United States District Court, D. Arizona
ORDER
Bridget S. Bade United States Magistrate Judge
Defendants
Ugly Pools Arizona, Inc., and Brian Morris
(“Defendants”) have filed a third motion for
summary judgment. (Doc. 86.) The motion seeks summary
judgment on Plaintiff's claim for false copyright marking
under 17 U.S.C. § 1202(a), asserted in Count Three of
the First Amended Complaint (“FAC”). The motion
is fully briefed. (Docs. 86, 87, 92, 93, 94.) For the reasons
below the Court grants the motion.
I.
Background
A.
Procedural Background
In
Count Three of the FAC, Plaintiff SellPoolSuppliesOnline.com
(“Plaintiff” or “SPSO”) alleged that
Defendants violated the Digital Millennium Copyright Act, 17
U.S.C. § 1202 (“DMCA”). (Doc. 39 at
¶¶ 20, 48-50.) Plaintiff alleged falsification and
removal claims under §§ 1202(a) and (b). The
parties previously filed cross-motions for summary judgment
on all of Plaintiff's claims in the FAC, including its
claims under the DMCA. (Docs. 43, 45.) On June 9, 2017, the
Court denied both motions for summary judgment on
Plaintiff's falsification claim under 17 U.S.C. §
1202(a), and granted Defendants' motion for summary
judgment on Plaintiff's removal claim under §
1202(b).[1] (Doc. 64 at 35-41.) The Court denied the
parties' cross-motions for summary judgment on
Plaintiff's § 1202(a) falsification claim because it
found that there were disputed issues of fact on an element
of that claim, specifically Defendants' intent in placing
their copyright notice on their website. (Id. at
38-41.)
As set
forth below in Section I.B, and in the Court's June 2017
Order, Plaintiff has asserted various descriptions of its
copyrighted material over the course of the litigation.
(Id. at 11-12.) In its June 2017 Order, the Court
concluded that for purposes of Plaintiff's infringement
claim, Plaintiff's claims related to copyrighted material
referred to copyrighted photographs on its website
www.poolandspapartsnow.com. (Doc. 64 at 12.) Based on this
limited description of Plaintiff's claimed copyrighted
material, Defendants requested leave to file a third motion
for summary judgment directed at Plaintiff's §
1202(a) falsification claim. (Doc. 75.) Defendants argued
that the limitation on Plaintiff's claim of copyrighted
material from Plaintiff's “website as a
whole” to “photographs” on Plaintiff's
website was significant. Defendants argued that they
“did not change Plaintiff's copyright notice on any
of its photos” and, therefore, could not be liable
under § 1202(a). (Id. at 2-3.) The Court
granted Defendants' motion for leave to file a third
summary judgment motion on Plaintiff's § 1202(a)
falsification claim. (Doc. 83.) This order addresses only
that claim.
B.
Factual Background
In the
FAC and other filings in this matter,
Plaintiff described its business as licensing pre-made
websites that it refers to as “the Platform.”
(Doc. 78-1 ¶ 1.)[2]However, Plaintiff has admitted that
“much of the website code” is licensed from
BigCommerce, a non-party entity that provides “backend
electronic storefront” services. (Doc. 53, Ex. Q.)
After Plaintiff commenced this matter, it sought to register
a copyright in various aspects of the Platform. (See
Doc. 64 at 5-7 (discussing the copyright registration
process).) Plaintiff initially claimed a copyright in
portions of computer code, code to provide for the 360-degree
rotation of images, all images containing the letters CVP in
the image, product descriptions, and the arrangement of text
and images. (Docs. 87 at 1 ¶ 1; Doc. 96 ¶ 1.)
Plaintiff later limited its copyright claim. (Doc. 87 ¶
2; Doc. 93 ¶ 2.) On November 29, 2016, the copyright
office issued Plaintiff a certificate of registration. (Doc.
50, Ex. 1; Doc. 80 ¶ 44.) The certificate of
registration was for “text, photographs.” (Doc.
87 at ¶ 4; Doc. 93 at ¶ 4.) After the copyright
office issued the certificate of registration,
Plaintiff's filings before this Court referred to
Plaintiff's copyrighted material as “the collection
of photos at issue in this case.” (Doc. 87 at ¶ 5;
Doc. 93 at ¶ 5.)
