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R. Christopher Goodwin & Associates, Inc. v. Search, Inc.

United States District Court, E.D. Louisiana

October 29, 2019

R. CHRISTOPHER GOODWIN & ASSOCIATES, INC.
v.
SEARCH, INC. & CHARLOTTE D. PEVNY, Ph.D.

         SECTION: "A" (2)

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         The 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 argument.[1]

         I. BACKGROUND

         Both 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 copyrights.

         The 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).

         While 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 copyright infringement.

         II. DISCUSSION

         In the 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 (2007)).

         The 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. at 1950).

         Count I - Copyright Violations

         Defendants do not dispute that Plaintiff has pleaded a copyright infringement claim.[2] 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.

         Plaintiff 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.[3] (Complaint Exhibits B & D).

         Plaintiff 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.

         Section 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).

         Plaintiff's 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 research materials.

(Complaint ¶ 8).

         Moreover, 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 DMCA.[4]

         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); Joint Stock Co. Channel ...


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