United States District Court, E.D. Louisiana
R. CHRISTOPHER GOODWIN & ASSOCIATES, INC.
SEARCH, INC. & CHARLOTTE D. PEVNY, Ph.D.
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
following motion is before the Court: Motion to Partially
Dismiss Complaint (Rec. Doc. 7) by Defendants, Southeastern
Archaeological Research, Inc. d/b/a SEARCH, Inc. and
Charlotte D. Pevny, Ph.D. Plaintiff, R. Christopher Goodwin
& Associates, Inc., has filed a response/opposition to
the motion. The motion, submitted on October 2, 2019, is
before the Court on the briefs without oral
Plaintiff, R. Christopher Goodwin & Associates, Inc., and
Defendant, SEARCH, Inc., are cultural resource management
firms that regularly perform archaeological studies and
analysis for clients throughout the southeastern United
States. Defendant, Charlotte D. Pevny, has a Ph.D. in
anthropology specializing in archaeology. Dr. Pevny had
worked for the plaintiff firm but elected in 2015 to join
SEARCH, Inc., where she continues to work today. (Rec. Doc.
7-1, Memo in Support at 2). Plaintiff has brought a plethora
of causes of action against SEARCH and Pevny but at its core
the case boils down to the alleged infringement of two
titles of the works at issue are SE Louisiana Prehistory 2013
and New Orleans City Park Final Report December 2013.
(Complaint ¶¶ 4, 5, Exhibits A & C). Both works
are alleged to be original works drafted by employees of
Plaintiff in the course and scope of their employment with
Plaintiff. The documents were saved on Plaintiff's
computer file server. As to the first document, Plaintiff
alleges that the pirated portions were never released to the
public. (Id. ¶ 4).
employed with Plaintiff, Pevny had access to and use of
Plaintiff's files for employment purposes. (Complaint
¶ 6). But according to Plaintiff, Pevny accessed and
downloaded the copyrighted material stored on Plaintiff's
computer server after she had already accepted an employment
offer from SEARCH (Id. ¶ 8). Plaintiff's
complaint details ten Offending Works that contain allegedly
plagiarized portions of the copyrighted material.
Plaintiff's complaint includes eight causes of action.
Defendants now move to dismiss all causes of action pursuant
to Rule 12(b)(6), with the exception of the allegation of
context of a motion to dismiss the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232
(5th Cir. 2009) (citing Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308 (2007);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437
(5th Cir. 2004)). However, the foregoing tenet is
inapplicable to legal conclusions. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009). Thread-bare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id. (citing
Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 555
central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief. Gentilello v.
Rege, 627 F.3d 540, 544 (5th Cir. 2010)
(quoting Doe v. MySpace, Inc., 528 F.3d 413, 418
(5th Cir. 2008)). To avoid dismissal, a plaintiff
must plead sufficient facts to “state a claim for
relief that is plausible on its face.” Id.
(quoting Iqbal, 129 S.Ct. at 1949). AA claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. The Court does not accept as true
“conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Id.
(quoting Plotkin v. IP Axess, Inc., 407 F.3d 690,
696 (5th Cir. 2005)). Legal conclusions must be supported by
factual allegations. Id. (quoting Iqbal, 129 S.Ct.
- Copyright Violations
do not dispute that Plaintiff has pleaded a copyright
infringement claim. Defendants argue, however, that Plaintiff
has not pleaded a claim for statutory damages and
attorney's fees pursuant to 17 U.S.C. §§ 504
and 505, in light of when the alleged infringement occurred,
and the fact that the effective date of the copyright
registrations is April 2, 2019. In fact, all of the dates of
the alleged Offending Works predate the effective date of
Plaintiff's copyright registrations. Defendants point out
that 17 U.S.C. § 412 precludes recovery of statutory
penalties and attorney's fees under the timeline
established in the complaint.
essentially concedes the veracity of this argument by failing
to address it in its opposition memorandum. Indeed, as
Defendants argue, §412 prohibits an award of statutory
penalties and attorney's fees under §§ 504
& 505 because the last act of infringement allegedly
occurred in October 2018, and the effective date of the
copyright registrations is April 2, 2019. (Complaint
Exhibits B & D).
argues, however, that its claim for statutory damages and
attorney's fees falls under 17 U.S.C. § 1203 (part
of the Digital Millennium Copyright Act
(“DMCA”)), which provides civil remedies
(statutory penalties and attorney's fees) for violations
of § 1201 or § 1202. Neither the complaint nor
opposition refers specifically to § 1201 or § 1202
but the Court infers from the argument made in the opposition
that Plaintiff is referring to §1201, which pertains to
circumvention of copyright protection systems.
1201 provides in relevant part that “No person shall
circumvent a technological measure that effectively controls
access to a work protected under this title.” 17 U.S.C.
§ 1201(a)(1)(A) (emphasis added). To “circumvent a
technological measure” means to “descramble a
scrambled work, to decrypt an encrypted work, or otherwise to
avoid, bypass, remove, deactivate, or impair a technological
measure, without the authority of the copyright owner.”
Id. § (a)(3)(A). A technological measure
“effectively controls access to a work” if the
measure, “in the ordinary course of its operation,
requires the application of information, or a process or a
treatment, with the authority of the copyright owner, to gain
access to the work.” Id. § (a)(3)(B).
contention is that the following allegations support a claim
under § 1201:
On or before October 22, 2015, Defendant, Dr. Pevny, having
accepted an offer of employment with Search, Inc. and having
tendered her resignation to Goodwin, accessed Plaintiff's
electronically stored files without authorization and
downloaded copies of unpublished reports and proprietary
(Complaint ¶ 8).
both works were stored on Plaintiff's secure computer
server when Pevny accessed them. (Id. ¶¶
4, 5). As an employee of Plaintiff, Pevny had access to the
secured computer but that authorization was “limited to
access to and use of Plaintiff's files for the exclusive
use in the course and scope of her employment with
Plaintiff.” (Id. ¶ 6). Plaintiff argues
that Pearl Investments, LLC v. Standard I/O, 257
F.Supp.2d 326 (D. Me. 2003), demonstrates that Pevny's
alleged conduct states a claim under § 1201 of the
Court is persuaded that Plaintiff's allegations do not
state a claim for circumvention under the plain terms of
§ 1201 of the DMCA. Circumvention is an essential part
of a violation. See MGE UPS Sys, 622 F.3d at 366. While the
user id/password combination required for access was surely a
“technological measure” that controlled access to
the works at issue, Pevny did not circumvent that measure.
She validly accessed the system using her id/password
combination while she was still an employee with Plaintiff.
Even if the use that she made of that access is not something
that Plaintiff would have authorized her to do, i.e., copy
the materials at issue, it remains that Pevny's alleged
abuse of her logon privileges does not rise to the level of
descrambling, decrypting, or otherwise to avoiding,
bypassing, removing, deactivating, or impairing anything. As
the district court observed in Digital Drilling Data
Systems, LLC v. Petrolink Services, Inc., No.
4:15-CV-02172, 2018 WL 2267139, at *14 (S.D. Tex. May 16,
2018), many different district courts have held that using
the correct username and password to access a copyrighted
work, even without authorization to do so, does not
constitute circumvention under § 1201(a) of the DMCA.
Id. (citing I.M.S. Inquiry Management Systems,
Ltd. v. Berkshire Info. Systems, Inc., 307 F.Supp.2d
521, 532 (S.D.N.Y. 2004); Egilman v. Keller &
Heckman, LLP,401 F.Supp.2d 105, 112 (D.D.C. 2005);
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