ¶ 37.) Defendants also allegedly violated
Plaintiff’s copyrights by enabling the “Look Inside” feature on his books
without his permission. (Id. ¶ 38.) In 2016, Plaintiff’s books were unattached
from the allegedly threatening excerpts and removed from Amazon’s website.
(Id. ¶ 45.)
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Based on the allegations above, Plaintiff brings four causes of action:
one count for illegal tying in violation of the Sherman Antitrust Act, 15 U.S.C.
§ 1 (Count I); two counts of copyright infringement in violation of 17 U.S.C. §
501, one for infringement of Murder After Super Bowl XXXIV (U.S. Copyright
No. TX 8-224-209) (Count II) and another for infringement of Memories of
Murder: To Hell and Back (U.S. Copyright No. TX 8-131-618) (Count III); and
one count for unfair and deceptive trade practices under 15 U.S.C. § 45 (Count
IV).
Discussion
I.

Amazon’s Motion to Dismiss [5]
A.

Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” mere labels and conclusions or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand a motion to dismiss, “a complaint must contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on
its face when the plaintiff pleads factual content necessary for the court to draw
the reasonable inference that the defendant is liable for the conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions
set forth in the complaint. See Iqbal, 556 U.S. at 678. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id. Furthermore, the court does not “accept as true a legal
conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555.
Because Plaintiff is proceeding pro se, his “pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). “This leniency, however, does not require or allow courts to rewrite
an otherwise deficient pleading in order to sustain an action.” Thomas v.
Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
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B.

Analysis

Amazon moves to dismiss each of Plaintiff’s claims, arguing that
Plaintiff has failed to satisfy the pleading requirements, that the claims are
barred by the relevant statutes of limitations, or that Plaintiff lacks standing or
a private cause of action. Plaintiff has filed no response to Amazon’s motion,
so the Court deems it unopposed. See LR 7.1(B), NDGa (“Failure to file a
response shall indicate that there is no opposition to the motion.”). Still, the
Court will consider Amazon’s arguments on the merits.
1.

Sherman Act Claim (Count I)

In his first claim, Plaintiff alleges that Defendants’ practices of tying
ISBN numbers to his books and tying printing services to sales in the online
book market unreasonably restrain the trade of Plaintiff’s books as well as his
company. (Compl., Dkt. [3] ¶¶ 47-49.) Plaintiff appears to bring this claim
under 15 U.S.C. § 1, which is part of the Sherman Antitrust Act, and says that
“[e]very contract, combination in the form of trust or otherwise, or conspiracy,
in restraint of trade or commerce among the several States, or with foreign
nations, is declared to be illegal.” 15 U.S.C. § 1. While illegal tying
arrangements are actionable under 15 U.S.C. § 1, see Aquatherm Indus., Inc. v.
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Fla. Power & Light Co., 145 F.3d 1258, 1263 (11th Cir. 1998), Amazon argues
that Plaintiff has failed to state a plausible claim for such an arrangement.
“A tying arrangement is ‘an agreement by a party to sell one product but
only on the condition that the buyer also purchases a different (or tied) product,
or at least agrees that he will not purchase that product from any other
supplier.’” Clark Mem’ls of Ala. Inc. v. SCI Ala. Funeral Servs. LLC, 991 F.
Supp. 2d 1151, 1159 (N.D. Ala. 2014) (citing N. Pac. Ry. Co. v. U.S., 356 U.S.
1, 5-6 (1958)). To state a claim for an illegal tying arrangement, a plaintiff
must allege: “(1) an actual tying and tied product, (2) some evidence of
coercion showing that the seller in fact forced the buyer to purchase the tied
product, (3) some evidence that the seller has sufficient market power to carry
out the coercion, (4) anticompetitive effects in the tied market, and (5) more
than an insubstantial amount of interstate commerce in the tied product
market.” AstroTel, Inc. v. Verizon Fla., LLC, No. 8:11-cv-2224-T-33TBM,
2012 WL 1581596, at *5 (M.D. Fla. May 4, 2012) (citing Amey, Inc. v. Gulf
Abstract & Title, Inc., 758 F.2d 1486, 1502-03 (11th Cir. 1985)).
Even taking Plaintiff’s allegations in the light most favorable to him,
Plaintiff has failed to state a plausible claim for an illegal tying arrangement.
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Plaintiff has not alleged that any Defendant “refus[ed] to sell two products
separately.” S. Card & Novelty, Inc. v. Lawson Mardon Label, Inc., 138 F.3d
869, 875 (11th Cir. 1998). But even assuming that ISBN numbers are a
“product” that can be “tied” to Plaintiff’s books, or that Defendants’
willingness to sell Plaintiff’s books online can be “tied” to the use of
Defendants’ printing services, Plaintiff also has not adequately alleged
coercion, an anticompetitive effect, or more than an insubstantial amount of
interstate commerce in the market for the tied product. For those reasons,
Amazon’s Motion to Dismiss [5] is GRANTED as to Count I.
2.

