1 The factual allegations are primarily taken from the plaintiffs’

complaint and are assumed to be true for purposes of a motion to dismiss under

Rule 12(b)(6). Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ARISTA RECORDS LLC.,et al., §

PLAINTIFFS, §

 §

VS. § CIVIL ACTION NO. 4:05-CV-531-Y

 §

DAVID GREUBEL, §

DEFENDANT. §

OPINION AND ORDER DENYING MOTION TO DISMISS

Pending before the Court is Defendant’s Motion to Dismiss

Plaintiffs’ Complaint [doc. #15], filed February 24, 2006.

Defendant David Greubel asks the Court to dismiss the complaint in

its entirety under Federal Rule of Civil Procedure 12(b)(6), or

alternatively, order Plaintiffs to provide a more definite

statement in accordance with Rule 12(e). Having carefully reviewed

the motion, response, and reply, the Court concludes that the

motion should be denied.

I. PROCEDURAL HISTORY AND BACKGROUND1

Plaintiffs Arista Records LLC; Capital Records, Inc.; UMG

Recordings, Inc.; Elektra Entertainment Group, Inc.; and Warner

Brothers Records, Inc. (collectively “Plaintiffs”) filed a

copyright-infringement action against Greubel on August 19, 2005.

See generally 17 U.S.C. § 101 et seq.; 28 U.S.C. § 1338(a).

Plaintiffs assert that they own certain copyrighted sound

recordings, including the sound recordings listed on Exhibit A

attached to their complaint, as well as certain unspecified sound

 

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2

recordings found in Exhibit B, which consists of several pages of

computer-screen printouts listing 1,087 computer files allegedly

found on Greubel’s computer. (Plf. Compl. ¶11, Exs. A-B.)

Plaintiffs also assert that each of the sound recordings as to

which they assert copyright ownership is the subject of a valid

Certificate of Copyright Registration issued by the Register of

Copyrights. (Plf. ¶11). Plaintiffs refer to these sound

recordings collectively as “the Copyrighted Recordings,” and

contend that they hold the exclusive rights for reproduction and

distribution of the Copyrighted Recordings. (Plf. Compl. ¶12.) 

Plaintiffs allege that Greubel has used, and continues to use,

an online media distribution system to download the Copyrighted

Recordings without authorization, distribute the Copyrighted

Recordings to the public, and/or make the Copyrighted Recordings

available for distribution to others. (Plf. Compl. ¶13.). The

plaintiffs seek injunctive relief, statutory damages, and their

attorneys’ fees for Greubel’s alleged infringing conduct. (Plf.

Compl. ¶17.) See generally 17 U.S.C. §§ 501-505. Greubel asks the

court to dismiss the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). Alternatively, Greubel has asked the court to

order Plaintiffs to provide a more definite statement. See

generally Fed. R. Civ. P. 12(e). 

II. STANDARD OF REVIEW

“[A] motion to dismiss for failure to state a claim is viewed

with disfavor and is rarely granted." Kaiser Aluminum & Chem.

Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.

 

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3

1982). The court must accept as true all well pleaded, nonconclusory allegations in the complaint, and must liberally

construe the complaint in favor of the plaintiff. Lowrey v. Texas

A &M Univ. Sys., 117 F.3d 242, 246-247 (5th Cir. 1997); Campbell v.

Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). However,

conclusory allegations, unwarranted deductions of fact, or legal

conclusions masquerading as factual allegations will not suffice to

prevent the granting of a motion to dismiss. Fernandez-Montes v.

Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993); Spiller v.

City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997);

Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974). A court should not dismiss a complaint for failure to

state a claim unless it appears beyond doubt from the face of the

plaintiff’s pleadings that he can prove no set of facts in support

of his claim that would entitle him to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984); Garrett v. Commonwealth Mortgage

Corp., 938 F.2d 592, 594 (5th Cir. 1991); Kaiser Aluminum, 677 F.2d

at 1050. Dismissal is proper if the complaint lacks an allegation

regarding a required element necessary to obtain relief. Blackburn

v. City of Marshall, 42 F.3d 925, 930 (5th Cir. 1995). 

