USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT PE RONTCATLY FILED □ DATE FILED: 9/20/2021
RALF HARTMANN, Plaintiff, 1:20-cv-6049-GHW -against- MEMORANDUM : OPINION AND ORDER APPLE, INC., : Defendant.
GREGORY H. WOODS, United States District Judge: The popular film Axstin Powers: International Man of Mystery (“Austin Powers’) lies at the center of this case. Plaintiff Ralf Hartmann alleges that Apple, Inc. violated his copyright and international distribution rights to Austin Powers, as well as his copyright to the film Affer the Rain, by reproducing and distributing the films on the iTunes Store in the United States and over 175 countries around the world. Apple moves to dismiss Hartmann’s claims. Hartmann sufficiently alleges that he owns registered copyrights in the films and that Apple infringed those copyrights. However, because the complaint fails to plausibly allege that Apple knew or had reason to know that users of the iTunes Store were violating Hartmann’s rights, Hartmann’s contributory infringement claims are dismissed. Finally, because Hartmann does not identify a specific foreign law that Apple allegedly violated, Hartmann’s foreign infringement claim is dismissed. For those, and the other reasons set forth below, Apple’s motion to dismiss is GRANTED in part and DENIED in part.
I. BACKGROUND’ A. Facts Hartmann, a citizen of Germany, alleges that he owns various rights to the films A/fer the Rain and Austin Powers. Sec. Am. Compl., Dkt. No. 44, J 3, 12-13. Attached to Hartmann’s second amended complaint (“SAC”) are two records from the United States Copyright Office that are relevant to the ownership of the copyrights. Exhibit A is a copyright registration certificate for the film Affer the Rain identifying the copyright claimants as “Third Orbit Productions, Inc., & Erste & Zweite KC Medien, AG.” Dkt. No. 44-1. Exhibit E includes two documents, the first records a copyright transfer for Austin Powers from New Line Productions, Inc. to Capella International, Inc., and the second records a copyright transfer for Austin Powers from Capella International to Erste Beteilisung KC Medien AG & Co. KG (“Erste’’). Dkt. No. 44-5. Citing these exhibits, Hartmann alleges that Erste, Cappella International, and Zweite Beteiligung KC Medien AG & Co. KG (“Zweite”), originally held rights in After the Rain, and that Erste and Cappella International also held rights in_Austin Powers. Sec. Am. Compl. ff] 14-16. On May 27, 2007, Erste and Zweite entered into a written agreement assigning their right, title, and interest in the films to Capella Films. Id. fj 17-18. On January 1, 2008, Capella Films and Cappella International entered into written agreements with Hartmann, assigning Hartmann their right, title, and interest in the films. Id. §] 19-20. Pursuant to the alleged chain of title, Hartmann contends that he is the owner of the copyright in After the Rain and the owner of the international copyright and distribution rights in Awstin Powers. Id. 9] 21-22. Hartmann alleges that starting in July 2017, Apple reproduced and distributed After the Rain
Unless otherwise noted, the facts are taken from the second amended complaint and the attached exhibits and are accepted as true for the purposes of this motion. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009).
and Austin Powers via the iTunes Store in both the United States and in various foreign countries. Id. 4] 38-41, 44-47. The films were rented or purchased “hundreds of times” by users of the iTunes Store. Id. J] 42, 48. Hartmann did not give Apple authorization to reproduce or distribute the films. Id. 48, 50. Accordingly, Hartmann alleges that Apple violated the exclusive rights to reproduce and distribute the films that is afforded to Hartmann under 17 U.S.C. § 106 as the copyright owner of the films. Id. {J 23, 38, 50, 59. B. Procedural History Ralf Hartmann initiated this action on August 3, 2020. Dkt. No. 1. Following a conference regarding a proposed motion to dismiss the initial complaint, Hartmann filed an amended complaint on October 30, 2020. Dkt. No. 28. Apple moved to dismiss the amended complaint on December 18, 2020. Dkt. No. 40. On January 15, 2021, Hartmann filed a second amended complaint. Dkt. No. 44. Because Hartmann filed a new amended complaint, the Court denied Apple’s motion to dismiss the first amended complaint as moot. Dkt. No. 45. The SAC pleads that Apple committed four counts of copyright infringement. First, Hartmann asserts that Apple directly infringed his copyrights to Affer the Rain and Austin Powers by reproducing and distributing the films without authorization. Sec. Am. Compl. §] 60-66. Second, Hartmann contends that Apple’s direct infringement allowed foreign users of the iTunes Store to further infringe on Hartmann’s copyrights, thus making Apple contributorily lable for the third- party infringement. Id 9] 110-18. Third, Hartmann asserts that Apple committed contributory copyright infringement by knowingly facilitating copyright infringement by users of the iTunes Store who streamed or downloaded the films. Id 4 108-23. Finally, Hartmann alleges that Apple directly infringed the copyright laws of various foreign countries. Id §ff] 79-83. Apple filed a motion to dismiss the SAC and a memorandum of law in support of the motion. Dkt. Nos. 48-49. Hartmann filed a memorandum of law in opposition. Dkt. No. 53.
