Bates v. Nivtendo of America Inc. et Al. et al

MOTION to Dismiss for Failure to State a Claimor in the Alternative for a More Definite Statement and for Injunctive Relief

D. Md.October 3, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARLOW L. BATES, SR., Plaintiff, v. NINTENDO OF AMERICA INC. and MICROSOFT CORP., Defendants. Civil Action No. 1:16-cv-01341-GLR NINTENDO OF AMERICA INC.’S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT AND FOR INJUNCTIVE RELIEF Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 1 of 25 - ii - Table of Contents Page I. INTRODUCTION ................................................................................................................... 1 II. BACKGROUND ..................................................................................................................... 2 III. THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF ........................................ 4 A. The Texts and Drawing are not Protectable. ....................................................................... 4 1. The Texts are not Protectable as They Merely Attempt to Describe a Functional Work. ...................................................................................................... 5 2. The Television Drawing (Two-Dimensional Artwork) is not Protectable. .................... 7 B. The Complaint Fails to Plead with the Specificity Required to Show that Mr. Bates is Entitled to Relief. .............................................................................................................. 10 1. To State a Claim for Relief, a Complaint Must Allege Specific Plausible Facts Concerning Allegedly Infringing Acts. ..................................................................... 10 2. The Complaint Fails to Identify Any Allegedly Infringing Act. .................................. 13 IV. IN THE ALTERNATIVE, NOA MOVES FOR A MORE DEFINITE STATEMENT ....... 15 V. NOA ALSO REQUESTS INJUNCTIVE RELIEF ............................................................... 15 A. Mr. Bates has a History of Filing Frivolous Claims Improperly Seeking “Copyright” Damages. ........................................................................................................................... 16 B. Mr. Bates Asserts Claims Without Any Good Faith Basis. .............................................. 18 C. If This Court Does Not Issue an Injunction, Significant Burden Will Result. ................. 18 D. There Are No Adequate Alternative Sanctions. ............................................................... 19 VI. CONCLUSION...................................................................................................................... 19 Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 2 of 25 - iii - TABLE OF AUTHORITIES Page(s) Cases Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984) ......................................6 Arista Records LLC v. Doe 3, 604 F.2d 110 (2d Cir. 2010).....................................................................................................12 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) ...................................................................................................... passim Baker v. Selden, 101 U.S. 99 (1880) .....................................................................................................................5 Barefoot Architect, Inc. v. Bunge, 2001 U.S. App. LEXIS 701 (3d Cir. 2011) .............................................................................12 Bates v. Apple, Inc., Case No. 1:16-cv-00929-JFM, D.I. 1 ......................................................................................17 Bates v. Samsung Elecs. Am., Inc., No. 1:10-cv-03158-JFM, D.I. 34 ..................................................................................... passim Bates v. Sony Corp. of Am., Case No. 1:16-cv-01342-GLR, D.I. 1 ......................................................................................17 Beatty v. BAC Home Loans Servicing, LP, No. RBD 12-3188, 2013 WL 3868098 (D. Md. July 24, 2013) ........................................16, 17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................................... passim Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142 (2d Cir. 1987).....................................................................................................8 Chambers v. Amazon.com, Inc., 632 Fed. Appx. 742 (4th Cir. 2015) (unpublished opinion) ........................................12, 13, 14 Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396 (5th Cir. 2000) ...................................................................................................10 Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 3 of 25 - iv - Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 765-66 (9th Cir. 2003) .........................................................................................9 Galiano v. Harrah’s Operating Co., Inc., 416 F.3d 411 (5th Cir. 2005) .....................................................................................................8 Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823 (10th Cir. 1993) .....................................................................................................10 Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 (9th Cir. 1989) .....................................................................................................8 Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816 (W.D. Mo. 1986) .........................................................................................11 Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532 (4th Cir. 2015) .....................................................................................................6 Marvullo v. Gruner & Jahr, 105 F. Supp.2d 225 (S.D.N.Y. 2000).......................................................................................11 Mazer v. Stein, 347 U.S. 201 (1954) ...............................................................................................................6, 8 Nat’l Med. Care, Inc. v. Espiritu, 284 F.Supp.2d 424 (S.D. W.Va. 2003) ......................................................................................7 Papasan v. Allain, 478 U.S. 265 (1986) ...........................................................................................................11, 12 Ping Yip v. Hugs to Go LLC, 377 Fed. Appx. 973 (Fed. Cir. 2010) (unpublished opinion) ..................................................12 Ritani, LLC v. Aghjayan, 880 F. Supp.2d 425 (S.D.N.Y. 2012)...........................................................................12, 13, 14 Stein v. Mazer, 204 F.2d 472 (4th Cir. 1953) .....................................................................................................5 Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039 (8th Cir. 2003) ...................................................................................................9 Tessler v. Nat’l Broad. Co., Inc., 