1

 The lawsuit was initiated by a related but separate

corporation of the same name (“Old Embassy”) which, as explained

below, was administratively dissolved by the State of New

Hampshire. An amended complaint substituted “New Embassy” as the

plaintiff in this case. 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Embassy Software Corporation

v. Civil No. 06-cv-00391-JL

Opinion No. 2009 DNH 006

eCopy, Inc.

O R D E R

This case involves the validity of a copyright registration

obtained by a corporation that has been administratively

dissolved under state corporation law. The issue is potentially

dispositive because this court’s jurisdiction requires the

existence of a valid copyright registration. 

The plaintiff, Embassy Software Corporation (“New Embassy”),

has sued1 defendant eCopy, Inc., a Delaware corporation, alleging

copyright infringement in violation of 17 U.S.C. § 501 (2000 and

2002). The claim arises from what New Embassy claims is eCopy’s

unauthorized use of New Embassy’s intellectual property, a

portable document software program. This court has jurisdiction

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 1 of 20
2

under 28 U.S.C. §§§ 1331 (federal question), 1338 (copyright),

and 1367 (supplemental jurisdiction).

Before the court is eCopy’s motion for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c). ECopy

asserts that this court lacks jurisdiction because the copyright

registration at issue is invalid, having been obtained by an

administratively dissolved corporation, or in its words, “an

entity that did not exist.” After a hearing, and for the reasons

set forth below, eCopy’s motion is denied.

I. APPLICABLE LEGAL STANDARD

During the litigation of this dispositive motion, both

parties’ filings presented to the court matters outside the

pleadings. “If, on a motion under Rule 12(b)(6) or 12(c),

matters outside the pleadings are presented to and not excluded

by the court, the motion must be treated as one for summary

judgment under Rule 56.” Fed. R. Civ. P. 12(d); DeMayo v.

Nugent, 517 F.3d 11, 19 (1st Cir. 2008). Rule 12(d) “is perhaps

too infrequently invoked and too often overlooked. In a proper

case, it can be an excellent device for conserving time, expense,

and scarce judicial resources by targeting early resolution of

threshold issues.” Rivera-Gomez v. de Castro, 900 F.2d 1, 2 (1st

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 2 of 20
3

Cir. 1990) (decided under prior version of the rule). The court

will proceed under the directive of Rule 12(d) in this case.

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). In making this determination, the “court

must scrutinize the record in the light most flattering to the

party opposing the motion, indulging all reasonable inferences in

that party’s favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003).

II. BACKGROUND

The initial complaint and amended complaint in this action

created ambiguities as to the registration, ownership, and

ultimately the validity of the copyright in question. These

ambiguities triggered eCopy’s motion to dismiss because, as more

fully explained infra Part III, this court’s subject matter

jurisdiction depends on the registration of a valid copyright. 

Noting that the plaintiff carries the burden of establishing

subject matter jurisdiction, see Aversa v. United States, 99 F.3d

1200, 1209 (1st Cir. 1996), the court sua sponte ordered the

plaintiff to file a Second Amended Complaint “clearly alleging

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 3 of 20
2

 As required in a summary judgment analysis, this

statement of facts puts the background facts in the light most

flattering to New Embassy, indulging all reasonable inferences in

its favor. See Mulvihill, 335 F.3d at 19. The court notes that

these facts, as set forth in the pleadings, possess the clarity

of a muddy river; the basic contours of the flow can be

discerned, but not the existence of what lies beneath the

surface.

3

 In 1994, Tidd formed Tidal Software Corporation, which he

sold to eCopy in 1995. Tidal Software performed work for eCopy

prior to the acquisition, and Tidd went to work for eCopy as its

Vice President of Engineering. Tidd left eCopy’s employ in 1995.

4

facts establishing the proper claimants with respect to, and the

actual possessors of, the . . . copyright during the entire

period relevant to this litigation.” Embassy Software Corp. v.

eCopy, Inc., No. 06-cv-00391 at 4 (D.N.H. Oct. 30, 2008). The

court further invited supplemental briefing, id., of which only

eCopy took advantage. The Second Amended Complaint is the

subject of this motion, and forms the basis of the facts as set

forth below.2

Jeffrey K. Tidd, a software programmer and former employee

of eCopy,3 established Embassy Software Corporation (“Old

Embassy”) in 2001. Old Embassy and eCopy contracted for Old

Embassy’s development of a portable document format software

program referred to by the parties as “G1.” On November 7, 2003,

unbeknownst to both parties, Old Embassy was administratively

dissolved by the New Hampshire Secretary of State’s office for

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 4 of 20
4

 Actually, Old Embassy’s registered agent listed “Embassy

Software, Inc.,” rather than the corporation’s correct name,

“Embassy Software Corp.,” as the claimant with respect to G2, but

eCopy concedes, for the purposes of this motion, that that was a

clerical error and that Old Embassy was the intended copyright

claimant. 