III. DISCUSSION

A. Failure to State a Claim

1. Pleading Insufficiencies

Greubel contends that the complaint must be dismissed because

it consists of ambiguous, vague, and conclusory allegations and

lacks sufficient specificity to state a claim for copyright

 

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4

infringement. He complains that the plaintiffs have filed a

formulaic pleading that is identical to numerous copyrightinfringement complaints that have been filed nationwide by

recording companies and other copyright holders against individual

computer users. 

Greubel contends that Plaintiffs, to sufficiently allege a

cause of action for copyright infringement, must plead with some

specificity those acts by the defendant that are infringing. Broad

and sweeping allegations without supporting factual assertions have

been held to be insufficient. See Marvulla v. Gruner & Jahr, 105

F.Supp.2d 225, 230 (S.D.N.Y. 2000). He also relies on a series of

district court cases from across the country that have required a

plaintiff with a copyright-infringement claim to allege: (1) which

specific original works are the subject of the claim, (2) that the

plaintiff owns the copyright, (3) that the works have been

registered in compliance with copyright laws, and (4) by what acts

and during what time the defendant has infringed the copyright.

See Sefton v. Jew, 201 F.Supp.2d 730, 747 (W.D. Tex. 2001); Kelly

v. L.L. Cool J, 145 F.R.D. 32, 36 (S.D.N.Y. 1992); Franklin Elec.

Publishers, Inc. v. Unisonic Prods. Corp., 763 F.Supp. 1 (S.D.N.Y.

1991); Hartman v. Hallmark Cards, Inc., 639 F.Supp. 816, 820 (W.D.

Mo. 1986). Greubel contends that Plaintiffs’ pleading satisfies

none of these four elements.

To the extent Greubel is suggesting that there is a heightened

pleading requirement for copyright litigation, that position does

not comport with the liberal pleading requirements found in the

 

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 2

 At least one district court, in summarizing the standard that Greubel

advocates, has observed that it functions as a heightened pleading standard.

Sefton v. Jew, 201 F.Supp.2d 730, 747 (W.D. Tex. 2001). 

 3 The four-part test on which Greubel relies was developed before the

Supreme Court’s opinion in Leatherman, which emphasized that a federal court

complaint for most causes of action must satisfy only the liberal system of

notice pleading. Leatherman, 507 U.S. at 167-169, 113 S.Ct. at 1163. Nearly a

decade later, the Supreme Court decided the Swierkiewicz case and reiterated its

disapproval of judicially created heightened pleading requirements not otherwise

5

Federal Rules of Civil Procedure.2 Although Federal Rule of Civil

Procedure 9 imposes heightened pleading standards for allegations

of fraud or mistake, most causes of action, including copyright

infringement claims, must satisfy only the minimal notice-pleading

requirements of Federal Rule of Civil Procedure 8. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 998,

152 L.Ed.2d 1 (2002); Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 167-169, 113 S.Ct.

1160, 1163 (1993); see also Mid Am. Title Co. v. Kirk, 991 F.2d

417, 421-22 (7th Cir. 1993)(copyright litigation); Sefton, 201

F.Supp.2d at 747 (W.D. Tex. 2001)(copyright litigation). Rule 8

requires a short and plain statement of the claim showing that the

pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The

statement must give the defendant fair notice of the plaintiff’s

claim and the grounds upon which it rests. Swierkiewicz, 534 U.S.

at 512, 122 S.Ct. at 998. The simplified notice-pleading standard

relies on liberal discovery rules and summary-judgment motions to

define the disputed facts and issues and dispose of meritless

claims. Id. at 512, 122 S.Ct. at 998.

The court declines to adopt Greubel’s test to the extent it

would impose a heightened pleading standard in cases of alleged

copyright infringement.3 However, the court will address each of

 

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required by statute or the Federal Rules of Civil Procedure. Swierkiewicz, 534

U.S. at 512-13, 122 S.Ct. at 998; see also Gen. Elec. Capital Corp. v. Posey, 415

F.3d 391, 396-97 (5th Cir. 2005).

 4 In their response, Plaintiffs clarify that 631 of those files reflect

sound recordings, although Plaintiffs do not assert copyright ownership with

respect to all of those sound recordings. (Plf. Resp. at 3).

6

Greubel’s complaints to the extent he alleges that the pleading

deficiencies deny him fair notice of the claims against him. 

