Elektra Entertainment Group, Inc. v. Barker, 05-CV-7340 (KMK).

• Decision Date: 31 March 2008
• Docket Number: No. 05-CV-7340 (KMK).,05-CV-7340 (KMK).
• Citation: 551 F.Supp.2d 234
• Parties: ELEKTRA ENTERTAINMENT GROUP, INC., a Delaware corporation; UMG Recordings, Inc., a Delaware corporation; Virgin Records America, Inc., a California corporation; and Sony BMG Music Entertainment, a Delaware general partnership, Plaintiffs, v. Denise BARKER, Defendant.
• Court: U.S. District Court — Southern District of New York

551 F.Supp.2d 234

ELEKTRA ENTERTAINMENT GROUP, INC., a Delaware corporation; UMG Recordings, Inc., a Delaware corporation; Virgin Records America, Inc., a California corporation; and Sony BMG Music Entertainment, a Delaware general partnership, Plaintiffs, v. Denise BARKER, Defendant.

No. 05-CV-7340 (KMK).

United States District Court, S.D. New York.

March 31, 2008.

Brian E. Moran, Robinson & Cole, LLP, New York, NY, Richard L. Gabriel, Holme Roberts& Owen LLP, Denver, CO, J. Christopher Jensen, Maryann Penney, Cowan, Liebowitz & Latman, P.C., New York, NY, for Plaintiffs.

Ray Beckerman, Esq., Morlan Ty Rogers, Esq., Vandenberg & Feliu, LLP, New York, NY, for Defendant.

Michael J. Garcia, United States Attorney for the Southern District of New York, Rebecca C. Martin, Esq., Assistant United States Attorney, New York, NY, for Amicus United States of America.

Andrew P. Bridges, Esq., Winston & Strawn, LLP, San Francisco, CA, for Amicus Computer& Communications Industry Association and U.S. Internet Industry Association.

Eric J. Schwartz, Smith& Metalitz LLP, Washington, DC, Jonathan Zavin, Loeb & Loeb LLP, New York, NY, for Amicus Motion Picture Association of America.

Fred von Lohmann, Electronic Frontier Foundation, San Francisco, CA, Wendy Seltzer, Brooklyn, NY, for Amicus Electronic Frontier Foundation.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

Plaintiffs Elektra Entertainment Group, Inc., UMG Recordings, Inc., and Virgin Records America, Inc. (collectively "Plaintiffs") operate leading recording labels and own many copyrights in sound recordings.¹ Plaintiffs have sued Defendant Denise Barker for copyright infringement seeking injunctive relief and damages.² Plaintiffs allege that Defendant infringed Plaintiffs' exclusive rights of reproduction and distribution by downloading, distributing, and/or making available copies of protected sound recordings using an online media distribution system. Defendant moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendant's Motion to Dismiss the Complaint is DENIED; however, the Court grants Plaintiffs thirty days to amend their Complaint consistent with this Opinion.

I. Background

Plaintiffs' Complaint states that Plaintiffs "are, and at all relevant times have been, the copyright owners or licensees of exclusive rights under United States copyright with respect to certain copyrighted sound recordings (the `Copyrighted Recordings')" (Compl.¶ 10), which they identify as including the sound recordings attached in list form to the Complaint (id., Ex. A). The Complaint states that "among the exclusive rights granted to each Plaintiff under the Copyright Act are the exclusive rights to reproduce the Copyrighted Recordings and to distribute the Copyrighted Recordings to the public." (Id. ¶ 11.) Plaintiffs further plead, based on information and belief, "that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others." (Id. ¶ 12.) The Complaint alleges that "each of the published copies of the sound recordings identified in Exhibit A was accessible by Defendant." (Id. ¶ 13.)

