Miller v. Facebook, Inc.

District court holds that plaintiff adequately pleaded copyright infringement against defendant software publisher and contributory copyright infringement against defendant social networking website Facebook, where the defendant publisher distributed his allegedly infringing software through Facebook, and Facebook failed to remove the software from its website after receiving notice of the infringement.

Plaintiff Daniel Miller is a software developer who owns the copyright to a video game entitled Boomshine, which is played over the internet using Adobe Flash. In 2007, plaintiff published Boomshine on his website, and was granted a software copyright registration by the U.S. Copyright Office (although not an audio-video copyright registration).

Defendant Facebook is an online social networking website, which among other things, provides links to third-party users’ websites and applications. Defendant Yao Wei Yeo is the publisher of the game ChainRxn, which allegedly infringes plaintiff’s copyright in Boomshine.

In April 2009, Yeo allegedly published ChainRxn on a website hosted by Facebook, www.Facebook.com/zwigglers. Facebook approved ChainRxn for publication through its Facebook Application Directory. Facebook does not store these applications on its servers, but plaintiff alleged that the ChainRxn game was presented to Facebook’s users through the use of an inline frame (“iFrame”) so that the content appeared to be originating from Facebook’s website.

In May 2009, plaintiff sent a letter to Facebook, demanding that ChainRxn be removed from Facebook’s website. After Facebook failed to do so, plaintiff sued defendants for copyright infringement. After plaintiff’s complaint was initially dismissed for failure to specify exactly what was published on Facebook’s website with regard to ChainRxn, plaintiff moved to amend his complaint, seeking to maintain his direct infringement claim against Yeo, but modifying his claim against Facebook to one for contributory copyright infringement. Plaintiff served Facebook, but failed to serve defendant Yeo, who could not be located.

Facebook opposed plaintiff’s motion to amend, arguing that it could not be liable for contributory copyright infringement because plaintiff failed to adequately allege direct copyright infringement by Yeo. The court agreed that the complaint did not sufficiently allege infringement of plaintiff’s public display rights because plaintiff’s software copyright only encompassed source code and not the audio-visual aspects of the game, and the complaint did not allege that the source or machine code for his game was ever displayed publicly.

However, the court held that the complaint did state a plausible claim for infringement of plaintiff’s exclusive distribution right. Plaintiff alleged that when members of the public accessed ChainRxn through Facebook, the content was stored locally in the cache memory of the user’s computer. Assuming that ChainRxn could be considered an unlawful “copy” of Boomshine, plaintiff adequately pleaded direct infringement by alleging that Yeo distributed the ChainRxn game through the computer caching process. The court further held that the proposed complaint plausibly alleged a violation of plaintiff’s exclusive reproduction rights in Boomshine, because it was a reasonable inference at the pleading stage that plaintiff’s source code had been copied due to similarities in the look and feel of the two games.

Facebook further opposed plaintiff’s motion on the ground that the proposed complaint failed to adequately allege contributory infringement by Facebook. The district court disagreed. Citing Perfect 10, Inc. v. Visa Int’l Service, Ass’n, 494 F.3d 788 (9th Cir. 2007), the court held that a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system, can take simple measures to prevent further damage to copyrighted works, and yet continues to provide access to infringing works. Here, the court concluded that there was no question that Facebook provides Internet services to the public, and that, according to the proposed complaint, Facebook had actual knowledge of the specific infringing material, and could have taken one or two simple measures to remove such material by either disabling Yeo’s account or removing ChainRxn from the Facebook directory. The proposed complaint further alleged that, despite this actual knowledge and availability of simple measures to prevent further harm, Facebook continued to allow its users to search for and access the allegedly infringing work for some time thereafter. Moreover, Facebook’s popularity significantly magnified the effect of the allegedly infringing activities. Accordingly, the court declined to dismiss plaintiff’s claim of contributory infringement at this time, and granted in part plaintiff's motion for leave to file an amended complaint.