Greer v. Moon

83 F.4th 1283

Russell G. GREER, Plaintiff-Appellant, v. Joshua MOON, an individual; Kiwi Farms, a website, Defendants-Appellees.

No. 21-4128

United States Court of Appeals, Tenth Circuit

FILED October 16, 2023

On Appeal from the United States District Court for the District of Utah, Case No. 2:20-CV-00647-TC

Andrew Grimm of The Digital Justice Foundation, Omaha, Nebraska, for Appellant.

Gregory Skordas of Skordas & Caston, LLC, Salt Lake City, Utah, for Appellees.

Before BACHARACH, MORITZ, and ROSSMAN, Circuit Judges.

ROSSMAN, Circuit Judge.

When he discovered his copyrighted book and song online, Plaintiff Russell Greer sent a "takedown notice" to Defendants Joshua Moon and his website Kiwi Farms, requesting the material be removed from the Kiwi Farms site. See 17 U.S.C. § 512(c) (codifying notice-and-takedown process). When Mr. Moon refused to remove the infringing material from Kiwi Farms, Mr. Greer sued the Defendants for copyright infringement. The district court granted the Defendants' motion to dismiss, concluding Mr. Greer failed to state a claim. Exercising jurisdiction under 28 U.S.C. § 1291, we disagree, and reverse and remand for further proceedings.

I

A

To "promote the Progress of Science and useful Arts," the Constitution empowers Congress to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8, cl. 8. Since 1790, Congress has effected this goal by legislating to grant copyright holders a bundle of rights, including the use and distribution of their copyrighted materials. See, e.g., Copyright Act of 1790, Pub. L. No. 1-15, 1 Stat. 124.

Nearly fifty years ago, to address "significant changes in technology affect[ing] the operation of the copyright law," H.R. Rep. No. 94-1476, at 47, Congress enacted the Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. § 101 et seq.). The Copyright Act of 1976 provides "[a]nyone who violates any of the exclusive rights of the copyright owner" shall be "an infringer . . . ." 17 U.S.C. § 501(a); see also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) ("Anyone who violates any of the exclusive rights of the copyright owner, that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work . . . is an infringer of the copyright.") (internal quotation marks, citations omitted). Under the same Act, those "exclusive rights" include the rights "to reproduce the copyrighted work," "to distribute copies . . . of the copyrighted work to the public," "to display the copyrighted work publicly," and "to perform the copyrighted work publicly by means of a digital audio transmission." 17 U.S.C. § 106(1), (3)-(6).

While the Copyright Act itself does not "expressly render anyone liable for infringement committed by another," Sony Corp., 464 U.S. at 434, 104 S.Ct. 774,¹ federal courts have long recognized and applied theories of secondary liability, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) (explaining "doctrines of secondary liability emerged from common law principles and are well established in the law"). In applying secondary liability to copyright infringement, the Supreme Court explained the imposition of liability on those who have not themselves directly infringed "is grounded on the recognition that adequate protection of a [copyright] monopoly may require the courts to look beyond actual duplication . . . to the products or activities that make such duplication possible." Sony Corp., 464 U.S. at 442, 104 S.Ct. 774.²

There are several flavors of secondary liability for copyright infringement.³

Vicarious liability attaches when the secondary infringer has "an obvious and direct financial interest in the exploitation of copyrighted materials" and "the right and ability to supervise" the direct infringer. Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963); see also Diversey v. Schmidly, 738 F.3d 1196, 1204 (10th Cir. 2013) (drawing this test from the Second Circuit's opinion in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). Vicarious liability has no knowledge requirement, based as it is on the common law doctrine of respondeat superior. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262 (9th Cir. 1996).

Under the inducement rule, the Supreme Court has held "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Grokster, 545 U.S. at 936-37, 125 S.Ct. 2764. Inducement requires a showing of "affirmative intent," such as "active steps . . . taken to encourage direct infringement" or "advertising an infringing use." Id. at 936, 125 S.Ct. 2764 (quoting Oak Indus., Inc. v. Zenith Elec. Corp., 697 F. Supp. 988, 992 (N.D. Ill. 1988)); see also id. at 937, 125 S.Ct. 2764 ("The inducement rule . . . premises liability on purposeful, culpable expression and conduct . . . .").

