Internet Archive v. Shell
| Decision Date | 13 February 2007 |
| Docket Number | No. CIVA 06CV01726LTBCBS.,CIVA 06CV01726LTBCBS. |
| Citation | 505 F.Supp.2d 755 |
| Parties | INTERNET ARCHIVE, Plaintiff and Counterclaim Defendant, v. Suzanne SHELL, Defendant and Counterclaimant, v. Brewster KAHLE, Rick Prelinger, and Kathleen Burke Third Party Defendants. |
| Court | U.S. District Court — District of Colorado |
Kenneth B. Wilson, Michael H. Rubin, Stefani E. Shanberg, Leonard H. Mac-Phee, Lila I. Bailey, Perkins Coie, LLP, San Francisco, CA, for Plaintiff and Counterclaim Defendant.
Suzanne Shell, Elbert, CO, Pro se.
Brewster Kahle, San Francisco, CA, Pro se.
Kathleen Burch, San Francisco, CA, Pro se.
Rick Prelinger, San Francisco, CA, Pro se.
Plaintiff and Counterclaim Defendant Internet Archive moves to dismiss counterclaims by Defendant and Counterclaimant Suzanne Shell ("Shell") for conversion, civil theft, breach of contract and violations of the Racketeering Influence and Corrupt Organizations act ("RICO"), 18 U.S.C. § 1961, et. seq., and the Colorado Organized Crime Control Act ("COCCA"), Colo. Rev.Stat. § 18-17-101 et seq., involving Internet Archive's use of an automatic web browser to reproduce the contents of Shell's website. For the reasons discussed below Internet Archive's motion is GRANTED, in part and DENIED, in part.
Internet Archive is a San Francisco, California non-profit organization devoted to preserving a comprehensive record of all websites, documents and other information contained on the internet as a resource for future generations. It employs a technology called the Wayback machine to systematically browse the entire world wide web, reproducing content from websites and placing them in an internet archive. Neither the Wayback Machine nor Internet Archive actively seek the permission of website owners prior to reproducing website content, but according to Internet Archive, the Internet Archive website explains how website owners can remove material from the archive. Additionally, Internet Archive removes material on request from website owners.
These terms include charging the user $5,000 for each individual page copied "in advance of printing," granting Shell a perfected security interest of $250,000 "per each occurrence of unauthorized use" of the website in all of the user's land, assets and personal property, the user agreeing to pay "$50,000 per each occurrence of failure to pre-pay" for use of the website, "plus costs and triple damages," and agreeing to waive numerous defenses in any claims by Shell against the user.
This Copyright Notice is accessible through an icon located on Shell's website. According to Internet Archive, it does not pop up as a separate screen that a user must "click-through" in order to access web material and does not require users to agree to these terms before accessing material. Internet Archive states that the terms of this agreement, including the claim that copying website material creates a binding contract, appears to the user only after he has copied material. The record is not clear on what statement actually appears on the opening screen of Shell's website or where precisely this statement is located on the website. The record also is not clear on how a user, after having copied website materials, will be informed of the existence or terms of the Copyright Notice.
This dispute arose when Shell discovered that the Wayback machine had reproduced and archived the contents of her website. According to Shell, the Wayback machine contacted and reproduced the contents of her web site approximately 87 times between May of 1999 and October of 2004, and displayed her entire website to the public daily during that time period. On December 12, 2005, Shell emailed Internet Archive requesting that her website contents be removed from the Wayback machine. Internet Archive did so. Shell also demanded payment of $100,000 from Internet Archive and threatened to sue if Internet Archive failed to pay. Internet Archive, anticipating a lawsuit, filed a Declaratory Judgment Action in the U.S. District Court of the Northern District of California on January 20, 2006 seeking a judicial determination that Internet Archive did not violate Shell's copyright, pursuant to 28 U.S.C. § 2201 and Fed. R.Civ.P. 57.
Shell filed her Answer February 10, 2006, and also filed Counterclaims against Internet Archive for copyright infringement, conversion, civil theft, breach of contract and racketeering under RICO and COCCA. For the racketeering claims only, Shell added as Third Party defendants Brewster Kale, Rick Prelinger and Kathleen Burke, members of the Board of Directors of Internet Archive. The parties stipulated to transfer the case to the District of Colorado, and the case was refiled in this court on August 31, 2006.
