Torah Soft Ltd. v. Drosnin

• Decision Date: 30 March 2001
• Docket Number: No. 00 Civ. 5650(SAS).,00 Civ. 5650(SAS).
• Citation: 136 F.Supp.2d 276
• Parties: TORAH SOFT LTD., Plaintiff, v. Michael DROSNIN, Simon & Schuster, Inc., Barnes & Noble, Inc., Borders, Inc., Ingram Book Group Inc., Baker & Taylor, Inc., and Bookazine Company, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

136 F.Supp.2d 276

TORAH SOFT LTD., Plaintiff, v. Michael DROSNIN, Simon & Schuster, Inc., Barnes & Noble, Inc., Borders, Inc., Ingram Book Group Inc., Baker & Taylor, Inc., and Bookazine Company, Inc., Defendants.

No. 00 Civ. 5650(SAS).

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

March 30, 2001.

COPYRIGHT MATERIAL OMITTED

Howard I. Rhine, Andrea Fischer, Coleman, Rhine & Goodwin LLP, New York City, for Plaintiff.

Marcia B. Paul, Marni Beck Pedorella, William H. Crosby, Jr., Kay Collyer & Boose LLP, Kenneth David Burrows, New York City, for Defendants.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Torah Soft Ltd. ("Torah Soft") is suing Michael Drosnin, the author of The Bible Code (the "Book"), and the Book's publishers, distributors and retailers for copyright infringement caused by the unauthorized reproduction in the Book of printouts of output generated by plaintiff's computer program. Plaintiff asserts twelve claims, the first of which is for copyright infringement in violation of 17 U.S.C. §§ 501 et seq.¹ The other eleven claims, brought pursuant to 28 U.S.C. § 1367, allege copyright infringement under the laws of Canada, Mexico, the United Kingdom, Germany, France, Italy, Korea, Japan, Russia, South Africa, and other countries "too numerous to specify." Amended Complaint ("Am.Compl.") ¶¶ 13, 81-111. Defendants now move to dismiss the Amended Complaint or for Summary Judgment, pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(c) and/or 56. Defendants also move to dismiss the copyright infringement claims pleaded under foreign law under the doctrine of forum non conveniens. For the reasons stated below, defendants' motions are granted.

I. LEGAL STANDARD

When matters outside the pleadings are presented to a district court, the court should convert a motion to dismiss to a summary judgment motion and afford all parties the opportunity to present supporting material. See Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000). This conversion requirement is strictly enforced whenever there is a "legitimate possibility" that the district court will rely on material outside the complaint. Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir.1999). Because both plaintiff and defendants have submitted material outside the pleadings on which the Court relies, this motion is treated as one for summary judgment.² Rule 56 provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it might affect the outcome of the suit under the governing law[,] [while] [a]n issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quotation marks and citations omitted).

In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, No. 00 126, 2001 WL 8559, at *3 (2d Cir. Jan. 4, 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.1999); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) ("If the evidence presented by the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted.") (quotation marks, citations and alterations omitted).

II. BACKGROUND

A. The Bible Code

The Book is a non-fiction account of Drosnin's introduction to and adventure with the "Bible code". See Statement of Material Facts by Defendants Pursuant to Local Rule 56.1 ("Def.56.1") ¶ 3. Drosnin — a reporter formerly with The Washington Post and The Wall Street Journal — was introduced to the Bible code while meeting with the Israeli mathematician Dr. Eliyahu Rips in 1992. See Affidavit of Michael Drosnin ("Drosnin Aff.") ¶¶ 3, 5.

According to Bible code scholars, the Hebrew Bible³ is embedded with a code which appears to foretell future events. See Def. 56.1 ¶ 9. This code is revealed by finding words and phrases which appear in the Bible at equidistant letter skips ("ELS's"). See Statement of Material Facts by Plaintiff Pursuant to Local Rule 56.1 ("Pl.56.1") ¶ 8. These ELS's are most efficiently found by using a computer program to search the Hebrew letters of the text of the Bible.⁴ See Pl. 56.1 ¶ 10. Some Bible code computer programs will then rearrange the letters of the Bible and display the output in stacks of rows, each row the length of the ELS's "skip" sequence. Id. ¶ 11. Stacking the rows on top of one another creates a matrix. See id. The code is revealed in words or phrases that transect the searched word or appear in statistically close proximity to it in the matrix. See id. ¶ 12.