5

failure to comply with routine filing requirements under New

Hampshire corporation law. N.H. Rev. Stat. Ann. 293-A:14.21

(Supp. 2008) (amended 2004, 2006).

Almost three years later, in August, 2006, Old Embassy

registered the copyright to a new portable document format

software program called “G2.”4 The copyright application listed

Tidd as author and Old Embassy as claimant. Tidd and eCopy had

been wrangling over whether G2 was a derivative program developed

from a prior iteration of G1, or an entirely new successor

product. Two months later, Old Embassy put the dispute into

suit, alleging in its complaint that it held a registered

copyright in G2. In its answer to Old Embassy’s complaint, eCopy

pointed out that Old Embassy had been administratively dissolved

in November, 2003, and alleged that the copyright registration of

G2 is therefore invalid because Old Embassy “did not exist” at

the time it purported to register G2 as copyright claimant in

2006. 

Old Embassy’s representatives attempted to reinstate its

active status under the statutory procedure in the New Hampshire

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 5 of 20
6

Business Corporation Act, see N.H. Rev. Stat. Ann. § 293-A:14.22-

a (Supp. 2008), but were foiled by eCopy’s pending counterclaim. 

An application for post-dissolution reinstatement, it turns out,

must “[c]ontain a statement asserting that no lawsuits are

pending against the corporation.” N.H. Rev. Stat. Ann. § 293-

A:14.22-a(a)(5). Tidd established a new corporation, also called

Embassy Software Corporation (“New Embassy”) in December, 2006,

and assigned all of his intellectual property interest in G2 to

New Embassy. New Embassy contends that as a result of these

assignments (more fully explained below), “from and after [the

administrative dissolution of Old Embassy], Tidd may have been

effectively conducting business in his personal capacity, doing

business as ‘Embassy Software,’ . . . [and] any and all causes of

action arising out of eCopy’s relationship with ‘Embassy’ have

been assigned for convenience to New Embassy.” (Second Am.

Compl. ¶ 12 (parenthesis omitted).) The original complaint was

amended in April 2007 to substitute New Embassy for Old Embassy

as plaintiff. 

New Embassy now claims that it holds a registered copyright

to G2. Specifically, New Embassy’s Second Amended Complaint

alleges that New Embassy came to own the G2 copyright as follows: 

Tidd executed a quitclaim assignment to Old Embassy of his right,

title, and interest he “might have had” in G2 in August, 2005

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 6 of 20
5

 The court will assume, as the parties do, that the

counterclaim precluded reinstatement under N.H. Rev. Stat. Ann. 

§ 293-A:14.22-a(a)(5), but does not adopt that proposition

indisputable as a matter of law.

6 This amendment at least superficially contradicted Tidd’s

quitclaim assignment of the copyright to Old Embassy in August

2005.

7

(id. at ¶ 16), a year before the G2 copyright was registered in

Old Embassy’s name. Once it came to light during this litigation

that Old Embassy had been administratively dissolved and could

not be reinstated because of eCopy’s counterclaim,5 Tidd

rescinded the Old Embassy assignment. About a month after New

Embassy was incorporated, Tidd again assigned his interest in G2,

but this time to New Embassy. Finally, in August 2008, 22 months

after this lawsuit was initiated (by Old Embassy, as owner to the

copyright by assignment alleging copyright infringement by

eCopy), a registration amendment was filed in the United States

Copyright office, (see Def’s Supplemental Mem. Exhibit B) adding

Tidd and his father, James Tidd, as additional claimants to the

G2 copyright as of its original registration.6

ECopy moves to dismiss on the grounds that the alleged

invalidity of the G2 copyright registration caused by Old

Embassy’s dissolution renders this court without jurisdiction.