Plaintiff
alleges that in July 2014, SPSO employed Mark Kesler as a
salesperson to sell licenses to use the Platform. (Doc. 78-1
¶¶ 5, 6.) During 2014, Kesler introduced Defendant
Brian Morris, owner of Defendant Ugly Pools Arizona, Inc., to
Plaintiff as a potential licensee. (Id. at ¶
13.) Defendants represented themselves to Plaintiff as
prospective customers who were considering purchasing a
license of SPSO's Platform to create a website for their
business. (Id. at ¶ 15.) Plaintiff provided
Defendants access to Kesler's copy of the Platform to
assist them in making a purchasing decision. (Id. at
¶ 16.) Plaintiff alleges that “Defendants were
aware that they would have to purchase a license to be
authorized to have further access to the Platform-that is, to
use it commercially-and that the SPSO license governed the
nature of their use of the Platform.” (Id.)
Unbeknownst
to Plaintiff, Defendants and Kesler were working together and
had formed a partnership for Morris to manage and redesign
Kesler's site. (Id. at ¶ 18, Ex. 2 at 37.)
Plaintiff alleges that Defendants downloaded “a
complete copy of SPSO's Platform.” (Doc. 78-1
¶ 20.) Plaintiff alleges that nearly a year later,
Defendants published a website located at allpoolsupplies.com
(“APS”), which was nearly identical to the
Platform. (Doc. 78-1 ¶ 22.) Plaintiff asserts that
Defendants admitted to copying the Platform and creating APS.
(Id.) Plaintiff alleges that Defendants' site
“wholly incorporated the original photos which are
registered with the U.S. Copyright Office under Registration
Number TX 8-268-803 (‘Registered Photos') and other
content from the Platform into APS.” (Id. at
¶¶ 28-29). Plaintiff alleges that Defendants
provided false copyright management information on the
website with the intent to induce, enable, facilitate, or
conceal infringement. (Doc. 39 at ¶ 20.)
In its
statement of facts in opposition to Defendants' third
motion for summary judgment, Plaintiff does not dispute that
Defendants' copyright notice is located only at the
bottom of Defendants' website and is not placed next to
any of Plaintiff's photographs.[3] (Doc. 87 at ¶ 7 (citing
Doc. 39-6 at 7 (Ex. F to the FAC)); Doc. 93 at ¶ 7.)
Plaintiff agrees that Defendants did not add their copyright
notice to Plaintiff's photographs. (Doc. 87 at ¶ 7;
Doc. 93 at ¶ 7.) Plaintiff has admitted that Defendants
did not remove or change Plaintiff's copyright marking
from any of Plaintiff's photographs. (Doc. 87 at ¶ 9
(citing Doc. 87, Ex. 1 at 54 line 5 to p. 55 line 8); Doc. 93
at ¶ 9.)
Defendants
assert that their contributions to the APS website include
(1) Defendants' brand design logo on the top of the
webpage, and (2) Defendants' blog entries on the bottom
of the webpage. (Doc. 87 at ¶ 10 (citing Doc. 39-6 at 7,
Ex. F to the FAC).) Plaintiff disputes this assertion because
Exhibit F to the FAC does not depict blog entries. (Doc. 93
at ¶ 10.) Although Exhibit F does not include specific
blog entries, it depicts a navigational link to a blog. (Doc.
39-6 at 2, 7.) Defendants' copyright notice appears in a
shaded block at the bottom of the webpage that includes a
link to the blog. (Id. at 7.) Additionally,
Plaintiff has provided evidence of a blog entry. (Doc. 93-1
at 3-4.)
II.
Summary Judgment Standard
A party
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Only disputes over facts that might
affect the outcome of the suit will preclude the entry of
summary judgment, and the disputed evidence must be
“such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The
nonmoving party may not rely on the mere allegations in the
pleadings, but must set forth by affidavit, or other
appropriate evidence, specific facts showing there is a
genuine issue for trial. Id. at 249. The nonmoving
party must produce at least some “significant probative
evidence tending to support” its position. Smolen
v. Deloitte, Haskins, & Sells, 921 F.2d 959, 963
(9th Cir. 1990). The issue is not whether the
“‘evidence unmistakably favors one side or the
other but whether a fair-minded jury could return a verdict
for the [nonmoving party] on the evidence
presented.'” United States ex rel. Anderson v.
N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1995)
(quoting Liberty Lobby, 477 U.S. at 252). “If
a moving party fails to carry its initial burden of
production, the nonmoving party has no obligation to produce
anything, even if the nonmoving party would have the ultimate
burden of persuasion at trial.” Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03
(9th Cir. 2000). The Court considers the motion for summary
judgment under this standard.
III.
Plaintiff's ...