The purpose of the Copyright Act of 1976 is to recognize the value of the copyright to the copyright holder, to encourage creativity, and to promote socially desirable works that augment United States culture. But how valuable is a copyright when it becomes almost impossible for a plaintiff to successfully sue for copyright infringement? Increasing the difficulty in enforcing a copyright lessens the value of the copyright–which works against the very purpose of the Copyright Act. Recent developments in federal case law have indeed made it harder than ever for a plaintiff copyright holder to successfully enforce his copyright. A trend arising in the courts may result in a higher pleading standard for copyright plaintiffs, which would lead to more copyright cases being dismissed at the pleading stage.
Traditionally, pleading in a copyright action required only general notice under Federal Rule of Civil Procedure 8. A court would find the barest of facts in the allegations sufficient to survive a Rule 12(b)(6) motion to dismiss. But two Supreme Court cases, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) have created some confusion about when a complaint is sufficiently specific to survive a motion to dismiss. These cases suggested that a mere recitation of bare facts is insufficient; instead, the allegations must be plausible. Taken to the extreme, a U.S. District Judge in a copyright case might actually compare an original copyrighted work with an allegedly infringing work at the pleading stage, and dismiss the case because the Judge deems it implausible that the original copyrighted work was copied.
As a result of the Twombly and Iqbal cases, defense attorneys began to attack all sorts of previously sufficient pleadings as “implausible.” Most judges however, while acknowledging Twombly and Iqbal, have declined to radically alter traditional rule-based notice pleading. Because the evidence required to fully prove damages for copyright infringement is often completely in the defendant’s control (unlike a personal injury case, where the plaintiff has full knowledge of his injury) most courts understand that any ambiguity in the pleadings will be swiftly rectified once the plaintiff is allowed discovery.
The Federal Appeals Courts have been grappling with the implications of Twombly ever since it was handed down. No single guiding principle has emerged. Twombly was an ambiguous case, and is being interpreted as such. The courts therefore decide pleading issues on a case-by-case basis, and are being flexible. The Second, Third, Fourth, Seventh, Eighth and Eleventh Circuits have all decided pleading issues where plaintiffs have invoked Twombly pleading, and none have gone so far as to abrogate the long-standing rules, though some circuits have attempted to tighten the standard incrementally.
The Sixth Circuit may have tightened the standard without totally changing the rule. In Patterson v. Novartis Pharm. Corp., No. 10-5886, 2011 WL 3701884 (6th Cir. Aug. 23, 2011), the plaintiff’s product liability complaint was dismissed because it did not contain facts sufficient to plausibly show that the defendant manufactured the specific, allegedly-defective drugs that plaintiff claimed caused her bone disease. An excerpt from the opinion notes that “[a]lthough the Supreme Court has continued to stress that ‘Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,’ Iqbal, 129 S. Ct. at 1950, we have, to some extent, crept back towards those earlier standards.” Patterson v. Novartis at *2.
Where does that leave a plaintiff in the Sixth Circuit who wants to enforce a copyright against a potential infringer? Copyright holders should be wary about pleading standards because of the confusion generated around pleading by the two landmark cases, Twombly and Iqbal. Copyright infringement cases might be particularly vulnerable to increased scrutiny under Twombly, an antitrust case; because according to at least one unpublished Sixth Circuit case, copyright infringement cases share some characteristics with antitrust cases. Nat’l Bus. Dev. Servs., Inc. v. Am. Credit Educ. and Consulting, Inc., 299 Fed. App’x 509, 512 (6th Cir. 2008). It seems more likely than not that copyright claims which would have succeeded pre-Twombly will still succeed. But if courts continue “creeping back to “hyper-technical” pleading standards,” a pleading that would have been fine a few years ago could be considered insufficient now.
If you are thinking about suing to enforce a copyright, as a copyright holder or as an attorney, it is essential to be cognizant of the potential implications of Twombly. Don’t be too disheartened though as courts throughout the country, including the Supreme Court; have viewed Twombly as a step back from overly permissive pleading standards, rather than as de facto replacement of Rule 8. The public policy arguments in favor of courts treating copyright infringement cases more-or-less as before, are strong. Raising the requirements for copyright pleading inevitably devalues copyrights, making creative people less willing to share their work with society.