Tabachnik v. Dorsey

Full title: LEONARD TABACHNIK, PH.D, Plaintiff, v. PROFESSOR BRUCE DORSEY, and the…

Court: United States District Court, S.D. New York

Date published: Jul 15, 2005

No. 04 Civ. 9865 (SAS) (S.D.N.Y. Jul. 15, 2005)

Opinion

No. 04 Civ. 9865 (SAS).

July 15, 2005

Leonard Tabachnick, Ph.D, New York, New York, Plaintiff Pro Se.

Nelson E. Roth, Esq., Ithaca, New York, for Cornell Defendants.

OPINION ORDER

SHIRA SCHEINDLIN, District Judge

Dr. Leonard Tabachnik, proceeding pro se, has sued a number of defendants alleging copyright infringement, monopolization of trade and commerce and academic conspiracy. Cornell University Press and President Jeffrey S. Lehman (the "Cornell defendants") move to dismiss plaintiff's Amended Motion and Complaint¹ ("Cmpl.") for lack of subject matter jurisdiction and for failure to state a legally cognizable cause of action. See Fed.R.Civ.P. 12(b)(1) 12(b)(6). For the following reasons, defendants' motion is granted and this case is dismissed as to all defendants.

1 Construing plaintiff's Amended Complaint liberally, his reference to a motion can be interpreted as a request to preliminarily enjoin Cornell University Press from publishing additional copies of the alleged infringing work. This request will be moot if the case is dismissed. Cf. Ruby v. Pan American World Airways, Inc., 360 F.2d 691 (2d Cir. 1966) (dismissing appeal from order denying motion for preliminary injunction on ground that it had become moot where complaint in case had been dismissed).

I. FACTS

In his pleading, Dr. Tabachnik alleges that his doctoral dissertation, entitled Origins of the Know-Nothing Party: A Study of the Native American Party in Philadelphia, 1844-1852, is the subject of copyright protection.² See Cmpl. ¶ 1. Dr. Tabachnik further alleges that parts of Professor Bruce Dorsey's book entitled Reforming Men and Women violate the copyright laws "by describing important events us[ing] virtually identical language as is found in the text of Dr. Tabachnik's dissertation." Id. ¶ 14. Professor Dorsey's book was published by Cornell University Press. See id. Dr. Tabachnik further claims that the academic community "successfully subverted" him so that others could present, and get credit for, his research. See id. ¶ 18 ("Had Dr. Tabachnik been allowed to publish his research years ago, those who have subsequently published on the subject could have made their citations accordingly. Since that is not the case, the press, the authors, and the universities are all committing illegal acts against Dr. Tabachnik."). Dr. Tabachnik is claiming damages in the amount of $2,0000,000,000 (two trillion dollars). See id. ¶ 3.

2 The statute cited by plaintiff provides that "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords. . . ." 17 U.S.C. § 106.

II. LEGAL STANDARDS

A. Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)

A district court may exercise subject matter jurisdiction if the action "arises under" federal law. Bracey v. Board of Educ. of City of Bridgeport, 368 F.3d 108, 113 (2d Cir. 2004) (citing 28 U.S.C. § 1331). An action "arises under" federal law if "'in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law.'" Id. at 114 (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1993)). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). See also Carlson v. Principal Fin. Group, 320 F.3d 301, 306 (2d Cir. 2003) ("[I]n order to sustain federal jurisdiction, the complaint must allege a claim that arises under the Constitution or laws of the United States and that is neither made solely for the purpose of obtaining jurisdiction nor wholly insubstantial and frivolous.").

A plaintiff bears the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). See also Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998) ("[T]he party invoking federal jurisdiction bears the burden of proving facts to establish that jurisdiction."). "When considering a motion to dismiss pursuant to Rule 12(b)(1), the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004). "Dismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Id. In resolving a motion to dismiss under Rule 12(b)(1), a court may consider evidence outside the pleadings, including affidavits submitted by the parties, and is not limited to the face of the complaint. See Robinson v. Government of Malaysia, 269 F.3d 133, 140-41 (2d Cir. 2001).