364 Fed. Appx. 5 (4th Cir. 2010) (unpublished opinion) ............................................12, 13, 14 Universal Furniture Int’l., Inc. v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir. 2010) .................................................................................................5, 8 Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 4 of 25 - v - Watson v. Ault, 525 F.2d 866 (5th Cir. 1976) ...................................................................................................15 Whitehead v. Viacom, 233 F. Supp. 2d 715 (D. Md. 2002) ...................................................................................16, 17 Statutes 17 U.S.C. § 102(b) ...........................................................................................................................6 17 U.S.C. § 507(b) .........................................................................................................................16 28 U.S.C. § 1651(a) .......................................................................................................................16 Other Authorities FED. R. CIV. P. 8 .....................................................................................................10, 11, 12, 13, 20 FED. R. CIV. P. 12(b)(6) .......................................................................................................4, 10, 15 FED. R. CIV. P. 12(e) ...................................................................................................................2, 15 Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 5 of 25 I. INTRODUCTION Plaintiff, Marlow L. Bates, Sr. (“Mr. Bates”) is an inmate at the State of Maryland’s Jessup Correctional Institute serving a life sentence. In November 2010, he sued five technology companies for alleged copyright infringement. 1 That case was dismissed at the initial pleading stage because the Mr. Bates’s claim was “fundament[ally] flaw[ed]” due to his confusion between copyright and patent law. His attempt to use copyright law and “entirely non-technical” drawings and text to cover the complex design and manufacture of three-dimensional television was improper: “Such matters are governed by patent law, not copyright law.” Bates v. Samsung Elecs. Am., Inc., No. 1:10-cv-03158-JFM (“Bates I”), D.I. 34, at 2. A copy the “Bates I Order” is attached as Exhibit A. 2 Mr. Bates now brings similar lawsuits seeking billions of dollars in damages from eleven technology companies, 3 including Nintendo of America Inc. (“NOA”). This case should be dismissed for the same reasons that Judge Motz dismissed Bates I. First, like in Bates I, the Complaint alleges infringement of Mr. Bates’s copyrights of entirely non-technical text and a drawing and alleges that NOA’s physical products somehow infringe those copyrights. This is the same “fundamentally flawed” legal theory advanced in Bates I. Mr. Bates’s texts and drawing are not protectable under the Copyright Act as they merely attempt to describe functional works and useful articles and are otherwise precluded under the scènes à faire doctrine. And second, also as in Bates I, the Complaint fails to identify a single work accused of 1 The Defendant companies were Samsung Electronics America Inc., Sony Corp. of America, LG Electronics USA Inc., Mitsubishi Electronics USA Inc., and Panasonic Electric Works Corp. of America. 2 Judge Motz also noted that “[p]laintiff’s allegations are wholly conclusory and do not meet the standards set by the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009),” but did not dismiss the case on that ground due to plaintiff being pro se. Id. at 1-2. 3 The other ten companies are Microsoft Corp., Apple Inc., Sony Corp. of America, Google Inc., Panasonic Electric Works Corp. of America, LG Electronics USA Inc., Mitsubishi Electronic USA Inc., Samsung Electronics America Inc., Amazon.com Inc., and Nook Industries. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 6 of 25 - 2 - infringement or any particular infringing act with even a modicum of specificity. Instead, the Complaint simply makes the sweeping allegation that NOA “infringed on his Copyright of his Creative Expressions and Designs by copying them.” See Complaint generally. This allegation fails to meet even the most liberal interpretation of the pleading standards articulated in Twombly and Iqbal. If this Court is not inclined to dismiss Mr. Bates’s claims of infringement, in the alternative, NOA moves under Rule 12(e) for a more definite statement that will serve to apprise NOA of the actions on their part that Mr. Bates contends allegedly constitute copyright infringement. Finally, Mr. Bates has a pattern of filing lawsuits based on what could generously be viewed as inadequately pled complaints asserting non-meritorious legal theories. This is the second time he has sued Samsung, Sony, Mitsubishi, and Panasonic. All of these suits suffer from the same core deficiencies: (1) Mr. Bates seeks to assert his “copyrights” to extract damages for matters that are governed by patent law and (2) Mr. Bates’s bare-bones allegations fall well short of the Twombly/Iqbal heightened pleading standard. These types of lawsuits are a burden on both the defendants and the Court. NOA, therefore, requests that the Court enter a pre-filing injunction against Mr. Bates preventing him from filing similar, future lawsuits against NOA or NOA’s parent company Nintendo Co., Ltd. without first obtaining leave of court. II. BACKGROUND Mr. Bates is a serial litigant. 4 In the instant case, Mr. Bates seeks $4 billion in damages from NOA for alleged copyright infringement of (i) a two-dimensional drawing and text titled “3-D-TV” that are subjects of registration No. VAu-000609121 (the “’121 Copyright”) and (ii) a 4 According to the records of the United States Copyright Office, Mr. Bates has obtained at least 44 copyright registrations since his incarceration in approximately 1987, including registration for “Amazing TV,” “Disposable Toilet Seat Cover,” and “Portable Voice Spelling Dictionary.” See Exhibit B, attached hereto. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 7 of 25 - 3 - text 5 titled (“Character’s Voices & Actions Controller”) that are the subject of registration No. VAu-000557873 (the “’873 Copyright”; collectively, the “Copyrights”). 6 The drawing of the ’121 Copyright is a front view of a conventional television. ’121 Copyright, at 3, attached hereto as Exh. C. The corresponding text of the ’121 Copyright attempts to describe, in rudimentary terms, the apparent functionality of television with a three- dimensional display. Id. at 2. Similarly, the text of the ’873 Copyright appears to describe, again in rudimentary terms, the apparent functionality of a “Character Voices and Action Controller,” ostensibly an “invention [to] make your own […] VIDEO GAMES.” ’873 Copyright, at 2, attached hereto as Exh. D. As with the complaint in Bates I, the instant Complaint lacks any facts to support Mr. Bates’s allegations of copyright infringement. In the Complaint, Mr. Bates alleges that he filed the Copyrights on January 27, 2004 and May 1, 2002, respectively. Attached to the Complaint as Exhibit 4 is what appears to be an incomplete deposit copy of the ’121 Copyright. 