EXPLOROLOGIST LIMITED v. SAPIENT

Filing 19

MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by BRIAN SAPIENT.Brief, REQUEST FOR ORAL ARGUMENT, APPENDIX AND Certificate of Service.Motions referred to M. FAITH ANGELL. (Attachments: # 1 Text of Proposed Order # 2 Request for Oral Argument# 3 Appendix Foreign Authorities)(COOPER, CHAD) Modified on 6/12/2007 (afm, ).

EXPLOROLOGIST LIMITED v. SAPIENT

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EXPLOROLOGIST LIMITED,
Plaintiff,
v.
) ) ) ) )

Civil Action No. 2:07-cv-01848-LP

)

The Honorable

BRIAN SAPIENT aka BRIAN 1. CUTLER,
Defendant.

) )

Louis H. Pollak

)
) )

DEFENDANT'S MOTION TO DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and 12(b)(6)

Defendant Brian Sapient hereby respectfully moves this Court to dismiss
Plaintiffs Amended Complaint pursuant to Federal Rules of

Civil Procedure 12(b)(6)

and 12(b)(1), for the reasons set forth in the accompanying memorandum of law.
Respectfully submitted,

Chad Cooper (Pa. 1. . o. 90067)

Samuel W. Silver ( a. 1.D. No. 56596)
SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, P A 19103-7286 [phone]; [phone]

Attorneys for Defendant, Brian Sapient
Dated: June 11, 2007

Dockets.Justia.com

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYL VANIA
EXPLOROLOGIST LIMITED,
Plaintiff,
v.
) ) ) )

Civil Action No. 2:07-cv-01848-LP

)
) ) ) )

The Honorable
Louis H. Pollak

BRIAN SAPIENT aka BRIAN 1. CUTLER,
Defendant.

) )

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(l) AND 12(b)(6)

1. INTRODUCTION
Uri Geller does not like critics. In fact, he dislikes them so much that he wil employ
almost any means - including sending unlawful copyright takedown notices and filing frivolous
lawsuits through his company, Plaintiff

Explorologist Ltd. - in order to silence them. This case

is one such lawsuit, brought solely to shut down Defendant Brian Sapient's First Amendmentprotected efforts to foster public debate about Geller and his claims to paranormal abilities.
Sapient is a member of

the Rational Response Squad ("RRS"), a group dedicated to

challenging irrational claims, including Claims about psychic powers. Through their Internet websites and electronic mailing lists, they stay in touch with thousands of supporters on key
issues of the day, such as the ongoing debate between evolution and creationism. As par of

their

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activities in this area, Sapient and RRS have also spoken out against beliefs in magic, mysticism,
and psychic abilities, arguing that rationality and logic explain these phenomena.

In the course ofthis work, Sapient and RRS have sharply criticized Geller, a worldrenowned performer who became famous in the 1970s for asserting that he has "mental powers"
that allow him to read minds and bend spoons. As part of

that criticism, Sapient uploaded a
the Psychics," onto YouTube

segment of

video from the 1993 PBS program "NOVA: Secrets of

- a well-known Internet video service - as "James Randi exposes Uri Geller and Peter Popoff,'"
("NOV A Segment"). In the fourteen-minute segment, skeptic and magician James Randi
examines Geller's performances and proposes a rational explanation for the Geller's supposed
paranormal abilities.

In response, Geller - through his London-based company Explorologist - tried to censor

the video by sending a Digital Milennium Copyright Act ("DMCA") takedown notice to
Y ouTube, claiming the NOV A Segment somehow infringed its copyrights. Recognizing that the

company had no cognizable copyright claim, in March 2007 Sapient counter-noticed pursuant to

the DMCA and had the video restored on Y ouTube. Undeterred, Geller and Explorologist now
seek to enlist this Court's assistance with their improper campaign by filing the instant Complaint, which primarily claims Sapient has violated British copyright law by posting the
NOV A Segment to the United States-based Y ouTube service.2

i http://ww.youtube.com/watch?v=M9w7jHYriFo (last visited June 11, 2007).
2 This is not the first time Geller and Explorologist have tried to use the legal process to silence

Geller's critics. Geller fied at least three lawsuits against James Randi, the skeptic featured in the NOVA Segment; see Geller v. Randi, 1993 WL 179293 (D.D.C. 1993), affd, 40 F.3d 1300, (D.C. Cir. 1994) (affrming dismissal and Rule 11 sanctions); Geller v. Randi, No. 7:89-cv03385-CLB, (S.D.N.Y. dismissed June 18, 1990); Geller v. Randi, No 7:89-cv-07143-VLB
(S.D.N.Y. dismissed June 1,1992).

2

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Ironically, the Complaint itselfreveals the failures of Plaintiff s copyright allegations. In
it, Explorologist admits that its copyright claim rests upon nothing more than the republication of

an eight-second clip at the beginning ofthe NOVA Segment wherein an unnamed person

introduces Geller at a public event by stating "his remarkable affnity for metal and his psychic

abilities are well documented all over the world." That single sentence sets up Randi's
subsequent commentary on Geller's so-called psychic abilities in the rest of

the video. Such

minimal and critical use is absolutely privileged under bedrock principles of our law, including
the fair use doctrine and First Amendment. Explorologist surely knows this: that is why it has

asked the Court to apply British law-which has weaker fair use and free speech protections-to
the alleged "infringement," even though the NOVA Segment was uploaded by a United States
resident, and is hosted on Y ouTube' s United States servers.

This Court need not assist Plaintiff in its improper effort to punish Geller's critics.

Instead, it may end this litigation now by dismissing Plaintiff s Complaint with prejudice for

several reasons. First, Explorologist's foreign intellectual property and state misappropriation

claims are preempted under Section 230 ofthe Communications Decency Act. Second, any
judgment based on these foreign claims would be unenforceable as repugnant to well-established

United States public policies. Third, this Court need not assert subject matter jurisdiction over
the foreign copyright claims because copyright infringement is not a transitory tort and foreign

copyright law canot be invoked for actions that take place solely within the United States.
Fourth, even if jurisdiction were appropriate, Plaintiffs copyright cause of

action fails to state a

claim for relief

under basic tenets of

both foreign and U.S. laws. Finally, Plaintiffs

disparagement and appropriation claims fail to allege essential elements of these causes of
action.

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2. BACKGROUND FACTS
On October 19, 1993, the u.s. Public Broadcasting Service ("PBS") television series
NOVA aired a program entitled "Secrets of

the Psychics" (the "NOVA Documentary"). See
the Psychics); Ex. B

Defendant's Request for Judicial Notice ("RJN"), Ex. A (NOVA: Secrets of

(NOVA, Secrets of

the Psychics: Program Overview).3 The hour-long program included the

NOVA Segment, an almost fourteen-minute segment in which magician and skeptic James Randi first explains how Uri Geller's allegedly supernatural feats might have been accomplished

through trickery, then exposes faith healer Peter Popoff. Compare RJN, Ex. A ("NOVA

Documentary") with http://ww.youtube.com/watch?v=M9w7jHYriFo ("NOVA Segment")
(last visited June 11, 2007). The NOVA Segment includes a few seconds of footage in which a Dr. C.J. Hughes introduces Uri Geller to an audience, stating that Geller's "remarkable affinity for metal and his psychic abilities are well documented all over the world." ("Hughes Excerpt").
See NOVA Documentary at 5: 15-5:23; NOVA Segment at 0:50 to 0:58.
In January 2007, Defendant Brian Sapient uploaded the NOVA Segment to Y ouTube.

