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Etrailer Corp. v. Textrail, Inc.

United States District Court, E.D. Missouri, Eastern Division

December 10, 2019

ETRAILER CORPORATION, Plaintiff,
v.
TEXTRAIL, INC., Defendant.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on Defendant's Motion to Dismiss Plaintiff's Count II under Fed.R.Civ.P. 12(b)(6). [Doc. 7.] The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Court will deny Defendant's Motion to Dismiss.

         I. Factual Background

         This is a civil action for copyright infringement. Plaintiff's Complaint alleges direct copyright infringement under 17 U.S.C. § 501 et seq. in Count I and Count II alleges Defendant violated 17 U.S.C. § 1202 by removing Plaintiff's copyright management information without the authority of the copyright owner or the law. A private right of action and the right to damages exist under 17 U.S.C. § 1203 for violations of § 1202.

         Defendant filed a Motion to Dismiss Plaintiff's Count II on October 7, 2019, contemporaneously with its Memorandum in Support. [Doc. 8.] On October 14, 2019, Plaintiff filed its Memorandum in Opposition. [Doc. 12.] On October 21, 2019, Defendant filed its Reply to Plaintiff's Memorandum in Opposition. [Doc. 13.] This Court granted Plaintiff's Motion for Leave to File Short Sur-Reply on October 29, 2019. [Doc. 18.] The Plaintiff filed its Sur-Reply on October 30, 2019. [Doc. 19.] The motion is now fully briefed.

         Plaintiff alleges the following in its Complaint. Plaintiff and Defendant are sellers of trailer parts, equipment, and accessories, and are direct competitors of each other. (Compl. ¶¶ 2, 12). As a part of its business and to assist its customers in making online purchasing decisions, Plaintiff expended great time, effort, and money to create thousands of proprietary photographs and videos, which Plaintiff made available for customer use on its website (individually a “Work” and collectively the “Works”). (Compl.¶¶ 3, 13, 15). Plaintiff owns protectable copyright interests in these Works (Compl. ¶14), and Plaintiff has obtained multiple active and valid copyright registrations with the United States Copyright Office, which registrations cover many of the Works. (Compl. ¶ 16).

         In creating the Works, Plaintiff took steps to ensure that its name and logo were prominently featured around and in the Works as an indication of Plaintiff's ownership of the Works. (Compl. ¶ 15). Plaintiff's name and logo was placed within its photographs by being attached to the respective picture's object piece via a sticker. (Compl. ¶ 49). Plaintiff alleges that the placement of the sticker on the product served as copyright control and management information. Plaintiff alleges, stickers were used because other methods of indicating copyright ownership (such as a watermark electronically layered onto the photographs) were not as effective against theft. Id.

         Plaintiff further alleges that Defendant willfully and knowingly copied Plaintiff's copyright protected photographs, reproduced, and published those photographs in online and paper catalogs, and distributed paper copies of the catalogs (containing Plaintiff's photographs) in Missouri and throughout the United States. (Compl. ¶ 4). Plaintiff alleges that in doing so any infringer seeking to remove a sticker from an image, would have had to work on one image at a time and manually remove the sticker using photo-editing software. (Compl. ¶ 50). Such editing would require intentional and willful removal of the name and logo of the Plaintiff, and then filling in the area of the removed name and logo with a color and structure matching the product. Id.

         Plaintiff alleges that the placement of its name and logo in its Works constitutes “copyright management information” as contemplated by 17 U.S.C. § 1202 because it could only be removed digitally and would only be removed by persons unlawfully stealing Plaintiff's photographs from its website. (Compl. ¶ 51).

         Next, Plaintiff alleges Defendant illegally misappropriated photographs without license, permission, or authorization from the Plaintiff and infringed Plaintiff's copyrights by copying, modifying, and displaying the Works in Defendant's catalogs. (Compl. ¶ 54). The Defendant's conduct, the Plaintiff alleges, violated 17 U.S.C. § 1202(b) (Compl. ¶ 74), caused Plaintiff irreparable harm, and will cause Plaintiff to suffer further immediate and irreparable harm unless Defendant is enjoined from further copyright infringement. (Compl. ¶ 5).

         II. Motion to Dismiss Standard

         To survive a Rule 12(b)(6) motion, a plaintiff's allegations must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plaint statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Iqbal, 556 U.S. at 679. 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 Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556).

         The Court must accept the plaintiff's factual allegations as true and construe them in the plaintiff's favor, but it is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Iqbal, 556 U.S. at 678; Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). A court must “draw on its judicial experience and common sense, ” and consider the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). “When there are ...


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