5 The two-dimensional drawing disclosed in the ’121 Copyright will be described as “the Drawing”. The texts disclosed in the ’121 Copyright and ’873 Copyright will be collectively described as “the Texts”. 6 Mr. Bates also attaches to the Complaint a rudimentary two-dimensional drawing of a conventional TV in conjunction with a corded handheld controller and a keyboard, which drawing is ostensibly related to the text of the ’873 Copyright. See Complaint at Exhibit 13. However, this image is not included in Mr. Bates’s deposit that became the ’873 Copyright and thus cannot form any basis of Mr. Bates’s cause of action. See ’873 Copyright, Exh. D. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 8 of 25 - 4 - Attached to the Complaint as Exhibit 12 is what appears to be an incomplete deposit copy of the ’873 Copyright. 7 Mr. Bates merely alleges that NOA infringes the Copyrights “by copying them.” See Complaint generally. Mr. Bates further alleges that he mailed NOA “letters describing his Creative Expressions and the Designs of his Deposited Works.” Id. Attached to the Complaint as Exhibits 7, 11, and 15 are what purport to be such letters to NOA. Mr. Bates fails to identify any NOA works that allegedly infringe the Copyrights, but instead attached undated pages third-party sales flyers including some NOA products. See, e.g., id. at Exhibits 8, 9, 14. Mr. Bates pleads no facts to support his allegations of copyright infringement. For example, he fails to allege that NOA had access to the drawing and texts disclosed in the Copyrights; he does not allege that NOA performed any action that could result in anything that is substantially similar or identical to his work; he does not allege any distribution to the public by sale or other transfer of ownership; nor does he allege any circumstances of the alleged infringement. He merely pleads that NOA has “infringed on his Copyright of his Creative Expressions and Designs by copying them.” Complaint. III. THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF The Complaint should be dismissed pursuant to Rule 12(b)(6). A. The Texts and Drawing are not Protectable. Mr. Bates’s claim of copyright infringement fails for the fundamental reason that the Drawing and the Texts disclosed in the Copyrights are not protectable under the Copyright Act. Mr. Bates’s Texts are merely attempt to describe functional work, and Mr. Bates’s Drawing describes a useful article and is otherwise precluded under the scènes à faire doctrine. Such 7 NOA has obtained the deposit copies of the ’121 Copyright and the ’873 Copyright from the United States Copyright Office. These are attached as Exhibits C and D to this Motion. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 9 of 25 - 5 - works are not entitled to copyright protection. Indeed, Judge Motz properly dismissed Mr. Bates’s complaint in Bates I on this very ground: There is, in any event a much more fundamental flaw in plaintiff’s claim: the drawing and text submitted by plaintiff are entirely non-technical in nature, and the design and manufacture of three dimensional televisions obviously is a matter of exceptional technical complexity. Such matters are governed by patent law, not copyright law, as argued by plaintiff. Bates I Dismissal Order, Exh. A, at 2. 1. The Texts are not Protectable as They Merely Attempt to Describe a Functional Work. Mr. Bates’s claim for infringement of the Texts must be dismissed under the doctrine of Baker v. Selden because it merely attempts to describe a functional work. 8 Where the use of an idea requires the copying of the work itself, such copying will not be infringing. Baker v. Selden, 101 U.S. 99, 100-01 (1880). The rights granted to Mr. Bates, if any, under the Copyright Act cannot and do not prevent others from using the copyrighted work, for example, to manufacture a television or video game console. The fundamental rights granted under Section 106 of the Copyright Act that serve to prevent reproduction and distribution do not prevent the use of the work. Stein v. Mazer, 204 F.2d 472, 477 (4th Cir. 1953); 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.18[A] (2010). Rather, to violate the Copyright Act, a defendant must copy protectable elements of a work. See Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 537 (4th Cir. 2015). Mr. Bates does not seem to be attempting to prevent reproduction and distribution of the Copyrights. Rather, he seems to seek protection of the ideas outlined in the Copyrights. Copyright law, however, does not protect ideas, only the expression of ideas. See 17 U.S.C. § 102(b); Mazer v. Stein, 347 U.S. 201, 217 8 When a certificate of registration from the United States Copyright Office exists, the burden shifts to the defendant to prove the claimed copyrights are invalid. “However, the Copyright Office’s practice of summarily issuing registrations … counsels against placing too much weight on registration as proof of a valid copyright.” Universal Furniture Int’l., Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 428 (4th Cir. 2010). Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 10 of 25 - 6 - (1954). The protection and rights that Mr. Bates tries to assert in his Complaint are the function of patent law, not copyright law, as Judge Motz correctly noted in the Bates I Dismissal Order. Exh. A, at 2. Even if, arguendo, NOA copied any portion of Mr. Bates’s Copyrights (which it did not) 17 U.S.C. § 102(b) specifically precludes copyright protection for any original work of authorship extended to any idea, procedure, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described or illustrated. Thus, the copying of an idea, a system, or a method of operation is not infringement. Mazer, 347 U.S. at 217. The defendant’s use of a copyrighted work is of no moment; it must copy or publicly distribute protectable elements of that work to violate Section 106. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984). Professor Nimmer explains by hypothetical example the failure of copyright protection to reach the functional works described in a copyright: Consider a plaintiff who maintains copyright protection over the blueprints in its pharmaceutical machine to place medicinal pills into blister packs, and who sues a rival producer of machinery with the identical functionality. To the extent that the evidence shows that defendant copied plaintiff’s blueprints by making new blueprints or drawings, then plaintiff’s case should be allowed to proceed. By contrast, to the extent that defendant simply built a better mousetrap (or, as the case may be, pill-stuffer) by disassembling one of plaintiff’s machines … then the copying of expression on which all infringement liability must rest is lacking. The true gravamen of the complaint, under these latter facts, lies solely within ‘province of letters-patent, not of copyright,’ as the court in Baker v. Selden aptly observed. 