Attorney Steve® BitTorrent Litigation Essentials – Flava Works Lawsuits (Illinois and Florida)
This blog involves demand letters and lawsuits brought by Flava Works. This company strongly enforces their copyrights so it is very wise to seek legal counsel before trying to handle this case on your own.
Sample allegations in a Flava Works lawsuit
Here is one lawsuit I found filed by Flav a Works alleging copyright infringement. Some sample allegations are:
From the motion to dismiss for lack of jurisdiction:
“Introduction Plaintiff, a Florida adult entertainment company, bases its action on the alleged posting of its copyrighted works on Internet websites by Defendant, an individual residing in New York with no relevant connections to Illinois. Since this court lacks personal jurisdiction over Defendant, dismissal is proper under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Since venue is improper, dismissal is proper under Rule 12(b)(3) of the Federal Rules of Civil Procedure. Furthermore, since the Complaint fails to state any claim upon which relief can be granted, dismissal is proper under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
As a threshold matter, this same Complaint was dismissed in its entirety by the Honorable Judge Edward Chang of this same Court “because the current complaint fail[ed] to allege the necessary operative facts.” Flava Works, Inc. v. Clavio, 11 C 05100, 2012 WL 2459146 (N.D. Ill. June 27, 2012). See a True and Correct Copy of Judge Chang's Memorandum Opinion and Order (the “Order”) attached as Exhibit B. 1 As Judge Chang's Order points out, Plaintiff's Second Amended Complaint fails to plead any set of facts that would satisfy the elements of direct, contributory, vicarious or “induced” copyright infringement. Specifically, Plaintiff has failed to indicate the exact copyrighted material Rossi downloaded, when he downloaded it, where he made it available, to whom he made it available, and how he made it available. Consequently, it does not present any redressable cause of action against Rossi and must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As Judge Chang's Order points out, Plaintiff's Second Amended Complaint fails to plead any set of facts that would satisfy the elements of direct, contributory, vicarious or “induced” copyright infringement. Specifically, Plaintiff has failed to indicate the exact copyrighted material Rossi downloaded, when he downloaded it, where he made it available, to whom he made it available, and how he made it available. Consequently, it does not present any redressable cause of action against Rossi and must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.”
Attacking the merits of the infringement claim:
“Plaintiff has failed to allege facts that would satisfy both elements of direct copyright infringement. The elements of copyright infringement are: (i) ownership of a valid copyright; and (ii) copying of constituent elements original to the work. Feist Publ., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361; JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007).
Plaintiff's Complaint does not address these requirements in sufficient detail. Plaintiff's Complaint does not allege any specific act of copying by Rossi and thus fails to satisfy the second element of direct copyright infringement. Plaintiff pleads only that Rossi “downloaded copyrighted videos of Flava Works” and “posted and distributed” them on certain unnamed websites. Plaintiff clearly, and appropriately, alleges that Rossi was at all relevant time a paid member of Plaintiff's website, and nowhere does Plaintiff allege that Rossi's downloading of any videos was improper.
The Complaint does not state:
(i) which specific videos were posted and distributed;
(ii) who among the original defendants did the posting;
(iii) when the posting and distribution supposedly occurred;
(iv) to which websites the videos were posted;
(v) to whom the videos were distributed; or
(vi) what steps were taken to effectuate the posting and distribution.
Plaintiff fails to specify any acts of downloading, copying, or distribution that Rossi committed. Notably, Plaintiff's Complaint would be deficient even had it been pled with sufficient specificity that Rossi had posted a particular video to a particular website. Without more, this allegation would not support a cause of action for copyright infringement because “posting” a video to a website is not per se copyright infringement. Plaintiff bases its claim in Count I on 17 U.S.C. sections 106 and 501.
Section 106 gives the holder of a copyright the exclusive right to, among other things, “reproduce the work in copies,” “distribute copies . . . by sale or other transfer of ownership,” and “display the copyrighted work publicly.” 17 U.S.C. § 106. Rather than explaining how Rossi reproduced or displayed or transferred ownership of Plaintiff's works, Plaintiff rests on the conclusion that “Defendants' conduct interfered with Plaintiff's exclusive right to reproduce, distribute and display the copyrighted works.” Plaintiff's Complaint appears to assume that posting a video to a website is synonymous with reproducing the work in copies. This is not necessarily so. For example, a “post” might merely be a link to a preexisting file, necessitating no reproduction of copies. See, Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1155 (9th Cir. 2007); See, Flava Works, Inc. v. Gunter, 2011 U.S. Dist. LEXIS 98451(N.D. Ill. 2011) (merely suggesting that “posting” a work can sometimes involve copying or displaying it).
Without a more specific description of what Rossi allegedly did, this court has been given nothing from which to conclude that the “posting” here involved copyright infringement. As a result, Count I of Plaintiff's Complaint fails to adequately allege direct copyright infringement and it should be dismissed.”
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If you received a letter from Flava Works BEFORE you call them CALL us to discuss your legal rights. Flaca Works can be very tough in enforcing their legal rights, and as shown above, they are NOT AFRAID to file a federal copyright infringement lawsuit. You can reach us at (877) 276-5084 for a free initial consultation. Our boutique copyright infringement law firm has a vast amount of experience handling software audits, torrent defense, and photography infringement cases. In this area of law, there is no substitute for experience!