Opinion
Case No.: 4:17cv181-MW/MAF
07-23-2020
Mitchell A. POHL, D.D.S., Plaintiff, v. MH SUB I, LLC, d/b/a Officite, Defendant.
Craig Anthony Wirth, Joel Benjamin Rothman, SRIPLAW PLLC, Boca Raton, FL, Martin Bruce Sipple, Ausley & McMullen, William Harlon Hollimon, Holliman PA, Tallahassee, FL, for Plaintiff. Brian G. Rich, Joseph Peter Jones, Berger Singerman LLP, Tallahassee, FL, Matthew Scott Nelles, Euyelit Adriana Kostencki, Nelles Kostencki PLLC, Fort Lauderdale, FL, for Defendant.
Craig Anthony Wirth, Joel Benjamin Rothman, SRIPLAW PLLC, Boca Raton, FL, Martin Bruce Sipple, Ausley & McMullen, William Harlon Hollimon, Holliman PA, Tallahassee, FL, for Plaintiff.
Brian G. Rich, Joseph Peter Jones, Berger Singerman LLP, Tallahassee, FL, Matthew Scott Nelles, Euyelit Adriana Kostencki, Nelles Kostencki PLLC, Fort Lauderdale, FL, for Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION
Mark E. Walker, Chief United States District Judge
This is a copyright dispute about a before-and-after photograph of Plaintiff's patient's teeth. Defendant moves for reconsideration of this Court's Order, ECF No. 151, denying its second renewed motion for summary judgment. ECF No. 152. Specifically, Defendant seeks reconsideration of this Court's finding that there remains a genuine issue of material fact underlying the issue of whether Plaintiff copyrighted the 2000 or the 2005 version of the Website—only one of which contains the before-and-after photograph at issue.
This Court has reconsidered its prior Order, after hearing on July 7, 2020. For the reasons provided below, Defendant's motion for reconsideration, ECF No. 152, is DENIED .
I. BACKGROUND
To place the motion for reconsideration in context, this section provides a brief overview of the litigation in this case up to this point.
This copyright action began roughly three years ago when Plaintiff accused Defendant of infringing a before-and-after photograph (the "Photograph") of his patient's teeth, which was taken in fall of 2004 and which appeared on Plaintiff's website (the "Website") in 2005. The parties went through discovery and filed motions for summary judgment. In its summary judgment motion, Defendant attempted to limit the scope of Plaintiff's copyright to the Website as it appeared it 2000, rendering the copyright ineffective as to the 2004 photos. Defendant argued 2000 is the correct year for the copyright's scope because the copyright registration certificate identified the work's completion as 2000 and November 20, 2000, as the date of its first publication.
Relying on Plaintiff's affidavit in which he stated, among other things, that he erroneously interpreted the copyright registration form, this Court refused to limit the scope of Plaintiff's copyright. ECF No. 61. Specifically, Plaintiff stated that he "should have entered ‘2005’ as the Year in Which Creation of the Work Was Completed" and "November 21, 2005, as the Date and Nation of the First Publication of This Particular Work on line 3b." ECF No. 40-1, ¶¶ 17–18. Citing Gallup, Inc. v. Kenexa Corp. , 149 F. App'x 94 (3d Cir. 2005) and Dynamic Solutions, Inc. v. Planning & Control, Inc. , 646 F. Supp. 1329 (S.D.N.Y. 1986), this Court stated that because there is an error in the copyright registration process, this Court would look to the deposit materials "to identify the scope of the copyright's protection." ECF No. 61, at 6–7. To determine what was deposited, this Court relied on Plaintiff's testimony that he prepared and filed the application and that he deposited materials concurrent with the copyright application that exhibited the Website as it existed in 2005 and included the Photograph. ECF No. 61, at 5. Because Plaintiff professed error in his application process and because he claimed that he deposited the 2005 version of the Website, which included the Photograph, this Court held that there was a "genuine issue of material fact; namely, whether he deposited the 2005 website, including the photos of patient Belinda's teeth, to the Register of the Copyrights." ECF No. 61, at 7.
This Court also noted that Plaintiff's deposited materials were not in the record. ECF No. 61, at 7.
However, this Court granted summary judgment in favor of Defendant because it found that the Photograph at issue was not copyrightable. ECF No. 61, at 13. The Eleventh Circuit reversed this Court's decision as to that separate and distinct issue. See Pohl v. MH Sub I LLC , 770 F. App'x 482, 489–90 (11th Cir. 2019).