1 NIMMER & NIMMER, supra, § 2.18[D][2], at 2-204.9-204.10. The law is clear that “an as-built structure or feature cannot be an infringing copy of a technical drawing .” See, e.g., Nat’l Med. Care, Inc. v. Espiritu, 284 F.Supp.2d 424, 435 (S.D. W.Va. 2003). Here, the text of the ’121 Copyright attempts to describe an invention named “3- D-TV”. The drawing of the’121 Copyright, accompanying the text, is a simple drawing of the Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 11 of 25 - 7 - front of a television. It was registered by Mr. Bates not as a technical drawing, but as two- dimensional artwork. In short, there is nothing technical about either the drawing or the text. But even if the drawing and/or text were technical (e.g., like a pharmaceutical blueprint), anyone, including NOA, would be entitled to use the text and drawing of the ’121 Copyright to create a product, for example a three-dimensional television or video game console product. Such product features cannot infringe Mr. Bates’s Copyrights. 2. The Television Drawing (Two-Dimensional Artwork) is not Protectable. a. The Drawing is a Useful Articles. Useful articles are not entitled to copyright protection under the Copyright Act. Section 101 of the Copyright Act defines “useful article” as: [A]n article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.” 17 U.S.C. § 101. Section 101 specifically excludes that aspect of a “useful article” that cannot be identified separately from, and is capable of existing independently of, the utilitarian aspect of the article in the Copyright Act’s definition of “pictorial, graphic, and sculptural works.” Because of the Copyright Act’s “useful article” exception, when a pictorial, graphic, or sculptural work contains a utilitarian aspect, copyright protection is available only to the extent that the artwork or creative design, if any, embodied therein is separable from the utilitarian aspect of the work. Galiano v. Harrah’s Operating Co., Inc., 416 F.3d 411, 416 (5th Cir. 2005). For example, while a sculpture of a woman at the base of a lamp is capable of existing separately as a sculpture from the lamp, a sculpture that functions as a bicycle rack cannot be separated into a sculpture apart from its utilitarian aspects. Compare Mazer, 347 U.S. at 217, with Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1151-52 (2d Cir. 1987). Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 12 of 25 - 8 - As the Court of Appeals for the Second Circuit explained: [I]f design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists. Brandir, 834 F.2d at 1145. The useful article exception applies to all pictorial, graphic, and sculptural works. Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 202 (9th Cir. 1989). Thus, while the exclusion is most often applied to three-dimensional objects such as toys, jewelry, mannequins, and sculptural objects, it also has application to pictorial works such as Mr. Bates’s Drawing. Mr. Bates’s Complaint relies upon a drawing of the front view of a common television. As such, these are useful articles and are not subject to copyright protection. There are no decorative elements of the Drawing that are conceptually separable from the utilitarian aspects of the devices depicted in the Drawing, as would be required to protect the Drawing under copyright law. Universal Furniture Int’l., Inc. v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir. 2010). Congress dealt specifically with televisions when considering the above changes to Section 101 and the 1976 Act. The House Report, explaining the addition of the useful article exception in Section 101, provides: [A]lthough the shape of an industrial product may be aesthetically satisfying and valuable, the Committee’s intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies’ dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrightable under the bill. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 13 of 25 - 9 - H.R. REP. NO. 94-1476, at 55. Professor Nimmer defines “separability” as an object’s ability to serve solely as the object of display even if it cannot function. He uses a television in his example: [I]t explains why automobiles, airplanes, food processors, television sets and the like lie outside of copyright protection, given how unlikely it is that anyone would purchase an automobile incapable of locomotion … simply to showcase its attractive shape. 1 NIMMER & NIMMER, supra, § 2.08[B][3], at 2-101. Mr. Bates’s designs for his inventions of a television set is dictated solely by its utilitarian function, with no separable decorative elements and, as such, is not protectable by copyright. His claim for infringement of copyright should be dismissed. b. The Scènes à Faire Doctrine Precludes Protection of the Drawing. In Mr. Bates’s simplistic drawing of a television, idea and expression have merged. Under the scènes à faire doctrine, works are not protected from infringement of the expression set forth in the work-here, depictions of televisions-where the work flows from a common idea, such as how a television set is actually configured. Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 765-66 (9th Cir. 2003) (holding that while an advertising photograph of a blue vodka bottle met minimal standards of originality, protection against identical copying was limited by the scènes à faire and merger doctrines). In Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042-43 (8th Cir. 2003), the court applied the scènes à faire doctrine to stock elements found in all depictions of Christmas wreath cards and found no infringement. There are few ways, if even more than one, to depict in a simple drawing, a conventional television. Courts apply the scènes à faire doctrine to elements of a work dictated by outside considerations. See, e.g., Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 838 (10th Cir. 1993); Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 401 (5th Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 14 of 25 - 10 - Cir. 2000). A television must have a frame, a screen, knobs, or controls, and a base. The elements of Mr. Bates’s Drawing are dictated by outside considerations. Copyright law does not allow Mr. Bates to monopolize a common configuration of a television set. In summary, NOA has not copied Mr. Bates’s Drawing. Even so, the Drawing is not protectable under copyright law. B. The Complaint Fails to Plead with the Specificity Required to Show that Mr. Bates is Entitled to Relief. The Federal Rules of Civil Procedure permit dismissal of a complaint that fails to allege what acts during what time form the basis for the plaintiff’s claim. See FED. R. CIV. P. 8(a)(2); FED. R. CIV. P. 12(b)(6). For example, Rule 8(a)(2), which is read in conjunction with Rule 12(b)(6), requires that a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Even if, arguendo, the Texts and Drawing of Mr. Bates’s Copyrights were protectable under the Copyright Act, Mr. Bates’s