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 7 of 20
7

 This second category “includes a person or organization

that has obtained, from the author or from an entity that has

8

III. ANALYSIS

Title 17 of the United States Code (the “Copyright Act”) 

governs copyrights. Section 411 provides that “no action for

infringement of the copyright in any United States work shall be

instituted until preregistration or registration of the copyright

claim has been made in accordance with this title.” 17 U.S.C. §

411(a) (2000). The First Circuit Court of Appeals has held that

this rule is jurisdictional; a complete application is a

jurisdictional prerequisite to filing suit in federal court for

copyright infringement. Torres-Negron v. J & N Records, LLC, 504

F.3d 151, 156 (1st Cir. 2007) (collecting cases); Data Gen. Corp.

v. Grumman Sys. Support Corp., 36 F.3d 1147, 1160 (1st Cir. 1994)

(“registration of the copyright is a prerequisite to suit under

the Copyright Act”).

Section 202.3 of the regulations promulgated by the

Copyright Office prescribes the conditions for the valid

registration of United States copyright. It defines a copyright

claimant as either the author of a work, 37 C.F.R. § 202.3(a)(3)

(i) (2007), or a “person or organization that has obtained

ownership of all rights under the copyright initially belonging

to the author.” 37 C.F.R. § 202.3(a)(3)(ii) (2007).7

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 8 of 20
obtained ownership of all rights under the copyright initially

belonging to the author, the contractual right to claim legal

title to the copyright in an application for copyright

registration.” Id. at n.1.

8 Of course, the reason Old Embassy was not retroactively

reinstated, thus presumably reestablishing the validity of its

copyright registration, see N.H. Rev. Stat. Ann. § 293-A:14.22-

a(f), was the mere existence of eCopy’s counterclaim. N.H. Rev.

Stat. Ann. § 293-A:14.22-a(a)(5). It is not lost on the court,

however, that with a single pleading--its answer and

counterclaim--eCopy put Old Embassy on notice that it had been

administratively dissolved (with all of the ensuing ramifications

for this court’s jurisdiction if the dissolution voided the G2

copyright registration), and simultaneously blocked Old Embassy

from retroactively curing the dissolution through a routine

statutory reinstatement procedure. N.H. Rev. Stat. Ann. § 293-

A:14.22 (Supp. 2008). This raises questions regarding the

operation of the applicable Business Corporation Act provisions,

and the effect of the counterclaim, that the court need not

answer in order to decide this motion.

9

The argument advanced by eCopy is deceptively simple. Since

Old Embassy had been administratively dissolved at the time it

was registered as G2 claimant, it “did not exist” as an

“organization” under § 202.3(a)(ii), and thus the copyright

registration was invalid.8

 Without a valid registration, argues

eCopy, this court lacks subject matter jurisdiction and New

Embassy’s infringement action must be dismissed. See, e.g.,

Morgan, Inc. v. White Rock Distilleries, Inc., 230 F.Supp.2d 104,

109 (D.Me. 2002). More specifically, eCopy argues that the G2

copyright is invalid because in registering the copyright, Old

Embassy either knowingly or inadvertently identified itself as

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 9 of 20
10

the copyright claimant--the error or implicit misrepresentation

being that Old Embassy existed. According to eCopy, “Tidd should

have know[n] at the time of the G2 [r]egistration application

that Old Embassy no longer existed.” ECopy goes on to claim that

“even if Tidd’s error was inadvertent, it is both material and

prejudicial, and thus renders the G2 [r]egistration invalid.” 

(Def’s Reply Mem. in Supp. of Def’s 12(c) Motion 7-8.) 

“The predominant rule is that an invalid registration

(involving material errors, fraud, or an incomplete application)

nullifies the federal court’s subject matter jurisdiction.” 

Torres-Negron, 504 F.3d at 160. “[M]ost errors or mistakes in a

copyright registration application will be inadvertent or

immaterial, and thus will not invalidate the application (or any

resulting certificate).” Id. at 162 (citing Data Gen. Corp., 36

F.3d at 1161). “In general, an error is immaterial if its

discovery is not likely to have led the Copyright Office to

refuse the application.” Data Gen. Corp., 36 F.3d at 1161. 

According to eCopy, “the error is material because the

Copyright Office’s regulations require a claimant to be a person

or organization and therefore, the Copyright Office would have

refused the application had it been aware that the identified

‘organization’ claimant, Embassy Software, Inc., did not exist.” 