See NOVA Segment; Am. Compl. ~ 10. Sapient is a United States citizen residing in
Philadelphia, Pennsylvania and a member of the Rational Response Squad ("RRS"), an activist
group dedicated to challenging what they see as irrational claims. Am. Compl. ~ 2. Y ouTube is a

video-sharing website where milions of Internet users post videos and make them available to

others for viewing. See generally http://ww.youtube.com (last visited June 11, 2007). Sapient
and the RRS rely on Y ouTube to reach thousands of audience members and promote their

activist messages and campaigns online.

3 http://ww.pbs.org/wgbh/novalteachers/programsI20 12 'ysychics.html (last visited June 11,

2007).

4

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On March 23,2007, an agent of

Plaintiff

Explorologist and Geller demanded that

YouTube take down the NOVA Segment pursuant to the DMCA, 17 U.S.C. § 512. As a result
of

Plaintiffs DMCA copyright infringement notice, Sapient's YouTube account was suspended.

Sapient quickly submitted a counter-notification of noninfringement to Y ouTube under the
DMCA, on March 27, 2007. However, as a result of

Plaintiffs conduct, Sapient's account and

all of

his video po

stings (including, but not limited to, the NOVA Segment) remained

unavailable for more than two weeks. On May 8, 2007, Sapient sued Explorologist and Geller
in the Northern District of California, seeking damages for misrepresentation and a declaratory

judgment of noninfringment. See John Doe a/k/a Brian Sapient v. Uri Geller a/k/a Uri GellerFreud and Explorologist Ltd. , N.D.C.A. Case No. 3:07-cv-02478-BZ.
Explorologist filed the instant case on May 7, 2007-just before Sapient filed his suit in

California-and filed its Amended Complaint on May 23,2007. Relying on British copyright
law, Explorologist claims Sapient has infringed its United Kingdom copyright in an alleged
video recording of a 1987 public Geller performance (including introductory remarks by C.J.
Hughes) by posting the NOVA Segment (including the Hughes Excerpt) on Y ouTube. See Am.
Compl. ~ 10; NOVA Segment at 0:50 to 0:58. Explorologist also alleges Sapient has infringed
Geller's publicity rights (of

which it is the purported assignee) and commercially disparaged

Explorologist by uploading another video (in March 2007) in which Sapient allegedly "accused
Plaintiff of being a dummy or sham corporation and accused Uri Geller of

being a professional

con man and fraud and other criminal or immoral acts." Am. Compl. ~~ 15-21. Explorologist
has not pled special damages. Am. Compl. ~ ~ 13-18.

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3. STANDARD OF REVIEW
A court may grant a motion to dismiss if it is clear that the court cannot provide relief
under any set of facts that Plaintiff could prove consistent with those allegations. Jordan v. Fox,
Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); see also Dimeo v. Max,

433

F. Supp. 2d 523, 527 (E.D. Pa. 2006). "Factual allegations must be enough to raise a right to
relief above the speculative 1eveL.. .on the assumption that all the allegations in the complaint are
true (even if doubtful in fact)." Bell Atlantic

Corp. v. Twombly, 127S.Ct.1955, 1964(2007).

Thus, the Court must accept all well-pleaded allegations in the complaint as true and draw all

inferences in the plaintiffs favor, Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944
(3d Cir. 1985), but need not accept "bald assertions or legal conclusions." Morse v. Lower
Merion School Dist., 132 F .3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted); see

also Nadig v. Nagel, 272 F. Supp. 2d 509, 511 (E.D. Pa. 2003) ("The cour need not, however,
accept conclusory allegations or legal conclusions. ").

To assist the Court's determination, Sapient submits herewith a Request for Judicial
Notice ("RJN") of

the NOVA Segment that forms the basis for Plaintiffs principal allegations,

of

the fact that the NOVA Segment is an excerpt from the original NOVA documentary, and of

the NOVA website and U.S. Copyright Office website describing the original documentary, and an appendix of relevant foreign law. While a district court generally may consider only

allegations set forth in the pleadings, Angelastro, 764 F.2d at 944, a "document integral to or
explicitly relied upon in the complaint may be considered without converting the motion (to

dismiss) into one for summary judgment." In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997) (internal quotation marks omitted) (quoting Shaw v. Digital Equip.
Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)). The rationale underlying this exception is simple:

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"The primary problem raised by looking to documents outside the complaint-lack of notice to
the plaintiff-is dissipated (w)here plaintiff

has actual notice. . . and has relied upon these

documents in framing the complaint." Id. at 1426 (internal quotation marks omitted); see also
Brown ex ref. Marasco v. Wiener, 2005 WL 2989748 (E.D. Pa. 2005) ("the court may consider

matters of public record, and authentic documents upon which the complaint is based... "). This Court may also consider foreign law sources; once an issue of foreign law has been
properly raised, a federal court may make a determination of that law as a matter of

law, and in

making that determination "may consider any relevant material or source, including testimony,
whether or not submitted by a pary or admissible under the Federal Rules of

Evidence." Fed. R.

Civ. P. 44.1. "The Court has great discretion in choosing source materials when the application
of

foreign law is necessar." Zurich Capital MIas., Inc. v. Coglianese, 383 F.Supp.2d 1041,1052
motion to dismiss).

(N.D. IlL. 2005) (examining Bahamanian law in context of

4. ARGUMENT
Plaintiff s Amended Complaint is fatally flawed. As an initial matter, all of Plaintiff s
claims based on Defendant's republication of

the NOVA Segment are barred by Section 230 of

the federal Communications Decency Act ("Section 230"), which explicitly immunizes users of
online services from claims based on their publication of previously published materials. Further,

Plaintiff s claims under British copyright law are unenforceable (and therefore should be
dismissed) because any judgment this Court could render on them would be repugnant to the
First Amendment and the Fair Use Doctrine. Moreover, Plaintiff

has failed to establish adequate

jurisdiction over its copyright claims. Finally, even if Plaintiff were somehow able to overcome

all ofthese obstacles, Plaintiffs Complaint must stil be dismissed because it fails successfully to
plead essential elements of its British copyright and state causes of action.

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a. Section 230 of the Communications Decency Act Bars Plaintiff's Claims for
Violations of British Copyrieht Law and Appropriation of

Name or Likeness.

Plaintiffs Complaint is primarily based on a single activity by Defendant: the
republication of the NOV A Segment in the United States to the Y ouTube video website.4
Section 230 of

the Communications Decency Act requires that all claims based on that

republication be dismissed with prejudice.5

· Background on Section 230 of the Communications Decency Act

Section 230 of

the Communications Decency Act represents Congress's effort to balance

two deeply rooted American values: our commitment to vibrant public discourse and our desire

to hold individuals accountable for genuinely harmful speech. These values have long been in

tension: Claims for torts like defamation and intentional inflction of emotional distress have
strong roots in our legal system, but, because they target speech, such claims may also have a
chiling effect on legitimate public discourse. Not surprisingly, the rapid growth of the Internet

prompted an intense Congressional debate over the right approach to mediating this tension in

this new and potentially powerful forum for free speech. Section 230 was the result.
Section 230 immunizes users and providers of "interactive computer services" from

liability for content originally published by third paries, 47 U.S.c. § 230, in order to encourage
4 Am. Compl. Count I (~~6-12) and II (~~ 19-21).