Greubel complains that Plaintiffs have not sufficiently

identified the copyrighted works that have been allegedly infringed

or properly alleged their ownership of the copyright for each

work. Greubel agrees that Exhibit A, the song list appended to

Plaintiffs’ complaint, adequately identifies specific copyrighted

works to which Plaintiffs have asserted ownership rights, but he

complains that the same cannot be said of Exhibit B. Greubel

contends that Exhibit B, which reflects some 1,087 files allegedly

found on his computer,4 is the subject of only vague allegations

that unspecified files listed on the exhibit reflect sound

recordings owned or exclusively licensed to Plaintiffs or their

affiliated companies.

Plaintiffs assert in their complaint that they own some of the

copyrights for the sound recordings disclosed on Exhibit B to their

complaint. Although they do not specify which sound recordings on

Exhibit B are at issue and for which statutory damages will be

sought, the plaintiffs note that this can be developed through

discovery. Plaintiffs also complain that requiring them to narrow

their complaints at this stage serves only to penalize them when

the lack of specificity Greubel complains of in their pleading is

the result of the scope of Greubel’s infringement as reflected on

 

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7

the computer printout. 

Although Plaintiffs have not identified every copyrighted

recording by name, the inclusion of a partial song list and a

printout of allegedly offending files on Greubel’s computer

provides Greubel with sufficient notice of the basis of Plaintiffs’

complaint for copyright infringement. Cf. Warner Bros. v. Payne,

No. W-06-CA-051, slip op. at 4-5 (W.D. Tex. July 17, 2006)(denying

motion to dismiss and finding attachment of screen shots alleged

taken from defendant’s share folder was sufficient to provide fair

notice); Interscope Records v. Duty, No. 05CV3744-PHX-FJM, 2006 WL

988086, at *2 (D. Ariz. Apr. 14, 2006)(denying motion to dismiss

and finding that complaint incorporating computer screen printouts

of alleged copyrighted works on defendant’s computer was sufficient

under liberal pleading standards). The court agrees with Plaintiffs

that specific information to narrow the issues and copyrights at

stake can be obtained through discovery.

Greubel also contends that Plaintiffs have failed to properly

allege registration of the sound recordings because they have not

attached the certificates of registration to their complaint or

identified each allegedly copyrighted work by its registration

number. Copyright registration or preregistration is a prerequisite

for bringing a copyright infringement action. 17 U.S.C. § 411(a).

See Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th

Cir. 1997). But Greubel’s argument is unpersuasive. Plaintiffs

have alleged that each copyright that is the subject of this action

is properly registered with the copyright office, and the court

must accept these allegations as true for purposes of a motion to

dismiss. (Plf. Compl. ¶11.) Plaintiffs have sufficiently pleaded

 

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 5

 Plaintiffs’ allegations distinguish this case from Brought to Life

Music, Inc. v. MCA Records, Inc., which Greubel cites in support of his position.

In Brought to Life, the district court granted a motion to dismiss the complaint,

in part because the plaintiff had not alleged violation of any of its exclusive

rights in the copyrighted works. Brought to Life Music, Inc. v. MCA Records,

Inc., 2003 U.S. Dist. LEXIS 1967, at *2 (S.D.N.Y. 2003). Greubel also relies on

Tom Kelley Studios, Inc. v. International Collectors Society, Inc., 1997 U.S.

Dist. LEXIS 147571 (S.D.N.Y. 1997). But in that case, the district court granted

the defendants’ motion for more definite statement because the complaint had

failed to allege specific acts of infringement with respect to specific

copyrights owned by the plaintiffs, and attachments to the pleading were too

blurred to be useful. Tom Kelley, 1997 U.S. Dist. LEXIS 147571, at *3. Nor is

Greubel’s position strengthened by his reliance on Gee v. CBS, Inc., 471 F.Supp.

600 (D.C. Pa. 1979). The district court in Gee dismissed the plaintiffs’

complaint because it failed to identify one single copyrighted song being

allegedly infringed and failed to plead the plaintiffs’ present ownership of the

copyrights. Id. at 643-44.

8

the matter of registration of the copyrights.

