Malibu Media, LLC v. Doe

• Decision Date: 02 February 2015
• Docket Number: Civil Action No. 14–1280.
• Citation: 82 F.Supp.3d 650
• Parties: MALIBU MEDIA, LLC v. John DOE subscriber assigned IP address 69.249.253.94.
• Court: U.S. District Court — Eastern District of Pennsylvania

82 F.Supp.3d 650

MALIBU MEDIA, LLC

v.John DOE subscriber assigned IP address 69.249.253.94.

Civil Action No. 14–1280.

United States District Court, E.D. Pennsylvania.

Signed Feb. 2, 2015.

Christopher P. Fiore, Fiore & Barber LLC, Harleysville, PA, for Malibu Media, LLC.

John Doe, pro se.

MEMORANDUM

DALZELL, District Judge.

Before us in this copyright infringement action are cross-motions for summary judgment. Because we find that the plaintiff has failed to (1) make a prima facie case of copyright infringement and (2) show that evidence allegedly spoliated was relevant to its claim, we will deny plaintiff's motion for summary judgment and grant defendant's pro se motion for summary judgment.

I. Standards of Review

1. Summary Judgment

Summary judgment is warranted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A party moving for summary judgment bears the burden of demonstrating no genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To that end, the movant must inform the district court of the basis for its argument by “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the movant is the defendant or the party that does not have the burden of proof on the underlying claim, it “has no obligation to produce evidence negating its opponent's case.” National State Bank v. Federal Reserve Bank of New York,

979 F.2d 1579, 1582 (3d Cir.1992). The movant need only point to the lack of evidence supporting the non-movant's claim. Id.

When both parties move for summary judgment, our task is no different. As our Court of Appeals cautioned many years ago,

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. If any such issue exists it must be disposed of by a plenary trial and not on summary judgment.

Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968). Cross-motions must be considered separately and should not be interpreted necessarily to mean that judgment should be entered as to either one of them. Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that he or it is entitled to a judgment as a matter of law. 10A Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure, § 2720 (3d ed.2014). As in any summary judgment motion, the determination whether a genuine issue concerning a material fact exists is itself a question of law that the Court must decide. It does not depend upon what either or both of the parties may have thought about the matter. A party moving for summary judgment concedes the absence of a factual issue and the truth of the nonmoving party's allegations only for purposes of its own motion. Id. As Wright and Miller observe, “It follows that the legal theories the movant advances in support of a Rule 56 motion and the assertion that there is no issue of material fact may not be used against the movant when the court rules on his adversary's motion.” Id.

The reviewing court should view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.2006). A factual dispute is “genuine” if it turns on “evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248, 106 S.Ct. 2505. That is, “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude” summary judgment. Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir.1998) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ).

Because we consider cross-motions before us, “[t]he fact that one party fails to satisfy that burden on his own Rule 56 motion does not automatically indicate that the opposing party has satisfied his burden and should be granted summary judgment on the other motion.” 10A Wright & Miller at § 2720. Both motions must be denied if we find there is a genuine issue of material fact, but, if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court may render judgment. Id.

It is well-established that Rule 56 obliges the nonmoving party seeking to defeat a motion for summary judgment “to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ; see alsoFed.R.Civ.P. 56(c). The nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256–57, 106 S.Ct. 2505. To prevail on a motion for summary judgment, “the non-moving party must present more than a mere scintilla of evidence; ‘there must be evidence on which the jury could reasonably find for the [non-movant].’ ” S.H. ex rel. Durrell v. Lower Merion School Dist., 729 F.3d 248, 256 (3d Cir.2013) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ) (internal citation omitted).

By the same token, if the nonmoving party fails to make a sufficient showing on an essential element of its case on which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. As the Supreme Court observed in Celotex, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id. at 323, 106 S.Ct. 2548 (internal quotation marks and citation omitted).

2. Copyright Infringement

To establish a claim of copyright infringement, a plaintiff must establish: (1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiff's work. Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir.2002). “Copying refers to the act of infringing any of the exclusive rights that accrue to the owner of a valid copyright, as set forth at 17 U.S.C. § 106, including the rights to distribute and reproduce copyrighted material.” Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 207 (3d Cir.2005) (internal quotation and citation omitted).

But not all copying constitutes a copyright infringement. Our Court of Appeals has long held that the copying must constitute “improper appropriation.” Id. at 208 (quoting Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.1975) ); see also Arnstein v. Porter, 154 F.2d 464 (2d Cir.1946). The Court explained in Kay Berry that the second part of the infringement inquiry “may be demonstrated by showing that the defendant had access to the copyrighted work and that the original and allegedly infringing works share substantial similarities.” Id. at 207–08 (citing Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 291 (3d Cir.1991) ). In our Circuit, “substantial similarity” turns on two considerations—“(1) whether the defendant copied from the plaintiff's work and (2) whether the copying, if proven, went so far as to constitute an improper appropriation.”Id. (internal citation omitted). The issue of substantial similarity is frequently a fact issue for jury resolution because the fact-finder may need to compare two works, see Twentieth Century–Fox Film Corp. v. MCA, Inc., 715 F.2d 1327 (9th Cir.1983). But a court may determine non-infringement as a matter of law on a motion for summary judgment when no reasonable jury, properly instructed, could find that the two works are substantially similar. See Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 918 (2d Cir.1980).¹

3. Spoliation

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. See West v. Goodyear Tire and Rubber Co., 167 F.3d 776, 779 (2d Cir.1999).

The duty to preserve applies only to relevant data, documents and things. As our Court of Appeals observed in Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 78 (3d Cir.1994),

Since the early 17th century, courts have admitted evidence tending to show that a party destroyed evidence relevant to the dispute being litigated. Jamie S. Gorelick, Steven Marzen and Lawrence Solum, Destruction of Evidence, § 2.1 (1989). Such evidence permitted an inference, the “spoliation inference,” that the destroyed evidence would have been unfavorable to the position of the offending party. As Judge Breyer put it in Nation–Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir.1982), “the evidentiary rationale [for the spoliation inference] is nothing more than the common sense observation that a party who has notice that [evidence] is relevant to litigation and who proceeds to destroy [evidence] is more likely to have been threatened

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