Apple’s reply was filed shortly thereafter. Dkt. No. 55. II. LEGAL STANDARD “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Be// Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. (citing Twombly, 550 US. at 556). It is not enough for a plaintiff to allege facts that are consistent with lability; the complaint must “nudge[ ]” claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. “To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.”” ATSI Comme'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 US. at 555). Determining whether a complaint states a plausible claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Igba/, 556 US. at 679. The court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). However, [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. A complaint must therefore contain more than ‘naked assertion|s] devoid of further factual enhancement.’ Pleadings that contain ‘no more than conclusions . . . are not entitled to the assumption of truth’ otherwise applicable to complaints in the context of motions to dismiss. DeJesus v. HF Memt. Servs, LLC, 726 F.3d 85, 87-88 (2d Cir. 2013) (alterations in original) (quoting 556 U.S. at 678-79). Thus, a complaint that offers “labels and conclusions” or “naked assertion{s]” without “further factual enhancement” will not survive a motion to dismiss. Igba/, 556 USS. at 678 (alteration in original) (citing Twombly, 550 U.S. at 555, 557).
In addition to the facts alleged in the complaint, courts “may consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference... .” ATSI, 493 F.3d at 98. Courts may also consider “matters of which judicial notice may be taken.” Goe/ v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (citation omitted). III. DISCUSSION A. Direct Copyright Infringement Hartmann has adequately pleaded his claim that Apple committed direct copyright infringement by reproducing and distributing the films A/fer the Rain and Austin Powers. To survive a motion to dismiss on his direct copyright infringement claim, Hartmann must allege “1) which specific original works are the subject of the copyright claim, 2) that plaintiff owns the copyrights in those works, 3) that the copyrights have been registered in accordance with the statute, and 4) by what acts during what time the defendant infringed the copyright.” Ke//y v. L.L. Cool J., 145 F.R-D. 32, 36 (S.D.N-Y. 1992); see also Gym Door Repairs, Inc. v. Young Equip. Sales, Inc., 206 F. Supp. 3d 869, 893 (S.D.N-Y. 2016); Lefkowitz v. McGraw-Hill Glob. Educ. Holdings, LLC, 23 F. Supp. 3d 344, 352 (S.D.N-Y. 2014); Warren v. John Wiley ce Sons, Inc., 952 F. Supp. 2d 610, 616 (S.D.N-Y. 2013). Apple challenges whether Hartmann has met the second and third requirements, arguing (1) that Hartmann failed to plausibly allege a valid ownership interest in the copyrights in Afrer the Rain and Austin Powers, and (2) that Hartmann failed to plead a registered copyright in Austin Powers. 1. Ownership of a Valid Copyright A certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright. Jorgensen v. Epic/Sony Recs., 351 F.3d 46, 51 2d Cir. 2003) (citing 17 U.S.C. § 410(c)). “A copyright owner may assign or transfer his copyright interest as long as the transfer is memorialized in writing and signed by the copyright owner.” Hutson v. Notorious B.I.G., LLC, No. 14-CV-2307, 2015 WL 9450623, at *3 (S.D.N.Y. Dec. 22, 2015)
(first citing 17 U.S.C. § 204(a); and then citing Jasper v. Bovina Music, Inc., 314 F.3d 42, 46 (2d Cir. 2002)). “[A]n assignee may assert a claim for copyright infringement that occurred after the transfer as long as he plausibly alleges that he received the copyright through a valid transfer and was the copyright owner during the alleged infringement.” Id. (citing Amsta Recs. LLC v. Lime Grp. LLC, No. 06 CV 5936, 2011 WL 1641978, at *2 (S.D.N-Y. Apr. 29, 2011)). An assignee who receives a copyright through a transfer has “the additional burden of proving valid chain of title because nothing in the registration certificate evidences his right to claim through the original copyright claimant.” Amsta Recs., 2011 WL 1641978, at *2 (quotation omitted). However, the complaint is not required to include a “detailed factual recitation” delineating “an unbroken chain of title to the rights at issue.” U2 Home Ent, Inc. v. Kylin TV, Inc, No. 06-CV-02770, 2007 WL 2028108, at *7 (E.D.N-Y. July 11, 2007). Apple challenges the adequacy of Hartmann’s ownership claim on several grounds. First, Apple contends that the SAC is deficient