At the time this Court ruled on Defendant's motion for summary judgment, the record was missing a relevant piece of evidence. That piece of evidence, discussed in detail below, is an email correspondence between the Copyright Office and Plaintiff (the "Email"). ECF No. 132-1, at 2–4. Plaintiff did not produce the Email even though Plaintiff and/or his attorney possessed the Email from the inception of this lawsuit, ECF Nos. 119 & 119-1, and Defendant repeatedly requested Plaintiff's communications with the Copyright Office. ECF No. 130-3, no. 3; ECF No. 130-4, at 63:5–7.
In a copyright case, one would expect Plaintiff or his attorneys to diligently seek and produce documents responsive to Defendant's discovery request. Plaintiff did not do that. Instead, when Defendant filed a motion for an expedited hearing regarding a dispositive matter, arguing that Plaintiff deposited a blank disk with the Copyright Office, ECF No. 116, Plaintiff was somehow able to conjure certified materials from the Copyright Office in response. ECF No. 119. The certified materials included the correspondence with the Copyright Office, the same correspondence which when Defendant requested during discovery, Plaintiff had responded, "None." ECF No. 130-3, no. 3. Counsel for Plaintiff tries to explain this away by saying that "I simply forgot the material was in my possession" until "Defendant's Request for Expedited Hearing." ECF No. 133-2, ¶ 11. This only explains the lack of diligence on part of Plaintiff and his attorneys in conducting discovery.
At some point during the ongoing litigation, Defendant was able to obtain the Email by requesting the Copyright Office to produce a certified copy of the deposit material. Because the newly discovered evidence raised multiple issues, this Court conducted a telephonic hearing on October 11, 2019. During the hearing, Plaintiff represented that additional discovery was needed and requested that this Court reopen discovery; Defendant objected. A day after this Court reopened discovery, Plaintiff's counsel requested a settlement and, shortly thereafter, filed a motion for voluntary dismissal. This Court denied the motion for voluntary dismissal and, instead, gave Plaintiff the option to "either decline to dismiss, decline to pay, and take his chances at trial; or ... accept the dismissal with conditions set forth" in the Order. ECF No. 139. Plaintiff chose to take his chances at trial. In declining to dismiss the lawsuit without conditions, this Court noted that Plaintiff had offered no reason to voluntarily dismiss the lawsuit and that it was likely that Plaintiff sought dismissal to avoid an expected adverse ruling in light of the newly discovered, relevant evidence—the Email.
During this hearing, Plaintiff also represented that the Eleventh Circuit, in reversing this Court's Order on summary judgment, had stated that the question of the scope of Plaintiff's copyright protection is a question of fact that the jury needs to decide. Not so. The Eleventh Circuit only affirmed this Court's decision that there was an underlying factual dispute relevant to the issue of the scope of Plaintiff's copyright protection—namely, whether Plaintiff deposited the 2005 version of the Website with the Registrar of the Copyrights. See MH Sub I LLC , 770 F. App'x at 485 n.1. Moreover, the Eleventh Circuit ruled before the Email came to light. The Email has raised additional underlying factual issues discussed in this Order—namely, whether Plaintiff erred in the application process when requesting a special relief. A different error was at issue in this Court's prior Order.
In doing so, contrary to Defendant's repeated assertions, this Court made no findings determinative of the motion currently at issue. The procedural posture for a motion for voluntary dismissal and a motion for summary judgment is different. Unlike a motion for summary judgment, this Court does not have to take the facts in a light most favorable to the nonmovant—Plaintiff—when considering a motion for voluntary dismissal. On a motion for voluntary dismissal, a court protects the interests of the nonmoving party—Defendant; on a motion for summary judgment, a court views the facts, and all inferences from the facts, in a light most favorable to the nonmoving party—Plaintiff. As such, any findings this Court made in its Order denying Plaintiff's motion for voluntary dismissal are not persuasive, let alone binding, in considering a motion for summary judgment.
After this Court's ruling on Plaintiff's motion for voluntary dismissal, Defendant moved for summary judgment. ECF No. 144. This Court denied summary judgment on all issues raised by Defendant. ECF No. 151. Defendant now moves for reconsideration. Defendant seeks reconsideration on the issue of the scope of Plaintiff's copyright proception—i.e., whether Plaintiff's copyright registration covers the 2000 version of the Website or the 2005 version of the Website. If the registration covers the 2000 version of the Website, then no infringement action will lie for a copyright claim that hinges on the Photograph taken in 2004. If the registration covers the 2005 version of the Website, then a copyright infringement claim is viable.
