LIVE FACE ON WEB, LLC v. MEGAPREVENTIONRX LIMITED LIABILITY COMPANY et al
OPINION. Signed by Judge Joseph H. Rodriguez on 3/21/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LIVE FACE ON WEB, LLC,
HONORABLE JOSEPH H. RODRIGUEZ
Civil No. 15-7143 (JHR/AMD)
MARK GUERRA a/k/a
This matter is before the Court on Defendant’s motion to dismiss the
Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. The Court has reviewed the submissions and decides the matter
based on the briefs pursuant to Fed. R. Civ. P. 78(b). For the reasons stated here,
Defendant’s motion will be denied.
The Court previously set forth the general background of this copyright
infringement suit brought by Plaintiff Live Face on Web, LLC (“LFOW”) against
then Defendants MegapreventionRx, LLC and Mark Guerra. The Amended
Complaint alleges facts consistent with those in the Court’s prior Opinion, but
with further detail, and defunct entity MegapreventionRx has been dropped from
LFOW develops computer software. (Am. Compl. ¶ 9.) The copyrighted
software at issue allows a website to display a video spokesperson who walks and
talks on the computer screen, directing a website visitor’s attention to certain
aspects of the website. (Id. ¶ 10.) Defendant’s website,
www.megapreventionrx.com, allegedly has this video spokesperson functionality.
(Id. ¶ 18-20.) “[I]n order to display the web spokesperson video on Defendant’s
website, Defendant [allegedly] used, copied, and distributed” LFOW’s software
without permission. (Id. ¶ 21.)
The Amended Complaint alleges that each time a person visits Defendant’s
website and views the video spokesperson, a separate violation of LFOW’s
copyright occurs. (Id. ¶ 26.) LFOW explains, “[w]hen a web browser is directed to
a website linked to the LFOW Software, the embedded HTML script tag is read by
the web browser and causes the automatic distribution of a copy of the LFOW
Software. The LFOW Software is automatically saved by the web browser into
cache, and/or a hard drive(s), and loaded into computer memory and/or RAM
(random access memory). As a result of the distribution of the LFOW Software,
the specific web spokesperson video is automatically launched and displayed . . .
on the . . . website.” (Id. ¶ 14.) That is, in order for the video spokesperson to
appear on Defendant’s website, the website causes a copy of LFOW’s copyrighted
software code to be distributed to each website visitor. (Id. ¶¶ 28-29.) According
to LFOW, this “volitional distribution of the infringing version of the LFOW
Software by Defendant to his website visitors was seamless and transparent for
the website visitors, who were able to view the video spokesperson . . . by virtue of
receiving the copy of the infringing version of the LFOW Software.” (Id. ¶ 29.)
The Amended Complaint asserts only one claim: “direct, indirect and/or
vicarious” copyright infringement. (Id. ¶ 41.)
Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss
a complaint “for failure to state a claim upon which relief can be granted.” In
order to survive a motion to dismiss, a complaint must allege facts that raise a
right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); see also Fed.R.Civ.P. 8(a)(2). While a court must accept as true
all allegations in the plaintiff's complaint, and view them in the light most
favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the
form of factual allegations, unwarranted inferences, or unsupported conclusions.
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The
complaint must state sufficient facts to show that the legal allegations are not
simply possible, but plausible. Phillips, 515 F.3d at 234. “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) (citing Twombly, 550 U.S. at 556).
Defendant argues that the Amended Complaint fails to state a claim for
copyright infringement in that there are no allegations of unlawful copying. “To
establish infringement, two elements must be proven: (1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.”
Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361
(1991). Only the second element is at issue in this motion. “Copying is a
shorthand reference to the act of infringing any of the copyright owner’s . . .
exclusive rights set forth at 17 U.S.C. § 106.” Dun & Bradstreet Software Servs.,
Inc. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002) (internal citation
and quotation omitted). “The exclusive rights implicated in this suit are the first
three enumerated by § 106: the right ‘(1) to reproduce the copyrighted work in
copies . . .; (2) to prepare derivative works based upon the copyrighted work;
[and] (3) to distribute copies . . . of the copyrighted work to the public by sale or
other transfer of ownership, or by rental, lease, or lending.’” Live Face on Web,
LLC v. Emerson Cleaners, Inc., 66 F. Supp. 3d 551, 554 (D.N.J. 2014).
The Court finds that LFOW has sufficiently pled a claim for direct copyright
infringement1 by alleging that Defendant’s website causes a copy of the LFOW
Software to be automatically downloaded to the website visitor’s computer in
cache, memory and/or hard drive. (Am. Compl. ¶ 26.) See Emerson Cleaners, 66
F. Supp. 3d at 555. “The specific technological mechanism by which this is
accomplished may be explored during discovery.” Id. Besides sufficiently alleging
that Defendant reproduced the computer code, the Amended Complaint also
alleges that Defendant’s website distributed copies of the code to each of the
website’s visitors. (Am. Compl. ¶¶ 21, 26.) Whether Defendant’s actions were
unauthorized or unlawful is not an appropriate issue at this stage of the litigation.
Of course, individuals may be liable for copyright infringement. Columbia
Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154, 160 (3d Cir. 1984) (“An officer
or director of a corporation who knowingly participates in the infringement can
be held personally liable, jointly and severally, with the corporate defendant.”).
The Amended Complaint alleges:
Upon information and belief, Defendant Peter Guerra (“Guerra”) is a
resident of New Jersey and the owner and/or managing member of
MegapreventionRx and the subject website(s) at issue here. Guerra is
the owner and/or chief executive officer of MegapreventionRx, and
Accordingly, the Court need not address whether the Amended Complaint
pleads “access to” the infringed upon work to support an inference of copying.
While the instant motion discusses direct and indirect infringement, it does not
argue separately against vicarious liability.
was responsible for registering the subject website(s) at issue in this
action and controlling the content of, modification to, and
distribution of infringing source code from the subject website(s) at
issue in this action. Additionally, Guerra was the administrative
contact for the subject website(s) at issue in this action.
(Am. Compl. ¶ 3.) The Court finds this sufficient to withstand the instant
For these reasons, Defendant’s motion to dismiss the Amended Complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim will be
denied. An appropriate Order will be entered.
Date: March 21, 2017
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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