(Def’s Mem. in Supp. of Rule 12(c) Motion 11-12.) But this

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 10 of 20
9

 This provision has never been interpreted by the New

Hampshire Supreme Court, but its similar predecessor provision,

also continuing corporate existence beyond the date of

administrative dissolution, was held by the court to expand,

rather than limit the rights and remedies of dissolved

corporations. See, e.g., Fischer v. City of Dover, 131 N.H. 469,

11

argument--that Old Embassy’s false (and implicit) representation

that it was an organization was material because the copyright

regulations require a claimant to be an organization--really just

begs the question. It explains only why the representation is

allegedly false, but not why it is materially so.

Further, eCopy’s argument mischaracterizes, or at least

misapprehends, New Hampshire corporation law. Its memorandum of

law quotes the New Hampshire Business Corporation Act provision

governing administrative dissolution, N.H. Rev. Stat. Ann. § 293-

A:14.21, in support of its claim that “[b]ecause it was

dissolved, Old Embassy did not exist at the time it was the

purported copyright claimant.” (Def’s Mem. in Supp. of 12(c)

Motion 9.) But that very provision states that the opposite is

true: “A corporation administratively dissolved continues its

corporate existence but may not carry on any business except that

necessary to wind up and liquidate its business and affairs under

[a separate provision] and notify claimants under [other

provisions].” N.H. Rev. Stat. Ann. § 293-A:14.21(b) (Supp. 2008) 

(emphasis added).9 Thus, Old Embassy did in fact exist, albeit

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 11 of 20
473-74 (1989); MBC, Inc. v. Engle, 119 N.H. 8, 11 (1979) (same)

(interpreting since-repealed N.H. Rev. Stat. Ann. § 294:98 (Supp.

1997). 

10 An ultra vires act is one that is “unauthorized [or]

beyond the scope of power allowed or granted by a corporate

charter or by law.” Black’s Law Dictionary 1559 (8th ed. 2004).

12

with statutory limitations on its permissible conduct, at the

time it was registered as the G2 copyright claimant. It is

therefore not clear that the specification of Old Embassy as

claimant was false or erroneous to begin with, let alone

knowingly or materially so.

This court’s inquiry thus shifts to whether Old Embassy, in

its limited post-dissolution capacity, could permissibly register

or hold the G2 copyright. ECopy contends that because it was

administratively dissolved, it lacked the authority to register

the copyright or take the assignment. While § 293-A:14.21(b)

certainly limits an administratively dissolved corporation’s

lawful activities to wind up, liquidation, and notification, it

does not follow that such an entity somehow “exists” only for

those purposes and “ceases to exist” for others. If anything,

eCopy’s argument in this vein amounts to a claim that Old

Embassy’s acceptance of an assignment and ownership of the G2

copyright was an ultra vires act.10

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 12 of 20
11 One case cited by eCopy warrants consideration. In

Foamation, Inc. v. Wedeward Enterprises, Inc., 947 F.Supp. 1287

(E.D.WI 1996), an unfair competition action that questioned the

validity of a claimed copyright registration involving the famous

foam “cheese wedge” hats worn by Green Bay Packers fans, the

United States District Court for the Eastern District of

Wisconsin found (in the context of a request for a preliminary

injunction) the plaintiff’s copyright registration to be likely

invalid where the plaintiff corporation did not yet exist at the

time it claimed authorship of the work in question. See id. at

1297 n.8. That ruling, however, was based on (1) misstatements

knowingly made (id. at 1297), see Torres-Negron, 504 F.3d at 162

(noting difference between inadvertence and fraud in deciding

jurisdictional issue), (2) a corporation that did not yet exist,

as opposed to being administratively dissolved at the time of

registration, id. at n.8, (3) a finding of pre-existence

authorship, an intrinsically affirmative activity id., as

opposed to the more passive receipt of an assignment of the work

in question, and (4) forfeiture of any copyright. Id. at 1298.

13

The fact that a corporate act is ultra vires, however, does

not mean that the act is necessarily void, or even voidable. 

“According to the better reasoning, a corporation has the

capacity, even if it does not have the authority, to do an ultra

vires act although there are decisions more or less to the

contrary.” 7A William Meade Fletcher, et al., Cyclopedia of the

Law of Private Corporations, § 3424 (Perm. ed., rev. vol. 2006)

(emphasis added). Although eCopy strives mightily to cite those

contrary cases,11 New Hampshire has expressly and definitively

adopted the “better reasoning” as described by Professor

Fletcher. The ultra vires provision of the Business Corporation

Act provides: 

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 13 of 20
12 Curiously, eCopy cited this very provision in its

opposition to New Embassy’s original counterclaim to defeat New

Embassy’s assertion of the ultra vires doctrine as a defense. 

