Thursday, October 25, 2012

Developer's Suit Against Blogger Survives Motion To Dismiss!

We've been tracking this case brought by a wealthy developer against a local, formerly anonymous blogger over negative blog posts for a while, and now Judge King has authorized the suit to proceed:
In short, Defendant acknowledges using Plaintiff's copyrighted picture without Plaintiff's consent, but argues that she was not liable under copyright's fair use doctrine. The Court, being fully briefed on the matter, finds that Plaintiff has adequately stated a prima facie case of copyright infringement; on these facts and filings, Defendant's fair use defense is not appropriate for determination on a motion to dismiss. Accordingly, Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be denied.
In other words, the fair use doctrine defense will have to be decided on summary judgment:
Here, Defendant alleges that her use of the Image was not for parody but for news reporting and commentary. (DE #14, p. 10). Though news reporting and commentary lend themselves to fair uses, see 17 U.S.C. sec. 107, such a determination is far from automatic and is more appropriately resolved after the complaint has been answered and parties have evaluated any need for discovery.
But if the Image and the posts in which it appears are in the complaint, what further discovery would be needed?

If they are not, perhaps put them in the answer and move for judgment on the pleadings?

4 comments:

GB said...

I hereby tender my resignation.

Anonymous said...

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