Babcock v. Gannett Satellite Info. Network, LLC

• Decision Date: 12 February 2021
• Docket Number: Cause No. 4:20-CV-23-HAB
• Parties: AARON BABCOCK, Plaintiff, v. GANNETT SATELLITE INFORMATION NETWORK, LLC, Defendant.
• Court: U.S. District Court — Northern District of Indiana

AARON BABCOCK, Plaintiff, v. GANNETT SATELLITE INFORMATION NETWORK, LLC, Defendant.

Cause No. 4:20-CV-23-HAB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

February 12, 2021

OPINION AND ORDER

This matter comes before the Court on Defendant's Motion to Dismiss and Incorporated Memorandum of Law (ECF No. 14), filed on July 10, 2020.In summary, Defendant argues that Plaintiff has failed to allege facts that would allow this Court to exercise personal jurisdiction over Defendant and, even if jurisdiction existed, Plaintiff has failed to plead a prima facie case for copyright infringement.The motion has been fully briefed and is ripe for determination.

A.Plaintiff's Allegations

Consistent with the applicable standard of review, the facts as pled in Plaintiff's Amended Complaint are as follows.Plaintiff is a professional photographer with his "usual place of business" in Lincoln, Nebraska.Defendant is alleged to be a Delaware domestic business corporation with a place of business in Lafayette, Indiana.Defendant operates four websites: www.jconline.com; www.lohud.com; www.redding.com; and www.amp.usatoday.com.It is alleged that www.jconline.com is based in Lafayette and targets residents of the Northern District of Indiana.

The subject of this lawsuit is a 2018 photograph taken by Plaintiff of actor Bill Murray attending a Big Ten football game between Purdue and Nebraska.Plaintiff registered the photograph with the United States Copyright Office and received a copyright registration number.On September 29, 2018, and again on November 21, 2018, Defendant ran articles containing the photograph on the websites.Defendant did not license the photograph from Plaintiff, nor did it have Plaintiff's consent to publish the photographs in its articles.

Plaintiff initially published the photograph on Twitter.Plaintiff asserts that, when reproducing the photograph in its articles, Defendant did not use Twitter's "embed function."Plaintiff further asserts that Defendant failed to link to Plaintiff's Twitter account.Finally, Plaintiff alleges that Defendant's use of the photograph violated Twitter's terms of service.

On the basis of the foregoing allegations, Plaintiff brings a single count of copyright infringement under 17 U.S.C. §§ 106and501.Plaintiff seeks damages, up to $150,000.00 per infringed work, as well as his attorney's fees and costs.

B.Legal Analysis

1.Standard of Review

a.Rule 12(b)(2)

"[A] complaint need not include facts alleging personal jurisdiction."Steel Warehouse of Wisconsin, Inc. v. Leach, 154 F.3d 712, 715(7th Cir.1998).However, once the defendant moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating the existence of jurisdiction.SeeCentral States, S.E. & S.W. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 939(7th Cir.2000);Steel Warehouse, 154 F.3d at 715;RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276(7th Cir.1997).

When a district court rules on a defendant's motion to dismiss based on the submission of written materials, without the benefit of an evidentiary hearing, the plaintiff"need only make outa prima facie case of personal jurisdiction."SeeHyatt Int'l Corp. v. Coco, 302 F.3d 707, 713(7th Cir.2002);see alsoWeidner Communications, Inc. v. H.R.H. Prince Bandar Al Faisal, 859 F.2d 1302, 1306 n. 7(7th Cir.1988);Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123(7th Cir.1983)(stating that a court may receive and weigh affidavits to determine whether it has personal jurisdiction and that, during this preliminary proceeding, "the burden of proof is met by a prima facie showing that personal jurisdiction is conferred under the relevant jurisdictional statute").In evaluating whether the prima facie standard has been satisfied, the plaintiff"is entitled to the resolution in its favor of all disputes concerning relevant facts presented in the record."Nelson, 717 F.2d at 1123;see alsoRAR, 107 F.3d at 1275(stating that the plaintiff"is entitled to have any conflicts in the affidavits resolved in its favor").

b.Rule 12(b)(6)

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint.Cler v. Ill. Educ. Ass'n, 423 F.3d 726, 729(7th Cir.2005).In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court assumes all well-pleaded allegations in the complaint to be true and draws all inferences in the light most favorable to the plaintiff.Killingsworth v. HSBC Bank, 507 F.3d 614, 618(7th Cir.2007)(citingBell Atlantic Corp. v. Twombly, 550 U.S. 544(2007)).To survive a motion to dismiss, the complaint must overcome "two easy-to-clear hurdles": (1)"the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests"; and (2)"its allegations must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the 'speculative level.'"Tamayo v. Blagojevich, 526 F.3d 1074, 1084(7th Cir.2008)(emphasis in original).