Mr. Greer proceeds under a third theory, contributory liability (or contributory infringement). Applying this theory in Diversey, we explained "contributory liability attaches when the defendant causes or materially contributes to another's infringing activities and knows of the infringement." 738 F.3d at 1204 (citation omitted); see also Grokster, 545 U.S. at 930, 125 S.Ct. 2764 ("One infringes contributorily by intentionally inducing[⁴] or encouraging direct infringement . . . .") (citation omitted). From our holding there, we identify three elements to a claim of contributory infringement: (1) direct infringement ("another's infringing activities"); (2) knowledge of direct infringement (the defendant "knows of the infringement"); and (3) contribution to direct infringement ("the defendant causes or materially contributes").

"One way of establishing contributory liability is by showing a defendant 'authorized the infringing use.' " Diversey, 738 F.3d at 1204 (quoting Softel, Inc. v. Dragon Med. & Scientific Comms., Inc., 118 F.3d 955, 971 (2d Cir. 1997)); see also 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.04[A][3][a] (2023) ("[I]n order to be deemed a contributory infringer, the authorization or assistance must bear some direct relationship to the infringing acts, and the person rendering such assistance or giving such authorization must be acting in concert with the infringer.").

B

Mr. Moon owns and operates Kiwi Farms, a site "built to exploit and showcase those Moon and his users have deemed to be eccentric and weird . . . ." RI.12-13.⁵ Many of Kiwi Farms' targets are physically or mentally disabled, RI.13 (quoting Mr. Moon describing "the mushmouthed autistic people we make fun of"), and Mr. Greer himself suffers from a form of facial paralysis. Kiwi Farms users allegedly "stalk and harass" these and other individuals. RI.13. According to Mr. Greer's complaint and request for a preliminary injunction, Mr. Moon and Kiwi Farms users have been implicated in three suicides, a school shooting in New Mexico, and a clash with New Zealand authorities over information about terrorist attacks at mosques in Christchurch.

After he sued a well-known pop star in 2016, Kiwi Farms users turned their attention to Mr. Greer and began "a relentless harassment campaign"; this effort included "direct harassment via phone, email, and social media," "schemes that successfully got him fired from his workplace and evicted," and the creation of "false social media profiles that impersonate him with names . . . that mock his physical and developmental disabilities." Appellant Br. at 19 (citing RI.13-15, ¶¶ 18-19, 21, 24, 28).

To "explain his side of things and to hopefully clear up the slander surrounding him," Mr. Greer wrote a book. RI.15. He self-published and copyrighted the book, Why I Sued Taylor Swift and How I Became Falsely Known as Frivolous, Litigious and Crazy, around November 2017. By January 2018, Mr. Greer discovered "his book had been illegally put onto Kiwi Farms." RI.18. Under the title "Rusty's Tale," Kiwi Farms users provided a Google Drive link to a full copy of Mr. Greer's book. RI.18. "[W]ishing to avoid litigation," Mr. Greer sent Mr. Moon email "requests to have his book removed." RI.18. Mr. Moon refused the requests and then "published [Mr. Greer's] requests onto Kiwi Farms and explained there was so 'much wrong' with [the] request for it to even be considered." RI. 18. Other Kiwi Farms users "created unauthorized audio recordings of Greer's books and have put them on various sites," including one user operating with the hashtag "Spaz Face as a direct, discriminatory insult against Greer." RI.19. Through the Google Drive link, "anybody [can] view and . . . save" Mr. Greer's book "onto their devices"; Mr. Greer alleged this activity has "purposely deprived Greer of making money . . . ." RI.19.

After "his book had hit a snag because of the bad reviews" allegedly left by Kiwi Farms users, Mr. Greer opted "to write a song because he felt he could bring awareness better with a song." RI.19. He "[i]nvest[ed] his own money writing and producing the song with professionals . . . ." RI.19. He registered his copyright to the song, I Don't Get You, Taylor Swift, in mid-April 2019.

Within days, however, Mr. Greer discovered his new song had been uploaded to Kiwi Farms. A Kiwi Farms user under the name "Russtard" encouraged its dissemination on the site "so no one else accidentally gives Russell [Greer] money." RI.20.

Convinced now that Kiwi Farms users "willfully infringed on [his] copyright" and "openly conspired to steal [his] works and deprive [him] of money," Mr. Greer "decided to prepare for legal action." RI.20. Pursuant to the...