Berio-Ramos v. Flores-García
| Decision Date | 28 May 2020 |
| Docket Number | CIVIL NO. 13-1879 (PAD) |
| Parties | MONÍN BERIO-RAMOS, Plaintiff, v. GERARDO FLORES-GARCÍA, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Plaintiff Monín Berio-Ramos sued Gerardo Flores-García and the Senate of Puerto Rico seeking injunctive and monetary relief for alleged copyright violations under the U.S. Copyright Act of 1976, 17 U.S.C. § 101, et seq., and the Author's Moral Rights Act of Puerto Rico, P.R. Laws Ann. tit. 31 §§ 1401j-1401ff (Docket No. 49). Flores denied liability (Docket No. 52). The Senate of Puerto Rico is no longer a party, as the action against it was dismissed on Eleventh Amendment grounds (Docket No. 115).
Having seen and heard the witnesses during trial and examined all exhibits and evidence in light of applicable law, the court finds that Berio's work is protected, and was copied verbatim or near verbatim without her authorization into approximately two thirds of a PowerPoint prepared without Flores' input by personnel of the Senate Office that he directed. Even though he used the PowerPoint in two lectures as part of the Senate's Continuing Legislative Education Program, there is no evidence that he copied Berio's protected work or had any role in the copying; that the slides he used during the lectures corresponded to Berio's protected work; that he uploaded or authorized the uploading of the PowerPoint into the Senate's website; or that he prepared, submitted or authorized the submission of a document with infringing material to the Puerto Rico Supreme Court for registration to qualify for professional continuing education credits in a way that would make him directly liable here. Given that Berio is not seeking to impose secondary liability upon Flores, the case must be dismissed.
On November 27, 2013, Berio initiated this action (Docket No. 1). On November 29, 2013, she amended the complaint (Docket No. 2). After several procedural incidents, on October 31, 2014, she filed a second amended complaint (Docket No. 49), which Flores and the Senate answered (Docket Nos. 52; 70). On December 26, 2014, Flores filed a motion for judgment on the pleadings invoking Eleventh Amendment and legislative immunity (Docket No. 53), which the court denied (Docket No. 76). On January 5, 2016, the Senate filed a motion for judgment on the pleadings (Docket No. 112), which the court granted on Eleventh Amendment grounds (Docket No. 115).1 A bench trial followed on April 5, 6, and 7, 2016 (Docket Nos. 160-162). After Berio rested her case, Flores argued a Rule 52 motion, which was denied (Docket Nos. 161; 176, pp. 79-94). Flores presented his case, renewing the Rule 52 motion (Docket Nos. 172; 177, pp. 75-96). The court reserved judgment to review the trial evidence and testimony, as well as the parties' post-trial briefs. Pursuant to Fed.R.Civ.P. 52, following are the court's findings of fact and conclusions of law.
Berio is a lawyer. She works extensively in the field of legislative techniques, having completed studies in the field at the University of London, Tulane University, and the Italian School of Legislation and Legislative Technique. See, Docket No. 175, pp. 15-22; Plaintiff's Trial Exhibits 1-A and 2. Beginning in 2002, she has taught a course on legislative techniques at the Interamerican University Law School in Puerto Rico and is a lecturer in that field. Id. By 2008, she had developed and prepared a Course on Legislative Techniques (in Spanish, "Curso de Técnica Legislativa"), which includes: (1) a textual, explanatory portion; (2) a questionnaire; and (3) checklist guidelines for the preparation and drafting of legislation. See, Docket No. 175, pp. 23, 27-28, 31-37; Docket No. 176, pp. 17-18, 26-28, 32-34; Plaintiff's Trial Exhibit 3-A. The work was registered in the Puerto Rico Intellectual Property Registry on January 31, 2008, and with the U.S. Copyright Office on May 1, 2013. See, Docket No. 175, pp. 24-26; Plaintiff's Trial Exhibits 4-A and 6. The different parts of the work are complementary; however, the Questionnaire and Checklist Guidelines are the most important parts, and may be used independently. See, Docket No. 176, pp. 17, 33-34.
From April 16 through 18, 2008, Berio and her colleague Rosa Noemí Bell-Bayron organized and hosted an International Congress on Legislative Technique and Quality of the Law, which was held in the Senate of Puerto Rico in the Capitol Building in San Juan, and was attended by approximately 220 persons. See, Docket No. 175, pp. 23, 27-30; Docket No. 176, pp. 10, 54. During the first day of the Congress, Berio distributed to the attendees -comprised of legislators, legislative aides, attorneys, and students- a booklet with the legislative technique course and the Questionnaire and Checklist Guidelines. See, Docket No. 175, pp. 27-28, 30, 36; Docket No. 176, p. 56. She gave a lecture on the third day of the conference, explaining the purpose and use of these materials in drafting bills. See, Docket Nos. 175, pp. 28, 36-37; 176, pp. 59-61. Although the work did not include or display her name, Berio stated that she was the author. See, Docket Nos. 175, p. 37; 176, pp. 10-11, 60-61.
