Tuesday, November 08, 2005

Nigerians, Amazon.com, and Copyright

Here's the full-text of a November 3, 2005 per curiam opinion by the Third Circuit (Judge Alito was not on the panel):

Basil E. OKOCHA; Basil Publishing Company
AMAZON.COM Basil E. Okocha, Appellant.
No. 04-4125.

OPINION PER CURIAM [fn 1]Appellant Basil E. Okocha appeals from an order of the United States District Court for the District of New Jersey granting summary judgment in favor of Amazon.com. We will affirm.The procedural history of this case need not be discussed at length as it is well-known to the parties and set forth in the District Court's opinion. In 1993 Okocha wrote and published a book in Nigeria entitled The Old Man Who Refused to Die. In 2001 Okocha moved to the United States. In 2002 Okocha decided to self-publish his book in the United States through his publishing business, Basil Publishing Company. Okocha planned to publish the book in 2006. In conjunction with his publishing company, Okocha created two websites using his name as a key word for internet search engines. Okocha subsequently visited a search engine and submitted his name as a search term. The search returned a link to the title of his book on Amazon.com. By clicking on the link, Okocha discovered that copies of his book were listed for sale by several third-party sellers on the Amazon.com website. However, there were no listings for the sale of Okocha's book by Amazon.com itself.In May 2003, Okocha filed a complaint against Amazon.com in the United States District Court for the District of New Jersey alleging, inter alia, copyright infringement, conspiracy, fraud, negligent/intentional infliction of emotional harm, and loss of future wages. Amazon.com filed a motion to dismiss for failure to state a claim, which the District Court converted into a motion for summary judgment. Okocha then filed a motion for summary judgment. By order entered October 13, 2004, the District Court granted summary judgment in favor of Amazon.com. Okocha appeals.After careful review of the record and consideration of the arguments on appeal, we agree with the District Court that Amazon.com was entitled to judgment as a matter of law. With regard to the copyright claim, Okocha failed to show that he owned a valid United States or foreign copyright for The Old Man Who Refused to Die, or that Amazon.com copied the material. See Masquerade Novelty, Inc., v. Unique Indus., Inc., 912 F.2d 663, 667 (3d Cir.1990) (setting forth the elements of a copyright infringement claim). Even assuming that Okocha owned a valid copyright, [FN1] Amazon.com did not interfere with Okocha's exclusive right to distribute his book because reselling a copy of a previously purchased book does not infringe upon the right of distribution. See 17 U.S.C. § 109.

FN1. On appeal, Okocha submitted documents purporting to prove that he owned a valid foreign copyright for The Old Man Who Refused to Die. We will not review the documents because they were submitted for the first time on appeal.

The internet printouts submitted by Okocha to prove that Amazon.com listed several copies of his book for sale also clearly indicate that the books listed for sale were published in 1993, the year the book was originally published in Nigeria. The fact that the books listed for sale were published in 1993 indicates that they were not published at a later date and redistributed internationally by Amazon.com as Okocha asserts. The evidence instead established that the independent third-party sellers were selling used copies of Okocha's 1993 book. Summary judgment thus was properly granted in favor of Amazon.com with respect to the copyright claim.*2 Amazon.com was likewise entitled to judgment as a matter of law with respect to Okocha's conspiracy claim. A conspiracy involves an intent to achieve a common improper goal and an agreement to work together toward that improper goal. See, e.g., United States v. Pressler, 256 F.3d 144, 149 (3d Cir.2001). Okocha failed to provide admissible evidence to show that Amazon.com and the third-party sellers conspired to violate his copyrights. As for Okocha's remaining claims alleging, inter alia, fraud, negligent/intentional infliction of emotional harm, and loss of future wages, we have thoroughly reviewed the record and conclude that Amazon.com was entitled to judgment as a matter of law. Accordingly, we will affirm the order of the District Court. Okocha's motion to expedite is denied. His motion to file supplementary proof and a supplemental appendix is granted.



There are quite a few points of interest on the copyright claim one might be inclined to gloss over. First, the court's statement that plaintiff had failed to show he had a "valid United States or foreign copyright" is unexplained and seemingly incorrect. It doesn't appear there is any question plaintiff authored the book or that it was original.

Nigeria is a member of the Universal Copyright Convention, Berne, and the WTO Copyright Treaty. (See Copyright Office Circular 38a). Nor, as a work of foreign origin (it was first published in Nigeria before plaintiff moved here) did plaintiff have to register his claim with the Copyright Office pursuant to Section 411. Moreover, phrasing the issue in the alternative as whether plaintiff had a U.S. or Nigerian copyright passes by way too quickly a wonderful theoretical question: is there only one copyright (Nigerian) enforced in the U.S. under treaty obligations and the terms of 17 U.S.C. 104, or, are there multiple copyrights throughout the world, each created under the terms of domestic law? The court's discussion is quite unclear about whether its concern was one of national eligibilty or subject matter jursidiction, but both grounds appear incorrect: plaintiff would have protection in both countries.

On the merits of the claim, Amazon.com was not selling the work directly. Here too is an important question: can Amazon.com be held liable for the eventual sale by a third party? The sale is hosted and made possible by Amazon.com as the middleman. Amazon.com also has a financial interest in the sale. Since the sales take place book-by-book through Amazon.com, the ability to control the sale is in play.

In the court's scant opinion, there is no evidence plaintiff had ever granted permission to sell the work in the United States; indeed, it seems he planned to do so himself in 2006. Section 109 does not apply then (as the court mistakenly thought) because that section only applies to works lawfully made in the United States and these copies apparently weren't. Unless there are facts I am not aware of (and that is certainly possible), the opinion seems incorrectly decided on the merits too, at least with respect to the actual sellers of the copies.

The opinion bears all the hallmarks of a circuit staff work, pouring out a pro se plaintiff, and with little understanding of how the Copyright Act truly works. One would have hoped for more and plaintiff certainly deserved more.


Anonymous said...

I assume neither of your excellent points of law were appropriately briefed by Amazon's counsel - - if they had been the outcome may have been very different as you suggest. Where do you stand on the need for expert copyright counsel to more directly guide a court that doesn't exhibit the same level of familiarity with the law? We are as litigators required to act as officers of the court at the same time as we must zealously represent the interests of our clients.

William Patry said...

Dear Anonymous:

Your concern is one of the reasons I decided to post the issue: here we had a foreign pro se plaintiff against two law firms. I think the responsibility lies with the court to ensure it has the information to render a fair adjudication. In the Itar-Tass case, I was appointed an expert to the Second Circuit by that court precisely because it felt the litigants hadn't briefed or explored the relevant issues.

I would like to see the briefs to see what was argued before I figure out the role of amazon.com's counsel.

Anonymous said...

amazon is partaker of the sale of the book and so violated his rights