On November 16, 2006, Internet Archive moved under Fed.R.Civ.P. 12(b)(6) to dismiss Shell's counterclaims of conversion, civil theft, breach of contract and RICO for failure to state a claim. Internet Archive's motion applies only to these claims as they apply to Internet Archive, not to the Third Party defendants.
Under Fed.R.Civ.P. 12(b)(6), a district court may dismiss a complaint for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If the plaintiff has pled facts that would support a legally cognizable claim for relief, a motion to dismiss should be denied. See id. In evaluating a 12(b)(6) motion to dismiss, "all well-pleaded factual allegations in the ... complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999).
Fed.R.Civ.P. 12(b)(6) does not provide a procedure for resolving a contest about the facts or the merits of the case. Thus, one must read Fed.R.Civ.P. 12(b)(6) in conjunction with Fed. R. Civ. P 8(a), which sets forth the requirements for pleading a claim in federal court. Federal R. Civ. P 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not contain detailed facts, but it must "give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. A plaintiff is not required to state precisely each element of the claim. See 5 Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1216, at 154-59 (1990). Nonetheless, a plaintiff must "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988).
Allegations of fraud or mistake are governed by the stricter requirements of Fed. R.Civ.P. 9(b), which requires that "the circumstances of fraud or mistake shall be stated with particularity." As I discuss in more detail below, this heightened pleading requirement applies in part to Shell's RICO claims.
Shell argues additionally that, since she is proceeding pro se, I must construe her pleadings even more liberally than I would typically in response to a Rule 12(b)(6) motion. It is true that "a pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal, pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir1991). "If the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiffs failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. At the same time, "the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir2005). Ultimately, despite some allowance for technical errors, "pro se parties follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994).
Internet Archive moves to dismiss Shell's claims of conversion, civil theft, breach of contract, and RICO for failure to state a claim.
Conversion is "any distinct, unauthorized act of dominion or ownership exercised by one person over personal property belonging to another." Glenn Arms Associates v. Century Mortg. & Inv. Corp., 680 P.2d 1315, 1317 (Colo.Ct.App. 1984). "Predicates to a successful claim for conversion are the owner's demand for the return of the property, and the controlling party's refusal to return it." Id. Even if Shell's demand that Internet Archive remove her website from the Wayback machine is a demand for the return of property, it is undisputed that Internet Archive complied with her request. Shell's claim therefore lacks an essential element of a claim for conversion, and necessarily fails.
Additionally, Shell has failed to allege facts...
To continue reading
Request your trial
-
Costar Realty Information, Inc. v. Field
...Greentree Mortg. Co., 30 F.Supp.2d 1292, 1305 (D.Colo.1998) ([citations omitted to U.S. Supreme Court case])". Internet Archive v. Shell, 505 F.Supp.2d 755, 769 (D.Colo.2007). CoStar seeks to establish an enterprise through Gressett's selling the passcode to others, and impute his conduct o......
-
Council On Am.–islamic Relations Action Network Inc. v. Gaubatz, Civil Action No. 09–02030 (CKK).
...accord FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300, 303–04 (7th Cir.1990) (applying California law); Internet Archive v. Shell, 505 F.Supp.2d 755, 763 (D.Colo.2007) (applying Colorado law). The exercise of ownership, dominion, or control is an essential element of a claim for conver......
-
Church Mut. Ins. Co. v. Phillip Marshall Coutu, an Individual, Power Adjusters, Inc.
...wire fraud must meet the heightened pleading burden under Rule 9(b) of the Federal Rules of Civil Procedure. Internet Archive v. Shell, 505 F. Supp. 2d 755, 768 (D. Colo. 2007). That is, the FAC "must set forth the time, place and contents of the false representation, the identity of the pa......
-
Levine v. Vitamin Cottage Nat. Food Mkts.
... ... which are unreasonably favorable to that party.'” ... Internet Archive v. Shell , 505 F.Supp.2d 755, 767 ... (D. Colo. 2007) (quoting Davis v. M.L.G. Corp ... ...
-
Civil Litigation Under the Colorado Organized Crime Control Act - Part I - July 2008 - the Civil Litigator
...[an] oddly constructed entity" consisting of the corporation and its employees and agents). 44. See, e.g., Internet Archive v. Shell, 505 F.Supp.2d 755, 769-70 (D. Colo. 2007). 45. Compare, e.g., Living Designs, Inc. v. E.I. DuPont de Nemours and Co., 431 F.3d 353, 361-62 (9th Cir. 2005) (h......