Flores is an attorney. In 2008, he worked as Deputy Director of the Office of Legislative Advisors to the Speaker of the House of Representatives of Puerto Rico (Docket No. 176, pp. 57; 101-104; 152). From January 2009 to December 2012, he worked as a contractor, as Director of the Office of Advisors to the President of the Senate of Puerto Rico. Id. at pp. 96, 109, 170. (Docket No. 177, p. 50).
First, on two occasions -April 8 and September 7, 2011- Flores gave lectures displaying some of the slides of a PowerPoint presentation titled "Drafting, Legislative Technique, and the Quality of the Law" (in Spanish, "Redacción, Técnica Legislativa y Calidad de la Ley") (the "PowerPoint"). See, Flores' Testimony, Docket No. 176, pp. 129-132, 142-143; Plaintiff's Trial Exhibit 5-A.2 These lectures were part of the Senate of Puerto Rico's Continuing Education Program for its employees, advisors, and contractors, as well as directors of legislative commissions. See, Flores' Testimony, Docket No. 176, pp. 129-132, 142-143. The PowerPoint includes significant portions of Berio's work. Out of the 92-slides that comprise the PowerPoint, 62 slides incorporate almost entirely, word-for-word, Berio's Questionnaire and ChecklistGuidelines. Moreover, the PowerPoint contains what Berio described as a grammatical error found in the original work. See, Berio's Testimony, Docket No. 175, pp. 117-118; Docket No. 176, p. 61. Berio did not authorize her work to be included within the PowerPoint or displayed in the lectures (Docket No. 175, p. 127). The PowerPoint does not recognize Berio's authorship. Berio's work is included as Appendix I and the PowerPoint as Appendix II.
Second, on October 7, 2011, the Puerto Rico Supreme Court's Office of Continuing Legal Education received from the Senate of Puerto Rico a document titled "Drafting, Legislative Technique and Quality of the Law," bearing Flores' name and official title, a brief biography of him, and the seal of the Senate, along with a list of around 42 statements and questions that are verbatim or near verbatim copies of Berio's Questionnaire, in a similar order as in the original work (the "CLE Document"). See, Plaintiff's Trial Exhibits 3-A and 12-A; Docket No. 176, pp. 165, 172-173.3 Berio did not authorize copying of her work into the CLE Document. The document does not recognize Berio's authorship. It is included as Appendix III.
Third, from at least February 2013 to September 2013, the PowerPoint was uploaded to and available for viewing and downloading without Berio's authorization through the Senate of Puerto Rico's website, until it was removed at Flores's behest after Berio sent him a demand letter. See, Docket No. 175, pp. 121-122, 128-129; Docket No. 176, pp. 61-62, 65, 70-71, 144-145. Nevertheless, it continued to appear in different sites as search engine results for the search term "legislative technique." Id.
The owner of a valid copyright holds certain exclusive rights, including the right to perform or authorize reproduction of the work, to prepare derivatives of the work, to distribute copies to the public, and to publicly display the work. See, Soc'y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 54 (1st Cir. 2012)(addressing topic). These rights are separate, distinct, and severable from one another. See, Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (3rd Cir. 1984)(so noting). One infringes a copyright "when he or she violates one of [those] exclusive rights." T-Peg, Inc. v. Vermont Timber Works, 459 F.3d 97, 108 (1st Cir. 2006).
Berio claims Flores unlawfully copied her work (Docket No. 181, p. 1). To establish copyright infringement, she must show by a preponderance of the evidence: (1) ownership of a valid copyright; and (2) copying by the alleged infringer of constituent elements of the work that are original. See, Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361 (1991)( test); Grubb v. KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir. 1996)(similar). To establish ownership, "a plaintiff must prove that the work as a whole is original, and that the plaintiff complied with applicable statutory formalities." CMM Cable v. Ocean Coast Properties, 97 F.3d 1504, 1513 (1st Cir. 1996).
Originality "means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Feist Publications, Inc., 499 U.S. at 345. The requisite level of creativity is extremely low; even a slight amount will suffice. Id. The vast majority of...
To continue reading
Request your trial