Emmerich Newspapers, Inc, v. Particle Media, Inc.

• Docket Number: Civil Action 3:21-CV-32-KHJ-MTP
• Decision Date: 09 August 2022
• Parties: EMMERICH NEWSPAPERS INCORPORATED, PLAINTIFF v. PARTICLE MEDIA, INC. d/b/a NEWS BREAK and JOHN DOES 1-10 DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

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EMMERICH NEWSPAPERS INCORPORATED, PLAINTIFF v. PARTICLE MEDIA, INC. d/b/a NEWS BREAK and JOHN DOES 1-10 DEFENDANTS

Civil Action No. 3:21-CV-32-KHJ-MTP

United States District Court, S.D. Mississippi, Northern Division

August 9, 2022

ORDER

KRISTI H. JOHNSON UNITED STATES DISTRICT JUDGE

This action is before the Court on Defendant Particle Media Inc.'s (“Particle Media”) Motions for Partial Summary Judgment [63], [65] and Plaintiff Emmerich Newspapers, Inc.'s (“Emmerich”) Motion for Partial Summary Judgment [67]. For the reasons below, the Court denies Particle Media's Motion for Partial Summary Judgment as to fair use [65], grants in part and denies in part Emmerich's Motion for Partial Summary Judgment as to fair use [67], and grants Particle Media's Motion for Partial Summary Judgment as to injunctive relief [63].

I. Facts and Procedural History

This case is about alleged copyright violations by Defendant Particle Media of Plaintiff Emmerich's news articles. The facts are largely undisputed. Emmerich is a Mississippi corporation that owns and publishes many local newspapers in Mississippi, Louisiana, and Arkansas. Amend. Compl. [23] ¶¶ 5, 11; see also Def.'s Memo Supp Mot. Summ. J. [66] at 3. Particle Media is a company that developed and owns an online application called “NewsBreak” which curates personalized news feeds for its users. See Decl. of Robert Mazzola [65-1] ¶ 3. To accomplish this, NewsBreak uses a “web crawler” which searches the internet for popular websites, scans the websites, analyzes them for their content, and saves a portion of that content. Depo. of Particle Media [67-1] at 30-33. The “web crawler” program copies articles' content verbatim. Depo. of Xiliang Zhong [67-3] at 20-21. NewsBreak then indexes the third-party news content, allowing users to search content while “pushing” news stories to users “based on their indicated preferences and interests.” [65-1] ¶ 3.

Both Emmerich and Particle Media derive income from online advertisements. NewsBreak is otherwise free for its users. Id. ¶ 7. The app generates some revenue by placing ads on individuals' news feeds or by banner ads in fully displayed articles. [67-1] at 99-103. Emmerich similarly markets itself as a provider of local news content through which local businesses can place ads both in print and on Emmerich's news websites. See, e.g., Depo. of Emmerich [67-5] at 4445, 121.

At all times relevant to this lawsuit, Particle Media collected Emmerich's articles for use in the NewsBreak app. [65-1] ¶ 8. NewsBreak featured about 33,966 of Emmerich's articles. [67-1] at 65-68. The app displayed these articles in two formats. The primary way NewsBreak users encountered Emmerich's articles was through the regular news feed display which contained the headline, a thumbnail image, and a “snippet” with the first words of the article (“Snippet Display”). [65-1] ¶ 4, 8. The Snippet Display contained the lesser of the first 50 words of the article or 20% of the whole article. [67-1] at 81. From there, the user could link to Emmerich's website. See [65-1] ¶ 5.

The second type of display involved full-text reproduction of articles occurring only on Android devices. Id. ¶ 8. From July to December 2019 and May through December 2020, Particle Media displayed the entirety of around 17,000 Emmerich articles on its website. [67-1] at 52-54, 67. These full-text articles garnered about 1.7 million page views. Id. at 74-75. The parties disagree on whether this display was inadvertent or willful. See id. at 52-54 (attributing full-text display to an error in NewsBreak's programming); [65-1] ¶ 8 (“This was not how the app was intended to function”); Pl's Memo. Supp. Mot. Summ. J. [68] at 8. But these full-text articles on the NewsBreak app did not have Emmerich's sold web advertisements. [67-3] at 29.

