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Levingston v. Earle

United States District Court, D. Arizona

March 26, 2014

Lynnell Levingston, Plaintiff,
v.
Victoria L. Earle; the Law Office of Victoria L. Earle, LLC, an Arizona limited liability company; Patricia
v.
Piburn and Raymon L. Piburn, husband and wife, Defendants.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Plaintiff Lynnell Levingston's Memorandum in Support of Opposition to Defendant's Claim of "Fair Use" and Motion to Disqualify the Honorable Judge Teilborg (Doc. 31). The Court now rules on all pending matters.

I. Background

In its previous Order, the Court summarized the background of this dispute as follows:

In 2008, Plaintiff authored and published a book called The Road Memoir of Corruption and Abuse of Power (the "Book"). (Doc. 22 at 2). Plaintiff later registered the Book with the United State[s] Copyright Office. Id. at 3. Plaintiff also posts writings to a self-hosted Internet Blog entitled
Three Men Make a Tiger (the "Blog"). Id. at 2. On August 24, 2009, Plaintiff commenced an action for copyright infringement of the Book against at least some of the Defendants in the district court. (Doc. 23-5 at 2). While the action was pending, Plaintiff filed a Chapter 7 petition in the United States Bankruptcy Court, District of Arizona. Id. In the schedule submitted to the Bankruptcy Court dated December 7, [2]009, Plaintiff listed the Book as an asset, but Plaintiff did not list (1) the copyright right infringement claims related to the Book, (2) the Blog, or (3) the copyright infringement claim related to the Blog. (Doc. 23-2). The district court ultimately dismissed the copyright infringement action because Plaintiff failed to substitute or join the bankruptcy trustee, or alternatively, Plaintiff failed to allege that the action was exempt from the bankruptcy estate or abandoned by the bankruptcy trustee. (Doc. 23-5 at 4).
On August 16, 2012, Plaintiff filed a Complaint (Doc. 1) with this Court, and on April 29, 2013, Plaintiff filed an Amended Complaint (Doc. 22). In the Amended Complaint, Plaintiff stated four claims for relief: (1) copyright infringement under 17 U.S.C. § 501, (2) contributory infringement, (3) civil conspiracy to commit misappropriation, and (4) violations of the Digital Millennium Copyright Act under 17 U.S.C. § 1201(a). On May 20, 2013, Defendants filed a Motion to Dismiss. (Doc. 23). Plaintiff responded to Defendants Motion to Dismiss in a First Opposition (Doc. 24) and a Second Opposition (Doc. 26). With the first Opposition, Plaintiff filed a Motion for Sanctions (Doc. 24) and a Motion for Out-of-Pocket Costs. After Defendants responded to the Amended Complaint, Plaintiff filed a Motion for Entry of Default (Doc. 27) and a Motion to Compel Compliance with the Rule 16 Conference (Doc. 29).

Levingston v. Earle, 2013 WL 6119036, at *1 (D. Ariz. Nov. 21, 2013).

II. Copyright Infringement Claim

In its previous Order, the Court granted Defendants' Motion to Dismiss (Doc. 23) on all claims except Plaintiff's copyright infringement claim for Defendants' alleged infringement of Plaintiff's book, The Road Memoir of Corruption and Abuse of Power (the "Book"). Levingston, 2013 WL 6119036, at *1, *4-5. Plaintiff's remaining infringement claim arose because Defendants attached copies of the Book to their pleadings when proceeding in court against Plaintiff for alleged harassment. Id. at *3. Plaintiff alleges Defendants' actions constituted willful copyright infringement. (Doc. 22 at 4-5).

Although Defendants' actions were clearly fair use, see 17 U.S.C. § 107, Defendants inexplicably failed to raise fair use as an affirmative defense. See Levingston, 2013 WL 6119036, at *3. Accordingly, the Court noted its power to sua sponte dismiss a complaint if "the plaintiff is given notice and an opportunity to be heard." Id. (quoting Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994)). The Court ordered Plaintiff to file a memorandum addressing only the issue of fair use and reserved its ruling on Plaintiff's infringement claim until Plaintiff had such opportunity to be heard. Id. at *5. The Court has considered Plaintiff's memorandum (Doc. 31) and now rules on whether to dismiss Plaintiff's infringement claim.[1]

Plaintiff's memorandum does not contain any significant original arguments concerning the doctrine of fair use in this case, or even fair use in general.[2] Instead, it contains nearly fifty pages of reproductions, either in whole or in substantial part, of various articles concerning fair use.[3] See (Doc. 31 at 9-56). Plaintiff reproduces substantial portions of, among others, Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Pa. L. Rev. 549 (2008) (Doc. 31 at 9-33); Joel Friedlander, What Every Writer Ought to Know about Fair Use and Copyright, The Book Designer (Feb. 8, 2010), http://www.thebookdesigner.com/2010/02/what-every-writer-ought-to-know-about-fair-use-and-copyright/(Doc. 31 at 34-37); Rich Stim, Summaries of Fair Use Cases, Stanford Copyright & Fair Use Ctr., http://fairuse.stanford.edu/overview/fair-use/cases/ (last visited Mar. 17, 2014) (Doc. 31 at 38-40); Fair Use, Copyright Codex, http://www.copyrightcodex.com/fair-use-toc/18-fair-use (last visited Mar. 17, 2014) (Doc. 31 at 40-46); Gene Quinn & Michael Sullivan, Copyright Fair Use Cases of the United States Supreme Court, IPWatchdog (Oct. 5, 2012), http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-states-supreme-court/id=26225 (Doc. 31 at 47-52); and Ninth Circuit Model Jury Instructions § 17.18 (2013 ed.) (Doc. 31 at 52-56).

The Court has reviewed the Plaintiff's quoted commentaries and finds them to be consistent with the conclusion of the Ninth Circuit Court of Appeals that reproductions of works in judicial proceedings are fair use. See Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367 (9th Cir. 1992). Defendants' reproduction of the Book constituted fair use because it was a noncommercial use necessary to provide evidentiary support for Defendants' court proceedings.[4] Defendants could not attempt to prove Plaintiff's written harassment without providing the court with the allegedly harassing material.

Consequently, Plaintiff fails to state a claim against Defendants for copyright infringement and the ...


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