Hendrickson v. Ebay, Inc.
| Decision Date | 04 September 2001 |
| Docket Number | No. CV 01-3412 RJK.,No. CV 01-0495 RJK (RNBx).,CV 01-0495 RJK (RNBx).,CV 01-3412 RJK. |
| Citation | 165 F.Supp.2d 1082 |
| Parties | Robert HENDRICKSON, Plaintiff, v. EBAY INC., Luckyboy Entertainment, Steven Reilly, and Does 1 through X, Defendants. and related cases. |
| Court | U.S. District Court — Central District of California |
Robert Hendrickson, Woodland Hills, CA, pro se.
Jeffrey E. Scott, Raymond B. Kim, Santa Monica, CA, for defendants.
ORDER GRANTING DEFENDANTS EBAY INC., MARGARET C. WHITMAN AND MICHAEL RICHTER'S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, MOTION FOR PARTIAL SUMMARY JUDGMENT
This case involves a matter of first impression in the federal courts: whether one of the "safe harbor" provisions of the Digital Millennium Copyright Act ("DMCA") affords protection to the operator of the popular Internet auction web service, www.ebay.com, when a copyright owner seeks to hold the operator secondarily liable for copyright infringement by its sellers. On August 20, 2001, the Court heard Defendants eBay, Inc. ("eBay"), Margaret Whitman and Michael Richter's (collectively, the "eBay Defendants") motion for summary judgment on the copyright and trademark claims in the consolidated Hendrickson v. eBay, Inc. et al. cases. After the hearing, the Court took the motion under submission. After considering the papers submitted by the parties, the case file and oral argument, the Court hereby GRANTS the motion.
eBay provides an Internet website service where over 25 million buyers and sellers of consumer goods and services have come together to buy and sell items through either an auction or a fixed-price format. Pursuant to their agreement with eBay, users set up user IDs or "screen names" to conduct business on eBay's website in a semi-anonymous fashion.1 Buyers and sellers reveal their real identities to each other in private communications to complete sales transactions.
eBay's website allows sellers to post "listings" (or advertisements) containing descriptions of items they wish to offer for sale; and it allows buyers to bid for items they wish to buy. People looking to buy items can either browse through eBay's 4,700 categories of goods and services or search for items by typing words into eBay's search engine. Every day, eBay users place on average over one million new listings on eBay's website. At any given time, there are over six million listings on the website.2
On or about December 20, 2000, eBay received a "cease and desist" letter from pro se Plaintiff Robert Hendrickson. The letter advised eBay that Plaintiff dba Tobann International Pictures is the copyright owner of the documentary "Manson." The letter also stated that pirated copies of "Manson" in digital video disk ("DVD") format were being offered for sale on eBay. However, the letter did not explain which copies of "Manson" in DVD format were infringing copies; nor did it fully describe Plaintiff's copyright interest. The letter demanded that eBay cease and desist "from any and all further conduct considered an infringement(s) of [Plaintiff's] right" or else face prosecution "to the fullest extend provided by law." (See Richter Decl., Ex. C.)
Promptly after receiving this letter, eBay sent Plaintiff e-mails asking for more detailed information concerning his copyright and the alleged infringing items. (See id., Exs. D-G.) eBay advised Plaintiff that he has to submit proper notice under the DMCA. For example, on December 20, 2000, eBay sent the following e-mail to Plaintiff:
[R]ecognizing that some posted items may infringe certain intellectual property rights, we have set up specific procedures which enable verified rights owners to identify and request removal of allegedly infringing auction listings. These procedures are intended to substantially comply with the requirements of the [DMCA], 17 U.S.C. section 512. Click on the following link to access the [DMCA].
(Id., Ex. D.) In that e-mail, eBay also encouraged Plaintiff to join its Verified Rights Owner ("VeRO") program, by submitting eBay's Notice of Infringement form.3 As eBay explained, some of the benefits of the VeRO program include, among other things: (1) access to a customer support group dedicated to servicing the VeRO participants; (2) dedicated priority email queues for reporting alleged infringing activities; and (3) ability to use a special feature called "Personal Shopper," which allows users to conduct automatic searches for potentially infringing item. (Id., Ex. D.)