Although the Complaint does not identify the "online media distribution system" allegedly used by Defendant, two of the Exhibits attached to the Complaint appear to be screen-shots of the Kazaa peer-to-peer file sharing program. (Id. Exs.B, C.) Plaintiffs brought this lawsuit after their investigators identified a Kazaa user named "Phoenyxxx@KaZaA" who had 611 music files on her computer that she offered freely for download to other Kazaa users. (Pls.' Opp'n to Def.'s Mot. to Dismiss ("Pls.' Br.") 6.) Plaintiffs' investigators identified the Internet Protocol ("IP") address being used by Phoenyxxx@KaZaA and, after filing a "John Doe" complaint and obtaining a court order, Plaintiffs issued a subpoena to Verizon Internet Services, Inc. ("Verizon"), the registrant of the relevant IP address block, in order to determine what user account corresponded to the IP address. (Id., at 6-7.) Verizon subsequently identified Defendant as the owner of the account, and Plaintiffs filed this suit for copyright infringement against Defendant on August 19, 2005. (Id., at 7.)

Defendant raises two arguments in her Motion to Dismiss. First, Defendant contends that Plaintiffs' Complaint does not plead copyright infringement with adequate specificity. Second, Defendant argues that Plaintiffs' allegation that Defendant "ma[de] the Copyrighted Recordings available for distribution to others," (Compl. ¶ 12), fails to state a claim upon which relief can be granted.³

II. Discussion

A. Standard of Review

The Supreme Court has recently held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the `grounds' of his `entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted and second alteration in original). In Twombly, id. at 1964-69, the Supreme Court also abandoned reliance on the oft-cited line from Conley v. Gibson that, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As the Supreme Court explained, a literal application of Conley's "no set of facts" rationale is improper because "a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some `set of [undisclosed] facts' to support recovery ...." Twombly, 127 S.Ct. at 1968. Instead, the Court emphasized that "[f]actual allegations must be enough to raise a right to relief above the speculative level," id. at 1965, and "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 1969. Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. If Plaintiffs "have not nudged [their] claims across the line from conceivable to plausible, [their] complaint must be dismissed." Id.; see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) ("After careful consideration of the Court's opinion and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible `plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." (emphasis in original)).

A motion to dismiss requires the Court to "accept as true the factual allegations made in the complaint and draw all inferences in favor of the plaintiffs." Grandon v. Merrill Lynch& Co., Inc., 147 F.3d 184, 188 (2d Cir.1998); see also Blimpie Int'l, Inc. v. Blimpie of the Keys, 371 F.Supp.2d 469, 470-71 (S.D.N.Y.2005). "`In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Glidepath Holding B.V. v. Spherion Corp., No. 04-CV-9758, 2007 WL 2176072, at *9 (S.D.N.Y. July 26, 2007) (quoting Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted)).

B. Analysis

1. Specificity of the Complaint

Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Courts in this district have construed Fed.R.Civ.P. 8(a)(2) "to require a plaintiff to plead with specificity the acts by which a defendant has committed copyright infringement." Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225, 230 (S.D.N.Y.2000). "Broad, sweeping allegations of infringement do not comply with Rule 8." Id. (quoting Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y.1992), affd, 23 F.3d 398 (2d Cir.1994)). Specifically, Rule 8 requires a plaintiff claiming copyright infringement to allege: "(i) which specific original work is the subject of the claim, (ii) that plaintiff owns the copyright in the work, (iii) that the copyright has been registered in accordance with the statute, and (iv) by what acts during what time the defendant infringed the copyright." Brought to Life Music, Inc. v. MCA Records, Inc., No. 02-CV-1164, 2003 WL 296561, at *1 (S.D.N.Y. Feb. 11, 2003).

Defendant argues that under Rule 8 the Complaint must be dismissed because it does not describe specific acts of infringement or the dates and times on which the infringement allegedly occurred. Defendant further argues that the Complaint does not allege that the songs listed in Exhibit A to the Complaint were illegally downloaded or distributed by Defendant. Defendant's arguments are without merit. Rule 8 is "not meant to impose a great burden upon a plaintiff." Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). Indeed, the purpose of Rule 8(a)(2) "is to give fair notice of a claim and the grounds upon which it rests so that the opposing party may identify the nature of the case, respond to the complaint, and prepare for trial." Manik v. Avram, No. 06-CV-477, 2006 WL 2942854, at *3 (S.D.N.Y. Oct. 13,...