Complaint fails to satisfy Rules 8(a)(2) and 12(b)(6); it fails to plead basic facts required to sustain a copyright infringement claim. Cf. Bates I Dismissal Order, Exh. A. 1. To State a Claim for Relief, a Complaint Must Allege Specific Plausible Facts Concerning Allegedly Infringing Acts. The law requires Mr. Bates to plead more than his mere conclusory claim that NOA infringed: Rule 8(a)(2) has been construed to require a plaintiff to plead with specificity the acts by which a defendant has committed copyright infringement. A “properly plead [sic] copyright infringement claim must allege … by what acts during what time the defendant infringed the copyright …” [and] must set out the “particular infringing acts … which some specificity. Broad, sweeping allegations of infringement do not comply with Rule 8.” Marvullo v. Gruner & Jahr, 105 F. Supp.2d 225, 230 (S.D.N.Y. 2000). The law requires specificity because, without notice of the acts of infringement, a defendant cannot adequately Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 15 of 25 - 11 - respond to a claim of infringement. Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816, 820 (W.D. Mo. 1986). The Supreme Court has since heightened the pleadings requirement pursuant to Rule 8(a). See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). In Twombly, the Supreme Court dismissed a deficient pleading that failed to state a Sherman Act claim, noting that Rule 8(a)(2) requires “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the … claim is and the grounds upon which is rests.’” Twombly, 550 U.S. at 545 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Supreme Court clarified what this requirement means, holding: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of a clause of action’s elements will not do. Twombly, 550 U.S. at 545. The Supreme Court cited its decision in Papasan v. Allain, 478 U.S. 265 (1986) and emphasized that on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 286. Thus, the “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1216, pp. 235-36 (3d. ed. 2004)). In Iqbal, the Supreme Court again held that a mere naked assertion of wrongdoing, devoid of factual enhancement, does not satisfy the requirements of Rule 8(a)(2): While legal conclusion can provide the complaint’s framework, they must be supported by factual allegations. … Rule 8 marks a notable and generous departure from the hyper-technical, code- pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 16 of 25 - 12 - Iqbal, 129 S.Ct. at 1950. Given the instruction of Twombly and Iqbal, courts across the country have applied these Supreme Court decisions to copyright pleadings, requiring a heightened pleading standard beyond merely alleging ownership of a copyright and infringement. Bates I Dismissal Order, Exh. A; Chambers v. Amazon.com, Inc., 632 Fed. Appx. 742, 743-44 (4th Cir. 2015) (unpublished opinion); Tessler v. Nat’l Broad. Co., Inc., 364 Fed. Appx. 5, 6-7 (4th Cir. 2010) (unpublished opinion); Ritani, LLC v. Aghjayan, 880 F. Supp.2d 425, 441-43 (S.D.N.Y. 2012); Arista Records LLC v. Doe 3, 604 F.2d 110, 120 (2d Cir. 2010); Ping Yip v. Hugs to Go LLC, 377 Fed. Appx. 973, 978 (Fed. Cir. 2010) (unpublished opinion); Barefoot Architect, Inc. v. Bunge, 2001 U.S. App. LEXIS 701, at *6 (3d Cir. 2011). That heightened pleading standard, which Mr. Bates does not satisfy, is echoed in the Fourth Circuit’s unpublished decision in Tessler, 364 Fed. Appx. at 7. There, the Fourth Circuit cited Twombly and held that the copyright plaintiff must allege facts that “raise a right to relief above the speculative level” and the “complaint must contain enough facts to state a claim to relief that is plausible on its face” in order to survive a 12(b)(6) motion. Id. at 6-7. The Twombly/Iqbal standard also applies to pro se plaintiffs. For example, in Chambers, a pro se plaintiff, proceeding in forma pauperis, sued Amazon.com, Inc. for copyright infringement of CDs. Chambers, 632 Fed. Appx. at 743. Though the court noted that “the allegations in pro se complaints should be liberally construed,” it reiterated that, even pro se complaints, “must contain factual allegations sufficient to raise a right to relief above a speculative level and to state a claim to relief that is plausible on its face.” Id. The Southern District of New York applied a similar standard in dismissing the plaintiff’s copyright claim in Ritani, in a case concerning jewelry designs. Ritani, 880 F. Supp.2d at 443. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 17 of 25 - 13 - There, the court held that to comply with Rule 8, a complaint alleging copyright infringement must state: “[1] which specific original works are the subject of the claim, [2] that plaintiff owns the copyright, [3] that the works have been registered in accordance with the copyright statute, and [4] by what acts and during what time defendant has infringed the copyright.” Id. at 440 (quoting Franklin Elec. Publishers, Inc. v. Unisonic Prods. Corp., 763 F. Supp. 1, 4 (S.D.N.Y. 1991)). The plaintiff had not met the fourth element, because like Mr. Bates’s Complaint, “there are no facts alleged in the Amended Complaint as to how or when [defendant] violated any of the listed copyrights. … Moreover, the rest of the Amended Complaint summarily assumes or makes the legal conclusion that a copyright violation has been established.” Id. at 441. Furthermore, the court also held that, post-Iqbal, a copyright plaintiff must allege that “(1) defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s.” Id. at 441-42. The Ritani plaintiff, however, failed to plead any facts regarding how the jewelry at-issue was “substantially similar,” including identifying the protectable elements of the works as part of its claim. Id. at 442. Accordingly, the court dismissed the plaintiff’s copyright claim. Id. at 443. 2. The Complaint Fails to Identify Any Allegedly Infringing Act. As in Tessler and Chambers, and as correctly identified by Judge Motz in Bates I, Mr. Bates’s Complaint is defective because he sets forth nothing more than conclusory allegations that NOA engaged in copyright infringement. He fails to allege any facts to apprise NOA of what, if any, conduct on its part are the allegedly infringing activity. See Bates I Dismissal Order, Exh. A, at 1 (“Plaintiff’s allegations are wholly conclusory and do not meet the standards set by [Twombly] and [Iqbal], that require a plaintiff to make factual allegations demonstrating that he has a plausible claim.”). Mr. Bates merely makes legal conclusions Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 18 of 25 - 14 - disguised as facts. See id. In this way, Mr. Bates deprives NOA of notice of his claims and an ability to prepare a defense, nor do his allegations have credibility. Mr. Bates does not raise his proclaimed right to relief beyond mere speculation. He merely avers that NOA “had infringed on his Copyright of his Creative Expressions and Designs by copying them.” (Complaint.) Mr. Bates does not allege that substantial similarity