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Live Face On Web, LLC v. Emerson Cleaners, Inc.

United States District Court, D. New Jersey

December 11, 2014

LIVE FACE ON WEB, LLC, Plaintiff,
v.
EMERSON CLEANERS, INC., Defendant

For Plaintiff: Jason L. Rabinovich, Esq., LAW OFFICE OF JASON RABINOVICH, PLLC, Philadelphia, PA.

For Defendant: Noam J. Kritzer, Esq., BAKOS & KRITZER, Florham Park, NJ.

OPINION

Page 552

HONORABLE JOSEPH E. IRENAS, Senior United States District Judge.

This is a copyright infringement suit.[1] Before the Court is Defendant Emerson Cleaners, Inc.'s (" Emerson" ) Motion to Dismiss for failure to state a claim for either direct or indirect copyright infringement. For the reasons set forth below, the Motion will be granted as to LFOW's contributory infringement claim and denied in all other respects.

I.

This is the first opinion in a series of three, all addressing similar factual and

Page 553

legal issues, and all involving Plaintiff LFOW's claims of copyright infringement.[2]

LFOW owns and develops software and video technology, which it licenses to individuals and businesses for use in online advertising. (Am. Compl. ¶ 11-12) LFOW's customers use the software to customize a " live" walking and talking " [video] spokesperson" to direct a website visitor's attention to particular products or aspects of the website. (Id. ¶ 12) LFOW allegedly is a " leading developer" of this technology. (Id. ¶ 11) LFOW's software and video player are alleged to be copyrighted work. (Id. ¶ 18)[3]

Emerson, which operates a dry cleaning business, had a video host that would appear when a person visited Emerson's website. (Am. Compl. ¶ 37) Emerson undisputedly did not obtain this capability from LFOW, which licenses its software packages to customers for a fee. Instead, the parties apparently do not dispute that Emerson obtained the live spokesperson capability from Tweople, Inc., which LFOW has separately sued for copyright infringement in the Middle District of Florida.[4]

According to the LFOW v. Tweople complaint (Exhibit B to Emerson's Motion to Dismiss), Tweople blatantly copied LFOW's source code and began offering live spokesperson services to Tweople's customers using LFOW's source code. The exact mechanics of how Emerson was able to operate the video host on its website is not clear at this point in the case. The Amended Complaint merely alleges that Emerson " used" an " unlawful version of LFOW's Software." (Am. Compl. ¶ 35)[5]

What allegedly happened when a person visited Emerson's website is particularly relevant to the instant Motion. According to the Amended Complaint, ¶ 15:

When a web browser is directed to a website which has incorporated LFOW

Page 554

Technology, the website distributes a copy of the LFOW Software, which is automatically downloaded by the web browser into cache and/or computer memory and/or hard drive, allowing the launch of the specified video using the LFOW Software. As a result, every time a website with LFOW's Software is visited, a copy of LFOW's Software is distributed to the website visitor.

The Amended Complaint asserts one claim for " copyright infringement." However, that one " copyright infringement" claim states that it " is an action under 17 U.S.C. § 501 for direct, indirect, vicarious, and/or contributory infringement of registered copyright(s)." (Am. Compl. ¶ 78)

II.

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint " for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 8(a)(2). While a court must accept as true all factual allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III.

The Court addresses first the direct infringement claim, and then the ...


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