Neither its written submissions nor its oral argument explained

why this statute defeats the plaintiff’s assertion of the ultra

vires doctrine, but not its own. At oral argument, eCopy argued

that the ultra vires provision was properly understood only to

prevent the inappropriate voiding of contracts entered by

corporate officers or agents that exceeded the corporate

authority under the articles of incorporation. Ultra vires acts,

however, include not only acts unauthorized by a corporate

charter, but those (as eCopy characterizes Old Embassy’s conduct

in this case) not authorized under the law. See supra n.9; 7A 

Fletcher, supra, § 3399 (“An ultra vires act or contract, . . .

according to the strict construction of the term, is one not

within the express or implied powers of the corporation fixed by

its charter, the statutes, or the common law.”) (emphasis added). 

14

Ultra Vires. No act of a corporation and no

conveyance or transfer of real or personal

property to or by a corporation shall be

invalid because the corporation was without

capacity or power to do the act or to make or

receive the conveyance or transfer, but the

lack of capacity or power may be asserted [by

a shareholder, the corporation itself, or the

N.H. Attorney General under specified

circumstances]. 

N.H. Rev. Stat. Ann. § 293-A:3.04 (2001).12 Therefore, under New

Hampshire law, the assignment to Old Embassy and registration was

at least presumptively valid. Further, there is no question that

eCopy is not among those statutorily authorized to assert the

ultra vires doctrine to challenge corporate conduct. And even if

Old Embassy’s conduct were not saved by the ultra vires statute,

it strains credulity to argue that the Copyright Office would

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 14 of 20
13 Even if the law were not so explicit on this point, the

administrative dissolution provisions cited by eCopy, §§ 293-

A:14.21 and 293-A:14.22, create the same inference by permitting

retroactive corporate status reinstatement through relatively

routine filings with the New Hampshire Secretary of State. 

14 Separate statutes or provisions that deal with the same

subject are “commonly referred to as statutes in pari materia. .

. .” 2B N.J. Singer & J.D. Singer, Sutherland Statutory

Construction, § 51:1 (7th ed. 2008) (“SUTHERLAND”). Thus, they

all should be construed together.” Id. § 51:2; Williams v.

Babcock, 121 N.H. 185, 190 (1981).

15

have rejected the G2 registration application on that basis. 

There is no reason to believe, and eCopy advances no persuasive

argument, that the Copyright Office would have analyzed Old

Embassy’s conduct under applicable New Hampshire corporation law

to determine whether Old Embassy’s ownership of the G2 copyright

was ultra vires, much less that it would have rejected the G2

copyright application on that basis.13

At oral argument, eCopy correctly pointed out that the

various statutory provisions that make up the Business

Corporation Act must be read and interpreted in pari materia.14

It then invoked a corollary of that canon of construction--that

where one statute deals with a subject in general terms, and

another does so more specifically, the more specific provision

will prevail in the event of a conflict, see SUTHERLAND, supra §

51:5--to suggest that New Hampshire’s ultra vires statute is

trumped by its administrative dissolution statutes. See

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 15 of 20
15 See 16A Fletcher, § 8134 (2003).

16

generally, State v. Gifford, 148 N.H. 215, 216 (2002); see also

State v. Bell, 125 N.H. 425, 432 (1984). Specifically, it

claimed that the ultra vires statute, N.H. Rev. Stat. Ann. § 293-

A:3.04, which would defeat its argument that the G2 copyright

registration is invalid, is rendered inapplicable by §§ 293-

A:14:21(b), limiting post-dissolution activities to wind-up,

liquidation, and notice, and § 293-A:14.05, a more specific list

of authorized post-dissolution activities. See N.H. Rev. Stat.

Ann. § 293-A:14.05 (2001) (authorizing post-administrative

dissolution asset collection, liability discharge, property

distribution to stockholders, and “every other act necessary to

wind up and liquidate its business and affairs”). The

specificity of these latter provisions, eCopy argues, overcomes

the ultra vires statute’s prohibition against the nullification

of Old Embassy’s purportedly unauthorized receipt of the G2

copyright assignment.