exists between NOA’s work and the protectable elements-if any-of Mr. Bates’s work. The drawing and texts disclosed in the Copyrights are of absolutely no value to NOA. The texts are not technical and the drawing is a rudimentary drawing of a simple, rectangular television. Mr. Bates’s asserted legal conclusion that NOA copied his “Creative Expressions and Designs” is not enough to sustain his pleading. To survive a motion to dismiss, Mr. Bates must credibly allege the acts of infringement and the period of time during which NOA supposedly infringed the Copyrights. At the least, he must provide sufficient, credible information (1) to give to NOA fair notice of the grounds upon which his claims rest and (2) to allow the Court to judge whether his allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. He fails to do so. Instead, he merely attaches to his Complaint undated pages of what appear to be sales flyers appearing to include some NOA products, none of which have any substantially similarity to of Mr. Bates’s work disclosed in the Copyrights. (Complaint at Exhibits 8, 9, 14.) Mr. Bates utterly fails to explain in any fashion how NOA violated any of his rights under the Copyright Act. Therefore, for the aforementioned reasons, under Twombly and Iqbal, and as previously recognized by Judge Motz in Bates I, these allegations are not sufficient and the Complaint must be dismissed. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 19 of 25 - 15 - IV. IN THE ALTERNATIVE, NOA MOVES FOR A MORE DEFINITE STATEMENT If this Court is not inclined to dismiss Mr. Bates’s claims of infringement, in the alternative, NOA moves under Rule 12(e) for a more definite statement that will serve to apprise NOA of the actions on their part that constitute copyright infringement. CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1376 (2004) (explaining that “challenges to a pleading often request relief under Rule 12(b)(6) and Rule 12(e) in the alternative.”). One federal circuit court, dealing with pro se actions brought in forma pauperis, has ruled that a district court may send a questionnaire to plaintiff to enable it to assess whether the plaintiff’s claim is viable and to facilitate early dismissals of frivolous suits. Watson v. Ault, 525 F.2d 866 (5th Cir. 1976). Requiring Mr. Bates to provide a more definite statement will promote the speedy adjudication of this case. In particular, he should be requested to provide the details of the alleged infringement to apprise NOA of facts critical to its ability to defend against these charges. Additionally, the Copyrights were registered more than six years ago, and limitations for a copyright action are three years. 17 U.S.C. § 507(b). The means by which NOA allegedly infringed the Copyrights should be disclosed. Doing so will allow NOA to assess whether the claim is time-barred, in addition to its other deficiencies. V. NOA ALSO REQUESTS INJUNCTIVE RELIEF This suit is merely one in a series of numerous lawsuits brought by Mr. Bates against technology companies. Indeed, it appears that the most recent set of lawsuits Mr. Bates has filed includes four companies that he previously sued in Bates I on near-identical grounds. Because Mr. Bates has demonstrated a penchant for filing lawsuits of questionable merit against Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 20 of 25 - 16 - technology companies, NOA requests that the Court enter an injunction requiring that Mr. Bates seek and obtain leave before filing future lawsuits against NOA, or its parent company Nintendo Co., Ltd. In the event the Court were to provide Mr. Bates the opportunity to file a more definite complaint in connection with this Motion, NOA further requests that Mr. Bates first submit any such amended complaint to the Court for review and approval prior to permitting him to file it. This Court has the power to issue pre-filing injunctions to, among other things, relieve the burden on the parties and the court caused by repeated, non-meritorious litigation. See Beatty v. BAC Home Loans Servicing, LP, No. RBD 12-3188, 2013 WL 3868098, at *3 (D. Md. July 24, 2013) (“Under the All Writs Act, 28 U.S.C. § 1651(a), this Court has the authority to issue a prefiling injunction against vexatious and repetitive litigants.”); Whitehead v. Viacom, 233 F. Supp. 2d 715, 726 (D. Md. 2002). In deciding whether to issue a pre-filing injunction, courts consider (1) the party’s history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party’s filings; and (4) the adequacy of alternative sanctions. Beatty, 2013 WL 3868098, at *3 (citing Cromer, 390 F.3d at 817). “‘Ultimately, the question the court must answer is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.’” Whitehead, 233 F. Supp. 2d at 726 (quoting Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). Here, all the factors favor entry of an injunction. A. Mr. Bates has a History of Filing Frivolous Claims Improperly Seeking “Copyright” Damages. This lawsuit is nearly identical to the Bates I lawsuit. More specifically, in Bates I, Mr. Bates asserted that five technology companies infringed his copyright of a “3D-TV” by Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 21 of 25 - 17 - “develop[ing], marketing, manufacturing, distributing, and selling TV’(s).” See Bates I, D.I. 1. As discussed above, Judge Motz dismissed those cases finding his copyrights could not form the basis of a valid claim, and Judge Motz found that Mr. Bates’s bare-bones complaint failed on Iqbal and Twombly grounds. Bates I Order, Exh. A. Mr. Bates now files this lawsuit against NOA, and several other lawsuits, including lawsuits against four of the five companies sued in Bates I, on grounds nearly identical to those asserted in Bates I:  On March 29, 2016, Mr. Bates filed a suit against Apple alleging only that “Plaintiff mailed Defendant letters describing his [works]” and that “Defendant [] infringed on his Copyrights” of a “Portable Voice Spelling Dictionary (alternative title “Portable Voice Translator”),” “Video Picture Scanner,” “Unique Computer,” “Amazing TV,” “Big Screen Computer,” and “Disposable Toiletseat Cover” with no further factual allegations. The suit seeks damages of $5 Billion. See Bates v. Apple, Inc., Case No. 1:16-cv-00929-JFM, D.I. 1.  On May 4, 2016, Mr. Bates filed a suit against Sony, Google, Panasonic, LG Electronics, Mitsubishi Electronic, Samsung, Amazon, and Nook alleging only that “Plaintiff mailed Defendants letters describing his [works]” and that “Defendants [] infringed on his Copyrights” of a “Portable Voice Translator,” “Video Picture Scanner,” “Unique Computer,” “Amazing TV,” “Big Screen Computer,” and “Disposable Toiletseat Cover” with no further factual allegations. The suit seeks damages of $5 Billion. See Bates v. Sony Corp. of Am., Case No. 1:16-cv-01342-GLR, D.I. 1.  