EXPLOROLOGIST LIMITED v. SAPIENT

Filing 30

Reply Brief in support of deft's motion to dismiss pusuant to FRCP 12(b)(1) and 12(b)(6 filed by deft BRIAN SAPIENT, Certificate of Service. (gn, )

EXPLOROLOGIST LIMITED v. SAPIENT

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EXHIBIT A

Dockets.Justia.com

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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

BRI SAPIENT aka BRI J. CUTLER,
Defendant.

) ) ) ) ) ) ) )

The Honorable
Louis H. Pollak

ORDER

AND NOW, this

day of

, 2007, upon consideration of the

Defendant's Motion to Dismiss Pursuant to Federal Rules of

Civil Procedure 12(b)(l) and

12(b)(6), the response thereto, and any replies thereon, it is hereby ORDERED that the Motion

is GRANTED and Plaintiffs claims are DISMISSED WITH PREJUDICE.

BY THE COURT:

Louis H. Pollak, 1.

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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

BRIN SAPIENT aka BRI 1. CUTLER,

Defendant.

) ) ) ) ) )
)

The Honorable
Louis H. Pollak

REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

PURSUANT TO FEDERA RULES OF CIVIL PROCEDURE
12(b)(1) AND 12(b)(6)

i. INTRODUCTION
Plaintiffs Opposition is less a rebuttal thaI a sleight-of-hand. Rather than
defending its Amended Complaint, Plaintiff seeks to gloss over its fatal flaws by introducing a
deluge of over 50 new "facts" and citing inapposite case law. Plaintiff

may not amend its

inadequate pleading via its Opposition.! And, even if the Cour were to accept Plaintiff s new

! See City of

Pittsburgh v. West Penn Power Co., 147 F.3d 256,259 (3d Cir. 1998) (noting that

on motion to dismiss, cours generally consider only allegations in the complaint, exhibits to the

public record); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) ("(I)t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss."); Sansom Committee v. Lynn, 366 F. Supp. 1271, 1278 (E.D.Pa 1973) (dismissing complaint for failure to state a claim where violation not alleged; "It would be unfair to defendants to make them infer all claims that could possibly arse from the law or facts set forth in the complaint. The proper means of raising claims (not) raised in the in opposition to a motion to dismiss."). complaint is an amended complaint, not a brief
complaint, and matters of

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facts and theories, thé Amended Complaint stil fails as a matter of law.

Importantly, Plaintiff now admits that the main video at issue-the NOVA
Segment-has been widely available for over 14 years from WGBH without any objection from
Plaintiff and that, at most, only eight seconds of

material contained within that video are at issue

in this dispute. (Opp'n at 6, 18). Thus, Plaintiffs motivations for bringing suit against

Defendant Brian Sapient ("Sapient") under British copyright law and incongruous state torts
have become clear: it ,hopes to retaliate against Sapient for speaking out and criticizing its chief
offcer and majority shareholder, Uri Geller. For the reasons outlined in Defendant's Brief

in

Support of

his Motion to Dismiss ("MTD") and those discussed below, this Court should dismiss

the Amended Complaint with prejudice.

II. ARGUMENT
A. Plaintiff Admits That This Court Lacks Subject Matter Jurisdiction Over its
British Copvril!ht Claim.
As noted in Sapient's MTD, claims for copyright infringement must be brought
under the laws of

the country in which the alleged infrngement occurred. (MTD at 28-30).

Moreover, Congress has expressly preempted any cause of action (including those under foreign
law) for acts of

infringement occurrng within the United States. See id. (discussing 17 U.S.c. §

301).
Plaintiff concedes that "(t)he infringing act of

uploading the video was committed

in this

judicial district." (Opp'n at 9) (emphasis added). See also id. at 10 ("Sapient is being

sued in the jurisdiction where he lives and committed the infringing act. "); id. at 10-11 ("the

Defendant is a resident of this jurisdiction and actually committed infrngement in this

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jurisdiction, which was felt around the world.,,).2 In other words, it concedes that the activity
allegedly

at issue took place in the United States.3 As such, U.S. law governs.
Remarkably, Plaintiff

nevertheless insists that British law should apply, relying
which are binding on this court-

for the most par on the same cases and authorities-none of

that Defendant already raised and distinguished in its opening papers.4 (MTD at 26-28). As
explained there, this Court need not, and should not "enter the bramble bush of ascertaining and
applying foreign law without an urgent reason to

do so." ITSI T V. Prod. v. California Auth. of

Racing Fairs, 785 F. Supp. 854, 866 (E.D. CaL. 1992), aff'd in part, rev 'd in part on other

grounds, 3 F.3d 1289 (9th Cir. 1993). There is no such urgent reason here, but only a barely
concealed effort to avoid United States copyright law, with its attendant fair use protections. As
such, this Court should dismiss Count 1.