because it does not “allege a szgned writing,” and therefore fails to allege an adequate transfer of the copyrights to Hartmann. Apple Memorandum of Law (“Apple Mem.”), Dkt. No. 49, at 8. The SAC alleges that Hartmann was assigned the copyrights to After the Rain and Austin Powers “|p|ursuant to a written assignment agreement dated January 1, 2008 and entered into between Capella Films and [Hartmann]” and “[pJursuant to a written assignment agreement dated January 1, 2008 and entered into between Capella International and [Hartmann].” Sec. Am. Compl. ff 20-21. Apple is correct that the SAC does not explicitly state that the written assignment agreements were signed. Yet, Apple’s argument is unavailing in the context of a motion to dismiss, in which the Court is required to draw all reasonable inferences in Plaintiff's favor. The facts alleged in the complaint are sufficient to reasonably infer that the written assignments were signed. Parties commonly sign written agreements they are entering, and nothing in the SAC suggests the
agreements were not signed. A district court should not dismiss a claim “unless it is satisfied that the complaint cannot state any set of facts that would entitle [the plaintiff] to relief.” Pate/ v. Contemp. Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). That is far from the case here. By alleging assignment of the copyrights through a written agreement, the SAC plausibly pleads that Hartmann received the copyrights through a valid transfer. Second, Apple argues that Hartmann has not plausibly alleged ownership of the copyrights because he made conflicting allegations of ownership in a New York State case. Apple Mem. at 9— 11. Apple points to an answer and counterclaims filed by Cappella International and Hartmann, which alleges that in June 2002, Cappella International granted a license and distribution rights to a third party for the films Affer the Rain and Austin Powers. Id.; see NYSCEF Doc. No. 16, answer and counterclaim to complaint, at 1 □ 2, 8 4-5, in Screen Media Ventures, LLC v. Capella International, Sup Ct, NY County, index No. 654358/2012. Apple contends that the Court may take judicial notice of the pleadings “as a basis to conclude that the SAC’s vague allegations simply do not create a plausible inference that Plaintiff owns the alleged copyrights.” Apple Mem. at 10. “The Court may take judicial notice of pleadings filed in other cases in deciding a motion to dismiss without converting that motion into a motion for summary judgment.” Ndremizara v. Swiss Re Am. Holding Corp., 93 F. Supp. 3d 301, 313 n.7 (S.D.N-Y. 2015) (citing Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000)). However, “judicial notice of a document filed in another court” is generally appropriate “not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” Glob. Network Comme'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int] Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)). Apple does not offer a reason why the Court should depart from this general rule. Further, even if the Court took the statements in the state case as true, the statements do not
contradict the SAC. The statements do not establish that Cappella International, rather than Hartmann, held the rights to the films at the time of Apple’s alleged infringement. Nor are the statements incompatible with the claim that Capella International assigned its rights to the films to Hartmann in 2001. At most, the statements are an admission that Capella International entered a licensing contract with a third party in 2002, regardless of who owned the rights to the films at that time. Drawing all reasonable inferences in favor of Hartmann, as the Court must do at the motion to dismiss stage, Hartmann has plausibly pleaded ownership of the copyrights as a result of the 2001 written assignment agreements. Finally, Apple contends that Hartmann fails to state a claim because documents attached to the SAC show that Third Orbit Productions had an ownership interest in _A/ffer the Rain, and the SAC does not state that Third Orbit Productions “unambiguously relinquished its interests in a signed writing.” Apple Mem. at 9. Apple’s contention is misplaced. “The right to prosecute an accrued cause of action for infringement is . . . an incident of copyright ownership” and “may be exercised independently of co-owners.” Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007); see also Copyright.net Music Pub. LLC v. MP3.com, 256 F. Supp. 2d 214, 218 (S.D.N-Y. 2003) (“[T]here was simply no legal basis for requiring plaintiffs to join all co-owners of the compositions at issue.”’). Accordingly, whether Third Orbit Productions has a co-ownership interest in_A/ffer the Rain does not affect Hartmann’s right to bring a claim for copyright infringement. For these reasons, Hartmann has adequately alleged ownership of valid copyrights in After the Rain and Austin Powers. 2. Copyright Registration At the motion to dismiss stage, Hartmann need only allege that “that the copyrights have been registered in accordance with the statute.” Kelly, 145 F.R.D. at 36; see also Warren, 952 F. Supp. 2d at 617. “To require a plaintiff to do more, at the motion to dismiss stage, would be to subject copyright plaintiffs to a heightened level of pleading, something this Court has been strictly
proscribed from doing.” Warren, 952 F. Supp. 2d at 617 (citing Mid Amenica Title Co. v. Kirk, 991 F.2d 417, 421-22 (7th Cir. 1993)). Apple argues that Hartmann failed to plausibly allege that Austin Powers has been registered because the registration number for Austin Powers cited in the SAC “is no registration at all; rather it is a Copyright Office printout showing certificates of recordation.” Apple Mem. at 7. It is true that the cited copyright registration numbers are certificates of recordation, not registrations for Austin Powers, and consequently do not prove that the movie has been registered. See Sec. Am. Compl. | 13(a) (“Austin Powers: International Man of Mystery, Copyright Reg. No. V3405D622, dated October 20, 1997 and Copyright Reg. No. V3408D529, dated December 29, 1997 (‘Austin Powers’) (‘Exhibit E’)”); Dkt. No. 44-5. However, “the complaint is not required to attach copies of registration certificates or provide registration numbers for all of the copyrights at issue in order to survive a motion to dismiss.” Pal/wer Kane LLC v. Scholastic Corp., No. 12 CV 3890, 2013 WL 709276, at *3 (S.D.N-Y. Feb. 27, 2013). The SAC meets the pleading burden by alleging that “Hartmann is the owner of copyrights in the following motion pictures which are registered with the United States Copyright Office: After the Rain” and “Austin Powers.” Sec. Am. Compl. 9] 21-22; see Palmer Kane, 2013 WL 709276, at *3 (“The complaint properly alleges that the copyrights have been registered in stating that the copyrights ‘that are the subject of this action have been registered with the United States Copyright Office.”’). The citation to a certificate of recordation, which sets out part of the chain of title to the copyrights in Austin Powers, does not contradict Plaintiffs allegation that the copyright is registered. Later in the case, Plaintiff will have to provide the registration number in order to survive a motion for summary judgment. Warren, 952 F. Supp. 2d at 617. Plaintiff already appears to have done so in response to this motion to dismiss by providing a Copyright Office Record detailing a registration number for Austin Powers. Dkt. No. 54-4. Regardless, production of the registration number is not
required at this stage. Warren, 952 F. Supp. 2d at 617. It is sufficient that Hartmann alleged that the copyright is registered with the United States Copyright Office. Id B. Contributory Copyright Infringement Hartmann’s contributory infringement claims against Apple are not pleaded adequately. The SAC alleges two contributory infringement claims, (1) that Apple’s reproduction of Afrer the Rain and Austin Powers at data centers in the United States “permitted further unauthorized reproduction and distribution of the motion pictures outside of the United States and further infringement by end- users of the iTunes Store” in foreign countries, and (2) that Apple, “by facilitating, managing or directing unauthorized distributions of Plaintiff's copynght protected motion pictures After the Rain and Austin Powers, materially contributed to the direct violation of copyright laws by end users who rented or purchased After the Rain and Austin Powers from the iTunes Store.” Sec. Am. Compl. at 16 4115, 18 4 115. As an initial matter, the Court has jurisdiction over the SAC’s allegations of acts of copyright infringement by foreign users of the iTunes Store. “It is well established that copyright laws generally do not have extraterritorial application.” Update Art, Inc. v. Modiun Pub., Ltd., 843 F.2d 67, 73 (2d Cir. 1988). “However, the Second Circuit has recognized a narrow exception to this rule: Where an individual commits an act of infringement in the United States