Copyright Lawsuit is Alleged To Be Liberty Media Gay Porn Extortion Plot Against University of Michigan, Manhattan College

On February 11, 2011, a woman acting pro se made a motion to dismiss or to sever the claims against her based on the plaintiff's failure to allege "purposeful availment" of the Plaintiff's business in California.  From her motion:

    "Plaintiff Liberty Media Holdings, LLC ("Plaintiff') is a producer of

9      pornographic materials, who has filed this Complaint in an effort to extort money from
10    various individuals, including Ms. Lewis. The basis of Plaintiff's lawsuit is that
11    Ms. Lewis, or someone using her IP address, accessed explicit internet content-
12    purportedly, one movie-by "bypassing the necessary payment and login steps required
13    of users." (Complaint,')[ 2.) But Plaintiff refuses to provide any evidence that Ms. Lewis
14    accessed any alleged movie.
 
The well-written motion is in the third person, casting doubt on whether Ms. Lewis drafted the motion or was herself represented by a John Doe attorney.
 
In the same case, Liberty Media Holdings LLC v. Does 1-59, 2011 292 WL 292128 (S.D. Cal. Jan. 25, 2011), the court ordered disclosure of personal information from University of Michigan and Manhattan College among others.

The movant claims she is an electrician from New Jersey and never accessed http://www.corbinfisher.com/.

The complaint claims that the Does accessed its served and obtained copyrighted materials.

The SD Cal judge is giving the colleges and the individuals the opportunity to quash the subpoena.

12 b Motion to Dismiss Liberty Media Holdings v. John Does 1-59

Corbin FisherFrom Wikipedia, the free encyclopediaJump to: navigation, search


According to Wikipedia, Corbin Fisher is an alias.   The information on Wikipedia also suggests that http://www.amateurcollegemen.com/ may not be strictly amateur.

From Wikipedia:

Corbin Fisher
Logo
Type LLC
Industry Film
Genre Film studio
Founded 2004
Founder(s) Corbin Fisher
Headquarters San Diego, CA, USA
Key people Jason Gibson, CEO
Brian Dunlap, vice president
Marc Randazza, general counsel
Products Gay pornography
Website CorbinFisher.com
Corbin Fisher is an American film studio with a focus in gay pornography. The studio maintains a website at CorbinFisher.com; other web properties of the company include AmateurCollegeMen.com, AmateurCollegeSex.com and ShopCorbinFisher.com.[1] The company also produces pornographic photo books. The company is based in San Diego, California.[2] The founder of Corbin Fisher, who goes by the same name as an alias, started filming men and making videos during his spare time, and started the website CorbinFisher.com in 2004. AmateurCollegeMen.com was also begun in 2004, and the company grew quickly. It launched AmateurCollegeSex.com in 2006, and the company continued to focus on a niche of straight male actors performing in gay pornography.

In September 2008, the company began offering health benefits, scholarships, and 401(k) pension plans to actors who signed exclusive contracts with the company. The company released its first full-length DVD in September 2008, and a photobook Playing Hard to Get was produced in 2009. In 2009, the gay Europorn studio Bel Ami chose Corbin Fisher as its first collaboration on a production with a studio based in the United States. Free speech attorney Marc Randazza was brought on as the company's general counsel in 2009, and he helped bring about a settlement with a cellphone content provider after Corbin Fisher brought a copyright infringement claim against the provider. In November 2009, Corbin Fisher offered a contract deal to Levi Johnston, father of Republican party politician Sarah Palin's grandchild.

Corbin Fisher's products have been well-received, both by others within the industry and by media commentators. In 2006, Corbin Fisher won an award in the category of Adult Gay Megasite at the Cybersocket Awards. Since then, it has been recognized with multiple nominations for awards within the industry; both for its video content and websites. The company received the Free Speech Coalition Award of Excellence at the 2010 Cybersocket Awards.

Marc Randazza, the attorney representing Liberty Media, is Corbin Fisher's General Counsel and a blogger who edits The Legal Satyricon.

Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Copyright Law: NYU Bobcat May Not Be "Work For Hire" Rules EDNY Judge

NYU Bobcat Logo

In Fleurimond v. New York University, --- F.Supp.2d ----, 2010 WL 2773089 (EDNY July 14, 2010), Judge Spatt found that the question of whether the NYU Bobcat logo is a work for hire is a question of fact.

Defendant NYU made a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.   NYU's motion attached the designer's W-2 form and other documents supporting the contention that Fleurimond was an employee of NYU and created the Bobcat within the scope of her employment.   Judge Spatt pointed out that such documents could not be submitted on a Rule 12(c) pre-answer motion for judgment since only documents relied on by the complaint are appropriately considered at that stage of the pleadings:

NYU contends that the W-2 form and the emails between Fleurimond and several NYU employees conclusively establish that Fleurimond developed Orion while she was an NYU employee, acting within the scope of her employment. However, in the Court's view, these documents may not be considered on a Rule 12(c) motion for judgment on the pleadings. These documents were neither referenced in Fleurimond's complaint, nor relied upon in drafting the complaint. It is equally clear that they are not documents of which the Court may take judicial notice.



In the Daily News coverage of the case here, Fleurimond is described as a "freelancer".   Judge Spatt found that Fleurimond's allegation that she was the "sole creator" of the Bobcat logo was sufficient to render her claim of authorship "plausible" under the Twombly and Iqbal pleading standards.

Under 17 USC 201(a), copyright vests initially in the author of a work.

17 USC 201(b) provides:

(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.


Judge Spatt applied the work-for-hire test (part of federal common law created in the landmark CCNV v. Reid case):

the hiring party's right to control the manner and means by which the product is accomplished ... the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Community for Creative Non-Violence v. Reid, 490 U.S. at 751-52.

Judge Spatt's conclusions here:

Even with the benefit of the materials NYU appended to its reply papers, the Court is not in a position, at this stage, to comprehensively assess these factors. The W-2 form and the emails seem to suggest that Fleurimond was an NYU employee acting within the scope of her employment when she developed Orion. However, the Court is not prepared to conclusively determine these issues without giving Fleurimond an opportunity to conduct discovery.


In summary, the Court finds that Fleurimond has offered a plausible copyright infringement claim. Her allegation that she is the sole creator of Orion suggests that she could be the legal owner of the Orion copyright. Evidence that exists outside the four corners of the complaint reflects that NYU may be the rightful copyright owner under Section 201(b). However this is not an issue that can be addressed on a Rule 12(c) motion and the Court declines to convert NYU's motion to one for summary judgment. Fleurimond v. New York University L 2773089, 3 -4 (E.D.N.Y. 2010)

I discuss the Work for Hire Doctrine in Copyright Litigation Handbook - Chapter 8: Copyright Ownership and Licensing Litigation and in Chapter 13:  Answer and Defenses.

Earlier Copyright Litigation Blog posts relating to works for hire here and here.

 Purchase Copyright Litigation Handbook from West here  

Second Circuit - Architectural Works: Noninfringement of Copyright on A Rule 12(b)(6) Motion

In Peter F. Gaito Architecture, LLC v. Simone Development Corp., 2010 WL 1337225, 1 (2d Cir. April 5, 2010), the Second Circuit held for the first time that a district court may compare the registered copyrighted materials annexed to the complaint to the allegedly infringing materials, enter a finding of non-infringement as a matter of law, and throw the case out on a Rule 12(b)(6) motion for failure to state a claim.

Ordinarily the facts alleged on the face of a Rule 12(b)(6) motion are assumed to be true in the earliest stage of a litigation.

District courts within the Circuit had been throwing cases out for a while, using the Second Circuit's "good eyes and common sense" standard to determining whether any reasonable juror could find the infringing materials to be "substantially similar".

Although the court tried to limit the holding to the facts involving very dissimilar buildings, the holding is likely to have a much broader application.