B. CDA 230 Provides Complete Immunity for Claims Arising From
Republication of the NOVA Sel!ment.
the Communications

Plaintiff attacks Sapient's immunity under Section 230 of

2 Plaintiff

However, the Amended Complaint alleges that it was citizens of

goes on to state, "The video was downoaded in (sic) United Kingdom." (Opp'n at 9). the United Kingdom, not

Sapient, who did the alleged downloading. (Am. CompL. ir 10). Moreover, the source of any transmission to the UK was Y ouTube, not Sapient. (MTD at 31).
3 Plaintiff also argues that Sapient somehow agreed to "jurisdiction",

in his counter-notice email

to Y ouTube. (Opp'n at 11). However, Sapient consented to personal jurisdiction, not subject
matter jurisdiction, which canot be waived by a pary.

4 The single new case Plaintiff cites-Boosey & Hawkes Music Publishers Ltd. v. Walt Disney

Co., 145 F.3d 481 (2d Cir. 1981)-is inapposite. The question before the court in that case was not the applicability of transitory tort doctrine to foreign IP claims, but the distinct doctrine of forum non conveniens. 145 F.3d at 491-92. As for Plaintiffs reliance on Professor Nimmer, the leared professor merely suggests that it is "arguable" that jurisdiction might exist if a plaintiff has a valid cause of action under foreign law.

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Decency Act ("Section 230"). Yet Plaintiff does not dispute that Y ouTube is an interactive
computer service ("ICS"), that Sapient is a user of

that service, or that it seeks to impose liability

for his republication of the NOV A Segment on Y ouTube-three essential elements of Section
230 immunity. Instead, it challenges three aspects of

Sapient's immunity claim: 1) whether

Section 230 provides immunity against foreign intellectual property claims; 2) whether WGBH
(the producer of NO

V A) is an information content provider ("ICP") for the NOVA Segment; and

3) whether Sapient is also an ICP for the NOVA Segment. As explained below, numerous courts
have considered and resolved each of

these challenges. Following these precedents, Sapient is

entitled to Section 230's absolute immunity.5
J. Section 230 Bars Plaintif's British Copyright Claim.

Congress passed Section 230 in order to protect users of interactive communication services like Sapient from the bewildering array of state, local, and foreign laws

that might otherwise chil their online speech. (MTD at 16-17). In doing so, it made an express

choice to limit available causes of actions to those under its own control-federal causes of
action. Id. Plaintiff ignores this Congressional mandate and policy choice, instead arguing that

Section 230 does not provide immunity for "theft of ... intellectual propert," citing Section 230
for the proposition that non-federal intellectual property claims are allowed as well. (Opp'n at
11).

5 Plaintiff complains that "entitlement to (Section 230) immunty. . . should not be determined
on a motion to dismiss." (Opp'n at 8). However, as noted in the MTD, the Third Circuit and this Cour regularly grant such motions when it is clear that Section 230 bars the claims alleged in a plaintiffs complaint. (MTD at 8 n.5). The two cases cited by Plaintiff do not hold otherwise. Hy had Cite Corp. v. Badbusinessbureau.com, LLC denied its motion to dismiss because the plaintiff
pled facts that, if true, would disqualify defendant for Section 230 immunity-not because

dismissal was inappropriate at that stage. 418 F. Supp. 2d 1142, 1149 (D. Arz. 2005). Additionally, Batzel v. Smith did not involve a motion pursuant to Fed. R. Civ. P. 12(b)(6). 333
F.3d 1018 (9th Cir. 2003).

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However, as explained in the MTD, this theory was expressly raised and rejected

by the Ninth Circuit Court of Appeals in Perfect J 0 v. ccBil, 481 F.3d 751, 767 (9th Cir. 2007)
(holding that the Section 230( e )(2) limitation only applies to federal intellectual property claims

and no others). (MTD at 16-17). Unable to distinguish ccBil, Plaintiff cites instead to two
inapposite cases, each holding that Section 230 did not barfederal intellectual property claims.

