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| Allusion From First Circuit Decision - Belling the Cat - Mice Agreeing To Do Something Impossible |
In Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. March 14, 2016), the United States Court of Appeals for the First Circuit made an inexplicably horrible decision relating to a photographer's copyright in an image used in sex trafficking. If the First Circuit's reasoning related to damages flowing from infringements of copyrights in a photograph stand, the First Circuit's decision will essentially shut the courthouse doors to most photographers seeking to vindicate their rights under the Copyright Act. Copyright owners have the right to a jury trial on damages, a right that should be respected at the pleadings stage. Copyright owners rarely have any evidence of actual damages at the pleading stage because infringers usually have possession of evidence of ill-gotten gains.
Backpage.com is a site that jumped into the sex trafficking game following Craigslist getting out of the business of running sex trafficking ads in 2010. These ads for "escorts" supported prostitution and sex trafficking of minors. Pimps forced victims either to take photos of themselves or took photos of the victims and ran them in Backpage.com.
Jane Doe #3 registered the copyright in one of the photographs of herself that had been published without her consent and led to her being repeatedly raped as a minor.
The First Circuit upheld the district court's dismissal of Jane Doe #3's copyright infringement case against Backpage.com pursuant to Rule 12(b)(6). The First Circuit reasoned that even though Jane Doe #3 had appeared to allege a copyright infringement claim, her belated registration limited her to actual damages, rather than statutory damages and attorneys fees. The First Circuit went on to reason that the "prospect of such a recovery, however, is purely theoretical: nothing in the complaint raises a plausible inference that Doe #3 can recover any damages, or that discovery would reveal such an entitlement. [Twombly citation omitted]"
Here is the remainder of the First Circuit's reasoning:
The prospect of such a recovery, however, is purely theoretical: nothing in the complaint raises a plausible inference that Doe # 3 can recover any damages, or that discovery would reveal such an entitlement. See Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (stating that factual allegations must at least “raise a reasonable expectation that discovery will reveal evidence” to suffice as plausible). A showing of actual damages requires a plaintiff to prove “that the infringement was the cause of [her] loss of revenue.” Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1170 (1st Cir.1994). Such a loss is typically measured by assessing the diminution in a copyrighted work's market value (say, by calculating lost licensing fees). See Bruce v. Weekly World News, Inc., 310 F.3d 25, 28–29 (1st Cir.2002); Data Gen., 36 F.3d at 1170. No facts set forth in the second amended complaint suggest that the market value of Doe # 3's image has been affected in any way by the alleged infringement, and Doe # 3 points to nothing that might plausibly support such an inference.
By the same token, nothing in the complaint plausibly suggests a basis for a finding that Doe # 3 would be entitled to profits attributable to the infringement. The closest that the complaint comes is an optimistic assertion that because photographs “enhance the effectiveness of advertisements,” Backpage necessarily reaps a financial benefit from these images (including, presumably, Doe # 3's photograph). But a generalized assertion that a publisher/infringer profits from providing customers with the option to display photographs in advertisements, standing alone, cannot plausibly be said to link the display of a particular image to some discrete portion of the publisher/infringer's profits. Cf. Mackie v. Rieser, 296 F.3d 909, 914–16 (9th Cir.2002) (concluding, at summary *29 judgment, that the effect of including a photograph in an advertising brochure was too speculative to make out a triable issue on advertiser's profits attributable to infringement). In short, the link that Doe # 3 attempts to fashion between the copyrighted photograph and Backpage's revenues is wholly speculative and, thus, does not cross the plausibility threshold. After all, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
In a last ditch effort to bell the cat, Doe # 3 contends that the district court erred in failing to determine whether she was entitled to injunctive relief under 17 U.S.C. § 502(a), which permits such relief “to prevent or restrain infringement of a copyright.” She says, in effect, that Backpage may still possess the copyrighted photograph and that, therefore, she remains at risk of future infringement.