On May 4, 2016, Mr. Bates filed this lawsuit suit against NOA and Microsoft Corp. alleging only that “Plaintiff mailed Defendants letters describing his [works]” and that “Defendant [sic] [] infringed on his Copyright” of a “Video Picture Scanner” with no further factual allegations. The suit seeks damages of $4 Billion. (Complaint.) All of these suits suffer from the same core deficiencies: (1) Mr. Bates seeks to assert his “copyrights” to extract damages for matters that are governed by patent law and (2) Mr. Bates’s bare-bones allegations fall well short of the Twombly/Iqbal heightened pleading standard. Mr. Bates’s filings demonstrate that he has little regard for the judicial system or its participants, and instead is trying to “get rich” with little if any understanding of the legal principles Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 22 of 25 - 18 - underlying copyright law. Each of his new-filed actions include the same dearth of factual allegations, similar parties, substantially identical subject matter, and the same cause of action. B. Mr. Bates Asserts Claims Without Any Good Faith Basis. There is no good faith basis for this or any of Mr. Bates’s other lawsuits. Judge Motz dismissed Bates I because the claims were governed by patent rather than copyright law and also noted that the complaint did not meet the Iqbal/Twombly heightened pleading requirements. Mr. Bates made no effort to remedy these deficiencies in his current Complaint. With respect to the heightened pleading standard, the current Complaint contains fewer allegations than those of the Complaint in Bates I. Whereas in Bates I, Mr. Bates at least asserted a method by which the defendants were allegedly infringing, here he asserts only that he sent letters to Defendants describing his works and that “Plaintiff discovered that Defendant had infringed on his Copyrights of his Creative Expressions and Designs by Copying them” without further explanation. See Complaint generally. Judge Motz’s opinion put Mr. Bates on notice that his claims were groundless, but he disregarded that notice and filed essentially the same Bates I lawsuit, but now instead of suing five companies he is suing eleven. Absent court intervention, there is no indication that these suits will stop anytime soon. C. If This Court Does Not Issue an Injunction, Significant Burden Will Result. If an injunction is not granted, there will be significant burden to this Court and the other parties. First, though Mr. Bates’s current complaints are largely duplicative, they have not been consolidated and are assigned to different judges. Each of the assigned judges must conduct the same analysis with respect to the claims, thus wasting the Court’s judicial resources. Second, the five Bates I defendants dedicated significant resources to defending themselves in Bates I. Eleven companies are now forced to dedicate resources to defend these cases, which appear to be nearly identical to the Bates I cases. If permitted to continue, Mr. Bates’s next round of lawsuits Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 23 of 25 - 19 - may name twenty or even more defendants. These additional suits would further burden both the Court and the parties. D. There Are No Adequate Alternative Sanctions. A pre-filing injunction is the only appropriate sanction here. Monetary sanctions would have no effect on Mr. Bates; he is an inmate at Jessup Correctional Institution and he moved this court for leave to proceed in forma pauperis. (D.I. 2). The Court granted Mr. Bates’s motion. (D.I. 7). Mr. Bates, by his own admission, is unable to pay any monetary sanction this Court may levy against him. A pre-filing injunction thus represents the only protection that NOA and other similarly situated companies have against Mr. Bates’s continued assertion of meritless claims. VI. CONCLUSION For each of the reasons set forth above, the Complaint must be dismissed. If, however, the Court is not inclined at this time to dismiss the Complaint, Mr. Bates should be required to provide a more definite statement. Any such statement, however, should first be reviewed by the Court to determine whether the statement meets Rule 8’s heightened pleading requirements as discussed in the Supreme Court’s Twombly and Iqbal opinions. Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 24 of 25 - 20 - Dated: October 3, 2016 DENTONS US LLP By: /s/ David I. Ackerman David I. Ackerman, Bar No. 15921 david.ackerman@dentons.com 1900 K Street, NW Washington, District of Columbia 20006 Telephone: (202) 496-7500 Facsimile: (202) 408-6399 Mark C. Nelson* 2000 McKinney Avenue, Suite 1900 Dallas, Texas 75201 Telephone: (214) 259-0900 Facsimile: (214) 259-0910 *Admitted pro hac vice Attorneys for Defendant Nintendo of America Inc. CERTIFICATE OF SERVICE I hereby certify that, on this 3 rd day of October 2016, I caused a true and correct copy of the foregoing MOTION TO DISMISS OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT AND FOR INJUNCTIVE RELIEF to be served on all counsel of record by filing the document with this Court’s CM/ECF system, which sends notification of the filing to all counsel registered with that system, and by U.S. Mail, postage prepaid, to the following parties not registered with that system: Marlow L. Bates, Sr., No. 195-027 Jessup Correctional Institution P.O. Box 534 Jessup, Maryland 20794 /s/ David I. Ackerman David I. Ackerman Case 1:16-cv-01341-GLR Document 18 Filed 10/03/16 Page 25 of 25 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARLOW L. BATES, SR. * * * v. * Civil No. - JFM-10-3158 * SAMSUNG ELECTRONICS * AMERICA, INC., ET AL. * ****** MEMORANDUM Plaintiff, an inmate at the State of Maryland’s Roxbury Correctional Institution serving a life sentence, has brought this action against defendants seeking $1 billion in damages for alleged copyright infringement. Defendants have filed a motion to dismiss or a more definite statement.1 Plaintiff has responded to the motion. The motion will be treated as one to dismiss and, as such, will be granted. The gravamen of plaintiff’s claim is that “[b]efore 2004, . . . [he] draw [sic] technical drawings and wrot [sic] a text for a TV. [sic] entitled 3-D-TV.” Defendants allegedly have infringed the copyright “by development, marketing, manufacturing, distributing and selling TV’(s).” Plaintiff’s allegations are wholly conclusory and do not meet the standards set by the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), that require a plaintiff to make factual allegations demonstrating that he has a plausible claim. For example, plaintiff has alleged no facts to show that any of the 1 Two of the defendants, Panasonic Electric Works Corp. of America and Mitsubishi Electric & Electronics USA, Inc. have also moved for summary judgment on the ground that they are not, and never have been, engaged in the manufacture or distribution of televisions in the United States. In light of the fact that I am granting the motion to dismiss filed by all defendants, I need not reach the issues raised by those defendant’s summary judgment motions. I note, however, that the motion they have filed for summary judgment appears to be meritorious. Case 1:10-cv-03158-JFM Document 34 Filed 07/20/11 Page 1 of 2Case 1:16-cv-01 41-GLR Document 