AGENCE FRANCE PRESSE v. GOOGLE INC. Doc.

26
Case 1:05-cv-00546-GK Document 26 Filed 10/24/2005 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Agence France Presse, )

1015 15th St NW, )
Washington, DC 20005 )
)
Plaintiff, )
) CIVIL ACTION NO.: 1:05CV00546 (GK)
v. )
)
Google Inc., ) MEMORANDUM OF POINTS AND
a California Corporation, ) AUTHORITIES IN OPPOSITION TO
1600 Amphitheatre Pkwy, ) GOOGLE’S MOTION TO DISMISS
Mountain View, CA 94043 )
) NEXT HEARING DATE: March 21, 2006
Defendant. ) (Status Conference)
)
)

I. INTRODUCTION

Plaintiff Agence France Presse (“AFP”) filed suit against Defendant Google Inc.

(“Google”) for the copyright infringement of AFP’s photographs, news headlines and story

leads and the misappropriation of AFP’s “hot news.” Google answered AFP’s Amended

Complaint by admitting that it includes what it describes as “links” to headlines, story leads

and “thumbnails” of news photographs on Google News, but otherwise denying AFP’s

allegations.

Despite having answered AFP’s Amended Complaint, Google now asks the Court to

dismiss AFP’s claim for copyright infringement, in its entirety, for failure to meet the

pleading requirements of Fed. R. Civ. P. 8(a) and otherwise, for failure to state a claim.

Google’s Motion draws heavily on a recent ruling from Judge Walton of this Court,

Newborn v. Yahoo, No. Civ. A. 04-659, 2005 WL 2416336, at *3 (D.D.C. Sept. 27,

2005), which tested the sufficiency of a complaint under Rule 8(a) using a four-part

formula specific to copyright claims. This Court should deny Google’s Motion to Dismiss

because AFP’s Amended Complaint meets the pleading requirements of Rule 8(a) and

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otherwise states a cognizable claim for copyright infringement. Google’s Motion, which

misconstrues and misapplies Rule 8(a), Rule 12(c) and the four-part pleading formula for

copyright claims, strongly suggests that Google is merely trying to avoid providing AFP

with discovery concerning Google’s acts of infringement. This Court should not tolerate

Google’s attempt to avoid responsibility for its repeated acts of infringement. 1

II. ARGUMENT

1. Standard of Review

This Court should deny Google’s Motion to dismiss AFP’s Amended Complaint

for failure to comply with Fed. R. Civ. P. 8(a). Rule 8(a) requires that a pleading include

the following:

(1) a short and plain statement of the grounds upon which the court’s jurisdiction

depends, unless the court already has jurisdiction and the claim needs no grounds of

jurisdiction to support it,

(2) a short and plain statement of the claim showing that the pleader is entitled to

relief, and

(3) a demand for judgment for the relief the pleader seeks.

Google also asks this Court to enter judgment on the pleadings under Fed. R. Civ.

P. 12(c). Rule 12(c) provides that “[a]fter the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings.”

1
As one District Court lamented in ruling on a similar motion under Fed. R. Civ. P. 12(b)(6): “Like the
majority of Fed. R. Civ. P. (“Rule”) 12(b)(6) motions, in principal part this one has accomplished little
except to delay the real commencement of litigation, keep the meters running for two sets of lawyers and
occupy time of this Court and one of its clerks that would have been better spent on more constructive
matters. Were fewer such motions filed there might be time available for an empirical study of just what
percentage are the product of a refusal to acknowledge the notice pleading concept that has underlain the
Rules from the beginning.” Washington v. City of Evanston, 535 F. Supp. 638, 640 n.2 (N.D. Ill. 1982).