5 Cours regularly grant Rule 12(b)(6) motions when it is clear that Section 230 bars the claims

alleged in the plaintiffs complaint. See, e.g., Green v. Am. Online, 318 F.3d at 472; Dimeo, 433 F. Supp. 2d at 527; Parker v. Google, Inc., 422 F. Supp. 2d 492,504 (E.D. Pa. 2006).

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both large and small online intermediaries to open their forums for discussion, free from fear of

liability for another speaker's words. As the Fourth Circuit found in the seminal case
interpreting Section 230, such liability was, "for Congress, simply another form of intrusive
governent regulation of speech." Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997),

cert. denied, 524 U.S. 937 (1998) ("Section 230 was enacted, in par, to maintain the robust
nature of Internet communication and, accordingly, to keep governent interference in the

medium to a minimum."). Recognizing that the Internet and other interactive computer services
"have flourished, to the benefit of all Americans, with a minimum of governent regulation,"

see 47 U.S.c. § 230(a)(4), Congress expressly sought to limit the impact on the Internet of
federal or state regulation via statutory or common law causes of action. Congress thus
recognized in Section 230 what the U.S. Supreme Court later confirmed in extending the highest
level of First Amendment protection to the Internet: "governental regulation of the content of

speech is more likely to interfere with the free exchange of ideas than to encourage it." Reno v.
ACLU, 521 U.S. 844, 885 (1997).

In keeping with these principles, Congress crafted an expansive immunity, covering both

commercial entities and individual intermediaries - including users of online forums like

Y ouTube-and encompassing a broad range of speech-related torts, subject only to specified
narow exceptions. Thus, under the cloak of

federal immunity, individuals such as Sapient are

protected from being held liable for exchanging others' videos, articles or observations as part of
the dialog carried on through news

groups, blogs, email lists, or through the simple action of

posting an interesting video on a video hosting service. Courts across the country, including Pennsylvania courts and the Third Circuit, have

upheld Section 230 immunity and its policy of regulatory forbearance for both providers and

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users of

interactive computer services. See Dimeo v. Max, 433 F. Supp. 2d at 528-29; Green v.

Am. Online, 318 F.3d 465,471 (3d Cir. 2003); D'Alonzo v. Truscello, 2006 WL 1768091,2006

Phila. Ct. Com. PI. LEXIS 244 (Phila. Ct. Common Pleas May 31, 2006). As explained below,

that immunity easily encompasses Sapient's alleged activities.

· The Text and Application of Section 230

Section 230 of the Communications Decency Act provides:

TREATMENT OF PUBLISHER OR SPEAKER. No provider or user of an
interactive computer service shall be treated as the publisher or speaker of any

information provided by another information content provider.

47 U.S.C. §§ 230(c)(1) (emphasis added). As this Court has recognized, the statute could hardly

be more clear on this point: "(T)he text of the CDA itself tells all parties. . . not to treat a
provider or user of an interactive computer service as the publisher of information posted by
someone else. Moreover, it does so in mandatory terms." Voicenet Comms., Inc. v. Corbett, 2006

WL 2506318, 2006 U.S. Dist. LEXIS 61916 at *10 (E.D. Pa. Aug. 30, 2006) (emphasis added).

Congress' mandate bars, in turn, any cause of action against a user based on such publication,

because "(b)y declaring that no 'user' may be treated as a 'publisher' of third party content,

Congress has comprehensively immunized republication by individual Internet users." Barrett v.
Rosenthal, 40 Cal.4th 33, 62 (Cal. 2006). Thus, the plain "language of § 230(c)(1) confers
immunity not just on 'providers' of such services, but also on 'users' of

such services." Batzel v.

Smith, 333 F.3d 1018, 1030 (9th Cir. 2003), cert. denied, 124 S.Ct. 2812 (2004); Corbett, 2006
WL 2506318 at *10.

As noted above, Congress enacted Section 230 "to promote the free exchange of

information and ideas over the Internet. In specific statutory findings, Congress stressed that
'(t)he Internet and other interactive computer services offer a forum for a true diversity of

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political discourse, unique opportunities for cultural development, and myriad avenues for

intellectual activity. ", Dimeo, 433 F. Supp. 2d at 528 (quoting 47 U.S.c. § 230(a)(3)); see also
Batzel, 333 F.3d at 1027-28 (Section 230 was intended to encourage "the unfettered and
unregulated development of

free speech on the Internet."). As the Fourth Circuit explained in

Zeran:

The specter of tort liability in an area of such prolific speech would have an
obvious chiling effect. It would be impossible for service providers to screen

each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of
messages posted.

129 F.3d at 331; see also Dimeo, 433 F. Supp. 2d at 529 ("(A)bsent federal statutory protection,

interactive computer services would essentially have two choices: (1) employ an army of highly trained monitors to patrol (in real time) each chatroom, message board, and blog to screen any

message that one could label defamatory, or (2) simply avoid such a massive headache and shut

down these fora."). Therefore, Section 230 "bars lawsuits seeking to hold a (user or) service
provider liable for its exercise of a publisher's traditional editorial roles-such as deciding

whether to publish, withdraw, postpone, or alter content." Green, 318 F.3d at 471 (quoting

Zeran, 129 F.3d at 330 (internal quotation marks omitted); see also Parker, 422 F. Supp. 2d at
501 (quoting same).

Because that harmful chiling effect would not be confined to service providers, Section
230 expressly grants the same immunity to users of interactive computer services. 47 U.S.C. §
230( c)(1) ("( n)o provider or user. . . . ") (emphasis added).6 The question of the user liability

treatment is also reflected in the statute's second immunity provision, subsection 230(c)(2), which uses the same phrasing of"(n)o provider or user. . . ." (emphasis added).

6 This parity of

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under Section 230 was recently considered by the California Supreme Court in Barrett v.

Rosenthal, 40 Ca1.4th 33 (CaL. 2006). Carefully reviewing the statute and its legislative history,

the court noted that Congress had "consistently referred to "users" of interactive computer
services, specifically including 'individuals'" and concluded that "(t)here is no reason to suppose
that Congress attached a different meaning to the term 'user' in section 230(c)(1). . . ."
Moreover, such an interpretation was consistent with Congress' goals:

provide much of the "diversity of political discourse," the pursuit of
"opportnities for cultural development," and the exploration of "myriad avenues for intellectual activity" that the statute was meant to protect. . . .By declaring that no "user" may be treated as a "publisher" of third party content, Congress has comprehensively immunized republication by individual Internet users.
Barrett v. Rosenthal, 40 Ca1.4th at 62 (2006); see also Dimeo, 433 F.Supp.2d at 530 (Section 230

(T)he congressional purpose of fostering free speech on the Internet supports the extension of section 230 immunity to active individual "users." It is they who

blocked defamation claim based on statements republished using an interactive computer
service); Batzel, 333 F.3d at 1030 ("the language of § 230 (c)(l) confers immunity not

just on

'providers' of such services, but also on 'users' of such services. "); Optinrealbig. com, LLC v.