Greubel finally contends that the complaint must be dismissed

in its entirety because Plaintiffs have not alleged by what

specific acts and at what specific times he infringed their

copyrights. Plaintiffs have alleged that Greubel, without

permission, “has used, and continues to use, an online media

distribution system to download the Copyrighted Recordings, to

distribute the Copyrighted Recordings to the public, and/or to make

the Copyrighted Recordings available for distribution to others.”

(Plf. Compl. ¶13.).

Plaintiffs have adequately stated acts of copyright

infringement by alleging that Greubel has violated Plaintiffs’

exclusive rights of reproduction and distribution, which are

specific enumerated rights recognized under copyright law.5 17

U.S.C. § 106. See Sony Music Entm’t Inc. v. Does 1-40, 326

F.Supp.2d 556, 565-566 (S.D.N.Y. 2004)(finding that allegations of

peer-to-peer Internet file-sharing stated a prima facie case of

copyright infringement); see also Maverick Recording Co. v.

Goldshteyn, 2006 WL 2166870, at *2-4 (E.D.N.Y. July 31,

 

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 6

 Greubel suggests that allegations pleaded by using “and/or” do not plead

acts of infringement with sufficient specificity. See Lindsay v. R.M.S. Titanic,

1999 U.S. Dist. LEXIS 15837, at *12 (S.D.N.Y. 1999) (dismissing allegations

against one copyright infringement defendant accused of “unlawfully purchase

and/or otherwise obtaining copies” of the copyrighted work as vague and

conclusory). The Court disagrees with the contention that the use of the phrase

“and/or” in a complaint does not satisfy the liberal notice pleading requirements

of Federal Rule of Civil Procedure 8, which permits a party to state as many

separate claims or defenses as he has, regardless of consistency. Fed. R. Civ.

P. 8(e)(2).

9

2006)(denying motion to dismiss after reviewing complaint with

allegations identical to those against Greubel and deeming them

sufficient to state a claim for copyright infringement); Elektra

Entm’t Group, Inc. v. Santangelo, No. 05Civ. 2414(CM), 2005 WL

3199841, at *2 (S.D.N.Y. Nov. 28, 2005)(reviewing identical

allegation and finding plaintiffs had adequately pleaded a claim

for copyright infringement). Plaintiffs need not list each and

every individual act of infringement of their exclusive rights at

this preliminary stage of the proceedings.6 See Capitol Records,

Inc. v. Wings Digital Corp., 218 F.Supp.2d 280, 284 (E.D.N.Y.

2002); Carell v. Shubert Org., Inc., 104 F.Supp.2d 236, 251

(S.D.N.Y. 2000). As for timing, Greubel complains that the

Plaintiffs’ allegations of ongoing or continuous conduct are

ineffective, but specific dates and times for the alleged instances

of copyright infringement are matters that can be clarified during

discovery. See Franklin Elec., 763 F.Supp. at 4 (declining to

dismiss complaint that did not allege date that copyright

infringement commenced, but did allege continuing infringement);

Maverick Recording, 2006 WL 2166870, at *4 (deeming it sufficient

for plaintiffs to allege continuing violation rather than specific

dates for infringing activity); Elektra Entm’t, 2005 U.S.Dist.

LEXIS 30388, at *8-9 (finding that assertion of continuous and

 

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 7

 The Copyright Act defines phonorecords as “material objects in which

sounds, other than those accompanying a motion picture or other audiovisual work,

are fixed by any method now known or later developed, and from which the sounds

can be perceived, reproduced, or otherwise communicated, either directly or with

10

ongoing infringement satisfies pleading requirements for copyright

infringement). See also Fonovisa,Inc. v. Alvarez, No. 1:06-CV-011,

slip op. at 7 (N.D. Tex. July 24, 2006)(order denying motion to

dismiss)(leaving clarification of dates and times to the discovery

process).

Plaintiffs’ pleading provides a short and plain statement that

alleges both their copyright ownership and violation of one or more

of the exclusive rights identified in 17 U.S.C. § 106. Although

the complaint provides limited factual particulars, it complies

with Federal Rule of Civil Procedure 8 by giving Greubel fair

notice of the copyright claims against him and the grounds for this

litigation. 