For example, as explained in the Book, the Hebrew letters forming the name "Yitzhak Rabin" are found consecutively only once in the Bible, with 4,772 letters separating each letter of his name. See Michael Drosnin, The Bible Code, at 27. The skip sequence is thus 4,772. See id. The code reveals itself with the discovery that intersecting the name "Yitzhak Rabin" is the Hebrew phrase "assassin will assassinate." See id. at 28;

B. The Torah Soft Software and Database

Until the early or mid-1990's, researchers in the field of Bible code research consisted primarily of Orthodox Jews. See 12/4/00 Declaration of Yochanan Spielberg ("Spielberg Decl."), principal shareholder and sole officer of Torah Soft, ¶ 22. In addition, prior to 1988, there was no commercially available computer software for searching the Bible code. See id. This is due, in part, to the fact that no Bible code program complied with the Jewish doctrine of sheimot, which prohibits forming the letters that constitute certain of the several Hebrew names of God in a medium that is expected to be deleted.⁵ See Pl. 56.1 ¶ 22.

In the late 1980's, Yochanan Spielberg, an ordained Rabbi with a Ph.D. in physics, placed the Torah on a database (the "Database") without violating the sheimot rules. See Spielberg Decl. ¶ 5. Spielberg took an electronic version of the Torah and substituted a different non-Hebrew symbol — such as a hyphen (-), pound (#), asterisk (*), or exclamation point (!) — for a particular letter in one of the several Hebrew names for God. See Pl. 56.1 ¶ 24. This departed from the traditional method of complying with the sheimot rules, which is to insert a hyphen between the letters. See id. ¶ 40.

Spielberg eventually added the texts of the Prophets and the Writings to the Database. See Spielberg Decl. ¶ 29. However, because "there are hundreds of cases of disagreement as to the[ir] authentic text," id. ¶ 31, Spielberg had to determine which is the authentic text of the Prophets and the Writings. See Pl. 56.1 ¶ 50. As a result, there is no version of the Prophets and the Writings that is wholly identical to plaintiff's version. See Spielberg Decl. ¶ 32. Spielberg also made his sheimot substitutions to the text of the Prophets and the Writings. See id. ¶ 30. Finally, Spielberg replaced final consonants in the Bible with non-final consonants.⁶ See id. ¶ 26.

Spielberg also wrote a computer program (the "Software"), designed to be used with the Database, which permits Bible code research that does not violate the sheimot rules. See Spielberg Decl. ¶ 5; Pl. 56.1 ¶ 41. The Software executes a unique algorithm which displays ELS finds by searching for the least common letter of the search term. See Spielberg Decl. ¶ 52. In searching the Database, the Software treats the non-Hebrew characters as the Hebrew letters for which they substitute, thus preserving the accuracy of Bible code finds. See id. ¶ 27. The Software then displays the ELS's in a two-dimensional matrix format similar to a crossword puzzle. See Pl. 56.1 ¶ 33. In addition, the Software does not count the spaces between the words of the Biblical text and removes the spaces when displaying a Bible code matrix. See Spielberg Decl. ¶ 26; Pl. 56.1 ¶ 10.

Drosnin bought a copy of the Software in the summer of 1992.⁷ See Spielberg Decl. ¶ 33. That year, Drosnin and Torah Soft allegedly entered into a contract whereby Torah Soft agreed to provide Drosnin with one or more modified versions of its Software. See Pl. 56.1 ¶ 16. In exchange, Drosnin allegedly agreed to credit Torah Soft in the Book and include Torah Soft's contact information. See id. Drosnin did neither. See Complaint in Torah Soft I ¶ 3. Moreover, without plaintiff's consent, Drosnin included in the Book approximately 100 printouts ("Printouts") of the Software's output of matrixes of Bible code finds. See Pl. 56.1 ¶ 18.

The Book was published in English by S & S in May 1997, and became a national best-seller. See Def. 56.1 ¶ 4. The Book was also published and distributed in over twenty-five other languages. See id. ¶ 5. Plaintiff alleges that the Book could not have been published — or, alternatively, could not have become a best-seller — were it not for the inclusion of these printouts. See Pl. 56.1 ¶ 3.

Plaintiff filed this action on July 28, 2000. The only federal claim asserted is for copyright infringement in violation of 17 U.S.C. §§ 501 et seq. See Am. Compl. ¶¶ 66-79. Plaintiff maintains that the Software and the Database are...