Ironport Systems, Inc., 323 F.Supp.2d 1037 (N.D.CaL. 2004) (defendant protected where it "uses

interactive computer services to distribute its on-line mailing and to post the reports on its
website"); Barrett v. Fonorow, 799 N.E.2d 916, 923-24 (IlL. App. 2003) (individual poster of

allegedly defamatory messages was ICS "provider or user"). The California Supreme Court
went on to hold that an individual who republished a defamatory statement online was immune under CDA 230, even though she might have been liable if she republished the same statement
offlne. Barrett v. Rosenthal, 40 Ca1.4th at 63.

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· Section 230 Immunity Applies to Sapient's Republication, via Y ouTube,
of

the NOVA Documentary

As this Court has noted, immunity under Section 230 requires a court to find only three

facts present: "First, the defendant must be a provider or user of an 'interactive computer
service.' Second, the asserted claims must treat the defendant as a publisher or speaker of

information. Third, the challenged communication must be 'information provided by another
information content provider.'" Dimeo, 433 F. Supp. 2d at 530; see also Zeran, 129 F.3d at 330
(same).

All three requirements are met here. According to the Amended Complaint, Plaintiff
seeks to hold Sapient, i.e., a user of the interactive computer service Y ouTube, liable for

allegedly republishing material originally produced by a third pary, i.e., NOVA. Thus, under
Section 230, Counts I (and II, to the extent that it relies on the same activity) must be dismissed.

. Sapient is a User of an Interactive Computer Service

There can be no serious dispute that Sapient is a user of the Y ouTube interactive

computer service ("ICS"). In its Amended Complaint, Plaintiff alleges that Sapient "did and for
a period commencing January 2007 digitally up-load upon the website pages of

the domain name

ww.youtube.com electronic images of

the Film within a sequence of cinematographic images

entitled "James Randi exposes Uri Geller and Peter Popoff(.)" Am. Compl. ~ 10.
Y ouTube, in turn, is a "provider or user of an interactive computer service" within the

meaning of Section 230 because it is an "information service" that enables "multiple users" to
"access. . . a computer server" - specifically, to access the computer server that hosts the

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Y ouTube website. 47 U.S.c. § 230(£)(2). This Court has found that this is precisely the
meaning of the statute:

"(I)nteractive computer service" means, in relevant part, "any information service, system, or access software provider that provides or enables computer
access by multiple users to a computer server. . .." § 230(£)(2) . . . . Because it is

a "service" that "enables computer access" by multiple users to a computer server, see 47 U.S.C. § 230(£)(2), (Defendant) Max's Web site is (an ICS)."
Dimeo, 433 F. Supp. 2d at 529-30. The First Circuit recently reached the same conclusion:

A web site. . . "enables computer access by multiple users to a computer server," namely, the server that hosts the web site. Therefore, web site operators. . . are providers of interactive computer services within the meaning of Section 230.
Universal Comm. Sys., Inc. v. Lycos, Inc, .478 F.3d 413,419 (1st Cir. 2007); see also, e.g.,

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,1123 (9th Cir. 2003); Batzel, 333 F.3d at
1030 (holding that an online newsletter and website were protected under the statutory definition
ofICS); Corbis v. Amazon.

com, 351 F. Supp. 2d 1090, 1118 (W.D. Wash. 2004) (finding

Amazon.com to be an ICS and thus immune from liability under Section 230). Thus, Plaintiffs
allegations establish the first element of

the test for Section 230 immunity.

· The Complaint Treats Sapient as a Publisher or Speaker of the Video He
Posted to Y ouTube.

Plaintiffs transitory tort (British copyright) claims against Sapient squarely meet the
second criterion for Section 230 immunity because they arise from Sapient's alleged
republication of the NOVA Segment on Y ouTube, as does its appropriation of name or likeness

claim to the extent that it arises from the same republication. Am. Compl. ~ 10- 11, 15, 19-20
(alleging violations based on Sapient's "uploading" of NO

V A Segment). Thus, Plaintiffs

allegations also establish the second element of

the test for Section 230 immunity.

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. The Information at Issue was Provided by NOVA, Another Information

Content Provider.

Finally, Sapient's use also satisfies the final element of

the Section 230 test: that the

allegedly unlawfl material be provided by another "information content provider." Section 230

defines "information content provider" as "any person or entity that is responsible, in whole or in
part, for the creation or development of information provided through the Internet or any other
interactive computer service." 47 U.S.C. § 230(£)(3). As the original creator of

the NOVA

Documentary, NOVA qualifies as an "information content provider" for the video at issue within

the meaning of Section 230(£)(3). Specifically, Plaintiffs Complaint alleges that Sapient copied
and uploaded the NOVA Segment, but in no way alleges that he created or developed it. Am.
CompL. ~ 10. Instead, it is clear from the Complaint and Defendant's RJN that NOVA was
responsible in whole for the creation and development of

the NOVA Segment. Compare NOVA

Segment, available at http://ww.youtube.com/watch?v=M9w7jHYriFo. and RJN Ex. A. 7
Thus, there is no dispute that the basis of Counts I and II is the republication of the NOV A
Segment, information that was provided by another information content provider.
In sum, Plaintiff seeks to hold Sapient liable for his republication, via an interactive

computer service, of a video clip created and provided by another information content provider.

As such, Counts I (and II, to the extent that it relies on the same activity) are barred by Section
230's absolute immunity.

7 While Plaintiff does not allege this fact in the complaint, the Court may take judicial notice of it

because it is a fact "capable of accurate and ready determination by resort to sources whose
accuracy canot reasonably be questioned." Fed. R. Evid. 201(b)(2).

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· None of Section 230's Exceptions Apply to Plaintiffs State and Foreign
Intellectual Property Claims.

While Section 230's absolute immunity is broad, there are a few narrow exceptions for
violations of

federal privacy, criminal, and intellectual property laws. See 47 U.S.C. 230(e)

(exceptions for causes of action based on violations of Electronic Communications Privacy Act

and criminal and federal intellectual property laws); Perfect 10 v. CCBil, 481 F.3d 751,767 (9th
Cir. 2007) (holding that the "intellectual property" exemption for Section 230 only applies to
United States federal intellectual property claims).8 However, none of

Plaintiffs claims fall

within these exceptions. On their face, none of the claims in Plaintiff s Amended Complaint
assert violations of federal criminal or privacy laws. And as Plaintiff

has explicitly pled his

British copyright and appropriation of likeness claims under foreign and state laws, they too fail
to qualify for any exemptions under 230(e).9

These narrow and limited exemptions make perfect sense given the speech-protective

policy Congress established with Section 230. As the Ninth Circuit cogently explained in Perfect
10 v. CCBil, "(w)hile the scope of

federal intellectual property law is relatively well established,

state laws protecting 'intellectual property,' however defined, are by no means uniform." Id.