2. Distribution Rights

Greubel asserts that Plaintiffs’ claim that their exclusive

distribution rights have been violated should be dismissed because

electronic transmissions over computer networks cannot violate a

copyright owner’s exclusive right of distribution. See generally

17 U.S.C. § 106(3). Greubel relies on the language of Section

106(3), which grants to the owner of the copyright the exclusive

right 

(3) to distribute copies or phonorecords of the

copyrighted work to the public by sale or other transfer

of ownership, or by rental, lease, or lending.

17 U.S.C. § 106(3). Greubel asserts that Section 106(3)

contemplates distribution of tangible objects, not electronic

transmissions over computer networks.7

 

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the aid of a machine or device.” 17 U.S.C. § 101. Copies are defined as

“material objects, other than phonorecords, in which a work is fixed by any

method now know or later developed, and from which the work can be perceived,

reproduced, or otherwise communicated, either directly or with the aid of a

machine or device.” Id. A work is “fixed” in a tangible medium of expression

when its embodiment in a copy or phonorecord, by or under the authority of the

author, is sufficiently permanent or stable to permit it to be perceived,

reproduced, or otherwise communicated for a period of more than transitory

duration. Id.

 8 As reflected on its internet website and reported during congressional

hearings, the Copyright Office takes the position that using peer-to-peer

networks to copy or distribute copyrighted works without permission infringes the

exclusive rights of reproduction and/or distribution. United States Copyright

Office, Copyright and Digital Files, http://www.copyright.gov/help/

faq/faq-digital.html#p2p (last visited Aug. 21, 2006)(answering question “Is it

legal to download works from peer-to-peer networks and if not, what is the

penalty for doing so?”); Pornography, Technology, and Process: Problems and

Solutions on Peer-to-Peer Networks: Hearing Before the Committee on the

Judiciary, 108th Cong. (2003)(statement of Marybeth Peters, Register of

Copyrights).

11

There are scholarly articles reflecting debate over the scope

of Section 106(3) and its ability to keep pace with new technology

in light of the role the internet is now playing in the sharing of

information, copyrighted or not. See, e.g., R. Anthony Reese, The

Public Display Right: The Copyright Act’s Neglected Solution to the

Controversy Over RAM Copies, 2001 U. ILL. L. REV. 83, 126 (2001);

April M. Major, Copyright Law Tackles Yet Another Challenge: the

Electronic Frontier of the World Wide Web 24 RUTGERS COMPUTER & TECH.

L.J. 75, 98-102 (1998); Jessica R. Friedman, A Lawyer’s Ramble Down

the Information Superhighway, 64 FORDHAM L. REV. 697, 712-16 (Dec.

1995). But see Niels Schaumann, Copyright Infringement and Peer-topeer Technology, 28 WM. MITCHELL L. REV. 1001, 1037 (2002)(asserting

that receipt of digital phonorecord transmission is generally the

legal and functional equivalent of a tangible copy). But even if

the statutory language is arguably ambiguous on this point,8

 the

courts have not hesitated to find copyright infringement by

distribution in cases of file-sharing or electronic transmission of

 

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 9

 At this stage of the proceedings, the court does not believe it is

necessary to determine the tangible or intangible nature of the internet transfer

or transmission of computer files containing sound recordings.

12

copyrighted works. See New York Times Co., Inc. v. Tasini, 533

U.S. 483, 498, 121 S.Ct. 2381, 2390, 150 L.Ed.2d 500 (2001)(holding

that LEXIS/NEXIS, by selling copies of copyrighted articles through

its NEXIS database, had exercised the exclusive right of

distribution recognized by Section 106(3)); In re Aimster Copyright

Litig., 334 F.3d 643, 644 (7th Cir. 2003)(accepting without

discussion that internet users who swap computer files containing

popular copyrighted music by making and transmitting digital copies

commit acts of infringement); A&M Records, Inc. v. Napster, Inc.,

239 F.3d 1004, 1014 (9th Cir. 2001)(agreeing that downloading and

uploading of copyrighted music infringes exclusive rights of

reproduction and distribution respectively). See also Playboy

Enters., Inc. v. Webbworld, Inc., 991 F.Supp. 543, 551 (N.D.Tex.