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The standard by which this Court must review Google’s Motion is a familiar one:

AFP’s Amended Complaint should stand and this case should proceed, “unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which

would entitle [it] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). At this stage, the trial court is not called

upon to assess “the truth of what is asserted or [to] determin(e) whether a plaintiff has

any evidence to back up what is in the complaint.” ACLU Found. of S. Cal. v. Barr, 952

F.2d 457,467 (D.C.Cir.1991). The allegations in AFP’s Amended Complaint are

presumed true and all reasonable factual inferences are to be construed in its favor.

Maljack Prods., Inc. v. Motion Picture Ass’n of Amer., Inc., 52 F.3d 373, 375 (D.C. Cir.

1995). The Supreme Court says that the Federal Rules of Civil Procedure require only

that a plaintiff in his or her complaint “simply ‘give the defendant fair notice of what the

plaintiff’s claim is and the grounds upon which it rests’... [as the] simplified notice

pleading standard relies on liberal discovery rules and summary judgment motions to

define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley, 355 U.S. at 47).

AFP does not dispute that in applying Rule 8 to copyright claims, some courts

employ a four-part heightened pleading requirement by which a plaintiff must allege:

(1) which specific original work is the subject of the copyright claim, (2) that the

plaintiff owns the copyright, (3) that the work in question has been registered in

compliance with the statute, and (4) by what acts and during what time the defendant

infringed the copyright. Newborn v. Yahoo, No. Civ. A. 04-659, 2005 WL 2416336, at

*3 (September 25, 2005); Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816, 820 (W.D.

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Mo. 1986) (“In applying Rule 8 to copyright infringement actions, courts have required

that particular infringing acts be alleged with some specificity.”), aff’d, 833 F.2d 117 (8th

Cir. 1987). But see Conan Props., Inc. v. Mattel, Inc., 601 F. Supp. 1179, 1183

(S.D.N.Y. 1984) (quoting Conley and stating that the Federal Rules do not require a

claimant to set out detailed facts in a copyright complaint.).

Even if this Court follows a four-part pleading standard for copyright claims,

Google’s Motion still grossly overstates the level of detail required to meet that pleading

standard in the context of Rule 8(a). Rule 8(a) only requires a plaintiff to present “a short

and plain statement of the claim.” Fed. R. Civ. P. Rule 8(e) even cautions against overly

detailed pleadings, stating that “each averment of a pleading shall be simple, concise, and

direct.”

2. AFP’s Amended Complaint Meets the Four-Part Pleading Standard for

Copyright Claims.

In addition to grossly overstating the requirements of Rule 8(a), Google grossly

understates the adequacy of AFP’s Amended Complaint. AFP’s Amended Complaint is

more than sufficient to survive Google’s challenge under Rule 8(a) and Rule 12(c).

Indeed, contrary to Google’s assertion, AFP’s Complaint does satisfy the four-part

pleading requirement adopted by Judge Walton in Newborn v. Yahoo and does allege

particular infringing acts with specificity.

First, AFP alleged which specific works are the subject of the claims of

infringement and hot news misappropriation - AFP’s photographs and news stories,

particularly the headlines and story leads from AFP’s news stories. See Amended

Complaint at 28-35; 51; 59; 67; 76-79.; 91-92. AFP identified specific examples of these

works in the Amended Complaint (Amended Complaint Exhibits A1, A2, A3 and A4)

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and through its discovery responses. See attached Exhibits A-D. AFP should not be

denied the opportunity to bring a complaint for infringement because Google, not AFP,

possesses information concerning other AFP photographs, head lines and story leads

Google copied on Google News.

Second, AFP’s Amended Complaint does identify the universe of AFP

photographs that are protected under copyright by reference to AFP’s online database,

Image Forum www.imageforum.afp.com. See Amended Complaint at 15 (emphasis

added). AFP gave Google access to this entire database. See attached Exhibit E. AFP’s

Amended Complaint also identified the universe of AFP news stories at issue, again by

reference to AFP’s online databases. See Amended Complaint at 17. AFP also gave

Google access to this entire database. See Exhibit E. AFP does not necessarily claim that

Google copied every AFP photograph or news story shown in AFP’s online databases,

however, the available evidence does show repeated acts of infringement and Google

itself points out that its Google News content changes quickly. This suggests that Google

copied many AFP photographs, headlines and story leads. However, until Google

produces the requested discovery concerning which AFP photographs, headlines and

story leads it did, in fact, copy on Google News, AFP cannot truly know everything that

Google copied. Accordingly, AFP showed what it could show – its databases.

