United States District Court, E.D. Pennsylvania
MEMORANDUM OPINION INTRODUCTION
I. QUIÑONES ALEJANDRO, U.S.D.C. J.
this Court is a motion to dismiss filed pursuant to
Federal Rule of Civil Procedure (“Rule”) 12(b)(6)
by Defendants Amazon.com, Inc., and Amazon Web Services,
Inc., (together, “Moving Defendants”), [ECF 38],
which seeks the dismissal of the claims for copyright
infringement, unfair competition under the Lanham Act,
misappropriation of likeness, breach of contract, and unjust
enrichment asserted against them by pro se Plaintiff
Gordon Roy Parker(“Plaintiff”) in the corrected
amended complaint (“Corrected Amended
Complaint”). [ECF 47].
opposes the motion. [ECF 42]. The issues raised in the motion
to dismiss have been fully briefed by the parties,
are now ripe for disposition. For the reasons that follow,
Moving Defendants' motion to dismiss is granted.
initiated this action on September 6, 2016. [ECF 1]. The
complaint was amended several times. On January 24, 2017,
this Court granted Plaintiff's motion for leave to amend
the complaint, [ECF 46], and the Corrected Amended Complaint
was docketed nunc pro tunc. [ECF 47]. In his
Corrected Amended Complaint, Plaintiff asserts claims for
copyright infringement, unfair competition under the Lanham
Act, misappropriation of likeness, breach of contract, and
unjust enrichment against Moving Defendants. [ECF 47
motion to dismiss, Moving Defendants argue that Plaintiff,
inter alia, has failed to state a claim of copyright
infringement or a claim under the Lanham Act against them,
that the contract claim is preempted by the Copyright Act, 17
U.S.C. § 101, et. seq. (the “Copyright
Act”), and that the remaining claims of
misappropriation of likeness and unjust enrichment are barred
by the Communications Decency Act, 47 U.S.C. § 223
et. seq. (the “CDA”). (Mov. Defs.'
Br. at 2-9). Plaintiff opposes these contentions. These
arguments will be addressed separately.
ruling on Moving Defendants' motion to dismiss, this
Court must accept, as true, all relevant and pertinent
factual allegations in the Corrected Amended Complaint and
construe these facts in the light most favorable to
Plaintiff. See Fowler v. UMPC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009)). Notably, the factual
allegations in Plaintiff's Corrected Amended Complaint
are largely rambling and, at times, incoherent and difficult
to follow. However, liberally construed, the factual
allegations are summarized as follows:
On October 26, 1998, Plaintiff registered his copyright to
“Outfoxing the Foxes: How to Seduce the Women of
Your Dreams” (“Foxes”), a
book Plaintiff published and offered for sale for $29.95.
(Cor. Am. Compl. ¶ 14). On October 26, 2015, Plaintiff
discovered that Foxes was being sold on pualib.com,
as part of an anthology of books and articles written by and
for “pick up artists.” (Id. ¶¶
15, 31-32). On that day, Plaintiff purchased a zip file from
pualib.com through Paypal, which processed his payment of
$16.90. (Id. ¶¶ 36-37(b)). After receiving
the zip file, Plaintiff discovered that it contained several
copies of Foxes. (Id. ¶ 37(d)).
Thereafter, Plaintiff notified Defendants Sofield, Loki, and
Paypal of the infringement. (Id. ¶¶
39-42). In response, Defendant Loki, who Plaintiff avers is
likely the same individual as Defendant Sofield, stated that
he deleted Foxes from pualib.com. (Id.
¶ 40). Paypal “appeared” to have terminated
Defendant Loki's ability to process payments from
pualib.com. (Id. ¶ 43).
On December 10, 2015, Plaintiff noticed that the sales of the
zip file had resumed. (Id. ¶ 51). The same file
containing an infringing version of Foxes was also
being sold in DVD format. (Id.). On that day,
Plaintiff contacted Defendants PayPal and C2S, and complained
of the alleged continued criminal copyright infringement and
their processing payments for the sale of the infringing
work. (Id. ¶ 52). On the same day, Plaintiff
informed Moving Defendants that their cloud servers were
hosting the infringing material. (Id. ¶ 56).
Plaintiff believed that, after these communications, every
party was on notice about the alleged infringement and PUA
Media ceased selling the zip file and DVD through pualib.com.
(Id. ¶ 59).
In Spring 2016, Plaintiff discovered that PUA Media was again
selling Foxes in zip file and DVD format through
Defendants C2S and PayPal. (Id. ¶ 60).
Plaintiff ordered the DVD for $99.90, which was shipped to
him by Defendant Custom CD. (Id. ¶¶
60-61). After putting Defendants C2S and PayPal on notice of
this new infringement, they stopped processing payments for
PUA Media, and the pualib.com website was “temporarily
disabled” and remains disabled as of the filing of the
Corrected Amended Complaint. (Id. ¶ 62).
Plaintiff alleges that the zip file is still being stored on
Moving Defendants' servers. (Id. ¶ 63). In
an email dated May 27, 2016, Plaintiff contacted Moving
Defendants' Chief Executive Officer Jeff Bezos to inform
him that Moving Defendants' servers were hosting
Plaintiff's infringed work, and to notify Moving
Defendants that Plaintiff was removing his fourteen books
that were being sold via the Kindle, and ended his email by
telling Mr. Bezos that he would “[s]ee you in
court.” (Id. ¶ 64). Moving Defendants
responded to Plaintiff's email by requesting that
Plaintiff comply with Moving Defendants' procedures to
report potentially infringing materials consistent with the
Digital Millennium Copyright Act. (Id. ¶ 65).
Plaintiff makes no mention whether he complied with this
Contemporaneously, Plaintiff and Moving Defendants had a
contract under which Moving Defendants sold Foxes on
their Kindle store as a standalone book and as part of
Plaintiff's Pickup Artist Library, which included six
other works, priced between $2.99-$9.99. (Id.
¶¶ 97-98). Under the contract, Moving Defendants
remitted 70 percent of the purchase price to Plaintiff as a
royalty. (Id. ¶ 98).
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court “must accept all of the
complaint's well-pleaded facts as true, but may disregard
any legal conclusions.” Fowler, 578 F.3d at
210-11. The court must determine “whether the facts
alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for
relief.'” Id. at 211 (quoting
Iqbal, 556 U.S. at 679). The complaint must do more than
merely allege the plaintiff's entitlement to relief; it
must “show such an entitlement with its facts.”
Id. (citations omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct the complaint has alleged
- but it has not ‘show[n]' - ‘that the
pleader is entitled to relief.'” Iqbal,
556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)) (alterations in
original). “A 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. at 678
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements
do not suffice.” Id. To survive a motion to
dismiss under Rule 12(b)(6), “a plaintiff must allege
facts sufficient to ‘nudge [her] claims across the line
from conceivable to plausible.'” Phillips v.
County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 570).
though pleadings and other submissions by pro se
litigants are subject to liberal construction and the court
is required to accept the truth of a plaintiff's
well-pleaded allegations while drawing reasonable inferences
in a plaintiff's favor, Wallace v. Fegan, 455 F.
App'x 137, 139 (3d Cir. 2011) (citing Capogrosso v.
Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009)
(per curiam)), a pro se complaint must
still “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570).
noted, Moving Defendants argue that Plaintiff fails to state
claims for copyright infringement and unfair competition
under the Lanham Act, that Plaintiff's breach of contract
is preempted by the Copyright Act, and that the remaining
claims asserted against them of misappropriation of likeness