2.Plaintiff has Made a Prima Facie Showing of Personal Jurisdiction with Respect towww.jconline.comOnly

In a federal question case such as this one, a federal court has personal jurisdiction over a defendant if either federal law or the law of the state in which the court sits authorizes service of process to that defendant.Mobile Anesthesiologists Chicago, LLC v. Anesthesia Associates Houston, 623 F.3d 440, 443(7th Cir.2010).Congress did not provide for national service of process under the Copyright Act.ISI Int'l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 550(7th Cir.2001).Accordingly, this Court has personal jurisdiction over Defendant only if it is amenable to service under Indiana law.Personal jurisdiction under Indiana law "extends to the limits allowed by the Due Process Clause of the Fourteenth Amendment."Weston v. Big Sky Conference, 466 F.Supp.3d 896, 905(N.D. Ill.2020).

Federal law recognizes two types of personal jurisdiction: general and specific.Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 n.8-9(1984).Plaintiff does not argue for general jurisdiction, so the Court will focus on specific jurisdiction."Specific personal jurisdiction is appropriate where (1)the defendant has purposefully directed his activities at the forum state or purposefully availed himself of the privilege of conducting business in that state, and (2) the alleged injury arises out of the defendant's forum-related activities."Tamburo v. Dworkin, 601 F.3d 693, 702(7th Cir.2010)."[T]he nature of the purposeful-direction/purposeful-availment inquiry depends in large part on the type of claim at issue."Felland v. Clifton, 682 F.3d 665, 674(7th Cir.2012).

To be subject to specific jurisdiction, a defendant need only have sufficient "minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"Int'l Shoe Co. v. Washington, 326 U.S. 310, 316(1945)(quotingMilliken v. Meyer, 311 U.S. 457, 463(1940))."Jurisdiction is proper . . . where the contactsproximately result from actions by the defendant himself that create a substantial connection with the forum State."Burger King v. Rudzewicz, 471 U.S. 462, 475(1985)(internal quotation marks omitted).Courts look to the defendant's "conduct and connection with the forum State" to determine if he should "reasonably anticipate being haled into court there."World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297(1980).

That this case involves the internet does not change this analysis.The Court recognizes the morass that is caselaw attempting to shoehorn nineteenth century jurisdictional principles into twenty-first century modes of communication.Courts have done their best to evaluate the extent to which an internet presence creates personal jurisdiction, developing inquiries like the "sliding scale" of interactivity.SeeZippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119(W.D. Pa.1997).The Court, however, finds it unnecessary to resort to these new formulations of the age-old questions.As the Court of Appeals for the District of Columbia has stated,

We do not believe that the advent of advanced technology, say, as with the Internet, should vitiate long-held and inviolate principles of federal court jurisdiction.The Due Process Clause exists, in part, to give "a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit."

GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1350(D.C. Cir.2000) (quoting World-Wide Volkswagen, 444 U.S. at 297.The Court will, therefore, utilize the same three-part inquiry it would in any case, asking whether (1)the defendant purposefully directed its activities at residents of the forum, (2) the claim arises out of or relates to those activities, and (3) assertion of personal jurisdiction is reasonable and fair.AirFX, LLC v. Braun, 2011 WL 5523521 at *2(S.D. Ind.Nov. 14, 2011).

This analysis is easy for the claims related to www.lohud.com; www.redding.com; and www.amp.usatoday.com. Plaintiff does not assert that any of these websites are directed at theNorthern District of Indiana.Rather, Plaintiff claims a sort of pendent personal jurisdiction, stating "the fact that at least one of the websites identified in the Amended Complaint is directed at Indiana residents is sufficient" to sweep the remaining issues within this Court's jurisdiction.(ECF No. 18at 10).

The Court disagrees."Specific jurisdiction, on the other hand, depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the...