I there a civil cause of action to commit copyright infringement, and if so is it a federal or state claim? In
Mintel Learning Technology, Inc. v. Beijing
Kaidi Education & Technology Development Co., 2007
WL 2288329 (N.D. Cal. Aug. 9, 2007), the court dismissed a claim for civil conspiracy to misappropriate copyrighted software on the ground that under California law civil conspiracy "is not a separate and distinct cause of action. ... Instead, it is a 'legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate
tortfeasors a common plan or design in its preparation.'" The court instructed plaintiffs to
replead the conspiracy allegations "separately as to each of the substantive causes of action." The required elements were "(the formation and operation of a
conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct." Additionally, "all the elements of the underlying tort must be satisfied. If the plaintiff fails to adequately plead the underlying claim, the corresponding conspiracy claim must also fail."
I find this discussion confusing at best. If conspiracy is not a separate cause of action, why would it have to be
repled and how could it succeed if the underlying claim is adequately
pled? Moreover, if the underlying tort is copyright, a federal claim, why aren't state conspiracy allegations
preempted?
When the conspiracy alleged is merely a conspiracy to engage in conduct that violates rights equivalent to those granted in Section 106, the conspiracy claim is preempted, and is more properly understood as a clumsy (or sneaky) effort to hold third parties responsible for contributory infringement, vicarious liability, or their share of the damages.
Some courts have held that where the underlying tort about which the conspiracy is alleged is itself not preempted, the conspiracy claims are not preempted, a common sense result. Conversely, courts have held that where the underlying tort is preempted, the conspiracy claim is also preempted, an equally commonsense result.
9 comments:
Did you say "Civil conspiracy to commit terrorism?"
I can tell they're getting rooms ready in Guantanamo for those who incite or exhort civil disobedience of copyright, e.g. "Everyone should take movie cameras into cinemas as a protest".
And it won't be long thereafter when those publicly arguing and campaigning for copyright's abolition will also be rounded up for 're-education'.
I've got my handbasket ready.
Crosbie, this is far more mundane, just ordinary copying.
If copying of published works was considered mundane and ordinary, the law would be far simpler, and pirates could come home to port from the high seas to stand as equals alongside merchants stripped of their unethical privileges.
Conspiracy in this civil context is probably being treated much like "attempt." Attempt is not an independent cause of action, but instead has to be pled as a basis of liability for some underlying actus reus.
Using this analogy, your preemption argument makes a lot of sense. If a state court could create a tort of "attempted" civil copyright infringement, that seems to be a textbook example of a section 301 preemption.
doug
Assuming that plaintiff can prove all of the elements stated, wouldn't it also have established inducement per Grokster? Seems to me that it would be easier to prove Grokster inducement / contributory infringement than conspiracy.
LKB in Houston
The knowledge part of contributory infringement would be sastified, obviously, but perhaps because this was on a pleadings motion, the facts on what other conduct was engaged in was slim indeed.
As articulated by the court, if the elements of conspiracy are satisfied, then you have not only knowledge but also primary infringement by someone ("all elements of the underlying tort must also be satisfied") and assistance / inducements / etc. ("wrongful conduct in furtherance of the conspiracy"). That would all seem to add up to a Grokster claim, and thus I think the court's analysis is superfluous.
If, however, the court was attempting to expand things so as to cover "attempted" infringement, then I agree that such a claim would be improperly trying to expand a federal claim via state law and would thus probably be preempted. However, if you take the court at its word, this isn't the case. If "all the elements of the underlying tort must be satisfied," then we're dealing not with attempted infringement -- we're presented with actual, completed infringement.
I agree it's a fairly silly decision. However, given that it's duplicative of Grokster, it's probably immaterial.
LKB in Houston
Thanks, LKB; except if plaintiff can satisfy the court the case goes forward as what should be a preempted state claim with who knows what damages.
Not sure that's right. Note that the court explicitly disclaimed that it was recognizing a separate claim -- only a "legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its preparation." IOW, another basis for joint and several liability -- which of course is all that Grokster does.
If I'm wrong, and the court does intend to read this newfound conspiracy theory to provide any monetary relief greater than that provided by federal law, methinks it's almost certainly preempted. As stated, however, it just seems to reprise Grokster in a rather clumsy fashion.
LKB in Houston
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