Google did not encounter a stone wall when it asked AFP to produce evidence of

Google’s acts of infringement. AFP provided Google with specific examples of AFP

photographs and news stories, which Google infringed by reproducing and displaying

them on Google News. AFP provided these specific examples both in the Amended

Complaint and through materials produced in discovery. See Amended Complaint at 29-

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35; Amended Complaint at Exhibits A1-A4. Attached Exhibits A and B are excerpts

from the first of seven volumes of discovery materials recently produced to Google.

Admittedly, AFP gave this information to Google after Google filed its Motion to

Dismiss, but the timing of this disclosure should not be fatal to AFP’s Amended

Complaint. Although these latest materials provided more detailed information

concerning AFP’s claim, AFP provided the basic information in earlier responses to

discovery requests. Discovery is also still ongoing and the discovery materials were

arguably more responsive to more recent requests presented by Google.

In the seven volumes of materials produced in discovery, AFP identified specific

AFP photos, headlines and story leads as used on Google News on specific dates. AFP

also produced a copy of the underlying news article or news photograph Google copied,

and the AFP copyright notice and credits for the news article or news photograph.

Separately, AFP produced the copyright registrations covering these photographs,

headlines and story leads. Attached Exhibit s A and B show examples of the discovery

materials AFP produced. Attached Exhibit C shows the corresponding copyright

registrations for the AFP photos, headlines and story leads shown in attached Exhibit A.

Attached Exhibit D shows the corresponding copyright registrations for the AFP photos,

headlines and story leads shown in attached Exhibit B. AFP certainly did more than

simply say that Google infringed “copyrighted material,” which is all that the plaintiff in

Newborn v. Yahoo apparently did.

AFP’s Amended Complaint also alleges that AFP’s photographs and news stories

are original and creative works. See Amended Complaint at 11. AFP also alleged that it

owns the works in question. See Amended Complaint at 58. While AFP did not list

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specific registration numbers, unlike the plaintiff in Newborn v. Yahoo, AFP clearly

alleged that it registered the relevant copyrights in accordance with the statute. See

Amended Complaint at 57. For example, AFP’s Amended Complaint alleges that

“[t]hrough quarterly group registrations AFP has registered its copyrights in all of the

images on its online database . . . since at least January 1, 2002.” Amended Complaint

at 16 (emphasis added). Likewise, AFP’s Complaint alleges that “AFP has registered

its copyrights in all of its news wires . . . since at least January 1, 2002.” Amended

Complaint at 19 (emphasis added). Further, AFP’s Amended Complaint alleges that with

respect to the AFP Photographs, headlines and story leads, “AFP has complied in all

respects with 17 U.S.C. § 101, et seq. and secured the exclusive rights in the works and

has registered its copyrights in the works, when published, with the US Library of

Congress’s Copyright Office in accordance to its rules and regulations.” Amended

Complaint at 50, 57 and 65. AFP produced its copyright registrations to Google in

discovery. For example, Exhibits C and D show the copyright registrations relating to the

AFP photographs, headlines and story leads show in attached Exhibits A and B. By

statute, these copyright registrations represent prima facie evidence of the validity of the

copyright and of the facts stated in each certificate. 17 U.S.C. § 410.