Had Plaintiff chosen to bring a claim under U.S. copyrght law, these cases might have been

relevant; however, having taken great pains to bring a foreign copyrght claim instead, Plaintiff
cannot now call on Section 230's exception for federal intellectual property suits to assist its
case.

2. WGBH is the Section 230 "Information Content Provider" in the Amended Complaint, not Sapient.

Next, Plaintiff erroneously contends that WGBH does not satisfy the definition of

"information content provider" ("ICP") under Section 230. (Opp'n at 13). Section 230 defines
an ICP 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 (ICS)." 47 U.S.C. § 230.

According to Plaintiff itself, WGBH was responsible for the initial creation and distribution of
the NOV A Segment. (Opp'n at 6) (admitting WGBH created the video and has distributed it
without objection for over 14 years). Moreover, judicial notice of

the videotape itself (to which

Plaintiff has not obj ected) shows indisputably that the digital video posted to Y ouTube is a
verbatim segment of

the NOVA Documentary without any additional creation or development.

Compare Request for Judicial Notice, Ex. A with NOVA Segment,

http://ww.youtube.com/watch?v=M9w7jHYriFo. Thus, there can be no serious dispute that
WGBH, rather than Sapient, is the ICP of

the disputed information.

Plaintiff attempts to avoid this reality by reading an intent requirement into

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Section 230. (Opp'n at 13-14). Section 230 imposes no such requirement. Section 230(£)(3)

simply defines an ICP as an entity that is responsible for "information provided through the
Internet or any

other (ICS)." 47 U.S.C. § 230(£)(3). The statute does not require that the ICP

itself

provide this information through the Internet; rather, "provided through the Internet"

modifies the word "information," requiring only that the information at some point travel
through the Internet or some other ICS.
Here, Plaintiff

has alleged that the information (the NOVA Segment) was

provided through the Internet via YouTube, an ICS. (Am. CompI. i¡10). Therefore, Plaintiffs
own allegations defeat its argument. See also D'Alonzo v. Truscello, No. 0274, 2006 WL
1768091, at *5-6 (Ct. Com. PI. May 31, 2006) (holding that the defendant's republication of an

allegedly defamatory Philadelphia Daily News print article on a website did not make her an ICP

"since she did not create nor author the article published in the website" and that "(c) learly, the
original publisher of

the material was the Daily News"; finding dismissal appropriate "(s)ince

the reproduction of the newspaper article in the website is exactly the situation the
Communication (sic) Decency Act contemplated for immunity purposes, no error was committed
(in dismissing the case.)").
Further, Plaintiff

misconstrues its primary authority, Batzel v. Smith, 333 F.3d

1018 (9th Cir. 2003). Batzel concerned an allegedly defamatory private email about the plaintiff

that was written and sent via the Internet by a third pary to the defendant, who operated a
website and listserv about museum securty issues. 333 F.3d at 1021. The defendant
subsequently republished that email through those online fora. Id.atl022.

On these facts, the

Ninth Circuit swifty concluded that the third-party provider of

the email, rather than the

defendant, was the ICP. Id. at 1031. Here, it is the same. WGBH originally published the

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content of

the NOVA Segment; Sapient merely republished it. Batzel thus supports WGBH as
the disputed matter, not Sapient.6

the ICP of

Batzel did recognize one additional limitation on CDA 230 immunity-but that
limitation does not apply here. After finding that the defendant satisfied all elements of the

standard Section 230 test, the cour in Batzel determined that immunity could be denied for
republication of an email where the ICS could not reasonably believe the email was intended for
public viewing. Id. at 1033. Here, by contrast, any reasonable person would believe that the

NOVA Documentary was intended to be viewed by as wide an audience as possible, because

WGBH broadcast it on PBS and marketed the NOVA Documentary worldwide. See Request for

Judicial Notice, Ex. A (NOVA, Secrets ofthe Psychics). It also reached out to Internet users by
creating a website about the show. See id., Ex. B (NOVA, Secrets of

the Psychics: Program

Overview). Thus, the Batzel private/public limitation has no bearng on this case.?