II. RECONSIDERATION
No final judgment has been entered in this case and, therefore, Federal Rule of Civil Procedure 54(b) governs. See Fed. R. Civ. P. 54(b). A court should reconsider its previous order "only if there has been an intervening change in law, if new evidence has become available, or if there is a need to correct clear error or manifest injustice." Buffkin v. Reliance Standard Life Ins. Co. , Case No. 3:16cv21/MCR/CJK, 2017 WL 3000031, at *1 (N.D. Fla. May 30, 2017).
This Court tries to avoid errors, but errors do on occasion occur. However, this Court did not clearly err in denying Defendant's second renewed motion for summary judgment when it held that there remained a genuine dispute of fact material to the issue of the scope of Plaintiff's copyright protection. ECF No. 151. Specifically, the underlying question is whether a reasonable jury could find Plaintiff affirmatively chose to register the 2000 version of the Website or whether a reasonable jury could find Plaintiff erred in the application process. To answer this question, the relevant record evidence is the Email, ECF No. 132-1, at 2–4, Plaintiff's first declaration, ECF No. 40-1, and Plaintiff's second declaration, ECF No. 145-1.
Defendant argues that the relevant evidence unambiguously suggests that Plaintiff affirmatively chose to register the 2000 version of the Website. Not so. A reasonable jury could interpret the evidence in multiple ways. One way a jury could interpret the evidence is by finding that Plaintiff did not err in the application process but rather, as Defendant suggests, affirmatively chose to register the 2000 version of the Website. Another interpretation, one that is controlling for the purpose of a summary judgment motion because this Court must consider facts in the light most favorable to Plaintiff, is that Plaintiff misunderstood the Copyright Examiner's email and thought that the special relief would cover the entire time period from the year 2000 to 2005 and, therefore, erred in the application process.
Defendant also argues that Plaintiff changed his story when confronted with the new evidence. That is, Defendant argues Plaintiff first claimed that he made an error in the application form because he did not understand the form, but now when confronted with the Email, Plaintiff claims he misunderstood the Examiner's explanation of special relief. It may be true that Plaintiff keeps shifting his explanation, but any such inconsistency is fodder for cross-examination; it is not determinative for the purpose of a summary judgment motion because this Court does not get to judge Plaintiff's credibility. Defendant is welcome to, and this Court will allow it to cross-examine Plaintiff as to his changing story, and it will be for the jurors to decide whether they believe Plaintiff. III. ANALYSIS
"[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with" the Copyright Act. 17 U.S.C. § 411(a). The registration requirement is a precondition to filing a claim and not a jurisdictional requirement. See Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). In this case, the broader issue is the scope of Plaintiff's copyright protection. If the registration covers the 2000 version of the Website, no infringement action can lie for a copyright claim that hinges on the Photograph taken in 2004. If the registration covers the 2005 version of the Website, a copyright infringement claim is viable.
To answer the broader issue about the scope of Plaintiff's copyright protection, there are narrower factual issues that need to be resolved. One such issue is whether Plaintiff erred in the application process. If Plaintiff erred in the application process, then "this Court looks to the deposited materials to identify the scope of the copyright's protection." ECF No. 61, at 7. In this summary judgment motion, then, the issue is whether a reasonable jury could conclude that Plaintiff erred in the application process. The answer is yes.
Plaintiff claims he intended to register the 2005 version of the Website. For the purpose of the instant motion, this Court takes Plaintiff at his word. Plaintiff's intent, however, has no bearing on his registration because "the copyright act imposes no intent requirement." Gallup , 149 F. App'x at 95. It does not matter which version Plaintiff intended to register because "such a requirement would be inconsistent with the formalistic nature of the registration process." Id. (citations omitted). Plaintiff provides no authority, and this Court did not find any, for the proposition that Plaintiff's intent is relevant to the scope of the copyright's protection.