AFP’s Amended Complaint is likewise replete with specific allegations

concerning the acts by which Google infringed AFP’s copyright. See Amended

Complaint at 28-35, 41, 51, 59, and 67. AFP has put Google on notice that it is

infringing “the “heart” of AFP’s stories by taking what qualitatively are the most

important elements of the individual news stories (i.e., the photographs, headlines and

story leads).” Amended Complaint at 41.

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AFP’s Amended Complaint also places Google’s infringement in time. For

example, AFP alleges that “Defendant is aware that it is infringing AFP’s copyrights and

it has done so since the September 2002 launch of Google News.” Amended Complaint

at 39.

Google’s Motion to Dismiss ignores all of these allegations. Instead, Google

asks this Court to dismiss the Amended Complaint because AFP alleged that “[o]n

information and belief, Defe ndant has violated AFP’s copyright thousands of times (an

accurate count will be determined after discovery and review of all stories and photos

which have appeared on Google News). Amended Complaint at 42. Google focuses

only on the phrase “Defendant has violated AFP’s copyrights thousands of times,” and

ignores the remainder of the allegation. And after focusing on only part of the allegation,

Google says that this Court should dismiss the entire Amended Complaint because, to

date, AFP has not produced evidence showing “thousands” of acts of infringement by

Google.

It is clearly not necessary for AFP to present all of its proof in the initial

complaint. See Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000). AFP is not even

required to identify with a high degree of specificity every infringing act. See Mid Am.

Title Co. v. Kirk, 991 F.2d 417, 421 (7th Cir. 1993) (reversing dismissal of copyright

infringement complaint where defendants were put on notice that a “factual compilation”

was at issue and discovery provided an opportunity to pursue the matter in detail); Perfect

10, Inc. v. Cybernet Ventures, Inc., 167 F. Supp. 2d 1114 (C.D. Cal. 2001) (denying

motion to dismiss for failure to state every image that is infringed, specific web pages

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that infringe, and dates of infringement because complaint provided fair notice of

allegations. To require otherwise “would defeat the regime established by Rule 8.”).

AFP’s allegation, which was based on its reasonable good faith belief, is

sufficient to survive Google’s Motion to Dismiss. AFP has shown that Google repeatedly

reproduced and displayed AFP’s photographs, news headlines and story leads without

authorization. While AFP does not yet have evidence showing “thousands” of acts of

infringement, the fact is that discovery is ongoing. Moreover, it is Google that has, to

this point at least, refused to give requested discovery concerning the reproduction of

AFP’s photographs, news headlines and story leads on Google News. For example, in

response to a simple discovery request for “[c]opies of all AFP photographs, headlines

and Story Leads which appeared on Google News at any time since its inception,”

Google presented a litany of objections and produced no documents:

Google objects to this request to the extent it suggests that Google

displays AFP photographs and story leads on Google News.
Google displays small, very low resolution thumbnail links and
lead fragments on Google News. Google further objects to this
request on the grounds that it is premature in light of the parties’
discussions regarding sampling, and premature in light of AFP’s
failure to identify its registered works, the works it claims to own,
and the works it asserts have been infringed in this action. Google
further objections that the meaning of “AFP photographs,
headlines and Story Leads” is ambiguous. The request is also
unduly burdensome. The content of Google News changes
minute-to- minute, identifying historic content is extremely
difficult, burdensome and expensive, and AFP has not offered or
arranged to bear the costs attendant to collecting documents
responsive to this request.

See attached Exhibit F (Google’s Response to Document Request Number

5).

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Google is the one playing “hide the ball” on discovery. Why else wo uld

Google declare in the very first sentence of its Answer that its “business and

mission is to organize the world’s information and thereby maximize its

usefulness,” and then argue in response to a request for “[c]opies of all AFP

photographs, headlines and Story Leads which appeared on Google News at any

time since its inception,” that the task of identifying these photographs, headlines

and story leads is too difficult, burdensome or expensive for it to assume.