B. Failure to State a Claim Under Rule 12(b)(6)

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir. 2004) (internal quotation marks and citation omitted). The task of the court in ruling on a motion to dismiss is "merely to assess the legal feasability of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (internal quotation marks and citation omitted). When deciding a motion to dismiss, courts must accept all factual allegations as true and draw all reasonable inferences in the non-moving party's favor. See Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002).

Furthermore, a complaint need not state the legal theory, facts, or elements underlying the claim in most instances. See Phillips v. Girdich, No. 04-0347, 2005 WL 1154194, at *2-3 (2d Cir. May 17, 2005). Pursuant to the simplified pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must include only "'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Fed.R.Civ.P. 8(a)(2)). And when a plaintiff is proceeding pro se, courts are instructed to construe the complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997).

Finally, while courts generally may not consider matters outside the pleadings in determining if a complaint should survive a Rule 12(b)(6) motion, documents attached to the pleadings, documents referenced in the pleadings, and documents integral to the pleadings may be considered. See Chambers, 282 F.3d at 152-53; Fed.R.Civ.P. 10(c). Courts may also take judicial notice of facts within the public domain and public records if such facts and records are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b)(2). See also Kramer v. Time Warner, Inc., 937 F.2d 767, 773-74 (2d Cir. 1991) ("[A] district court may take judicial notice of the contents of relevant public disclosure documents required to be filed with the SEC as facts 'capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'") (quoting Fed.R.Evid. 201(b)(2)).

III. DISCUSSION

A. Plaintiff's Copyright Claim

"The Copyright Act requires that 'no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.'" Morris v. Business Concepts, Inc., 259 F.3d 65, 68 (2d Cir. 2001) (quoting 17 U.S.C. § 411(a)). See also Whimsicality, Inc. v. Rubie's Costume Co., Inc., 891 F.2d 452, 453 (2d Cir. 1989) ("[P]roper registration is a prerequisite to an action for infringement."). Thus, "federal district courts do not have jurisdiction over a claim for federal copyright infringement until the Copyright Office has either approved or refused the pending application for registration." Corbis Corp. v. UGO Networks, Inc., 322 F. Supp. 2d 520, 521 (S.D.N.Y. 2004). The interplay of the relevant statutory provisions has been explained as follows:

Section 411(a) provides that jurisdiction is not conveyed "until registration of the copyright claim has been made in accordance with [the Copyright Act]." 17 U.S.C. § 411(a). Additionally, Section 410(a) indicates that a claim must be examined and approved by the Register of Copyrights before it is registered. 17 U.S.C. § 410(a). Only after the Register of Copyrights examines the material deposited and determines that the legal and formal requirements of the statute have been met does it register the claim and issue a certificate of registration. Id. Thus, the plain language of the statute confirms that although submission of a claim begins the registration process, a claim is not deemed registered until the Register of Copyrights approves it.

Green v. Columbia Records/Sony Music Entm't Inc., No. 03 Civ. 4333, 2004 WL 3211771, at *3 (S.D.N.Y. Mar. 1, 2004) (footnote omitted).

In sum, "an action for copyright infringement cannot be asserted unless a certificate of registration has been issued; the mere filing of an application is simply insufficient to support such a claim." National Assoc. of Freelance Photographers v. Associated Press, No. 97 Civ. 2267, 1997 WL 759456, at *12 (S.D.N.Y. Dec. 10, 1997) (emphasis in original) (citing Fonar Corp. v. Domenick, 105 F.3d 99, 103 (2d Cir. 1997), for the proposition that "[t]here are only two elements of an infringement claim: ownership of a valid copyright and the copying of constituent elements of the work that are original"). See also Noble v. Town Sports Int'l, Inc., No. 96 Civ. 4257, 1998 WL 43127, at *1 (S.D.N.Y. Feb. 2, 1998) ("The issuance of a registration statement certificate is a prerequisite to the commencement of the infringement action and an application for registration does not suffice.").