that permits further reproduction outside the United States . . . a court may assert jurisdiction over those foreign acts and a plaintiff may recover damages for the infringing acts that took place extraterritorially.” Fun- Damental Too, Ltd. v. Gemmy Indus. Corp., No. 96 CIV. 1103, 1996 WL 724734, at *4 (S.D.N-Y. Dec. 17, 1996) (citing Update Art, 843 F.2d at 73). Under the doctrine of contributory infringement, this exception can apply to extraterritorial infringement committed by a third party. See Cooley v. Penguin Grp. (USA) Inc, 31 F. Supp. 3d 599, 610 & n.66 (S.D.N-Y. 2014) (concluding that a defendant was contnbutorily liable for extraterritorial infringement committed by third parties because the
defendant induced the extraterritorial infringement and committed an act of infringement in the United States that permitted the extraterritorial infringement). Accordingly, the Court can consider the SAC’s claims that Apple is contributorily liable for the alleged copyright infringement of both domestic and foreign users of the iTunes Store. Apple moves to dismiss both claims of contributory copyright infringement. “Although Copyright Act does not expressly render anyone liable for infringement committed by another,”’ the doctrine of contributory liability “emerged from common law principles and [is] well established in the law.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (quoting Sony Corp. v. Universal City Studios, 464 U.S. 417, 434 (1984)). “To state a claim for contubutory infringement, a plaintiff must allege facts that a defendant ‘with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Rams v. Def Jam Recordings, Inc., 202 F. Supp. 3d 376, 383 (S.D.N-Y. 2016) (quoting Gershuin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). “The knowledge standard is an objective one; contributory infringement liability is imposed on persons who ‘know or have reason to know of the direct infringement.” Avista Recs., LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010) (quoting Ac>M Rees., Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001)). “However, ‘more than a generalized knowledge by the defendant of the possibility of infringement’ is required.” Rams, 202 F. Supp. 3d at 383 (brackets omitted) (quoting Luvdarts, LLC v. ATe>T Mobility, LLC, 710 F.3d 1068, 1072 (9th Cir. 2013)). “In weighing the knowledge requirement, courts consider evidence of actual and constructive knowledge, including cease-and- desist letters, officer and employee statements, promotional materials, and industry experience.” Capitol Recs., LLC v. ReDigi Inc., 934 F. Supp. 2d 640, 658 (S.D.N-Y. 2013), aff'd, 910 F.3d 649 (2d Cir. 2018) (collecting cases). For both claims, Hartmann has not adequately pleaded that Apple had knowledge of the
allegedly infringing activity. For the underlying infringement, Hartmann alleges that “[a]ll users of the iTunes Store who streamed or downloaded copies of plaintiff's copyright protected motion pictures Affer the Rain and Austin Powers’ engaged in infringing activity. Sec. Am. Compl. § 114. Hartmann alleges that Apple contributed to this infringement “by facilitating, managing or directing unauthorized distributions of [the] copyright protected motion pictures Afrer the Rain and Austin Powers.” Id. 4 115. To establish that Apple knew or had reason to know that it was not authorized to copy or distribute the motion pictures, the SAC generally alleges that “Apple employs a digital rights management team,” “uses a digital rghts management software to monitor its rights to prevent unauthorized usage,” has “the benefit of industry experience,” and “had access to license and distribution information contained in metadata accompanying digital copies of Plaintiffs motion pictures.” Id. Jf] 53-55, 119. Hartmann’s allegations are too conclusory to establish that Apple had reason to know that users of the iTunes Store were infringing Hartmann’s rights to Afrer the Rain and Austin Powers. Hartmann merely recites basic characteristics of Apple’s business model and experience; he does not allege that Apple investigated the metadata of Affer the Rain and Austin Powers and discovered his ownership interest, or that Apple employs practices such that Apple ordinarily would have discovered his interest. Nor does the SAC allege that Apple had a particular business incentive to investigate the ownership of these films. At most, Hartmann has pleaded that Apple had the general ability to discover Hartmann’s rights if Apple had specifically investigated the metadata of the films. These allegations are insufficient to state a claim for contributory copyright infringement. See State St. Glob. Advisors Tr. Co. v. Visbal, 431 F. Supp. 3d 322, 358 (S.D.N-Y. 2020) (“At most, Defendant has pleaded that Plaintiff had generalized knowledge of the possibility that third parties might infringe Defendant’s copyright. That is insufficient to state a claim for contributory copyright