On December 28, 2000, Defendant Richter, eBay's Intellectual Property Counsel, followed up with another e-mail:
We have tried to contact you numerous times concerning your letter dated December 14, 2000.[¶] We would like to assist you in removing items listed by third parties on our site which you claim infringe your rights. However, in order to do so, we would need proper notice under the [DMCA]. Specifically, we would need you to, among other things, identify the exact items4 which you believe infringe your rights. In addition, we would need a statement from you, under penalty of perjury, that you own (or are the agent of the owner) the copyrights in the documentary. As you can understand, a statement that we `immediately CEASE and DESIST from any and all further conduct considered an infringement(s) of my right granted under Copyright and other laws of the land' gives us no indication of what your rights are, and gives us no indication as to which items infringe such rights.
(Id., Ex. G.) Plaintiff refused to join eBay's VeRO program and refused to fill out eBay's Notice of Infringement form.5 Before filing suit, Plaintiff never provided eBay the specific item numbers that it sought.
On January 17, 2001, Plaintiff filed the first of three lawsuits against eBay. In CV 01-0495 ("Case No. 1"), Plaintiff sued eBay and two eBay sellers, asserting a claim for copyright infringement. The Complaint in Case No. 1 alleges, among other things, that eBay is liable for the sale of unauthorized copies of the film "Manson" by users on eBay's website.
On February 12, 2001, Plaintiff filed the second lawsuit. In CV 01-1371 ("Case No. 2"), Plaintiff sued eBay, David Durham (another third party seller) and Margaret C. Whitman ("Whitman"), eBay's President and CEO. In this case, Plaintiff alleges that eBay and Whitman are liable for copyright infringement because they allowed Defendant Durham to sell unauthorized copies of the film "Manson" on or after January 17, 2001, the date Plaintiff filed Case No. 1.
On April 13, 2001, Plaintiff filed his third lawsuit against eBay. In CV 01-3412 ("Case No. 3"), Plaintiff added several other defendants, including eBay's Senior Intellectual Property Counsel, Michael Richter ("Richter"). Plaintiff alleges, among other things, that eBay and Richter are liable for copyright infringement because they wrongfully continued to allow the sale of unauthorized copies of the film "Manson" by eBay users after February 25, 2001, the date Plaintiff commenced Case No. 2. In addition, Plaintiff alleges a Lanham Act claim and a state claim for tortious interference with prospective economic advantage.
On April 30, 2001, the Court denied Plaintiff's motion for preliminary injunction in Case No. 1. On the same day, the Court granted eBay's motion to consolidate the three actions for all purposes. On July 2, 2001, the Court issued an order granting, in part, the eBay Defendants' first motion for summary judgment. The Court denied the eBay Defendants' motion for summary judgment on the copyright claims without prejudice to its refiling. However, the Court granted eBay and Richter's motion for summary adjudication of the application of the Lanham Act's "innocent infringer" provision. The Court also granted the motion for summary judgment on Plaintiff's state claim on the ground that it is preempted by the Copyright Act.
On July 27, 2001, the eBay Defendants filed the pending motion for summary judgment. Plaintiff filed his opposition on August 6, 2001 and the eBay Defendants filed their reply on August 13, 2001.
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). A fact is material only if it is relevant to a claim or defense and its existence might affect the suit's outcome. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). A court may not, on a motion for summary judgment, evaluate the credibility of the evidence submitted by the parties. See Leslie v. Grupo ICA, 198 F.3d 1152, 1157-59 (9th Cir.1999).
The moving party bears the burden of demonstrating the absence of a genuine issue of material fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir.1990). To demonstrate that the nonmoving party lacks sufficient evidence to entitle it to judgment, the moving party must affirmatively show the absence of such evidence in the record, either by deposition testimony, the inadequacy of documentary evidence or by any other form of admissible evidence. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The moving party has no burden to negate or disprove matters on which the opponent will have the burden of proof at trial. See id. at 325, 106 S.Ct. 2548.
A non-moving party's allegation that factual disputes persist between the parties will not automatically defeat an otherwise...
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...such knowledge does not preclude safe harbor protection if infringing material is expeditiously removed); Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1094–95 (C.D. Cal. 2001) (extending a company’s safe harbor exemption to its employees, when the liability of those employees is solely ......
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