Finally, Plaintiffs own admission that the "NOVA special has been broadcast for
over 14 years and neither the Plaintiff nor Uri Geller has made any complaint, let alone filed a
lawsuit," (opp'n at 6), undermines its argument that the private/public rationale of Batzel applies

to this case. As Plaintiff acknowledges, (see opp'n at 14), the Batzel court was concerned that
"immunizing a publisher or distributor for including content not intended for Internet publication

increases the likelihood that obscene and defamatory material wil be widely available." 333

6 Even if Sapient fit the ICP definition for other information, this would not preclude immunity.

See e.g. Barrett v. Rosenthal, 146 P.3d 510, 527 (CaI. 2006). 7 See also Ramey v. Darkside Prods., No.02-730 (GK), 2004 U.S. Dist. LEXIS 10107, at *20

(D.D.C. May 17,2004) (immunizing a website operator for publishing offine photographs in an online advertisement); Prickett v. InfoUSA, Inc., No. 4:05-cv-l0, 2006 U.S. Dist. LEXIS 21867, at *18 (B.D. Tex. March 30, 2006) (information broker immune for publishing personal information in a business database).

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F.3d at 1034. Here, Plaintiff (the allegedly harmed party) admits that the material in question
has been publicly distributed for over a decade. Thus, even Batzel's private/public limitation is
irrelevant. 8

C. Plaintiff's Claims Are Barred by the First Amendment And Fair Use.

Plaintiff attempts to avoid the protections of the First Amendment and the fair use

doctrine, 17 U.S.c. § 107, by making three meritless arguments: (1) courts may not assess the
viability of a fair use defense upon a motion to dismiss, (2) a commercial use canot be a fair

use, and (3) the statutory scheme for "fair dealing" under British law is equivalent to fair use
under United States law.9
J. The Court May Assess Fair Use on a Motion to Dismiss.

Plaintiff suggests that federal courts are forbidden from assessing fair use on a
motion to dismiss. (Opp'n at 17). Not so. When presented with a claim upon which relief

cannot be granted due to constitutional repugnancy, a cour is free to conserve its judicial
8 Plaintiff cites three additional decisions that do not help its case, Anthony v. Yahoo! Inc., Hy

Cite Corp. v. badbusinessbureau.com, LLC, and Whitney Information Network v. Xcentric Ventures LLe. All three contain allegations that the defendants at issue actually created the harmful content. Anthony, 421 F. Supp. 2d 1257, 1262-63 (N.D. CaI. 2006); Hy Cite, 418
F.Supp.2d 1142, 1149 (D. Arz. 2005); Whitney, 199 Fed. Appx. 738, 744 (11th Cir. 2006).

Here, there is no allegation that Sapient actually created the content at issue, only that he republished a segment of it verbatim. (Opp'n at 18) (alleging Sapient was not creative but rather the original NOVA Documentary). See also Green v. Am. simply made an exact copy of 25% of Online, Inc., 318 F.3d 465,471 (3d Cir. 2003) (Section 230 bars claims stemming from the "exercise of a publisher's traditional editorial functions-such as deciding whether to publish,
withdraw, postpone, or alter content."); Batzel, 333 F.3d at 1031 (same); Ben Ezra, Weinstein &

Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000); Barrett, 146 P.3d at 527 n.19.

9 Plaintiff also attempts to resurrect its British copyrght claim by recasting it as a claim for
"authorizing" infringement instead of direct infringement. As noted above, Plaintiff canot use

its Opposition to rewrite its Complaint. Moreover, given that Section 230 bars any foreign copyrght claim, no amount of amendment can save it.

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resources by making fair use determinations in the early stages of litigation where, as here, the

facts as pled demonstrate fair use. Indeed, just over a month ago the Central District of
California dismissed a copyrght claim on fair use grounds where the trans

formative purpose of

parody was clear on the facts alleged in the complaint. See Burnett v. Twentieth Century Fox

Film Corp., 2007 WL 1662343 (C.D.CaI., June 04, 2007). Here, where the transformative
purpose of criticism is also self-evident on the face of the Complaint and Sapient is therefore
explicitly entitled to a finding of

non-infrngement as a matter oflaw, see 17 U.S.C. § 107, it is

both appropriate and consistent with U.S. public policy to dismiss the copyrght claim now.
2. Fair Use Allows For Commercial Transformative Uses.

