BWP Media USA Inc. v. Hollywood Fan Sites LLC

115 F. Supp. 3d 397, 115 U.S.P.Q. 2d (BNA) 1467, 2015 U.S. Dist. LEXIS 84895, 2015 WL 3971750
CourtDistrict Court, S.D. New York
DecidedJune 30, 2015
DocketNo. 14-CV-121 (JPO)
StatusPublished
Cited by1 cases

This text of 115 F. Supp. 3d 397 (BWP Media USA Inc. v. Hollywood Fan Sites LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BWP Media USA Inc. v. Hollywood Fan Sites LLC, 115 F. Supp. 3d 397, 115 U.S.P.Q. 2d (BNA) 1467, 2015 U.S. Dist. LEXIS 84895, 2015 WL 3971750 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Plaintiffs BWP Media USA Inc. (“BWP”), National Photo Group, LLC [398]*398(“NPG”), and Fameflynet, Inc. (“FFN”; collectively with BWP and NPG, “Plaintiffs”) bring this action against Hollywood Fan Sites LLC (“HFS”), Fan Sites Org, LLC (“FSO”), and Hollywood.com, LLC (“Hollywood”; collectively with HFS and FSO, “Defendants”), asserting violations of federal copyright law. , Now before the Court is BWP and NPG’s motion for partial summary judgment, which seeks to strike the affirmative defense asserted by HFS and FSO under the safe harbor provisions of the Digital Millennium Copyright Act,. (“DMCA”). For the reasons that follow, the motion is grafted in part and denied in part.

I. Background

A. Plaintiffs’ Allegations1

Plaintiffs allege that they are the owners of the rights to certain images of celebrities. (Dkt. No. 67 (“Am. Compl.”) ¶¶ 2, 4, 6-7.) They possess valid copyright registrations from the U.S. Copyright Office (“USCO”) for some photographs, and have registrations pending for others. (Id. ¶ 17.)

According to the complaint, Defendants own and operate more than 4,500 websites called the “Fan Sites Network,” which are dedicated to celebrities. (Id. ¶ 21-22.) Plaintiffs allege that their photographs appear on websites operated by Defendants without a license and in violation of Plaintiffs’ rights. (Id. ¶¶ 26-30.) The websites are run by individuals (termed “dummy webmasters” in the complaint) who maintain them and update their contents, subject to Defendants’ “right of full control.” (Id. ¶¶ 31-33.) Although “the most conspicuous use” of the websites “is the display of Plaintiffs’ stolen. [pjhotographs,” and although Defendants “have knowledge or have reason to know of the' dummy webmasters’ theft” of the .images, Defendants nonetheless do not prevent the infringing activity. (Id. ¶¶ 34-35, 41.).

B. Procedural History

This case was initially filed by BWP and NPG on January 8, 2014, against Defendants'and several other" entities and individuals. (Dkt. No. 1.) This Court granted in part and denied in part a motion to dismiss on November 14, 2014. See BWP Media USA Inc. F. Hollywood Fan Sites, LLC, 69 F.Supp.3d 342 (S.D.N.Y.2014). That decision dismissed claims against the parties other than Defendants for lack of personal jurisdiction, id. at 349-52, and also dismissed claims under the Racketeer Influenced and Corrupt Organizations Act for failure to state a claim, id. at 360-64. The remaining claims of copyright infringement were permitted to proceed.

Defendants answered the complaint on December 12, 2014. (Dkt. No. 35.) In the answer, Defendants asserted as a third affirmative defense that “Plaintiffs’ claims are barred by the safe-harbor provisions of the [DMCA]....”2 (Id. at 9.) On January 7, 2015, BWP and NPG filed the present motion for partial summary judgment, seeking to strike the DMCA-based affirmative defense. (Dkt. No. 45.) Defendants opposed the motion (Dkt. No. 54), and BWP and NPG replied- (Dkt. No. 62).

In the meantime, each of the three Plaintiffs filed an additional complaint against Defendants. See National Photo Grp., LLC v. Hollywood Fan Sites LLC, [399]*399No. 15 Civ. 410 (S.D.N.Y. filed Jan. 20, 2015); BWP Media USA Inc. v. Hollywood Fan Sites LLC, No. 15 Civ. 411 (S.D.N.Y. filed Jan. 20, 2015); Fameflynet, Inc. v. Hollywood Fan Sites LLC, No. 15 Civ. 412 (S.D.N.Y. filed Jan. 20, 2015). The Court accepted those cases as related to this action, and the parties stipulated that the three new actions would be consolidated into this case. (Dkt. .No. 66.) Plaintiffs also represented that they would file an amended complaint to “eliminat[e] any duplication among the four complaints” within twenty days of the entry of the order on April 17, 2015. (Id. at 2.) Although Plaintiffs filed the amended complaint several days late, the parties agreed that it would be accepted for filing and would become the operative pleading in this action. (Dkt. Nos. 67; 69.)

On May 20, 2015, Plaintiffs'filed a letter in which they stated that the amendment to the complaint has no effect on the present motion for partial summary judgment. (Dkt. No. 70.)

II. Legal Standard

Summary judgment is proper When “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a dispute is genuine if, considering the record as a whole, a rational jury could find in favor of the non-moving party, Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

On a motion for summary judgment, the party bearing the burden of proof at trial must come forward with evidence on each element of its claim or defense illustrating its entitlement to relief. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It cannot rely upon mere .“conclusory statements, conjecture, or speculation” to meet its burden. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). If the party with the burden of proof makes the requisite initial showing, the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue for trial, ie.,‘ that reasonable jurors could differ about the evidence. Fed.R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 250-51, 106 S.Ct. 2505. The court should view all evidence “in the light most favorable to the non-moving party and draw all reasonable inferences in its favor,” and a motion for summary judgment may be granted only if “no reasonable triér of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (intérnal quotation marks omitted).

Where, as here, “a plaintiff uses a summary judgment motion ... ,to challenge the legal sufficiency of an affirmative defense — on which the defendant, bears the burden of propf at trial — a plaintiff may satisfy its Rule 56 burden by showing that there is an absence of evidence to support an essential element of the non-moving party’s case.” FDIC v. Giammettei, 34 F.3d 51

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115 F. Supp. 3d 397, 115 U.S.P.Q. 2d (BNA) 1467, 2015 U.S. Dist. LEXIS 84895, 2015 WL 3971750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bwp-media-usa-inc-v-hollywood-fan-sites-llc-nysd-2015.