1997)(concluding that defendant “distributed” copyrighted works by

allowing its users to download and print copies of electronic image

files); Playboy Enters., Inc. v. Frena, 839 F.Supp. 1552 (M.D.

Fla. 1993)(finding that copyrighted photographs posted on internet

website implicated Playboy’s exclusive right of distribution). At

the very least, the issue is not one that would justify dismissing

the complaint and precluding the parties from developing facts

relevant to the claim of infringement by distribution.9 

Greubel also contends that making sound recordings available

online by listing copyrighted works in an electronic file directory

that is accessible by others does not constitute infringement of

the exclusive right of distribution because there is no actual

 

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 10 Plaintiffs argue that copyright law, and specifically the exclusive

right of distribution, must encompass the right to make copyrighted works

available for distribution, otherwise the United States is not in compliance with

the World Intellectual Property Organization (WIPO) Copyright Treaty, which the

United States has ratified. See WIPO Copyright Treaty arts. 6, 8, 14, Apr. 12,

1997, S. Treaty Doc. No. 105-17, available at 1997 WL 447232. The Court concludes

that Greubel’s motion to dismiss can be disposed of without addressing the issue

of compliance with the treaty or the legislative history surrounding

congressional implementation of the treaty’s provisions.

13

dissemination of the copyrighted material. Greubel asserts that

Exhibit B, being a passive list of electronic files on a particular

computer, cannot render the owner of that computer liable merely

for storing the files and making them available to unknown “wouldbe” infringers through an internet account. He notes that Exhibit

B does not reflect actual instances of either distribution (by

uploading to other computers) or reproduction (by downloading to

another computer), and accordingly, he asserts that Plaintiffs’

complaint presents no cognizable claim for copyright infringement

for violation of 17 U.S.C. § 106(3).

Contrary to Greubel’s position, the courts have recognized

that making copyrighted works available to others may constitute

infringement by distribution in certain circumstances.10 As a

general rule, distribution is accomplished by actual dissemination

of the copyrighted work. National Car Rental Sys., Inc. v. Computer

Assocs. Int’l, Inc., 991 F.2d 426, 434 (8th Cir. 1998); Perfect 10

v. Google, Inc., 416 F.Supp.2d 828, 844 -845 (C.D. Cal. 2006). But

the right of distribution also has been identified as synonymous

with the publication of a copyrighted work. Harper & Row Publs.,

Inc. v. Nation Enters., 471 U.S. 539, 552, 105 S.Ct. 2218, 2226, 85

L.Ed.2d 588 (1985); Agee v. Paramount Commc’ns, Inc., 59 F.3d 317,

325 (2nd Cir. 1995); Ford Motor Co. v. Summit Motor Prods., Inc.,

930 F.2d 277, 299 (3rd Cir. 1991). See also 17 U.S.C.A. § 106

 

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 11 Notwithstanding Plaintiffs’ argument and the statutory definition of

“publication,” not just any offer to distribute will suffice. See In re Napster,

Inc. Copyright Litig., 377 F.Supp.2d 796, 805 (N.D. Cal. 2005). The statute

expressly limits the reach of publication by way of an offer for sale to

situations where further distribution, public performance, or public display is

contemplated. 17 U.S.C. § 101; Napster, 377 F.Supp.2d at 804. This is an

evidentiary burden not properly disposed of by a motion to dismiss.

14

historical notes (2005)(summarizing the fundamental rights of

copyright). The Copyright Act does not define “distribution,” but

it defines “publication” as the distribution of copies or

phonorecords of a work to the public by sale or other transfer of

ownership, or by rental, lease, or lending, and further provides

that “offering to distribute copies or phonorecords to a group of

persons for purposes of further distribution, public performance,

or public display, constitutes publication.” 17 U.S.C. § 101.