Here, Dr. Tabachnik appended his Application for Registration of a Claim to Copyright, dated December 27, 1973, as an exhibit to his Amended Complaint. See Cmpl., Document 2. In his Reply papers, dated June 21, 2005, Dr. Tabachnik belatedly submitted an Additional Certificate of Registration of a Claim to Copyright, dated April 22, 2005, and signed by the Register of Copyrights. In M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990), the appellate court reviewed a lower court decision dismissing the case because plaintiff failed to register its copyright before initiating the infringement action, but allowing plaintiff to amend its complaint based on subsequently obtaining a certificate of registration. See id. at 1489.

The appellate court excused this procedural irregularity but stated that "the filing of a new lawsuit would ordinarily have been the proper way for [plaintiff] to proceed once it received the registration certificate." Id. Here, plaintiff has not moved to amend, instead, plaintiff has belatedly submitted a certificate of registration obtained some four months after the filing of the instant Complaint. This Court lacked jurisdiction over plaintiff's Complaint at the time of filing because there was no registration certificate. Therefore, the proper course is to dismiss the case without prejudice. See id. at 1488 ("The registration requirement is a jurisdictional prerequisite to an infringement suit."). Accordingly, this case is dismissed for lack of subject matter jurisdiction.

The next question is whether the dismissal should be with or without prejudice. To subject another court to plaintiff's claims would be a waste of judicial resources if the facts alleged by plaintiff cannot support any claim which would entitle him to relief. "To allege a claim of copyright infringement, [plaintiff] must claim that a substantial similarity exists between the defendant's work and the protectible elements of its work. To be 'protectible,' these elements must be original." County of Suffolk v. First Am. Real Estate Solutions, 261 F.3d 179, 187-88 (2d Cir. 2001) (citing Feist Publ'ng, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-349 (1991)). In Feist, the Supreme Court explained that copyright protection extends only to original authorship and that the publication of facts, regardless of how much effort was expended in discovering them, is not original authorship. See Feist, 499 U.S. at 347-48; see also id. at 350 ("Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted . . . In no event may copyright extend to the facts themselves."). Here, plaintiff has provided the following table comparing his text with the allegedly infringing Dorsey text.

Tabachnik Text Dorsey Text Chapter 1 — The Birth of the Naive Paragraph 1 [sic] American Party. "In 1844, two related events — a "Between May and July 1844, one of controversy over Bible reading in the the worst incidents of ethnic and public schools and a series of riots religious violence in the history of the between Irish Catholics and those who US erupted in the outlying districts of later call themselves Native Americans Philadelphia." — led to a dramatic change in the political life of Philadelphia.["] Paragraph I p. 36. "The danger to individual life "Frightened Irish families fled the city was so great that the Irish Catholic and camped in nearby woods to escape residents in the district fled into the the wrath of the nativists." nearby woods located between Kensington and Richmond. They camped there, women and children, in the most pitiable conditions with scarcely anything to eat, and exposed to the rain." pp. 36-37. "During the course of the "Local authorities were powerless to riot, city officials were helpless. stop the rioting, and, when the state Volunteer fireman either refused to militia tired to quell the disturbances, respond to alarms for fear of their their presence merely escalated the lives, or were prevented by the mob violence." from extinguishing fires on Catholic property." pp. 33-33. "These riots were p. 200. Handloom weavers-weavers symptomatic of a deeper malady: the riots. "The weavers' riots exposed the discontent caused by the depression of complexity of ethnic conflict and the Kensington's hand-loom economy. changing dynamic produced by new Since one-third of the third world's immigrants. Kensington's weaving gainfully employed males earned their population was overwhelmingly Irish-born. livelihood from handloom weaving the The majority were Catholics. . . .["]. conditions in that industry greatly affected the general economic state of the district . . . From 1835 to 1845 wages declined by 100%." p. 20. "In November of 1842, when p. 201. "In Philadelphia nearly one Archbishop Kendrick made his hundred Protestant clergymen joined demands to the Board of Controllers, a together in November 1842 to create group of sixty-one local Protestant the American Protestant Association, clergymen formed a body known as whose principle objective was to the American Protestant Association. encourage and equip ministers to By the time the new association had preach regularly against Catholicism." drawn up its charter in December of 1842 it had added another twenty-eighty clergymen to its list of charter members, giving the organization thirty-seven percent of the city's clergy." Amended Motion and Complaint ¶ 14.