There is an exception to the general rule that intent is irrelevant to copyright registration. Under 17 U.S.C. § 411(b), a registration cannot be invalidated unless the inaccuracy in the application for copyright registration was material, and the registrant acted with scienter; i.e., an intent to mislead the Copyright Office. 17 U.S.C. § 411(b) (a certificate of registration satisfies the registration requirement "regardless of whether the certificate contains any inaccurate information, unless ... (A) the inaccurate information was included on the application for the copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration"); see also St. Luke's Cataract & Laser Inst. P.A. v. Sanderson , 573 F.3d 1186, 1201–02 (11th Cir. 2009) (holding that "omission or misrepresentation in a copyright application can render the registration invalid" where there has been "intentional or purposeful concealment of relevant information;" there must be showing of "scienter"). Invalidating a copyright registration under 17 U.S.C. § 411(b) is referred to as an invalidation due to fraud on the Copyright Office and is a defense to an otherwise valid registration.
Plaintiff repeatedly attempts to redefine the issue as a fraud on the Copyright Office and argues that Plaintiff never intended to conceal information or mislead the Copyright Office. Plaintiff misses the mark. Defendant does not raise the defense of fraud on the Copyright Office. Nor does Defendant argue that Plaintiff intentionally misled the Copyright Office. Instead, Defendant only claims that Plaintiff did not register the 2005 version of the Website. Therefore, the line of cases that require scienter for invalidating a copyright registration is inapplicable here. See, e.g. , Roberts v. Gordy , 877 F.3d 1024, 1030 (11th Cir. 2017) ("[I]n order to invalidate a registration, (1) the application must contain inaccuracies, (2) the inaccuracies must be material, and (3) the applicant must have the required scienter of intentional or purposeful concealment."); see also Eleventh Circuit Pattern Jury Instruction § 9.8 (2020).
Plaintiff also argues that this Court should always look at the deposit materials to determine the scope of the copyright's protection. This argument is without merit for multiple reasons.
First, if the deposit materials always determined the scope of the copyright's protection, it would mean that a plaintiff could claim broader protection than afforded by the Copyright Act. Assume a website, "cats-riding-skateboard.com," was created and published in 2010. At the time of its creation and first publication, the website only contained one picture of a Sphynx cat riding a skateboard. In 2015, the website's proprietor updated the website to include a picture of a Belgian cat riding the skateboard. Thus, in 2015 the website contained one picture of a Sphynx cat riding a skateboard and one picture of a Belgian cat riding a skateboard. The proprietor then decided to register his website and deposited the 2015 version of his website. If this Court were to hold that the deposit materials always determine the scope of the copyright's protection, then the proprietor could claim protection for the photographs of the Sphynx riding a skateboard and the Belgian cat riding the skateboard. However, such a scope of the copyright's protection would violate copyright law because, as the Copyright Examiner properly explained, "there is no form of blanket registration for websites covering the site as it evolves over time." ECF No. 132-1, at 2. Generally, each new version of a website is considered a separate work for the purposes of registration. See 17 U.S.C. § 101 ("A work is ‘created’ when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work."). Thus, every time the website is updated with new photographs of cats riding a skateboard, it constitutes a new work for the purpose of registration, and the proprietor would have to register the new version of the website and highlight the pre-existing work, the Sphynx cat, in the application which would not be covered by the new copyright registration. , Similarly, in this case, Plaintiff deposited the 2005 version of the Website. This version included 85% of the content that was created and published in 2000 and 15% that was added afterward. If this Court were to hold that the deposit materials always determine the scope of the copyright's protection, then Plaintiff could claim protection for the entire Website as it appeared in 2005 with just one registration even though Plaintiff updated the Website after it was first created and published. Such a such a scope of the copyright's protection would violate copyright law.
Consider the registration form that Plaintiff used to register the Website. ECF No. 40-4. In our example, the proprietor would have to describe the pre-existing materials in space 6a as the photograph of the Sphynx cat riding a skateboard. In space 6b, the proprietor would have to identify the new material that was added in the latest update—the photograph of the Belgian cat riding a skateboard. The scope of the copyright's protection for this application would not cover all the photographs uploaded since the inception of the website in 2010, even though the deposit materials would include them; instead, it would only cover the new materials added in the latest update. That is, the scope of copyright's protection for the propitiator's 2015 copyright application would cover only the Belgian cat. In this situation, this Could would have to look at the certificate of registration and the deposit material to determine the scope of the copyright's protection.
This Court can foresee how issues related to 17 U.S.C. § 411(b) and the scope of the copyright's protection can overlap. In our example, if the proprietor had deposited the 2015 version of his website and indicated on his application that the website was first created and published in 2015, then a fraud on the copyright office defense would be viable because the proprietor would be lying to the Copyright Office. Similarly, in this case, if Defendant alleged that Plaintiff entered the incorrect dates to intentionally mislead the Copyright Office, then a fraud on the copyright office defense would be viable. But Defendant does not argue that Plaintiff misled the Copyright Office. Instead, Defendant frames the issue as there was no error in the application process, that Plaintiff affirmative elected to register the 2000 version of the Website, and that no reasonable jury could believe Plaintiff's declaration because it is blatantly contradicted by the email exchange between Plaintiff and the Copyright Examiner.