infringement.”’); of Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 107 (2d Cir. 2010) (“[A] service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.”). C. Foreign Copyright Infringement Hartmann’s foreign copyright infringement claim is not pleaded adequately. “[A] complaint must give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests.” Kelly, 145 F.R.D. at 35 (quotation omitted). The purpose of this rule is to “provide fair notice of the claims and to enable the adverse party to answer the complaint and prepare for trial.” McGraw-Hill Glob. Educ. Holdings, LLC v. Mathrani, 295 F. Supp. 3d 404, 415 (S.D.N-Y. 2017) (quoting Strunk v. U.S. House of Representatives, 68 F. App’x 233, 235 (2d Cir. 2003)). A complaint is insufficient “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.”” Igba/, 556 US. at 678 (quoting Twombly, 550 US. at 557). The SAC alleges that “Apple’s actions of copying and reproducing Plaintiff's copyright protected motion pictures Affer the Rain and Austin Powers on Apple’s Data Centers located outside the United States, and distributing Afrer the Rain and Austin Powers to iTunes Store customers in the Foreign Countries, without [Hartmann’s] authorization or consent, constitutes copyright infringement under the Foreign Copyright Laws.” Sec. Am. Compl. § 83. The SAC fails to identify a single specific foreign copyright law that Apple allegedly violated. Nor does the SAC give adequate notice of which foreign countries are at issue. Instead, the SAC provides a nonexclusive list, stating that Apple violated the laws of countries “including, but not limited to Australia, United Kingdom, Germany, Poland, Norway, Sweden, Finland, and Denmark.” Id. FJ 28, 56, 83. “The failure to identify which copyright laws other than those of the United States may have been violated by the defendants’ alleged acts is especially problematic in light of Rule 44.1 of the Federal Rules of
Civil Procedure, which ‘requires that a party intending to raise an issue of foreign law do so by pleadings or other reasonable notice.” Vapac Music Pub., Inc. v. Tuff IN’ Rumble Mgmt., No. 99 CIV. 10656, 2000 WL 1006257, at *7 (S.D.N-Y. July 19, 2000) (quoting Swlivan v. Ajax Navigation Corp., 881 F. Supp. 906, 909 n. 3 (S.D.N-Y. 1995)). The allegations in the SAC are too vague to give Apple notice of the grounds on which the foreign copyright claim rests. Wapac Music Pub., 2000 WL 1006257, at *7 (“General references to ‘international copyrights’ and ‘sale in various territories of the world, without any greater jurisdictional specificity does not provide the defendants with adequate notice of the foreign law that the plaintiff asserts is applicable to this case.”’); ¢ Cheever v. Huawet Device USA, Inc., No. 18-CV-06715, 2019 WL 8883942, at *2 (N.D. Cal. Dec. 4, 2019) (holding that a plaintiff adequately pleaded a foreign copyright infringement claim by “specifying which [infringing acts], in which countries, in violation of which laws’). Consequently, the Court dismisses Hartmann’s foreign copyright infringement claim. IV. LEAVE TO AMEND The Court grants Plaintiff leave to replead the dismissed claims. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“It is the usual practice upon granting a motion to dismiss to allow leave to replead.”); see also FED. R. CIV. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). While leave may be denied “for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party,” those circumstances do not apply in this case. TechnoMarine SA v. Gifiports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (citation omitted). Any amended complaint must be filed no later than fourteen days from the date of this order. Vv. CONCLUSION For the foregoing reasons, the defendant’s motion to dismiss is GRANTED in part and DENIED in part. The plaintiffs contributory infringement claims and foreign infringement claim
are dismissed without prejudice. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 48. SO ORDERED. Dated: September 20, 2021 New York, New York / . ( nad — GRE H. WOODS United States District Judge