Assuming, without deciding, that the G2 copyright assignment

was beyond the scope of wind-up or other activities authorized by

§§ 293-A:14:21(b) and 293-A:14.05,15 the court nonetheless

rejects this argument. These post-dissolution provisions are not

more specific treatments of general issues covered by the ultra

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 16 of 20
17

vires statute. If anything, the converse is true. The postdissolution provisions explain what acts are authorized--and, by 

negative implication, unauthorized--after the administrative

dissolution of a corporation. The ultra vires statute, on the

other hand, addresses the legal effect of, and who may challenge,

any act deemed to be unauthorized for any number of reasons.

Moreover, in order to invoke this rule of statutory

construction, a party normally must demonstrate that the statutes

in question were enacted at different times and conflict each

other. See SUTHERLAND, supra, § 51:5. The statutes in question

were enacted contemporaneously, see 1992 N.H. Laws 255:1, and the

ultra vires statute logically follows, rather than contradicts,

the dissolution provisions. See SUTHERLAND, supra § 51:1-51:5

(in pari materia rule, including temporal and substantive

relationships between general and specific statutes). Finally,

as an extrinsic aid to statutory construction, the in pari

materia rule and its corollaries “may not be resorted to if the

statute,” like the ultra vires provision of the Business

Corporation Act, “is clear and unambiguous.” Id. § 51:1; see

Buchholz v. Waterville Estates Ass’n, 156 N.H. 172, 173 (2007).

Thus, both prongs of eCopy’s attack are defeated by New

Hampshire’s Business Corporation Act. First, Old Embassy existed

as an organization, albeit one with limited authority, at the

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 17 of 20
18

time of the G2 copyright registration. Second, its acts of

registering and receiving claimant status were within its

capacity, if not its statutory authority, and these acts are not

subject to any challenge by eCopy. Accordingly, eCopy’s motion

for judgment on the pleadings, treated as a summary judgment

under Rule 12(d), must fail. 

This decision is limited to the issue of the validity of the

G2 copyright registration on the grounds asserted by eCopy. 

Although both parties’ submissions also addressed New Embassy’s

standing to sue, eCopy was clear that its dispositive motion was

premised on the jurisdictional prerequisite of copyright

validity, and not the validity of New Embassy’s status as

copyright claimant. While this court is unprepared to grant

judgment as a matter of law based on copyright invalidity as it

relates to subject matter jurisdiction, it is not unmoved by

eCopy’s related argument. As eCopy points out, it is by no means

clear that New Embassy--the only plaintiff in the suit in its

current procedural posture--actually holds a legal interest in

the apparently valid G2 copyright. While it would seem to make

intuitive sense that Tidd intended to convey his authorshipconferred rights to Old Embassy, rescind the assignment, and then

make a similar assignment to New Embassy (making it the proper

plaintiff), the Second Amended Complaint contains inconclusive

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 18 of 20
19

and arguably inconsistent factual assertions. A clerical error

apparently made in registering the G2 copyright further clouds

the issue. See supra Part II, n. 4. Finally, New Embassy’s

“Form CA” amendment of the registration, challenged by eCopy as

an inappropriate vehicle to add claimants, contains information

which arguably contradicts and potentially undermines the

allegations in the Second Amended Complaint as they relate to

standing. See id., n. 6. Although the court ordered the

plaintiff to file that amended pleading to clarify the ownership

of record of the G2 copyright “during the entire period relevant

to this litigation,” the Second Amended Complaint raised as many

questions as it answered, and may invite further standing-based

challenges from the defendant.

IV. CONCLUSION

The defendant’s motion for judgment on the pleadings,

treated by the court as a summary judgment motion under Rule

12(d), is denied. Nothing in this order precludes the defendant

from making a summary judgment challenge to the validity of New

Embassy’s copyright claim, as opposed to the validity of the G2

copyright itself. The parties are ordered to file a revised

joint discovery plan under Rule 26 and Local Rule 26.1. 

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 19 of 20
20

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Dated: January 13, 2009

cc: Lawrence D.W. Graves, Esq.

Thomas J. Donovan, Esq.

Jonathan W. Lent, Esq.

Mark S. Puzella, Esq.

Jeremy T. Walker, Esq.

Case 1:06-cv-00391-JL Document 40 Filed 01/13/09 Page 20 of 20