Plaintiff s next argument for casting aside the protections guaranteed by the First
Amendment and 17 U.S.C. § 107 centers on a single allegation: that Sapient has used the
material at issue for his own commercial benefit. To support this theory, it offers a host of

new

allegations regarding Sapient's supposed commercial endeavors, none of which should be given

credence by this Court. See supra, n.1.
Yet even assuming arguendo that these new allegations were true and could be

considered by this Court, they still would not suffce to rescue the claim or make it any less

repugnant to the First Amendment and the doctrine of fair use. Plaintiff does not dispute that
Sapient's purpose was criticism, (see opp'n at 22) ("His modus operandi is to incite

controversy... ."), nor that the work is highly transformative. Numerous courts, including the
Supreme Cour, have found transformative commercial uses of copyrghted works to be fair uses
under Section 107 and the First Amendment. Campbell v. AcuffRose Music, Inc., 510 U.S. 569,

584 (1994) (finding commercial release of2 Live Crew parody song was stil presumptively fair
use due to its transformative nature); Mattei, Inc. v. Walking Mountain Prods., 353 F.3d 792,803

(9th Cir. 2003) (finding parodic photographs ofplaintifts doll constituted fair use despite being
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offered for sale); Burnett, 2007 WL 1662343 at *3-4 (Fox Television's Family Guy parody was
fair use).

In fact, Plaintiff s key case, Campbell, held that when the secondary use of a work

constitutes a highly transformative use, such as a parody or criticism, commerciality canot cary
presumptive force against a finding of fairness, lest the presumption '''swallow nearly all of

the

illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment,

criticism, teaching, scholarship, and research, since these activities 'are generally conducted for

profit in this country.'" Campbell, 510 U.S. at 584 (quoting Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 592 (1985)) (emphasis added).
Further, the Campbell caveat applies not only to analysis of

the first fair use factor
the use on the potential

(the purpose and character of

the use) but also the fourth (the effect of

market for the copyrghted work). Campbell, 510 U.S. at 592 (holding that when the secondary
use is a trans

formative one, such as parody or criticism, "the unlikelihood that creators of

imaginative works wil license critical reviews or lampoons of their own productions removes
such uses from the very notion of a potential licensing market."); Walking Mountain, 353 F.3d at

805; Burnett, 2007 WL 1662343 at *6-8. Following Campbell, both the first and fourth fair use
factors weigh in Sapient's favor.
Plaintiffs analysis of the second fair use factor (the nature of

the copyrghted

work) is equally inapt because it fundamentally misunderstands the legal question presented.
The amount of

"creative thought" invested in the secondary use is not at issue; rather, the second
the

factor turns on whether the original work is based on factual events (such as a live telecast of

2008 Presidential Debates) or fiction (such as the new Harry Potter novel). See, e.g., Stewart v.
Abend, 495 U.S. 207, 237-38 (1990) (contrasting fictional short story with factual works); Sony

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Corp. v. Universal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984) (contrasting motion pictures
with news broadcasts); Time Inc v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968)

(finding use of Zapruder film was non-infrnging where value from film was in the underlying
factual information of

President Kennedy's assassination). This second factor weighs in

Sapient's favor because the eight seconds at issue merely captures a live factual event and not a
creative performance. Allegations of

unclean hands and bad faith have nothing to do with this

mquiry.
Finally, Plaintiffs analysis of the third factor (the amount and substantiality of

the

amount used) is also offbase. Plaintiff agrees that only eight seconds were used but somehow insists that there is a factual dispute concerning this factor. There is none. When transformative
criticism or parody is at issue, courts have found that secondary users may take as much of

the

work as they need to speak their minds. See, e.g., Campbell, 510 U.S. at 588-89; Walking

Mountain, 353 F.3d at 803 n.8 (holding that entire verbatim reproductions are justifiable where
the purpose of

the work differs from the original, i.e. for criticism). Here, Sapient took only a
film describing Uri Geller's supposed abilities-just enough to set up the

tiny snippet of

subsequent examination of

those abilities. (MTD at 22).

Moreover, Plaintiff can find no support in the cases upon which it tries to rely: the

work in Harper was an unpublished work (in contrast to the work here, which has been widely
available for over 14 years) and the use in Iowa State was non-transformative and lacked the per

se fair use purposes of criticism and commentar.
3. Fair dealing is uniformly recognized as narrower and less flexible than
fair use.