Subjecting ICS providers and users to the myriad and potentially conflicting state and

whether Section 230 exposes providers and users of interactive computer services to all intellectual property claims or only federal
intellectual property claims, that court declined to address the question. Almeida v. Amazon.com,

8 While the Eleventh Circuit has also faced the issue of

456 F.3d 1316, 1324 (lIth Cir. 2006) ("we do not reach any of Almeida's challenges to the district court's application of the CDA here. ")
name or likeness" claims arise from privacy law. Marks v. Bell Tel Co. of Pa., 33 A.2d 424, 430 (Pa. 1975). As such, the claim is not an intellectual property claim that even arguably is subject to Section 230's exception. Nevertheless, as explained herein, even if this Court were to treat it like an intellectual property claim, it is barred.
9 Under Pennsylvania law, "misappropriation of

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international regimes would drastically curtail the broad protections Section 230 was intended to
provide:

Because material on a website may be viewed across the Internet, and thus in
more than one state at a time, permitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes.

Id. at 768, reaffirmed at, 2007 WL 1557475 ("An entity otherwise entitled to Section 230
immunity would thus be forced to bear the costs of litigation under a wide variety of state statutes that could arguably be classified as 'intellectual property.' (This) would fatally
undermine the broad grant of immunity provided by the CDA. ").

This policy is particularly important in light of Plaintiff s attempt to claim a "transitory

tort" based on foreign copyright claims. See Section C below (discussing untested and
inapplicable theory of

transitory torts for U.S.-based conduct). Similar to the Ninth Circuit's

concern over so-called state intellectual property claims, foreign intellectual property claims can

also vary widely by jurisdiction and definition, not to mention language and culture. To subject
providers and users of interactive computer services to liability under these laws in U.S. courts would undermine "Congress's expressed goal of insulating the development of the Internet from

the various (non-federal)-law regimes." Id. at 12. Thus, Plaintiff cannot state a claim under
foreign or state law for republishing the NOVA Segment that is not and wil not be barred by
Section 230.

b. Any Jud2ment Aeainst Sapient on Foreien Copyrieht Grounds Would

Offend the First Amendment and Be Repuenant to Public Policy

Plaintiff s British copyright claims must also be dismissed because their enforcement
would conflct with this Cour's duty to uphold the principles of

the First Amendment and

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United States copyright law's fair use doctrine. As explained in detail below, the disputed

activity at issue is a classic fair use and, therefore, noninfringing under U.S. law. 17 U.S.c. §
107. Explorologist has attempted to sidestep Sapient's right to make a fair use of the Hughes
Excerpt by bringing its claims under a foreign law that does not recognize fair use or the First

Amendment principles the fair use doctrine embodies. See Eldred v. Ashcroft, 537 U.S. 186,220
(2003) (holding that First Amendment protections against overbroad application of copyright law
are found in the fair use doctrine). Plaintiffs attempt must faiL.

· Courts May Not Enforce Judgments Repugnant to the First Amendment

In diversity cases, enforceability of foreign judgments is governed by the law of the state
in which enforcement is sought. Choi v. Kim, 50 F .3d 244, 248 (3d Cir. 1995); Somportex Ltd. v.

Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971), cert. denied, 405 U.S. 1017
(1972).

In Pennsylvania, as elsewhere, it is well established that courts will not enforce a foreign
judgment if

"the cause of action on which the judgment was based, or the judgment itself, is
the United States or of

repugnant to the public policy of

the State where recognition is sought(.)"

REST A TEMENT § 482(2)( d) (emphasis added); see also RESTATEMENT (SECOND) OF THE
CONFLICT OF LA WS § 117 cmt. c (1971) ("(E)nforcement wil usually be accorded (a) judgment

(of a foreign court) except in situations where the original claim is repugnant to fundamental
notions of what is decent and just in the State where enforcement is sought. "); Hilkmann v.

Hilkmann, 579 Pa. 563, 575 (2004) (observing that the Restatement's repugnancy standard has

been incorporated into Pennsylvania common law); Leo Feist, Inc. v. Debmar Pub. Co., 232 F.
Supp. 623, 624 (D.C. Pa. 1964) (foreign judgments not recognized where "there is a

countervailing policy ofthe United States").

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It is equally well established that foreign judgments that would violate the First

Amendment are repugnant to public policy. SarI Louis Feraud Intl v. Viewfinder Inc., 2007 WL
1598057 (2d Cir., June 5, 2007) (holding that United States courts should not enforce foreign
copyright

judgments that violate the First Amendment, including the fair use doctrine); Yahoo!

Inc. v. La Ligue Contre Le Racisme Et L 'A

ntisemitisme, 169 F.Supp.2d 1181 (N.D. Cal. 2001)

(holding unenforceable French

judgment rendered under law prohibiting Nazi propaganda

because such law would violate the First Amendment), rev 'd on other grounds, 433 F.3d 1199
(9th Cir. 2006).

Further, given Pennsylvania's strong constitutional protections for free speech, any

judgment that would impinge on those protections would be paricularly offensive to the
Commonwealth. Com., Bureau of Prof and Occupational Affairs v. State Bd. of Physical

Therapy, 556 Pa. 268, 343-44 (1999) (Pennsylvania constitution provides protection for freedom of expression that is broader than First Amendment free speech guarantee); see also Kramer v.
Thompson, 947 F.2d 666, 678 (3d Cir. 1991) (noting "the extraordinary reverence and solicitude

with which the Commonwealth of Pennsylvania has viewed the right of free expression, tracing

back to the experiences in England of its founder Wiliam Penn and carried forward in the
Commonwealth's various Constitutions. . . It is notable that these provisions are far more
expansive than the First Amendment to the United States Constitution.") (footnotes omitted).

· A Judgment That Punishes Sapient's Constitutionally-Protected Fair Use
Would Offend the First Amendment

The fair use doctrine creates a "breathing space within the confines of copyright,"
Campbell v. AcuffRose Music, Inc., 510 U.S. 569, 578 (1994), that helps ensure that the

copyright monopoly does not unduly impinge on free expression. Thus, it represents an essential

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Constitutional safeguard for free speech. See Eldred v. Ashcroft, 537 U. S. 186, 219 & 221 n.24

(2003) ("copyright law contains built-in First Amendment accommodations. . . (including) the
'fair use' defense" . . .(I)t is appropriate to construe copyright's internal safeguards to

accommodate First Amendment concerns."); Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996
F.2d 1366,1378 (2d Cir. 1993) ("the fair use doctrine encompasses all claims of

first amendment

in the copyright field."). see also generally Stephen M. McJohn, Eldred's Aftermath: Tradition,
the Copyright Clause, and the Constitutionalization of Fair Use, 10 MICH. TELECOMM. & TECH.