Copyright Infringement (Counts II and III)

Plaintiff next alleges that Defendants violated the copyrights for both of
his books by “tying” or “bundling” his books together, enabling the “Look
Inside” feature on his books, and leaking his books online. (See Compl., Dkt.
[3] ¶¶ 50-61.) First, the Court notes that any allegations about “tying” or
“bundling” appear to go to antitrust claims, not copyright infringement. And as
the Court articulated above, Plaintiff’s Complaint fails to state a claim for an
illegal tying arrangement. As a result, the Court will not rehash Plaintiff’s
tying allegations here.
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Next, as Amazon correctly points out, Plaintiff’s copyright infringement
claims are likely barred by the statute of limitations. The limitations period for
copyright infringement is three years “after the claim accrued.” 17 U.S.C. §
507(b). A copyright infringement claim accrues “when an infringing act
occurs.” Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1969 (2014).
Here, Plaintiff alleges that Defendants leaked his books online in 2010 and that
they “took control of Plaintiff’s books” and marketed them without his
permission in 2012. (Compl., Dkt. [3] ¶¶ 32, 37, 54, 60.) But Plaintiff did not
file this suit until September 30, 2016. So any infringement claim based on
those allegations falls at least one year after the statute of limitations expired.
Still, the copyright statute of limitations is subject to the “separateaccrual rule.” Petrella, 134 S. Ct. at 1969. “Under that rule, when a defendant
commits successive violations, the statute of limitations runs separately from
each violation.” Id. Applying the separate-accrual rule here, the Court takes
pause at some of Plaintiff’s other allegations, such as Defendants’ use of the
“Look Inside” feature. The Complaint does not say when Defendants first
enabled that feature nor when they disabled it, if ever. As a result, it is possible
that a copyright infringement claim based on Defendants’ use of the “Look
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Inside” feature could be within the statute of limitations.
Even so, Plaintiff’s allegations based on that feature are not enough to
state a plausible claim for copyright infringement. To state such a claim,
Plaintiff must allege that he owns valid copyrights in his books and that
Defendants copied protected elements from his books. See Peter Letterese And
Associates, Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1300
(11th Cir. 2008). Here, Plaintiff has alleged valid ownership as he attached to
the Complaint the copyright registration certificates for both of his books.
(Reg. Cert. Copyright No. TX 8-224-209, Dkt. [3-1] at 2-3; Reg. Cert.
Copyright No. TX 8-131-618, Dkt. [3-1] at 4-5.) But Plaintiff does not
adequately allege that Defendants copied protected elements of those books.
Plaintiff’s Complaint is devoid of any explanation of the “Look Inside” feature
or how Defendants’ use of that feature constituted copying. Assuming that the
“Look Inside” feature allowed potential buyers to view excerpts of Plaintiff’s
books, Plaintiff does not specify what those excerpts entailed or how they
overlapped with protected elements of his copyrighted works. For all these
reasons, Amazon’s Motion to Dismiss [5] is GRANTED as to Counts II and
III.
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3.

Unfair Methods of Competition (Count IV)

Finally, Plaintiff alleges that Defendants “participated in unfair,
anticompetitive, wrongful treatment and practices against Plaintiff.” (Compl.,
Dkt. [3] ¶ 63.) Plaintiff does not specify the legal grounds for this allegation
within Count IV itself, but the caption indicates that Count IV is brought under
15 U.S.C. § 45, which is part of the Federal Trade Commission Act (“FTCA”).
That provision makes it unlawful to engage in “[u]nfair methods of competition
in or affecting commerce, and unfair or deceptive acts or practices in or
affecting commerce.” 15 U.S.C. § 45(a)(1). But Amazon argues, and the Court
agrees, that Plaintiff cannot rely on 15 U.S.C. § 45 because there is no private
right of action under that statute. See Lingo v. City of Albany Dep’t of Cmty.
& Econ. Dev., 195 F. App’x 891, 894 (11th Cir. 2006) (“There is no private
cause of action implied under the Federal Trade Commission Act.”); Leonard
v. The Momentum Grp., Inc., No. 1:14-CV-01074-LMM, 2015 WL 11236547,
at *4 (N.D. Ga. Dec. 16, 2015) (finding no private right of action under the
FTCA when plaintiff alleged a violation of 15 U.S.C. § 45); Horton v. HSBC
Bank, No. 1:11-CV-3210-TWT, 2013 WL 2452273, at *9 (N.D. Ga. June 5,
2013) (same). As a result, Amazon is entitled to DISMISSAL of Count IV.
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II.

Frivolity Review
Under 28 U.S.C. § 1915(e)(2)(B), “the court shall dismiss the case at any

time if the court determines that . . . the action or appeal (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief.” A
claim is frivolous when it appears from the face of the complaint that the
factual allegations are “clearly baseless” or that the legal theories are
“indisputably meritless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989);
Carrol v. Gross, 984 F.2d 393, 393 (11th Cir. 1993).
As the Court found in analyzing Amazon’s Motion to Dismiss [5], all of
Plaintiff’s claims are deficient and subject to dismissal. That is true not only of
Plaintiff’s claims against Amazon, but also of his claims against the remaining
Defendants. For that reason, none of Plaintiff’s claims can survive review
under § 1915(e)(2)(B). See 28 U.S.C. § 1915(e)(2)(B)(ii). All of Plaintiff’s
claims against the remaining Defendants are therefore DISMISSED. Because
there are no claims remaining in this case, Plaintiff’s Motion to Proceed and to
Appoint Counsel [6] and Motion to Proceed to Grant Rights to Relatives [7] are
DENIED as moot. The Clerk is DIRECTED to close the case.
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SO ORDERED, this 31st day of January, 2017.

________________________________
RICHARD W. STORY
United States District Judge

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