Boomshine Boomerangs – Files Amended Copyright Complaint Against Facebook

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On March 31, a California District Court dismissed a copyright infringement suit brought against Facebook relating to a video game made available on its social networking site. The suit was dismissed for failure to state a claim upon which relief can be granted. However, the court provided the Plaintiff, Daniel Miller, an opportunity to file an amended complaint, within 14 days, to cure the deficiencies of the dismissed complaint. On April 14, Miller filed a motion for leave to amend, along with a second amended complaint.

Background

According to the pleadings, Miller authored Boomshine, a game using Adobe Flash technology, and made it available on his Web site K2xl.com starting in March 2007. In the game, players click on a floating circle, causing the clicked circle to expand and causing other floating circles it contacts to expand in a chain reaction. The parties do not dispute Miller’s ownership of Boomshine, for which he was granted a copyright registration by the U.S. Copyright Office.

Co-defendant Yeo allegedly first published ChainRxn on Facebook’s site around April 2009. According to the complaint, “ChainRxn copies the look and feel of Boomshine by incorporating almost every visual element of the game” and Yeo’s publication of ChainRxn on Facebook’s site resulted in “members of the public [being] deceived regarding the origin of ChainRxn.” Miller alleges that he sent letters to Facebook and Yeo in May 2009 demanding that ChainRxn be removed from the Facebook site because it violates his copyright in Boomshine. Yet they refused to do so. Miller also claims that Yeo then modified ChainRxn to prevent Miller and all of his Facebook friends from accessing ChainRxn.

The Court’s Dismissal

The dismissed complaint claimed Facebook violated Miller’s copyright in Boomshine by allowing ChainRxn to remain on Facebook’s site, even after it was notified of the infringement. Miller also named the creator of ChainRxn, Yao Wei Yeo, as a defendant.

Judge Alsup wrote in his Order dismissing the suit that the complaint was unclear as to whether it was attempting to allege direct or indirect copyright infringement, but he addressed both allegations in his ruling. In holding that no allegation of direct infringement was sufficiently pled, the Judge stated: “If plaintiff wishes to proceed with his direct copyright infringement claim, he must include sufficient factual allegations that explain how defendant Facebook copied, displayed or distributed infringing copies of Boomshine. Mere legal conclusions disguised as factual allegations will not suffice.”

Likewise, the Judge held that the complaint failed to allege sufficient facts to demonstrate indirect infringement, either on contributory or vicarious infringement grounds, adding “To state a claim for contributory infringement, plaintiff must allege facts showing that defendant Facebook induced, caused or materially contributed to the infringing product. No such factual allegations are included in the complaint.” The judge continued: “Because plaintiff’s explanation for how defendant Facebook induced and encouraged infringement is flawed, his assertion that defendant Facebook ‘induced and encouraged’ stands alone as merely a legal conclusion without factual support.”

As with contributory infringement, the judge wrote that the complaint lacks sufficient factual allegations to state a claim for vicarious infringement and that “[t]o state a claim for vicarious copyright infringement, a plaintiff must allege that the defendant has … the right and ability to supervise the infringing conduct … .” However, the judge explained, the complaint’s “allegations do not demonstrate that defendant Facebook has the right and ability to supervise the infringing conduct because it is unclear what infringing material was published on defendant Facebook’s website. This information is crucial and without this information, any analysis of defendant Facebook’s actions or inactions is mere speculation.”

Miller’s Second Amended Complaint

On April 14, Miller moved the court for leave to file a second amended complaint, which purportedly addresses each of the deficiencies of the earlier complaint. Narrowing his claims against Facebook, Miller’s second amended complaint only asserts a claim of contributory infringement against Facebook because it had knowledge of Yeo’s infringement and materially contributed to this infringement by not removing access to the infringing content or disabling Yeo’s account. Miller asserts that these acts by Facebook assisted Yeo in distributing the ChainRxn game to Facebook users around the world.

Comments

As this case demonstrates, the rapid emergence of social networking platforms and user generated content (applications, goods, etc.) has increased the number of copyright issues. Now more than ever it is important for both site operators allowing third party content to be posted and creators who post content to such sites to understand and avail themselves of copyright (and other IP) protection and enforcement techniques. Some of the advantages of timely filing copyright protection are addressed in an advisory prepared by Pillsbury’s Virtual World team.

Another option often available to content creators is to leverage the “take down” provisions of the Digital Millennium Copyright Act (DMCA). If done right, it is often an effective tool to promptly cause infringing content to be removed from social networking sites. Under one part of the DMCA, online service providers can minimize liability for contributory infringement for content posted to their sites, if upon receipt of a proper “take down” notice, they timely take down the allegedly infringing content.