L. REv. 95 (2003).

The Third Circuit Court of Appeals has recognized the intimate connection between the
First Amendment and fair use, noting that "(t)he spirit of

the First Amendment applies to the

copyright laws (such) that the courts should not tolerate any attempted interference with the

public's right to be informed regarding matters of general interest when anyone seeks to use the
copyright statute which was designed to protect interests of quite a different nature." Video

Pipeline, Inc. v. Buena Vista Home Entm 't, Inc. 342 F.3d 191,311 (3d Cir. 2003) (citing

Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966)).
In light of

this intimate connection, any judgment that would offend the fair use doctrine

is equally offensive to the First Amendment and, therefore, repugnant to both public policies. See
SarI Louis Feraud Intl, 2007 WL 1598057 at *3 ("Foreign

judgments that impinge on First

Amendment rights wil be found to be "repugnant" to public policy."); see also Bachchan v.
India Abroad Publ 'ns, Inc., 154 Misc. 2d 228, 253 (N. Y. Sup. Ct. 1992) (declining to enforce

libel ruling of English court that was repugnant to First Amendment); Abdullah v. Sheridan

Square Press, Inc., No. 93 Civ. 2515,1994 WL 419847, at *1 (S.D.N.Y. May 4,1994) (same);
TeIn

ikoffv. Matusevitch, 347 Md. 561, 602 (Md. Ct. App. 1997), aff'd, 159 F.3d 636 (D.C. Cir.

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1998) (rejecting enforcement of

English libel judgment under Maryland's similar statutory and

constitutional provisions).

· Sapient's Use Was A Self-Evident Noninfringing Fair Use

The use disputed here--ight seconds of footage, re-contextualized in a broader work of
criticism-is a classic fair use sheltered by Section 107 of the U.S. Copyright Act.

10 As a

general matter, Plaintiffs own allegations, particularly viewed in conjunction with the actual

video at issue, demonstrate that Sapient used the NOVA Segment-as NOVA used the Hughes
Excerpt-to foster criticism and comment on Uri Geller and his Explorologist company. Section

107 expressly endorses this type of use, to help ensure that copyright law does not "stifle the

very creativity which that law is designed to foster." Campbell, 510 U.S. at 577 (quoting Stewart

v. Abend, 495 U.S. 207, 236 (1990)); 17 U.S.c. § 107 ("the fair use of a copyrighted work. . . for

purposes such as criticism, comment, (and) news reporting. . . is not an infringement of
copyright").
Beyond this broad purpose, the specific use at issue falls squarely within Section 107' s fair use

parameters. Courts consider at least four factors in determining whether a particular use is a

noninfringing fair use:

(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes;
(2) the nature of

the copyrighted work;

10 Sapient is aware that it is unusual to rule on fair use in the context of a motion to dismiss.

However, courts are not forbidden from determining whether such a ruling is appropriate given
the allegations in the Complaint. See, e.g. Gregerson v. Vilana, 446 F. Supp. 2d 1053 (D. Minn.

2006) (considering fair uses factors, over Plaintiffs objection, on motion to dismiss). That consideration is appropriate here, because even limited to the allegations in the Complaint and the minimal factual findings in Defendant's RJN, and taking all reasonable inferences in
Plaintiffs favor, it is clear that Sapient's use was a fair use.

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(3) the amount and substantiality of

the portion used in relation to the copyrighted

work as a whole; and
(4) the effect of the use upon the potential market for or value of

the copyrighted

work.
17 U.S.C. § 107.11 Each of

these factors favors Sapient.
the Use

. The Purose and Character of

Under the first factor, when the use at issue is a "transformative use," it is entitled to

paricularly broad fair use protections; as the Supreme Court has put the matter:

(Transformative) works. . . lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, . . . the more transformative the new work, the less wil be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
Id. at 579.

The use at issue in this case is highly transformative. Transformative uses are those that

do not merely replicate the material from which they borrow but provide new insight or
understanding of

the material that the original does not. Here, the NOVA Segment does not seek

to replicate or supersede the 1987 Geller performance, including the Hughes Excerpt, but rather

to comment upon it as par of its overall critique of Geller and his abilities. By uploading the
NOV A Segment to Y ouTube, Sapient himself was making such transformative commentary and

criticism as welL. Such activity is classic fair use. See Suntrust Bank v. Houghton Mifin Co.,
268 F.3d 1257, 1271 (lIth Cir. 2001) (doctrine of

fair use allow critics to "conscript() elements
510 U.S. at 581-82

from (the original work) to make war against it."); see also Campbell

II These four factors are not exclusive; courts must also consider the public interest in the

expression at issue. Nimmer on Copyright, § 13.05(B)(4) ("the public interest is also a factor that continually informs the fair use analysis."); see also Sony v. Universal, 464 U.S. 417,431-32 (Thus, "cours are more wiling to find a secondary use fair when it produces a value that benefits the broader public interest.").

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(approving use of elements from Roy Orbison's "Pretty Woman" as par of a song intended to
comment on the original).

. The nature of the copyrighted work

Under the second factor, Courts usually afford creative works more protection than works

of fact because creative works are at "the core of intended copyright protection." Campbell, 510
u.s. at 586. In this case, the eight-second clip is entirely factuaL. It is merely a static recording

of a brief statement at a public event. Therefore, this factor also favors Sapient.

· The amount and substantiality of the portion used.
The third factor - "amount and substantiality" - considers both the quantity and
importance of the material used. See id.

The use at issue here is both minimal and necessar. The eight seconds in dispute depict
a brief introduction to a main event, as well as a quick shot of the audience for the event-just
12
enough to help provide some minimal background about Geller's alleged accomplishments.

Despite its brevity, however, the eight-second clip provides an important set up for the rest of the

video's critique - that Geller claims to have psychic abilities and an affinity for altering metal
objects. The Hughes Excerpt is one of the smallest and most minimal ways of

making this point.

Thus, the third factor favors Sapient.

12 Indeed, the documentary could have shown more, if necessary to serve the intended purpose.

See MatteI, Inc. v. Walking Mountain Prod., 353 F.3d 792,803 n.8 (9th Cir. 2003) (holding that

"entire verbatim reproductions are justifiable where the purpose of the work differs from the
originaL. ").

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. The effect on the market or potential market.

Finally, the use of

the eight-second snippet at issue here canot conceivably cause any

harm to the market for the copyrighted work-or at least any harm that is cognizable under
copyright law. Indeed, it is difficult to imagine what licensing market might possibly exist for
the introduction to a film documenting a Geller performance that took place two decades ago.

"A use that has no demonstrable effect upon the potential market for, or the value of, the
copyrighted work need not be prohibited in order to protect the author's incentive to create." See
Sony, 464 U.S. at 450. Moreover, courts have found that critical transformative uses rarely if

ever supplant markets for the original material, in part because copyright owners are generally
not eager to invite criticism of

their works or practices. See Campbell, 510 U.S. at 592; Sony

Computer Entm 't v. Connectix Corp., 203 F.3d 596, 607 (9th Cir. 2000) (transformative work

less like to cause adverse impact on potential market for original work) (citing Campbell, 510

U.S. at 591; Harper & Row, 471 U.S. at 567-69). Here, the only "harm" that might be caused by
the use is that viewers of

the NOVA piece, thus informed of challenges to the validity of Geller's
those claims. But that is not a harm copyright law can or

claims, might be more skeptical of

should redress. See Online Policy Group v. Diebold, Inc., 337 F. Supp. 1195, 1203 (N.D. CaL.

2004) ("(The fair user's) activity might have reduced (the copyright owner)'s profits because it
helped inform potential customers of

problems with (the owner's product). However, copyright

law is not designed to prevent such an outcome.").

