Parker v. Google, Inc.

• Decision Date: 10 March 2006
• Docket Number: No. Civ.A. 04-CV-3918.,Civ.A. 04-CV-3918.
• Citation: 422 F.Supp.2d 492
• Parties: Gordon Roy PARKER v. GOOGLE, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

422 F.Supp.2d 492

Gordon Roy PARKER v. GOOGLE, INC.

No. Civ.A. 04-CV-3918.

United States District Court, E.D. Pennsylvania.

March 10, 2006.

COPYRIGHT MATERIAL OMITTED

Gordon Roy Parker, Philadelphia, PA, Pro se.

David H. Kramer, Leo P. Cunningham, Bart E. Volkmer, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, John E. Riley, Vaira & Riley PC, Philadelphia, PA, for Google, Inc.

MEMORANDUM & ORDER

SURRICK, District Judge.

Presently before the Court is Defendant, Google, Inc.'s Motion To Dismiss Plaintiffs First Amended Complaint (Doc. No. 13). For the following reasons, Defendant's Motion will be granted.

I. BACKGROUND

Defendant Google, Inc. ("Google") is a Delaware corporation with its headquarters in California. Google maintains a website that provides search technology, allowing users to search for, among other things, websites, products, and images. Google provides this service by "crawling" the web and then organizing the content in a searchable Web index. When a user types in a query, Google's proprietary technology produces a list of hyperlinks organized by their relevance and reliability. In the course of providing this service, Google makes a copy of each website and stores it in a "cache," a temporary storage tool. When it produces a list of results for a particular query, Google often includes links to these caches, noting that they are archival copies of the original web pages. Google also maintains the USENET, "a global system of online bulletin boards" (Doc. No. 13 at 2) and allows users to post and search archived messages on the system.¹

Pro se Plaintiff Gordon Roy Parker alleges that he is a writer and that he publishes his works on the internet under the name "Snodgrass Publishing Group." He maintains a website at www.cybersheet.com. Plaintiff further alleges that he has written and owns the registered copyright for, among other works, his e-book, "29 Reasons Not To Be A Nice Guy." Plaintiff is a participant in the USENET and, at one point, posted "Reason # 6" from his "29 Reasons" book to the USENET.

Parker filed his original Complaint on August 18, 2004. (Doc. No. 1.)² He subsequently filed an Amended Complaint on October 22, 2004. (Doc. No. 11.) In the Amended Complaint, Parker asserts eleven separate claims against Google and 50,000 "John Doe" Defendants who, he asserts, "represent Google's partners through its `Adsense' and `Adwords' programs" (Doc. No. 11 ¶ 3). The eleven claims are: (1) direct copyright infringement, (2) contributory copyright infringement, (3) vicarious copyright infringement, (4) defamation, (5) invasion of privacy, (6) negligence, (7) Lanham Act violations, (8) and (9) racketeering, (10) abuse of process, and (11) civil conspiracy.

In the instant Motion, Google contends that Parker's Amended Complaint should be dismissed for failure to comply with the "short and plain statement" requirement or, alternatively, for failure to state a claim.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure to state a claim. The purpose of a Rule 12(b)(6) motion to dismiss is not to resolve disputed facts or decide the merits of the case. Tracinda Corp. v. Daimler-Chrysler AG, 197 F.Supp.2d 42, 53 (D.Del. 2002). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.1980) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Swin Res. Sys., Inc. v. Lycoming County, 883 F.2d 245, 247 (3d Cir.1989) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

In evaluating a motion to dismiss, all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the nonmoving party. Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir.1989) (citing Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985)). The court may dismiss a complaint, "only if it is certain that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swin Res. Sys., Inc., 883 F.2d at 247.

In deciding a motion to dismiss, federal courts are bound by the pleading requirements of Federal Rule of Civil Procedure 8(a). Fed.R.Civ.P. 8(a)(2) (requiring "a short and plain statement of the claim showing that the pleader is entitled to relief'). All that is necessary, therefore, is a succinct summary sufficient to give the defendants fair notice of the nature of the claims asserted against them. Leatherman v. Tarrant County, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (noting that the Federal Rules of Civil Procedure impose a particularity requirement in only two specific instances, fraud or mistake).