Plaintiffs contend that, therefore, actual dissemination of the

copyrighted work is unnecessary so long as there is an offer to

distribute copies.11

Plaintiffs’ position has received favorable attention from the

courts. The seminal case of Hotaling v. Church of Jesus Christ of

Latter-Day Saints is illustrative. See Hotaling v. Church of Jesus

Christ of Latter Day Saints, 118 F.3d 199 (4th Cir. 1997). The

copyright holder of various genealogy research materials sued the

church after learning that the church had made unauthorized copies

of the research materials and placed those copies in its library

collections across the country. The church was unable to produce

records to reflect whether the materials had been loaned out to the

public, but the plaintiff argued that the fact that the libraries

had the unauthorized copies in their collections, and thus

available to the public, constituted distribution within the

 

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15

meaning of copyright law. Id. at 203. The court agreed with

Hotaling, and ruled that the library, by adding the work to its

collection, listing the work in its index or catalog system, and

making the work available to the borrowing or browsing public, had

completed all steps necessary for distribution of a copyrighted

work. Id. But see Arista Records, Inc. v. MP3Board, Inc., No.

00Civ. 4660 (SHS), 2002 U.S. Dist. LEXIS 16165, at *13-14 (S.D.N.Y.

Aug. 28, 2002)(distinguishing Hotaling on the ground that proof of

dissemination was not available to Hotaling through fault of the

alleged infringing party and reiterating that proof of actual use

by the public is usually required to establish distribution).

The facts in Interscope Records v. Duty are even more similar

to the allegations against Greubel. Several recording companies

sued individual computer user Lindsey Duty for copyright

infringement, alleging that Duty used a peer-to-peer online network

to download and distribute copyrighted music without authorization.

Duty, 2006 WL 988086, at *1. Duty moved to dismiss the complaint on

the ground that Plaintiffs had not stated a claim for infringement

in alleging that Duty made copyrighted recordings available for

distribution, rather than alleging actual dissemination of the

recordings to members of the public. The district court disagreed

with Duty, finding that the presence of copyrighted sound

recordings in Duty’s share files might constitute copyright

infringement. Id. at *2. The district court clarified that it was

not concluding that the mere presence of the copyrighted sound

recordings in Duty’s share file established copyright infringement,

but the district court thought the liability issue would be more

appropriately addressed by a motion for summary judgment after

 

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16

further development of the facts. Id. 

Warner Brothers Records v. Payne also involves similar

underlying facts. Warner Bros. Records v. Payne, No. W-06-CA-051,

slip op. at 2 (W.D. Tex. July 17, 2006). The plaintiff recording

companies sued Payne for violating their exclusive rights of

reproduction and distribution by using Kazaa, an online filesharing program. Payne moved to dismiss the action on grounds that

the plaintiffs had not pleaded a claim for copyright infringement

with sufficient particularity and that merely making music files

available through a file-sharing program was not an act of

copyright infringement. Id. at 3, 5. The district court concluded

the pleading was sufficient to provide fair notice of the

plaintiffs’ claims, and further found that the listing of

unauthorized copies of sound recordings available through an online

file-sharing system might constitute an offer to distribute

copyrighted works in violation of the copyright owner’s exclusive

right of distribution. Id. at 5-6. The district court also opined

that offering to distribute a music file by listing it on an online

file-sharing system available to countless other users of the

system contemplated the possibility of further distribution. Id. at

8. The district court declined to dismiss the plaintiffs’ “making

available” theory of copyright infringement without allowing

further development of the facts. Id.

Most recently, the Honorable Sam Cummings of this Court

considered whether merely making copyrighted works available to

others violated the exclusive right of distribution. Fonovisa,

Inc. v. Alvarez, No. 1:06-CV-00011-C, slip op. at 5. The defendant

had moved to dismiss the complaint for various shortcomings,

 

 Case 4:05-cv-00531-Y Document 32 Filed 09/01/06 Page 16 of 20 PageID 346
 12 A contributory infringer induces or encourages direct infringement,

while a vicarious infringer profits from direct infringement while declining to

exercise a right to stop or limit it. Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, Ltd., 545 U.S. 913, 125 S.Ct. 2764, 2776, 162 L.Ed.2d 781 (2005).

17

including the plaintiffs’ assertion that the defendant had violated

the right of distribution merely by making works available to

fellow internet users. Judge Cummings denied the motion to

dismiss. He declined to determine whether the defendant had in

fact violated the right of distribution by making the copyrighted

works available, but instead concluded that the theory might

present a possible ground for liability, which rendered dismissal

inappropriate. Id. at 5-6.