We reject this contention.
1617 To begin, the mere fact of past infringement does not entitle a plaintiff to permanent injunctive relief: the plaintiff must also show “a substantial likelihood of infringement in the future.” Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1555 (10th Cir.1996); see 5 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.06[B][1][a] (2015). Nothing in the complaint suggests that there is any substantial likelihood of future infringement by Backpage with respect to the copyrighted photograph. The known facts strongly suggest that no such risk exists: the photograph was posted by a third party who no longer has any sway over Doe # 3, and Backpage is not alleged to post material or create advertisements entirely of its own accord. Thus, any fears of future infringement would appear to be unfounded.
Viewing the complaint as a whole, see Twombly, 550 U.S. at 569 n. 14, 127 S.Ct. 1955, we conclude that the distinctive facts alleged here simply do not suffice to ground a finding that Doe # 3 is plausibly entitled to any relief on her copyright claim. Consequently, we discern no error in the district court's dismissal of this claim.
Jane Doe No. 1 v Backpage.com, LLC, 817 F3d 12, 28-29 [1st Cir 2016]
There are dozens if not hundreds of thoughtful decisions by federal juries and jurists across this nation awarding actual damages to owners of photographic copyrights. This usually occurs after the pleadings stages where disputed facts are identified and brought to a jury for decision. Indeed, the First Circuit's reliance on Mackie v. Rieser a Ninth Circuit decision tossing a case out at the summary judgment stage does not support dismissal of Jane Doe #3's case at the pleading stage.
Jane Doe #3 alleged facts suggesting that Backpage.com knew darn well that it would be profiting from sex trafficking following the 2010 Craiglist scandals. Photographing a minor under duress or forcing her to photograph herself in captivity for purposes of advertising violated both rights of publicity and, where the victim took the photograph, copyright law. The factual record suggests that Backpage.com knowingly took in ad revenues based on copyright infringements such as those alleged by Jane Doe #3.
It is likely that Jane Doe #3 would not have been able to prove a large amount of actual damages in terms of showing infringer's profits linked to use of that individual photograph.
But finding the amount of actual damages, in the United States, is the province of a jury. When federal judges slam the doors of the courthouse closed at the pleadings stage as the First Circuit has done here, they deprive the litigants appearing before them of a right to trial before a jury. By speculating as to what discovery may reveal, guessing as to what expert reports might demonstrate, or ignoring the hard work of other jurists who have permitted juries to make determinations of the amount of damages attributable to copyright infringements, the First Circuit has done the opposite of "belling the cat".
For a sample of the evidence the jury could have reviewed:
Backpage.com last accessed June 5, 2016
History shows us that cats may indeed be belled. According to Wikipedia, Aesop's fable:
The story gives rise to the idiom to bell the cat, which means to attempt, or agree to perform, an impossibly difficult task.[2] Historically it was the basis of the nickname given the Scottish nobleman, Archibald Douglas, 5th Earl of Angus. In 1482, at a meeting of nobles who wanted to depose and hang James III's favourite, Robert Cochrane, Lord Gray remarked, Tis well said, but wha daur bell the cat? The challenge was accepted and successfully accomplished by the Earl of Angus. In recognition of this, he was always known afterwards as Archie Bell-the-cat.[3]
The first English collection to attribute the fable to Aesop was Francis Barlow's of 1687; in this there is a fine woodcut, followed by a 10-line verse synopsis by Aphra Behn with the punning conclusion
https://en.wikipedia.org/wiki/Belling_the_catGood council's easily given, but the effect
Oft renders it uneasy to transact.[4]
Jane Doe #3 and her lawyers were not a group of cowardly mice. And Aeosop's fable didn't consider putting the bell on the cat to be a bad idea. With the right evidence, correct jury instructions and a fair-minded jury, they might well have collared and belled the Backpage.com cat as a warning to other victims of sex trafficking. Maybe in another circuit.
www.dunnington.com
Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
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