Calibrated Success, Inc. v. Charters

72 F.Supp.3d 763

CALIBRATED SUCCESS, INC., Plaintiff

v.Jonathan Andrew CHARTERS, Defendant.

Case No. 13–cv–13127.

United States District Court, E.D. Michigan, Southern Division.

Signed Dec. 15, 2014.

Gregory M. Filar, Sterling Heights, MI, for Plaintiff.

Jonathan Andrew Charters, Essexville, MI, pro se.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S FOR SUMMARY JUDGMENT (DOC. 11)

VICTORIA A. ROBERTS, District Judge.

I. INTRODUCTION AND BACKGROUND

Calibrated Success Incorporated (“Calibrated”) holds the copyright to a video entitled “GM EFI Tuning Beginner's Guide ” (“Calibrated's Tuning Guide”). The video instructs viewers how to modify and enhance performance of their cars. The host and instructor of the video is Greg Banish (“Banish”), principal of Calibrated. To create this video Banish enlisted the help of David Bruckshaw (“Bruckshaw”). Bruckshaw has experience in videography, video editing, and first hand knowledge about Calibrated's Tuning Guide. Calibrated created the video to sell to the public for $249.95.

During the summer of 2010, Defendant Jonathan Charters (“Charters”) downloaded Calibrated's Tuning Guide from a website named Pirate Bay. He made 50 to 75 copies to sell them for $35.00 to $50.00 each. Charters used different websites, emails, and user names to sell copies of Calibrated's Tuning Guide. On July 22, 2013 Calibrated sued Charters for copyright infringement under 17 U.S.C. § 501(a). It says Charters violated its exclusive right to reproduction under and 17 U.S.C. § 106(1), and distribution under 17 U.S.C. § 106(3). During a deposition Charters admitted that he downloaded and duplicated an entire copy of Calibrated's Tuning Guide 50 to 75 times. He admitted he sold each copy in the range of $35.00 to $50.00, and each copy contained the entire Calibrated Tuning Guide.

In response to Calibrated's motion for Summary Judgment now before the Court, Charters says downloading and copying the Tuning Guide was de minimis, and his actions constitute fair use.

The Court GRANTS in part and DENIES in part Calibrated's motion for Summary Judgment.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) says a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A party asserting that a fact cannot be genuinely disputed must support the assertion by citing to particular parts of materials in the record, including depositions, documents, or other materials. Fed.R.Civ.P. 56. The burden is on the moving party to show that no genuine issue of material facts exist, and a court should evaluate the evidence in the light most favorable to the non-moving party. Gen. Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405, 412 (6th Cir.2006).

To create a genuine issue of material fact, the non-moving party must present more than a mere scintilla of evidence in support of his position to raise some doubt as to the existence of a fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party must bring forth sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. at 249–50, 106 S.Ct. 2505.

III. DISCUSSION

A. Copyright Infringement

Anyone who violates any of the exclusive rights enumerated in 17 U.S.C. § 106(a) granted to a copyright holder is liable for copyright infringement. 17 U.S.C. § 501(a). The prima facie case for copyright infringement has two elements. The first element requires proof of ownership of a valid copyright. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). This element is presumptively established by the copyright registration. Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir.2004) (abrogated on other grounds). A certificate made before or within five years after the author first publishes the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. 17 U.S.C. § 410(c).

The second element requires a showing that the defendant violated at least one of the five exclusive rights granted to a copyright holder under 17 U.S.C. § 106. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001).

Calibrated claims a violation of the exclusive right of reproduction and distribution. To show a violation of the exclusive right of reproduction under § 106(1), the plaintiff must demonstrate the defendant copied “protectable elements of the work.” Lexmark, 387 F.3d at 534 ; Feist, 499 U.S. at 361, 111 S.Ct. 1282. And, to show a violation of the exclusive right of distribution under § 106(3), the plaintiff must establish that the defendant actually distributed identifiable copies of the work. Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976, 981 (D.Ariz.2008) ; Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir.2007).

Calibrated establishes a prima facie case of copyright infringement against Charters. Calibrated satisfied the first element by providing a certificate of registration identifying the work, author, and date of first publication. The effective date of the certificate is February 11, 2013, and the date of first publication was June 1, 2009. The alleged infringing conduct occurred in 2010 through 2011, which is within five years of first publication. Therefore, the certificate is valid to show ownership of a copyright.

Calibrated satisfied the second element of its prima facie case for copyright infringement under § 106(1) and § 106(3). With respect to § 106(1) —the right of exclusive production—Charters admitted he downloaded Calibrated's Tuning Guide from Pirate Bay and made and sold 50 to 75 copies of the video. Charters Dep. 15:16–17:23, January 15, 2014. Bruckshaw, analyzed a disc that Charters allegedly sold, and described the video on the disc as being an “almost perfect ... replication of Mr. Banish's work.” Bruckshaw Dep. 22:17–20, December 17, 2013. Thus, Calibrated has established that Charters infringed its exclusive right to reproduction of the Tuning Guide under § 106(1). Moreover, with respect to § 106(3), Calibrated demonstrated Charters violated its exclusive right to distribution because he admitted in his deposition that he sold all 50 to 75 copies of the Tuning Guide for $35.00 to to $50.00 dollars. Charters' Dep. 17:19–18:1.

After examining all evidence in the light most favorable to Charters, the Court finds Calibrated established a prima facie case for copyright infringement against Charters. Charters has not presented evidence or arguments to rebut this finding. However, the Court must evaluate if the de minimis and fair use defenses relieve him from liability.

B. The De Minimis Defense

Charters says his infringement was de minimis. The de minimis defense requires the alleged infringer to show that his copying of the “protected material is so trivial as to fall below the quantitative threshold of substantial similarity.” Gordon v. Nextel Commc'ns & Mullen Adver., Inc., 345 F.3d 922, 924 (6th Cir.2003). The quantitative threshold of substantial similarity to the copyrighted work takes into account the amount of the copyrighted work that was copied, and its observability, which is determined by the length of time the copyrighted work appears in the allegedly infringing work. Id.

The Court finds that Charters copying of Calibrated's Tuning Guide was not de minimis. Instead, Charters deposition demonstrates just the opposite; Charters admits downloading Calibrated's Tuning Guide in its entirety. Charters Dep. 35:10–11. There is nothing de minimis about copying an entire video. Instead, such acts constitute actionable copyright infringement.

C. Fair Use Doctrine

Charters says he is not liable for copyright infringement because his conduct falls under fair use. The fair use doctrine allows for non copyright holders to use a work for a particular purpose, such as criticism, comment, news reporting, teaching, or research. 17 U.S.C. § 107. There are four factors a court should examine to determine if the use was fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107 ; Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560–61, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).

The Court examines each element.

1. Purpose and Character of the Use

This factor evaluates whether the new work is transformative, and to what extent the purpose of the new work is commercial. To see if the work is transformative, a court should examine whether it “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning, or message.” Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (internal citations and quotation marks omitted) See also, Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574, 582 (6th Cir.2007). “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164. Nonetheless, commercial use still weighs “against a finding of fair use” because “commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.”Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).

Charters begins his fair use argument by framing his activities as wanting to help other car enthusiasts learn about automotive...