The above excerpts reveal that Tabachnik is seeking to protect the kind of historical facts that fall within the public domain and, as such, are not copyrightable. See Sparaco v. Lawler, Matusky, Skelly, Engineers LLP, 303 F.3d 460, 466 (2d Cir. 2002) ("The view developed that historical, scientific, or factual information belongs in the public domain, and that allowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge."); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir. 1980) (a pre- Feist case holding that historical facts are not protected by copyright).

Not only are the historical facts themselves not subject to copyright protection, but it is apparent from the above that Dorsey did not copy Tabachnik's presentation of those facts, which may be protected by copyright. See Feist, 499 U.S. at 349 ("Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement."). See also Churchill Livingstone, Inc. v. Williams Wilkins, 949 F. Supp. 1045, 1050 (S.D.N.Y. 1996) ("[T]he facts in a medical textbook nevertheless are not copyrightable; the over-all selection and arrangement of these facts, if original, may be copyrightable."). Although Dorsey does state some of the same facts as Tabachnik, he does so in his own distinct style and wording. It cannot be said that Dorsey's presentation is substantially similar to that of Dr. Tabachnik. Accordingly, plaintiff has not stated a valid claim of copyright infringement. Having failed to state a claim upon which relief can be granted, plaintiff's infringement claim is dismissed with prejudice. See Buckman v. Citicorp, No. 95 Civ. 773, 1996 WL 34158, at *3 (S.D.N.Y. Jan. 30, 1996), aff'd, 101 F.3d 1393 (2d Cir. 1996) ("A court may dismiss a copyright claim if it concludes that no reasonable jury could find that the two works are substantially similar, or if it concludes that the similarities between the two works pertain only to unprotected elements of the plaintiff's work.") (citing Warner Bros., Inc. v. American Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983)).

B. Plaintiff's Remaining Claims

Plaintiff's remaining claims, brought under Sections 1 and 2 of the Sherman Act, can be summarily dismissed as there are no allegations in his Amended Complaint to support such claims. Section 1 of the Sherman Act provides as follows:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the Several States, or with foreign nations, is declared to be illegal.

15 U.S.C. § 1. In order to state a claim under Section 1, a plaintiff must allege: "(1) a contract, combination, or conspiracy; (2) in restraint of trade; (3) affecting interstate commerce." Maric v. Saint Agnes Hosp. Corp., 65 F.3d 310, 313 (2d Cir. 1995). Section 2 of the Sherman Act penalizes "[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States. . . ." 15 U.S.C. § 2. "The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992) (internal quotation marks and citation omitted). The question, then, is whether plaintiff's Amended Complaint sufficiently alleges the required elements of either Sherman Act claim.

Plaintiff's claim under Section 1 of the Sherman Act, entitled "Academic Conspiracy," and his claim under Section 2, entitled "Monopolization of Trade and Commerce," lack any connection to trade or commerce. There are no allegations of an antitrust conspiracy and no allegations of economic monopoly power in any relevant market. The sole question presented here is whether plaintiff's scholarly dissertation is entitled to copyright protection. The kinds of economic activity covered by the Sherman Act are simply not at issue in this case. Plaintiff's reliance on the Sherman Act is therefore misplaced. Accordingly, plaintiff's remaining claims, brought under Sections 1 and 2 of the Sherman Act, must also be dismissed.

V. CONCLUSION

For the foregoing reasons, the Cornell defendants' motion is granted and this case is dismissed in its entirety, with prejudice, as to all defendants. Counsel for the Cornell defendants is directed to provide a copy of this Opinion and Order to his co-counsel. The Clerk of the Court is directed to close this case.

SO ORDERED.