United States District Court, D. New Jersey
LAW OFFICE OF JASON RABINOVICH, PLLC, Jason L. Rabinovich, Esq., Philadelphia, PA, Counsel for Plaintiff.
BRAY & BRAY, LLC Geoffrey T. Bray, Esq., Parsippany, NJ, Counsel for Defendant.
JOSEPH E. IRENAS, District Judge.
This is a copyright infringement suit. Before the Court is Defendant Linvas Corp., t/a Sunrise Gentlemen's Club's ("Linvas") 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.
This is the third opinion in a series of three, all addressing similar factual and legal issues, and all involving Plaintiff LFOW's claims of copyright infringement.
LFOW owns and develops software and video technology, which it licenses to individuals and businesses for use in online advertising. (Compl. ¶ 8-9, 14) 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. ¶ 9-10) LFOW allegedly is a "leading developer" of this technology. (Id. ¶ 8) LFOW's software is alleged to be copyrighted work, registered with the U.S. Copyright Office. (Id. ¶ 15)
Linvas allegedly "operated its website using an unlawful version of LFOW's software." (Compl. ¶ 18) The software version Linvas used is alleged to be unlawful because the version came from Tweople, Inc., rather than LFOW. (Compl. ¶ 18)
According to the Complaint LFOW filed against Tweople in the Middle District of Florida (Exhibit A to Linvas' Motion to Dismiss), Tweople blatantly copied LFOW's source code and began offering live spokesperson services to Tweople's customers (including Linvas) using LFOW's source code.
According to the Complaint in this case, in order to "implement" the infringing software from Tweople, Linvas "modified" its website to include a source code that "link[ed]" Linvas' website "to the infringing software." (Compl. ¶ 19)
What allegedly happened when a person visited Linvas' website is particularly relevant to the instant Motion. According to the Complaint:
12. When a web browser is directed to a website which has incorporated LFOW 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.
21. As a result of the modification to [Linvas'] website... a copy of the infringing software is distributed by [Linvas] to each visitor to its website, which is necessarily stored on the website visitor's computer.
22. [Linvas] intends for a copy of the infringing software to be distributed to website visitors, as this is necessary for the video spokesperson to appear on the screen of the website visitor. The volitional distribution of the infringing software by [Linvas] to its website visitors is seamless and transparent for the website visitors, who are able to ...