Next, Plaintiff argues that its claim is not repugnant to the First Amendment and
u.s. law because Section 30 of

the British Copyrght, Designs and Patented Act of 1988

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("CDP A") allows for criticism and review of copyrighted materials under the doctrine of

"fair

dealing. "
While it is true that Section 30 of

the CDP A provides limited statutory protection

for criticism, it is widely recognized that fair dealing is far narrower and less flexible than the
United States doctrine of fair use. See Reply Appendix of

Foreign Authority, Item 1 (COPINGER

AND SKONE JAMES ON COPYRIGHT I, § 9-19) (noting that the framework of fair use under 17

U.S.C. § 107 is "a more flexible approach" than fair dealing under CDP A § 30, "allows (U.S.)

courts to develop the law on a case-by-case basis as new problems emerge," and is not restricted

solely to statutorily-approved uses such a those in § 30); Lloyd L. Weinreb, Fair's Fair: A
Comment on the Fair Use Doctrine, 103 HARV. L. REv. 1137 (1990) (same); Robert C.
Piasentin, Unlawful? Innovative? Unstoppable? A Comparative Analysis of

the Potential Legal

Liability Facing P2P End-Users in the United States, United Kingdom, and Canada, 14INT'L. 1.
L. & INFO. TECH. 195, 211 (2006) ("In the UK, the fair dealing provisions are not as broad as the

American fair use provisions since they only apply in certain limited situations... ."); Lior Zemer,
Rethinking Copyright Alternatives, 14INT'L 1.L. & INFO. TECH. 137, 142-43 (2006).

In fact, the "sufficient acknowledgement" requirement of Section 30(2) that
Plaintiff highlights is a perfect example of

this difference. Such acknowledgement is not

required under U.S. law and appears nowhere in Section 107, contradicting Plaintiffs own
assertion that the two doctrines are equivalent. Additionally, as even Plaintiff concedes, fair
dealing does not incorporate the strong First Amendment protections underlying fair use in
United States courts.

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D. Plaintiff Concedes That it Failed to Plead Essential Elements of Counts II and III.
Plaintiff concedes that it does not have a commercial disparagement claim against

Sapient. It asks the Court to "ignore Count II's title of Commercial Disparagement, or allow the
Plaintiffto amend this misnomer." (Opp'n at 21). Apparently, Plaintiff

now wishes to assert a

claim of corporate defamation so that it can argue that Sapient's alleged statements constitute

defamation per se. The Court should not permit this, as defamation per se should not be applied
to a corporation. See Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp. 2d 570,581 n.9 (E.D. Pa.

1999) (expressing "serious reservations about whether the doctrine of defamation per se is
appropriately applied to corporate entities."). As Judge Brody of

this Court has noted:

The categories that make up defamation per se speak volumes

about to whom the doctrine was intended to apply. Criminal offense, loathsome disease, business misconduct, serious sexual misconduct: these are allegation that would cause enormous personal humiliation and embarassment to a human being, not a corporation. A corporation, however, cannot be embarrassed or humiliated. A corporation's analogue to humiliation would be damage to reputation - an injury that should translate into a pecuniary loss. If a corporation canot point to loss of revenues or profits, for what are we compensating it? Should the law allow corporations to avoid showing special harm by taking advantage of an exception so clearly created to protect individuals? The rule of defamation per se as it applies to corporation has outrun its reason.
Id.

Even if defamation per se were to apply to corporations, Plaintiff s claim would
stil be deficient because Plaintiff

has failed to allege even general damages and it apparently has

no intention--r, more importantly, no ability-to do so. See Pyle v. Meritor Sav. Bank, No. 92-

7361, 1996 U.S. Dist. LEXIS 3042, at *11 (E.D. Pa. Mar. 13, 1996) ("In a defamation per se

case, a plaintiff must prove general damages from a defamatory publication and canot rely upon

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presumed damages."); see also Walker v. Grand Cent. Sanitation, 634 A.2d 237,244 (Pa. Super.

Ct. 1993). The Amended Complaint contains no allegations of general damages. Rather, it
merely sets forth the elements of a defamation claim under Pennsylvania law in a conclusory
maner. This is insuffcient. See Bell

Atlantic Corp. v. Twombly, No. 05-1126, 550 U.S'_'

slip op. at 8 (May 21,2007) (holding that plaintiff cannot overcome a motion to dismiss by
merely alleging "a formulaic recitation of

the elements of a cause of action."). Therefore,

regardless of

how it is framed, Plaintiffs Count II fails to state a claim and should be dismissed

at this time.