Moreover, in analyzing this factor, courts must consider "the benefit the public wil derive if the use is permitted" and weigh that against "the personal gain the copyright owner wil
receive if

the use is denied." MCA, Inc. v. Wilson, 677 F.2d 180,183 (2d Cir. 1981); see also

Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913,922 ("Courts are more willing to find a

secondary use fair when it produces a value that benefits the broader public interest"). Thus,
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"(t)he less adverse effect that an alleged infringing use has on the copyright owner's expectation
of gain, the less public benefit need be shown to justify the use." MCA, Inc., 677 F.2d at 183.
Here, the public benefit of sharing the NOV A Segment is substantiaL. NOVA and

Sapient are fostering critical debate about assertions of paranormal abilities (by Geller and
others), the history and context of

those claims in the United States and around the world, and

the limits of rationality. Fostering that vibrant debate is of quintessential public value. MatteI,

353 F.3d at 806 ("the public benefit in allowing . . . social criticism to flourish is great.").
In sum, no U.S. court could render an enforceable judgment against Sapient on the copyright claims because that judgment would be repugnant to the fair use doctrine and the First

Amendment. The Court should decline Plaintiff s invitation to enter what must amount to
advisory opinion and dismiss Count I of Plaintiff s Complaint now, with prejudice.
c. ForeIen Copyrieht Claims For Transitory Torts Are Not Generally

Reco2nized in United States Courts. Especially When Defendant's Conduct Occurs Entirely Within the United States
Traditionally, subject matter jurisdiction over copyright lawsuits is limited to the country
where the alleged infringement of

the copyright took place. See Itar-Tass Russian News Agency

v. Russian Kurier, 153 F.3d 82, 91 (2d Cir. 1998) (U.S. law applies to infringement issues where

infringement allegedly occurred in U.S.). Here, however, Plaintiff attempts to circumvent this
limitation by alleging

jurisdiction over British copyright claims under 28 U.S.C. 1332(a)

because, even though Sapient's conduct took place entirely in the United States, one or more
individuals allegedly living in the United Kingdom requested transmission of

the NOVA

Segment to them from the Y ouTube service. That theory does not suffce to establish the
jurisdiction of

this Court.

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Federal courts have been reluctant to accept subject matter jurisdiction over the foreign

copyright claims. See, e.g. ITSI T V Prod. v. Agric. Ass 'ns., 785 F. Supp. 854,866 (discerning

"no clear authority for exercising" jurisdiction over foreign copyright claims) aff'd in part, rev'd

in part on other grounds, 3 F.3d 1289 (9th Cir. 1993). As the ITSI court cautioned: "American
courts should be reluctant to enter the bramble bush of ascertaining and applying foreign law

without an urgent reason to do so." ITSI T V Prod., 785 F. Supp. at 866. Such caution is
waranted here, where a plaintiff calls on foreign law in a barely concealed effort to avoid the
sovereign protections of

United States law. As set forth above, Sapient is entitled to protection in
the NOVA Segment under Section 230 of

the United States for his republication of

the

Communications Decency Act and pursuant to the Fair Use doctrine and the First Amendment.
Allowing Plaintiff to bring British claims sets up an inevitable conflict with these laws-

something this Court should avoid.

Moreover, copyright experts have sharply criticized courts that have accepted jurisdiction
over foreign copyright claims for relying on an improper basis for such

jurisdiction: the disputed

notion that copyright infringement is a transitory tort, i. e., a personal right that travels with the

alleged infringer, rather than a property right. See London Film Prods, Ltd. v. Intercontinental
Comms., Inc., 580 F. Supp. 47 (S.D.N.Y. 1984) (accepting

jurisdiction over British copyright

claim under a transitory tort theory that "appears sound in the absence of convincing objections
by defendant to the contrary); see also Armstrong v. Virgin Records, 91 F. Supp. 2d 628

(S.D.N.Y. 2000) (no absolute bar to jurisdiction over unspecified international copyright claims

brought by British citizen); FrinkAm. Inc. v. Champion Road Machinery Ltd., 961 F. Supp. 398,
404-05 (N.D.N.Y. 1997) (finding subject matter jurisdiction over Canadian copyright claims).

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This controversial theory has been characterized as both unfair to U.S. defendants and

inappropriate under U.S. and international copyright doctrine. As leading copyright commentator Wiliam Patry has explained, copyrights are, in fact, not personal rights but rather
intangible property rights:

Copyright is not a personal right which attaches to the individual and follows him or her wherever the individual travels. Instead, it is a territorially derived property right which exists by virtue of a national grant. Whether another nation decides to
grant a similar property right is a matter for the legislation in each nation. Transitory torts are personal rights, not property rights. This characterization

confuses the incorporeal nature of the copyright property right with personal

rights; the two are quite different and the consequences quite different. As a
property right rather than a personal right, copyright cannot be a transitory tort.

See Wiliam Patry, Copyright is Not a Transitory Tort,
http://wiliampatry.blogspot.com/2006/0 5/ copyright - is-not -transitory - tort.html (last visited June
11, 2007); see also Wiliam Patry, Choice of Law and International Copyright, 48 AM. 1. COMP.

L. 383,467-68 (2000); David R. Toraya, Note, Federal Jurisdiction Over Foreign Copyright
Claims: An Unsolicited Reply to Professor Nimmer, 70 CORNELL L. REv. 1165 (I985).
Indeed, careful application of copyright law's traditional territorial

limitations is

especially appropriate where, as here, all of

Defendant's allegedly infringing activities occurred

within the United States. See Am. CompL., ~~ 10-11. By contrast, in the main cases in which
cours have accepted jurisdiction, substantial portions of the infringing activity occurred on

foreign soiL. See, e.g., Murray v. BBC, 81 F.3d 287,289,293 (1996) (British costume designer
sued British corporation and U.S. subsidiary for use of copyrights work in U.K. and U.S.);

London Film, 580 F. Supp. at 48 (U.S. Corporation licensed copyrighted work that was

originally produced and distributed by U.K. corporation to distributors in numerous foreign
countries); Armstrong, 91 F. Supp. 2d at 631 (American company was licensee and distributor in
America of

U.K.-copyrighted work); Frink, 961 F. Supp. at 400-01 (American company

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transferred disputed intellectual property to Canadian subsidiary). Thus, no U.S. court has ever
found jurisdiction over foreign copyright claims under the facts presented here; nor should this
Court be the first.

