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Grady v. Iacullo

United States District Court, D. Colorado

March 29, 2017

JAMES S. GRADY, Plaintiff,


          RAYMOND P MOORE United States District Judge

         On April 18, 2016, this Court, inter alia, denied plaintiff James Grady's (“plaintiff”) Renewed Motion for Summary Judgment. (ECF No. 62.)[1] In doing so, the Court found that plaintiff had failed to present any evidence with respect to whether sharing thumbnail links to plaintiff's photographs and videos resulted in copies of the same being automatically stored on defendant Samuel Iacullo's (“defendant”) computer. (ECF No. 62 at 15.) The Court noted that, given the apparent technological aspect to the questions left unresolved, expert testimony, or at least testimony from a witness with personal knowledge and experience of the process of sharing hyperlinks or thumbnails and whether that sharing results in thumbnails being stored on a computer, would appear to be necessary to satisfy plaintiff's burden of proving either direct or contributory copyright infringement. (Id. at 15-16.) With that in mind, the Court re-opened discovery for 60 days so that plaintiff could obtain admissible evidence in order to support his direct and contributory copyright infringement claims and so defendant could obtain evidence to rebut those claims. (Id. at 16.)

         That period has now passed, and, as envisioned by the Court's prior Opinion, plaintiff has filed another motion for summary judgment (“the motion for summary judgment”). (See ECF No. 71.) Defendant has filed a response, as well as objections to exhibits A, B, and C to the motion for summary judgment. (ECF No. 79-1 at 1-10, 86-99.) Plaintiff has filed a reply. (ECF No. 80.)

         I. Legal Standard for Summary Judgment

         Summary judgment is appropriate “when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he moving party bears the initial burden of presenting evidence to show the absence of a genuine issue of material fact, ” and “the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002) (quotation and internal quotation omitted). If the moving party bears the burden of persuasion on a claim at trial, that party must support its motion with evidence that, if uncontroverted, would entitle it to a directed verdict at trial. Anderson v. Dep't of Health & Human Servs., 907 F.2d 936, 947 (10th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548 (1986)).

         A fact is material if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the non-moving party. Id.

         II. Legal Standard for Copyright Infringement

         There are two elements to a copyright infringement claim, and the plaintiff bears the burden of proof as to both: “(1) ownership of a valid copyright, and (2) copying by the defendant of protected components of the copyrighted material.” Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 831 (10th Cir. 1993). Ordinarily, a certificate of registration from the U.S. Copyright Office “constitutes prima facie evidence of a valid copyright and of the facts stated in the certificate.” Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005).

         The second element requires proof that the defendant actually copied portions of the protected work, and the portions of the work copied were “protected expression and of such importance to the copied work that the appropriation is actionable.” La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1178 (10th Cir. 2009) (quotation omitted). “[A] plaintiff can indirectly prove copying (in a factual sense) by establishing that [the defendant] had access to the copyrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.” Id. (quotation omitted). In this context, copying is “a shorthand reference to any infringement of the copyright holder's exclusive rights” as set forth in 17 U.S.C. § 106 (“§ 106”). Gates Rubber, 9 F.3d at 832 n.6. A copyright holder's exclusive rights include, in pertinent part, the rights to reproduce the copyrighted work, to prepare derivative works, and to distribute copies of the work. 17 U.S.C. § 106(1)-(3).

         The Copyright Act, 17 U.S.C. § 101 et seq., defines “[c]opies” as “material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device.” Id. § 101. The Copyright Act further explains that “[a] work is ‘fixed' in a tangible medium of expression when its embodiment in a copy … is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed' … if a fixation of the work is being made simultaneously with its transmission.” Id.

         III. Discussion[2]

         As the Court discussed in great detail in its prior Opinion, the main dispute of merit between the parties is whether images and videos of plaintiff's works were copied to or fixed within defendant's computer. (ECF No. 62 at 8-16.) If they were, then defendant engaged in direct copyright infringement of plaintiff's works. If not, then plaintiff's case falls apart. To be clear, therefore, the only pertinent issue is whether plaintiff has presented sufficient evidence showing that at least some of his copyrighted works were placed within a medium on defendant's computer so that the work could be perceived or reproduced, and remain so placed for a period of more than transitory duration. (See ECF No. 62 at 11 (citing Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2d Cir. 2008))).

         To this end, plaintiff has presented an expert report (“the expert report”). (See ECF No.-80-19.) In response, defendant has objected to consideration of the expert report. (See ECF No. 79-1 at 89-92.) The Court addresses defendant's objections first. Defendant asserts that the expert report is “based on evidence not relevant to the case, based on hearsay, and invalid as not being sworn under penalty of perjury.” (Id. at 89.) Plaintiff thus asserts that the entire expert report is inadmissible. (Id.)

         With respect to the latter matter, to the extent the expert report needed to be sworn under penalty of perjury, it has now been so sworn. (See ECF No. 80-19 at 1-2.) Therefore, the Court rejects this argument for disregarding the expert report. See Sofford v. Schindler Elevator Corp, 954 F.Supp. 1459, 1463 (D. Colo. 1997) (stating that the Tenth Circuit Court of Appeals has not addressed whether an expert report need be sworn to meet the requirements of Fed.R.Civ.P. 56, and ...

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