Plaintiffs attempt to save its misappropriation claims (Count III) is equally
unavailing. Plaintiff

now argues (for the first time) that Sapient "offers trinkets for sale and

directs (visitors to his website) to an Amazon.com portal were (sic) he gets commissions and/or

royalties" (opp'n at 17, 22)-"facts" never even mentioned in the Amended Complaint.
Irespective of

whether these allegations should be considered by the Court, it does not affect the

merits of the claim because Plaintiff simply misunderstands the tort of misappropriation of
likeness.

The misappropriation tort allows an individual to protect the commercial value of

his or her name and image. It seeks to prevent others from, in effect, claiming the endorsement

of the plaintiff or an affliation with the plaintiff without consent to sell or advertise its own
goods. See World Wrestling Fedn Entm 't, Inc. v. Big Dog Holdings, Inc., 280 F Supp. 2d 413,

444 (W.D. Pa. 2003) ("The right of publicity is often invoked in the context of commercial
speech when the appropriation of a celebrity likeness creates a false and misleading impression
that the celebrity is endorsing a product."); see also Brockum Co. v. Blaylock, 729 F. Supp. 438,

446 (E.D. Pa. 1990) (finding a misappropriation because defendant created clothing bearng the

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Page 17 of 19

names and images of

musical groups without authorization). The mere fact that a defendant is

involved in a business that seeks to earn a profit does not render that business liable to every
person whose name or likeness it publishes. See Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1089

(E.D. Pa. 1980); see also Jenkins v. Dell Publ'g Co., 251 F.2d 447,450-51 (3d Cir. 1958). The
tort of

misappropriation does not apply to situations when a person's name or likeness is used to

ilustrate news. Neffv. Time, Inc., 406 F. Supp. 858, 861 (W.D. Pa. 1976). Nor does the tort

exist to prevent criticism. See Big Dog Holdings, 280 F. Supp. 2d at 445 (holding that parodies
are entitled to First Amendment protection from misappropriation claims).
To establish a claim for misappropriation, Plaintiff

must allege specific facts that

show Sapient used the reputation, prestige, or social or commercial standing ofExplorologist for
his personal benefit through endorsement or association. See Borton v. Unisys Corp., No. 90-

4793, 1991 U.S. Dist. LEXIS 93, at *29-30 (E.D. Pa. Jan. 4, 1991). Plaintiff concedes that
Sapient used the brief clip at issue here for the purposes of criticizing Uri Geller. This is exactly
the opposite of using Geller's likeness to endorse goods, and it certainly does not suggest in any

way that Geller is affiliated with Sapient or the Rational Response Squad. The use at issue here
is no different than would be if Sapient had published a photograph of Geller as part of a critical
10
magazine article that also contained advertising. It is not misappropriation.

10 Notably, Plaintiff does not allege that the alleged trinkets bear the likeness ofUri Geller or
concern in any way Geller or Explorologist LTD.

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III. CONCLUSION
For the reasons stated above, as well as those included in Sapient's opening brief,

Sapient respectfully requests that this Court dismiss Plaintiffs Amended Complaint with
prejudice.

Respectfully submitted,

/s/ Chad Cooper Samuel W. Silver (Pa. 1.D. No. 56596) Chad Cooper (Pa. 1.D. No. 90067) SCHNADER HARSON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, P A 19103-7286 [phone]; [phone]
Coryne McSherry (admitted pro hac vice) Kurt Opsahl (admitted pro hac vice)
Jason Schultz (admitted pro hac vice)

ELECTRONIC FRONTIER FOUNATION
454 SHOTWELL ST.

SAN FRACISCO, CA 94110
415-436-9333 Fax: [phone]

Marcia Hofman (admitted pro hac vice) ELECTRONIC FRONTIER FOUNATION 1875 CONNCTICUT AVE SUITE 650 WASHINGTON, DC 20009
202-797 -9009 Fax: [phone]
Attorneys for Defendant,
Brian Sapient

Dated: July 9, 2007

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 9th day of July, 2007, a true and correct
copy of the foregoing Defendant's Reply Brief in Support of

Motion to Dismiss Pursuant to
the

Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6) was served electronically, by way of

Court's electronic case filing system, and by First Class U.S. Mail, postage prepaid, addressed as
follows:

Alan L. Frank Alan L. Frank Law Associates PC 8380 Old York Road Suite 410 Elkins Park, PA 19027

Richard Winelander 1005 North Calvert St Baltimore, MD 21202

/s/ Chad Cooper

Chad Cooper