The Copyright Office cannot confirm the content of the deposit material, ECF No. 132-1, at 8 ("[T]he compact disc deposited with this registration is damaged. Although the work is registered, we are unable to open, review or reproduce the files contained on the compact disc."), nor is the deposit material in the record. As this Court held in its first summary judgment Order, ECF No. 61, there is a genuine issue of material fact as to whether Plaintiff deposited the 2005 version of the Website, which included the Photograph. This issue may become moot if the jury decides that Plaintiff did not err in the application process but only copyrighted the 2000 version of the Website.
Second, if this Court were to hold that the deposit materials always control, then the special relief process afforded by 37 C.F.R. § 202.20 would be rendered meaningless. Under 37 C.F.R. § 202.20(d), a claimant can seek special relief from the registration deposit requirement. See 37 C.F.R. § 202.20(d). In this case, setting aside the factual question about whether Plaintiff erred in the application process because he misunderstood the Copyright Examiner's email, Plaintiff sought a special relief, which was granted. The special relief would have allowed Plaintiff to submit the 2005 version of the Website and still register the 2000 version of the Website because he did not have the 2000 version of the Website at hand. If the Copyright Office, through a regulation, allows relief from the deposit requirement, then the deposit materials cannot always control the scope of the copyright's protection.
In sum, intent is irrelevant in determining the scope of Plaintiff's copyright protection and has no bearing on this lawsuit because Defendant does not seek to invalidate Plaintiff's copyright based on fraud on the Copyright Office. Further, deposit materials do not always determine the scope of the copyright's protection. Instead, when there is an error in the application process, such as entering an erroneous date on the copyright registration form, "this Court looks to the deposited materials to identify the scope of the copyright's protection." ECF No. 61, at 7. The question remains as to whether there is a genuine issue of material fact from which a reasonable jury could conclude that Plaintiff erred in the application process. The relevant evidence to answer this question is the Email, ECF No. 132-1, Plaintiff's first declaration, ECF No. 40-1, and Plaintiff's second declaration, ECF No. 145-1.
On a motion for summary judgment, this Court does not weigh conflicting evidence to resolve disputed factual issues. See Skop v. City of Atlanta, Ga. , 485 F.3d 1130, 1140 (11th Cir. 2007). But, "[w]hen opposing parties tell two different stories, one which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for ruling on a motion for summary judgment." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; see also Feliciano v. City of Miami Beach , 707 F.3d 1244, 1253 (11th Cir. 2013) ("As a general principle, a plaintiff's testimony cannot be discounted on summary judgment unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not have possibly been observed or events that are contrary to the laws of nature."). In plain language, this Court will not balance the evidence and will only disregard Plaintiff's declarations if they are blatantly contradicted by the record.
In this case, Plaintiff's declarations are not blatantly contradicted by the record.
In his first declaration, Plaintiff states that he made mistakes in completing the application for copyright registration because he was unfamiliar with the copyright application process. ECF No. 40-1, ¶¶ 16–18. Specifically, Plaintiff states that he "should have entered ‘2005’ as the Year in Which Creation of the Work Was Completed" and "should have entered ... November 21, 2005, as the Date and Nation of First Publication of This Particular Work" instead of 2000 and November 20, 2000. ECF No. 40-1, ¶¶ 16–18. In short, Plaintiff claims he misunderstood the application form and entered the wrong dates.
After Plaintiff submitted a copyright application for the Website, a Copyright Examiner emailed Plaintiff. The Examiner notified Plaintiff that "the application indicates that you are seeking to register this website as published on November 20, 2000, but the date in the copyright notice is 2005, so it appears that a later revised version of the website has been submitted for registration." ECF No. 132-1, at 2. The Examiner went on to explain to Plaintiff the law—codified in 17 U.S.C. § 101—in plain language. The Examiner stated,
Please note that there is no form of blanket registration for websites covering a site as it evolves over time. The Copyright registration for a revised version of a published website only covers the copyrightable additions and revisions since the last published versions; materials published in the earlier version(s) of the site is excluded from the claim. In this case, both lines of space 6 of the application should be completed to describe the preexisting materials excluded from the claim, and the new authorship on which the claim is based. Also, the dates of creation and publication should refer to the revised version of the site, and not the original version.