Google asks this Court to dismiss AFP’s Amended Complaint because

AFP has not identified all of Google’s infringements, yet Google controls access

to that information and refuses to provide it in discovery. Google is trying to set

up a classic “Catch-22.” Google constantly changes what it displays on Google

News such that no potential claimant for copyright infringement can ever capture

on its own the full extent of Google’s infringing conduct. Google, which is “best

known for the tools it provides for locating information on the World Wide Web

(“web”) should not be permitted to deny a plaintiff like AFP access to Google’s

own database and search tools and then ask the Court to dismiss the complaint

because AFP did not specifically identify “thousands” of acts of infringement.

There is no dispute that Google News is “organized by topic to allow users

quickly to find a variety of different sources for any given news topic.” There is

also no dispute that Google modified its search tools after AFP filed this lawsuit

so that AFP content is excluded from Google News. In light of these facts,

Google’s attempt to argue that it cannot identify its own historic content should be

revealed for what it is – just an attempt to avoid producing evidence of

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infringement. Given such behavior, this Court sho uld summarily deny Google’s

Motion to Dismiss AFP’s Amended Complaint.

AFP produced its copyright registrations, gave Google electronic access to its

archives of news stories and photographs, and identified specific examples of news

headlines, story leads and photographs copied by Google on Google News. This Court

should not penalize AFP because it was not able to capture all the evidence of every

infringement prior to filing suit. AFP has the right to develop additional details through

discovery – for example, identification of other AFP photographs, headlines and story

leads Google copied without authorization. See Tin Pan Apple, Inc. v. Miller Brewing

Co., Inc., 737 F. Supp. 826, 839 (S.D.N.Y. 1990) (“Defendants may develop additional

details – for example, which musical compositions and sound recordings defendants are

alleged to have infringed – through customary pre-trial discovery.”).

AFP should also not be penalized because it responded appropriately to poorly

drafted discovery requests from Google. When a respondent must define for itself the

scope of the request before responding, the discovery request is objectionable. See

Alexander v. FBI, 186 F.R.D. 21, 36 (D.D.C. 1998) (“It is not the role of the witness to

define the scope of a document request.”) Google did not ask AFP to admit whether it

has ever quoted President George W. Bush in any headline or story leads. Google clearly

knew which AFP story or stories it had in mind when it asked AFP to admit that

“President George W. Bush is quoted in headlines and story leads that AFP claims

Google has infringed by copying.” Google should have identified the specific news

articles and not expected AFP to guess. The fact that Google served a large number of

otherwise vague and objectionable requests for admissions and got appropriate objections

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to those requests from AFP does not render AFP’s Amended Complaint in any way

deficient.

III. CONCLUSION

For the foregoing reasons, AFP’s Amended Complaint meets the pleading

requirements of Rule 8(a), even viewed in light of the four-part pleading requirement

adopted by Judge Walton in Newborn v. Yahoo. AFP’s Amended Complaint also

survives challenge under Rule 12(c). Accordingly, this Court should deny Google’s

Motion to Dismiss.

Respectfully submitted,

Dated: October 24, 2005 /s/

Joshua J. Kaufman, Bar No. 945188
Mary Jane Saunders, Bar No. 436608
VENABLE LLP
575 7th Street, NW
Washington, DC 20004-1601
202-344-8538 (phone)
202-344-8300 (fax)
jjkaufman@venable.com

Counsel for Agence France Presse

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 24th day of October, 2005, I caused a true copy
of Plaintiff's Response in Opposition to Defendant’s Motion to Dismiss to be served on
the following persons by email and facsimile transmission.

Andrew G. McBride (Bar No. 426697)

Bruce G. Joseph (Bar No. 338236)
Thomas W. Kirby (Bar No. 915231)
WILEY REIN & FIELDING LLP
1776 K Street, N.W.
Washington, D.C. 20006
Tel: (202) 719-7000
Fax: (202) 719-7049

Attorneys for Defendant Google, Inc.

/s/
Mary Jane Saunders

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