In August 2020, Emmerich registered nine of its articles (“Registered Works”) with the United States Copyright Office. See Registrations [65-3].^[1] At one point, all nine articles were on NewsBreak's news feed, and a number appeared full-text on the app. [65-1] ¶ 10. Emmerich sued in January 2021. Compl. [1]. Remaining before the Court are Emmerich's claims of copyright infringement and its requests for damages and injunctive relief. Now, Particle Media files two Partial Motions for Summary Judgment, seeking judgment on its fair use defense as it relates to the Snippet Displays of the Registered Works and on Emmerich's request for injunctive relief. [65], [63]. Emmerich files a cross-motion, seeking summary judgment on the availability of Particle Media's fair use defense. [67].

II. Standard

In reviewing a motion for summary judgment, the Court must determine whether there is a “genuine dispute as to any material fact” and whether “the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court views the evidence and draws reasonable inferences in the light most favorable to the nonmovant. Duval v. N. Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013). “A fact issue is ‘material' if its resolution could affect the outcome of the action.” Levy Gardens Partners 2007, L.P. v. Commonwealth Land Title Ins. Co., 706 F.3d 622, 628 (5th Cir. 2013) (citation omitted). A dispute is genuine “if the evidence is 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 party moving for summary judgment need only show “an absence of evidentiary support in the record” for any issue the non-movant must prove at trial. Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010) (citation omitted). Once the movant meets this requirement, “the burden shifts to the non-movant to produce evidence of the existence of such an issue for trial.” Id. (citation omitted). The non-movant may rely on depositions, affidavits, or declaration, or other materials to show a genuine issue of fact, Fed.R.Civ.P. 56(c), and must present more than “speculation, improbable inferences, or unsubstantiated assertions.” Jones, 936 F.3d at 321 (quoting Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670, 673 (5th Cir. 2015)). “A failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact exists.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006) (citing Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991)).

Where, as here, the parties file cross-motions, they should be considered independently “as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors, Inc. v. ICFKaiserEng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004) (citation omitted). “If there is no genuine issue and one of the parties is entitled to prevail as a matter of law [on the issue], the court may render summary judgment.” Id. at 539 (citations omitted).

III. Analysis

A. Motions for Partial Summary Judgment on Fair Use [65], [67]

An owner of a copyright is entitled to certain exclusive rights, including the exclusive right to reproduce the copyrighted work, distribute copies, and display the work publicly. See 17 U.S.C. § 106. The fair use doctrine acts as an equitable exception to this. See Google LLC v. Oracle Am., Inc., 141 S.Ct. 1183, 1196 (2021). Through the fair use doctrine, courts recognize a “limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent” where “rigid application of the copyright statute would stifle the very creativity it is meant to foster.” Bell v. Eagle Mt. Saginaw Indep. Sch. Dist., 27 F.4th 313, 321 (5th Cir. 2022) (cleaned up). Put differently, the fair use doctrine recognizes an “author's consent to a reasonable use of his copyrighted works . . . [implicit in] the constitutional policy of promoting the progress of science and the useful arts.” Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 549 (1985) (quoting Melville B. Nimmer & David Nimmer, 4 Nimmer on Copyright § 13.05(A)(4) (Matthew Bender rev. ed. 2021)). The Copyright Act ultimately codified the doctrine at 17 U.S.C. § 107. Id. at 547.

As an affirmative defense, Particle Media bears the burden of establishing fair use. Est. of Barre v. Carter, 272 F.Supp.3d 906, 929 (E.D. La. 2017) (citing Harper & Row Publrs., 471 U.S. at 546). And as a mixed question of law and fact, the Court should try to break the question into its factual and legal components, reserving underlying disputed questions of fact for a jury. See Google LLC, 141 S.Ct. at 1199-200. But where there are undisputed facts, the ultimate legal conclusion to draw from those facts-whether there was fair use-is a question for the judge. Id.; see also, e.g., Reich v. Lancaster, 55 F.3d 1034, 1044-45 (5th Cir. 1995).

To determine whether a particular use is fair, the Copyright Act lists the following non-exclusive factors,

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. The fair use defense requires weighing all the factors on a case-by-case basis and can succeed even if only one factor favors the defendant. See Bell, 27 F.4th at 321.

Particle Media moves for summary judgment on the Snippet Displays arguing that the fair use doctrine protects its use of...