Greubel relies on In re Napster, Inc., in which the district

court ruled that Napster’s maintenance of a centralized index that

listed formatted music files available from other Napster users did

not state a violation of the exclusive distribution right. In re

Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802-05 (N.D.

Cal. 2005). The district court reviewed the Hotaling decision, but

found it distinguishable because Napster, unlike the library

maintained by the Church of the Latter Day Saints, did not have the

actual works available on its system or in its collection. Id. at

803. The court rejected the plaintiffs’ attempts to impose direct

liability against Napster for infringement of the exclusive right

of distribution; however, the court denied Napster’s motion for

summary judgment on a secondary or contributory infringement theory

related to Napster users who uploaded or downloaded MP3-formatted

files using the Napster network.12 Id. at 806; see also Aimster,

334 F.3d at 646-47 (upholding injunctive relief because Aimster

could be a contributory infringer by facilitating internet exchange

 

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 13 Greubel also relies on SBK Catalogue Partnership v. Orion Pictures

Corporation, in which the district court opined that merely authorizing another

person to distribute copyrighted work owned by a third party, absent proof that

the other person actually distributed the work, was insufficient to impose

liability on the authorizing party under the doctrine of contributory

infringement. SBK Catalogue P’ship v. Orion Pictures Corp., 723 F.Supp. 1053,

1064-65 (D.N.J. 1989). SBK is distinguishable on its facts.

18

of copyrighted songs, but Aimster was not a direct infringer

because the songs resided on computers of individual users, not

Aimster’s server). 

Greubel also compares his case to the copyright-infringement

claims in Obolensky v. G.P. Putnam’s Sons, 628 F.Supp. 1552

(S.D.N.Y. 1986). Copyright owners brought suit against a

publishing company for infringement because a trade publication

had incorrectly listed Putnam’s as the publisher of the copyrighted

book. The court found that the plaintiffs had not stated a claim

for infringement of their right of distribution because it was

undisputed that the defendant never copied the book, never sold any

copies of the book, and never had any copies of the book in its

possession, custody or control. Id. at 1555-56.

Given that the complaint must be liberally construed in favor

of Plaintiffs at this stage of the proceedings, the court concludes

that the facts as pleaded against Greubel are comparable to the

claims in Hotaling, Duty, Payne and Alvarez, and distinguishable

from the circumstances present in Napster and Obolensky.13

Plaintiffs have done more than allege that Greubel maintained a

passive indexing system of copyrighted music. Plaintiffs assert

that Greubel made the copyrighted recordings available to others

without permission and actively reproduced and/or distributed the

copyrighted recordings as well.

 

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 14 By incorporating this request in his motion to dismiss, Greubel has not

complied with the local civil rules. Although a party may file a document that

contains more than one motion, the document must identify each included motion

in its title. N.D. TEX. LOC. CIV. R. 5.1(c). Greubel’s motion is titled only as

a motion to dismiss the complaint. 

 15 Local Rule 12.1, repealed effective September 1, 2006, was in effect

when Greubel filed his motion. It also prohibited a party from filing a motion

for more definite statement when the information sought could be obtained through

discovery. See N.D. TEX. LOC. CIV. R. 12.1.

19

Greubel fails to establish that Plaintiffs can establish no

set of circumstances under which they might prevail on their claim

of copyright infringement. Accordingly, the court concludes that

the motion to dismiss should be denied.

B. Motion for More Definite Statement

Pursuant to Federal Rule of Civil Procedure 12(e), Greubel

requests that the court order Plaintiffs to provide a more definite

statement to clarify ambiguous and vague allegations in the

complaint.14 Greubel relies on the same arguments he presented in

support of his contention that the complaint should be dismissed as

ambiguous and vague. He is complaining of matters that can be

clarified and developed during discovery, not matters that impede

his ability to form a responsive pleading.15 See Fed. R. Civ. P.

12(e); Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th

Cir.1959)(holding that Rule 12(e) is not to be used as a substitute

for discovery). An order directing Plaintiffs to provide a more

definite statement is not warranted. 

IV. ORDER

Defendant David Greubel’s Motion to Dismiss Plaintiffs’

Complaint [doc. # 15] is DENIED. His alternative motion for more

 

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20

definite statement is also DENIED.

SIGNED September 1, 2006.

 

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