18-1 Filed 10/ 3/ 6 Page 1 of 2 2 defendants had access to his work or copied the drawing and text.2 In light of plaintiff’s pro se status, however, I am reluctant to grant a motion to dismiss on Twombly or Iqbal grounds. There is, in any event a much more fundamental flaw in plaintiff’s claim: the drawing and text submitted by plaintiff are entirely non-technical in nature, and the design and manufacture of three dimensional televisions obviously is a matter of exceptional technical complexity. Such matters are governed by patent law, not copyright law, as argued by plaintiff. A separate order granting defendant’s motion to dismiss is being entered herewith. Date: July 20, 2011 /s/ J. Frederick Motz United States District Judge 2 In his opposition plaintiff speculates that defendants copied the drawing and text by obtaining copies from the Copyright Office where they are on file. He has not, however, alleged any facts to support that speculation. Case 1:10-cv-03158-JFM Document 34 Filed 07/20/11 Page 2 of 2Case 1:16-cv-01 41-GLR Document 18-1 Filed 10/ 3/ 6 Page 2 of 2 Public Catalog Copyright Catalog (1978 to present) Search Request: Left Anchored Name = bates marlow Search Results: Displaying 1 through 25 of 45 entries. Resort results by:  Set Search Limits # Name (NALL) < Full Title Copyright Number Date [ 1 ] Bates, Marlow, 1961- Crack. PAu002257456 1998 [ 2 ] Bates, Marlow, 1961- How many MCs (will it take)? PAu002250914 1998 [ 3 ] Bates, Marlow, 1961- Nevah say nevah. PAu002325019 1998 [ 4 ] Bates, Marlow, 1969- Death wish. SRu000163654 1989 [ 5 ] Bates, Marlow, 1969- Hyper-active. SRu000163581 1989 [ 6 ] Bates, Marlow, 1969- Mental thing. SRu000162624 1989 [ 7 ] Bates, Marlow L., 1961- True to the ball game! VAu000489785 2000 [ 8 ] Bates, Marlow L., Sr. 3-D-TV. VAu000609121 2004 [ 9 ] Bates, Marlow L., Sr. 3D - Contact Lens. VA0001796106 2000 [ 10 ] Bates, Marlow L., Sr. Amazing TV. VAu000633687 2004 [ 11 ] Bates, Marlow L., Sr. Baby's first potty chair bank, and other drawings. VAu000525306 2001 [ 12 ] Bates, Marlow L., Sr. "Baltimore Chronicles". TXu001683272 2010 [ 13 ] Bates, Marlow L., Sr. Big screen computer, & other technical drawings. VAu000628076 2004 [ 14 ] Bates, Marlow L., Sr. Chameleon effect car. VAu000615317 2004 [ 15 ] Bates, Marlow L., Sr. Commercials. TXu001058071 2002 [ 16 ] Bates, Marlow L., Sr. Crimson dawnz. PAu002651651 2002 [ 17 ] Bates, Marlow L., Sr. Disposable toiletseat cover : no. 195-027. VAu000657751 2005 [ 18 ] Bates, Marlow L., Sr. Escape into the real world. TXu001092111 2003 [ 19 ] Bates, Marlow L., Sr. Long lasting underwear, and 1 other drawing. VAu000522629 2001 [ 20 ] Bates, Marlow L., Sr. Original supperbowl commercials. TXu001282441 2006 [ 21 ] Bates, Marlow L., Sr. Portable speaker-boomer CD player, and other drawings. VAu000607312 2003 [ 22 ] Bates, Marlow L., Sr. Portable voice spelling dictionary, & 3 other works. VAu000548639 2002 [ 23 ] Bates, Marlow L., Sr. Screenplays by Marlow L. Bates, Sr. TXu001049708 2002 [ 24 ] Bates, Marlow L., Sr. Unique computer, & 5 other works. VAu000584762 2003 [ 25 ] Bates, Marlow L., Sr. Video picture scanner. VAu000557873 2002 Resort results by:  Set Search Limits Clear Selected Retain Selected Save, Print and Email (Help Page) Records Select Format: Full Record  Format for Print/Save All on Page Selected On Page Selected all Pages Enter your email address: Email Page 1 of 2 10/3/2016http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?ti=1,0&Search%5FArg=bates%20marlow... Case 1:16-cv-01341-GLR Document 18-2 Filed 10/03/16 Page 1 of 2 Public Catalog Copyright Catalog (1978 to present) Search Request: Left Anchored Name = bates marlow Search Results: Displaying 26 through 45 of 45 entries. Resort results by:  Set Search Limits # Name (NALL) < Full Title Copyright Number Date [ 26 ] Bates, Marlow L., Sr., 1961- "Backpockets" and "sidepockets", & 1 other drawing. VAu000568384 2002 [ 27 ] Bates, Marlow L., Sr., 1961- Creative children world : L-1. TXu001308433 2006 [ 28 ] Bates, Marlow L., Sr., 1961- Double trouble. TXu000994346 2001 [ 29 ] Bates, Marlow L., Sr., 1961 Felony Family. VAu000507571 2000 [ 30 ] Bates, Marlow L., Sr., 1961- Headband bandanna dew-rag. VAu000552634 2002 [ 31 ] Bates, Marlow L., Sr., 1961- Issue. VAu000639032 2004 [ 32 ] Bates, Marlow L., Sr., 1961- Low down. VAu000509422 2001 [ 33 ] Bates, Marlow L., Sr., 1961- Low Down. VAu000542574 2001 [ 34 ] Bates, Marlow L., Sr., 1961- Pretty unique. VAu000511194 2000 [ 35 ] Bates, Marlow L., Sr., 1961- Rose. TXu001961012 2014 [ 36 ] Bates, Marlow Leonard, 1961- Affects of aids : poems of different people with HIV or AIDS, or without. TXu000662616 1994 [ 37 ] Bates, Marlow Leonard, 1961- Carolyn. PAu001350042 1990 [ 38 ] Bates, Marlow Leonard, 1961- Hits / by Marlow Leonard Bates. TXu000399625 1990 [ 39 ] Bates, Marlow Leonard, 1961- Ididn't do it. TXu000858400 1998 [ 40 ] Bates, Marlow Leonard, 1961- Just the way it is. TXu000698967 1995 [ 41 ] Bates, Marlow Leonard, 1961- Peons of affection / by Marlow Leonard Bates and Raymond W agstaff-El. TXu000343303 1988 [ 42 ] Bates, Marlow Leonard, 1961- Poems of affection / by Marlow Leonard Bates and Raymond W agstaff-El. TXu000318197 1988 [ 43 ] Bates, Marlow Leonard, 1961- Poems of AIDS. TXu000566351 1993 [ 44 ] Bates, Marlow Leonard, Sr., 1961- W hat is the truth. TXu000925267 1999 [ 45 ] Bates, Marlowe Syndicate 4 ever. PA0000831679 1996 Resort results by:  Set Search Limits Clear Selected Retain Selected Save, Print and Email (Help Page) Records Select Format: Full Record  Format for Print/Save All on Page Selected On Page Selected all Pages Enter your email address: Email Search for: bates marlow Search by: Name (Crichton Michael; Walt Disney Company)  Item type: None  25 records per page  Submit Reset Help Search History Titles Start Over 10/3/2016http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?ti=26,0&Search%5FArg=bates%20marlow... 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BATES, SR., Plaintiff, v. NINTENDO OF AMERICA INC. and MICROSOFT CORP., Defendants. Civil Action No. 1:16-cv-01341-GLR [PROPOSED] ORDER THIS MATTER came before the Court having considered Defendant Nintendo of America Inc.’s Motion to Dismiss or in the Alternative for a More Definite Statement and for Injunctive Relief. Having reviewed and considered the briefing and arguments in this matter and all relevant factual statements therein, IT IS HEREBY ORDERED that Nintendo of America Inc.’s Motion to Dismiss is GRANTED. IT IS HEREBY FURTHER ORDERED that Nintendo of America Inc.’s Motion for Injunctive Relief is GRANTED. Plaintiff Marlow L. Bates, Sr. is hereby enjoined from filing similar, future lawsuits against Nintendo of America, Inc. or its parent company, Nintendo Co., Ltd., without first obtaining leave of court. The case is DISMISSED. Case 1:16-cv-01341-GLR Document 18-5 Filed 10/03/16 Page 1 of 2 - 2 - Dated:__________________________ By:_____________________________ United States District Judge Case 1:16-cv-01341-GLR Document 18-5 Filed 10/03/16 Page 2 of 2