ECF No. 132-1, at 2. The Examiner went on to provide Plaintiff with a couple of options,
[I]f you are seeking to register the revised (2005) version you have submitted, I may amend the application, with your authorization. At space 6a, I will describe the preexisting material as "previous version of website." At space 6b, I will describe the new authorship added to this version of the site using the terms such as "new text," "revised text," and "new photographs," as applicable (please identify the correct terms to use). Also, at space 3a, I will enter the year in which the revised version was completed (presumably 2005) and at space 3b, I will enter the month, day, and year of publication for this version, once you have provided the information.
ECF No. 132-1, at 2. The Examiner went on to state,
[I]f you wish to register the version published on November 20th, 2000, then we will need a deposit copy which represents
that version of the site, rather than a later version. I can provide instructions for submitting this upon request.
ECF No. 132-1, at 2. The Examiner further stated,
However, if the current version of the site contains a substantial amount of the text and photographs published in 11/20/00 version of the site, there is another option: you may make a request for "special relief" to use the submitted version for registration of the earlier version. Your request must be made in writing, but email is acceptable. In your request, you should explain why a copy of the site as published on November 20, 2000 is not available, and provide an estimate (percentage-based) of how much material from that version is present in the 2005 version (for instance, 100%, 95%, 85%, depending on the situation). I will then forward your special relief request for consideration.
ECF No. 132-1, at 2. When confronted with the Email, Plaintiff, in his second declaration, stated that "[it] was my understanding that when the copyright office offered me special circumstances, it was so I could cover the entire period from year 2000 to 2005." ECF No. 145-1, ¶ 6. While a close call, a reasonable jury could believe Plaintiff's declaration that he erroneously understood the special relief, as described by the Examiner, to mean that the copyright registration would cover the entire time period from the year 2000 to 2005. In the Email, the Examiner does not explain what "special relief" means. A reasonable jury could conclude that Plaintiff believed that the Examiner gave him three options: (1) register the 2005 version of the Website and provide the Examiner with certain information, (2) register the 2000 version of the Website and submit that version, or (3) seek special relief such that the registration would cover the Website from 2000 to 2005. A reasonable jury could also find that Plaintiff's response to the Examiner shows that Plaintiff erred in seeking special relief because he misunderstood the meaning of special relief.
Although, as described above, such a registration would violate copyright law under 17 U.S.C. § 101. But that is not the issue. The issue is whether Plaintiff erred when he elected "special relief" because he misunderstood the meaning of special relief.
Another explanation, one that Defendant argues is unambiguous, is that the Examiner gave Plaintiff two options—he could either register the 2000 version or the 2005 version of the Website. If he chose the 2005 version of the Website, the Examiner requested that Plaintiff provide certain information. If he chose the 2000 version of the Website, the Examiner asked Plaintiff to submit the 2000 version of the Website rather than the 2005 version. The Examiner also gave Plaintiff another option if he did not have the 2000 version of the Website and still chose to register the 2000 version. In that case, Plaintiff could request a "special relief." If Plaintiff requested the special relief, he could submit the 2005 version of the Website as deposit material and still register the 2000 version. If Plaintiff requests a special relief, the Examiner asserted that the special relief request should be in writing and asked Plaintiff to provide an estimate of how much material from the 2000 version of the Website is in the deposit material—the 2005 version. But the Email is not unambiguous, and a jury could accept Plaintiff's version of the facts.
--------
In his response to the Examiner, Plaintiff stated, "I am requesting special relief because 85% of text and photos were in the original version published back in November 2000. The original copy is not available. The primary changes have been additions to the photo gallery." ECF No. 132-1, at 4. Defendant argues that Plaintiff's response unambiguously indicates that Plaintiff affirmatively chose to register the 2000 version of the Website. The response would have been unambiguous if Plaintiff had stated, unequivocally, that he is seeking to register the 2000 version and therefore seeking special relief. But that is not the case. Plaintiff's declaration where he states that he thought that the "special circumstances" offered by the Examiner meant that the registration would cover the Website from 2000 to 2005 is supported by his response where he only sought "special relief" as he understood it, and did not seek to register the 2000 version of the Website.
For these reasons, there is still a genuine issue of fact from which a jury could determine that Plaintiff erred in the copyright application process.