III. LEGAL ANALYSIS

We note preliminarily that Plaintiffs Complaint is voluminous, consisting of seventy-two pages with 291 separate paragraphs of factual averments and legal allegations. In fact, Plaintiff devotes the first forty-five pages and 129 paragraphs, before any legal claims are stated, to an overview of the alleged wrongful conduct. Plaintiffs inclusion of "50,000 John Does" as defendants further confuses this already unwieldy Complaint. As a result, this rambling pleading is far from a "short and plain statement" as required by Rule 8(a). However, because we review pro se complaints more leniently than those crafted by lawyers, we will consider each claim separately, reviewing it under the requirements of Rule 8(a) and Rule 12(b)(6) respectively. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

A. Direct Copyright Infringement (Count I)

Plaintiff claims that Google has committed direct copyright infringement in a number of ways. First, Parker alleges that he has a valid registered copyright for his e-book, "29 Reasons Not To Be A Nice Guy" including "Reason # 6," which he posted on the USENET. While it is not entirely clear, Parker appears to assert that Google's automatic archiving of this USENET posting constituted a direct infringement of his copyright. Parker also claims that when Google produces a list of hyperlinks in response to a user's search query and excerpts his website in that list, Google is again directly infringing his copyrighted work. He alleges that this conduct constitutes a violation of the Copyright Act, 17 U.S.C. § 106 et seq., and the Digital Millennium Copyright Act, 17 U.S.C. § 512.

To prove copyright infringement, a plaintiff must show: "(1) ownership of a valid copyright and (2) copying of protectable expression by the defendant. Infringement occurs when a defendant violates one of the exclusive rights of the copyright holder." Netcom, 907 F.Supp. at 1366-67 (internal citations omitted). In addition, "a plaintiff must also, show volitional conduct on the part of the defendant in order to support a finding of direct copyright infringement." Field v. Google, Inc., 412 F.Supp.2d 1106, 1114-15 (D.Nev.2006) (citing Netcom, 907 F.Supp. at 1369-70).

While Plaintiff has alleged a valid copyright, at least with respect to his "Reason # 6" USENET posting, the case law is clear that the activities of Google do not constitute direct infringement. The United States Court of Appeals for the Fourth Circuit has concluded that while the Copyright Act does not require that the person intentionally infringe a copyright, "it nonetheless requires conduct by a person who causes in some meaningful way an infringement." CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549 (4th Cir.2004). Courts have drawn an analogy between an internet service provider ("ISP"), which maintains "a system that automatically transmits users' material but is itself indifferent to the material's content," and the owner of a copy machine who makes its use available to the public. Id. at 551. The Court in Netcom explicitly analogized the actions of an ISP that caches and archives data and the owner of a copy machine:

[T]he mere fact that [the ISP's] system incidentally makes temporary copies of plaintiffs' works does not mean [the ISP] has caused the copying. The court believes that [the ISP's] act of designing or implementing a system that automatically and uniformly creates temporary copies of all data sent through it is not unlike that of the owner of a copying machine who lets the public make copies with it . . . . Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party.

Netcom, 907 F.Supp. at 1368-70. When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing. The automatic activity of Google's search engine is analogous. It is clear that Google's automatic archiving of USENET postings and excerpting of websites in its results to users' search queries do not include the necessary volitional element to constitute direct copyright infringement.³

In addition, while it is not entirely clear from Plaintiff's rambling Complaint should Parker be claiming direct copyright infringement based on Google's automatic caching of web pages as a means of indexing websites and producing results to search queries, this activity does not constitute direct infringement either. Based upon Title II of the Digital Millennium Copyright Act, the Online Copyright Infringement Liability Limitation Act, 17 U.S.C. § 512(b), the District Court for the District of Nevada recently held that Google is entitled to the Act's safe harbor provisions for its system caching activities. Field, at 1122-25 (granting Google's motion for summary judgment that it qualifies for § 512(b) safe harbor for system caching).⁴ We conclude that Plaintiff has not stated a claim upon...