In sum, Plaintiff relies in Count I on a highly disfavored "transitory tort" theory that no

court has found sufficient for jurisdiction on the facts alleged here. This Court should follow the ITSI court and Professor Patry's lead and reject subject matter jurisdiction over Plaintiffs
foreign copyright claims.

d. Exploroloeist Cannot Use Foreien Copyrieht Law to Hold Sapient Liable for

Alle2edly ReproducIne the Work in the United States.
Even if subject matter jurisdiction were present and Plaintiffs claims were not barred by
Section 230, fair use, and the First Amendment, they would stil faiL. Explorologist's first
allegation for "reproduction" of

the Hughes Excerpt, see Am. CompL. ~11(a), must be dismissed

with prejudice because U.K copyright law cannot apply to the challenged activity as pled.
According to Plaintiffs Complaint, Brian Sapient is a resident of

the United States,

allegedly "doing business" here as a member of the Rational Response Squad, including,
according to Plaintiff, the business of

the alleged infringing conduct at issue. See Am. CompL. ~

2. Because this allegedly infringing activity took place entirely in the United States, the United
States is the protecting country and its law governs the actionability of

the activity. See Itar-Tass

Russian News Agency v. Russian Kurier, 153 F.3d 82, 91 (2d Cir. 1998) (U.S. law applies to

infringement issues where infringement allegedly occurred in U.S.); Bridgeman Art Library, Ltd.

v. Corel Corp., 25 F. Supp. 2d 421, 426, reconsidered, 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
("whether an infringement has occurred in the United States is a matter of

United States law.");

Paul Goldstein, Goldstein on Copyright, 3d Ed. § 18.2.1.1 (2006) ("the law of the protecting

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country-the country where the work is being exploited without the copyright owner's authority,

wil as a rule govern whether. . . the rights alleged to be infringed are protected by copyright. .
.

(for example) ifX's scholarly aricle, first published in the United States, is reproduced without

X's authority in France, X's rights, and the exceptions to those rights wil be determined under
French law. "); Paul Goldstein, International Copyright § 3.3.2.1 (2001) ("to apply the law of
country A to an alleged infringement in country B would, it is widely believed, violate the
principle of

territoriality by exporting the law of one country to the territory of another.").

Indeed, even British law acknowledges that it has no jurisdiction over acts such as those alleged
here when committed in other countries. See Appendix of

Foreign Law ("Appndx."), Ex. 1.

(COp

INGER AND SKONE JAMES ON COPYRIGHT I, § 22-116 (Kevin Garnett et al. eds., 15th ed.

2005) (U.K. copyright law generally does not apply to acts committed outside of

the United

Kingdom)).

Indeed, even Congress has spoken on this issue, buttressing these basic territoriality
principles with the preemptive power of Section 301 of

the Copyright Act, which provides:

all

legal or equitable rights that are equivalent to any of the exclusive rights within

the general scope of copyright as specified by section 106 . . . are governed

exclusively by this title.
17 U.S.C. § 301(a). Section 301 specifically anticipates and disposes of

the application of

foreign law to purely U.S. activities, noting that: "The scope of Federal preemption under this

section is not affected by the adherence ofthe United States to the Berne Convention or the
satisfaction of obligations of

the United States thereunder." Id.; see also Bridgeman, 36 F. Supp.
limitations that

2d at 193 ("it now is clear that the treaty power is subject to the constitutional

apply to all exercises of federal power. ") (internal quotations omitted).

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In its Complaint, Explorologist explicitly alleges that Sapient violated its British
copyright by making a reproduction of its video footage in the United States. Am. Compl. ~
11 (a). Section 106(1) of the U.S. Copyright Act specifically entitles owners of copyrighted
works to the exclusive right of

reproduction within the United States. 17 U.S.C. § 106(1). Thus,

Explorologist's claim to the legal and equitable right to control reproduction in the United States
under British law is equivalent to the exclusive right of Section 106(1) and must be preempted
under Section 301.

Thus, to the extent that Count I relies on an alleged violation of

Explorologist's
law.

reproduction right, the claim fails under U.S., British and international

e. Explorolo2ist Has Not And Cannot State A Cause Of Action Under British

COPyrI2ht Law For Makine The HU2hes Excerpt Available To The Public
· Sapient Did Not Communicate the Work to the Public

Next, Explorologist alleges that Sapient violated its British copyright by "causing the

Film.. . to be seen and heard in public in the United Kingdom." Am. Compl. ~ II(b). While
no specific U.K. provision forbidding the act is cited, the relevant provision is Section 20 of the
1988 Copyright Designs and Patents Act ("CDP A"), which, as amended in 2003, granted

copyright holders the exclusive right to "communicate" the work to the public. See Appndx., Ex.

2 (CDP A 1988 s.20(2)). As amended in 2003, the right specifically encompasses making a work

available to the public by electronic means "in such a way that members of the public may
access it from a place and time individually chosen by them." Id.
According to the leading British copyright treatise, however, liability for an alleged

violation of the right to communicate depends on whether the defendant himself has made the
work available to British citizens directly from his own computer, as opposed to, for example,
supplying the work to a provider like Y ouTube, which in turn makes the work available through

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its own computer servers. See Appndx., Ex. 1 (COp

INGER AND SKONE JAMES ON COPYRIGHT I,

§§ 7-114, 7-115 (Kevin Garnett et al. eds., 15th ed. 2005)). "(Wlhere A makes the work
available to B, an internet service provider, so that B can make it available to the public (by

electronic transmission) it is the act of B in making it available by electronic transmission such

that the public can access it which is the restricted act." Id. (emphasis added). Thus, Sapient's
act of uploading a video to Y ouTube, even if it contains material that could violate British
copyright law, did not violate Explorologist's exclusive right to communicate. On the facts of

the Complaint, only YouTube's act of making that video available so that persons in the u.K. can
access and play it could potentially violate such a right. Thus, even under U.K. law, Sapient is not liable for the actions as pled in the Amended
Complaint.

· Sapient's Use is Not a Substantial Taking under British Law

Finally, even if Sapient were a proper defendant, Explorologist's copyright claim would

stil have to be dismissed under British law because it has not alleged an essential element of a
British copyright violation: that a substantial taking of the work has occurred.

The test for whether copying a work constitutes a "substantial taking" for purposes of
infringement examines whether the infringer has incorporated a substantial part of the
independent skil, labor and judgment contributed by the original author in producing the
copyrightable elements of

the work, Appndx., Ex. 1 (COPINGER AND SKONE JAMES ON

COPYRIGHT I, §§ 7-114, 7-115); and Ex. 3 (Designers Guild Ltd v Russell Wiliams (Textiles) Ltd
(2001) 1 WLR 2416). Specifically, a court must ask, "what are the features of

the claimant's

work which made it an original work and thus give rise to its protection. . . (and) if a substantial
use has been made of those features." Id.

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The taking alleged here falls far short of this standard. Sapient allegedly "took" just eight
seconds of an introduction to a public performance. Those eight seconds encompass a brief shot
of Dr. Hughes and equally brief shot of the audience. That is alL. Thus, the quantity is miniscule.

With respect to the quality of alleged "taking," that analysis depends on its significance to the
underlying original work. Appndx., Ex. 1 (COPINGER AND SKONE JAMES ON COPYRIGHT I at § 7-

27(b) (citing cases)); Ladbroke Ltd. v. Wiliam Hil Ltd. (I964) 1 W.L.R. 273 at 283, Appndx.,
Ex. 4. As a general matter, however, it is inconceivable to think that these few seconds were a
significant part of

the fim from which the Hughes Excerpt was taken, as that film almost

certainly focused on the Geller performance itself and not this brief introduction.

The alleged taking was insignificant in both quantity and quality. It is simply not
actionable under u.K. law.

f. Exploroloeist Has Not and Cannot State a Cause of Action for Commercial

Disparaeement
In Count II