Chambers v. Amazon.Com, Inc. et alMOTION to Dismiss for Failure to State a ClaimD. Colo.May 17, 2017IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:17-CV-01166-STV ROLAND CHAMBERS, JR. c/o RELIABLE BROKERING, Plaintiff, v. AMAZON.COM, CC MUSIC.COM, CD BABY.COM, CD UNIVERSE.COM, HB DIRECT.COM, SEARS.COM, Defendants. DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT, OR IN THE ALTERNATIVE, TO STRIKE PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES Defendants Amazon.com, CC Music.com, Audio and Video Labs, Inc. d/b/a CD Baby, CD Universe.com, and HB Direct.com, by their attorneys Welborn Sullivan Meck & Tooley, P.C. and Offit Kurman, respectfully submit this Motion to Dismiss Plaintiff’s Complaint pursuant to F.R.C.P. 12, or in the Alternative, to Strike Plaintiff’s Claims for Punitive Damages. I. Introduction This is the third time that Plaintiff Roland Chambers, Jr. c/o Reliable Brokering (“Mr. Chambers”) has filed substantially the same frivolous lawsuit against Defendants. Mr. Chambers is abusing the United States Judiciary and all Defendants by his repeated filing of the same claims without basis in law or fact. The time has come to Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 1 of 8 2 dismiss Mr. Chambers’ claims with prejudice and with a stern warning of the consequences of violating F.R.C.P. 11. II. Procedural History A. The First Case. On or about March 18, 2014, Mr. Chambers commenced his first action based on the same allegations he makes in the instant case before this Court. A copy of the Complaint filed by Mr. Chambers in the United States District Court for the District of South Carolina on March 18, 2014 in the matter of Chambers v. Apple Inc., Amazon.com Inc. and CD Baby, No. 3:14-CV-00972-JFA-PJG (the “First Case”) is attached hereto as Exhibit 1. A copy of the Docket Entries for the First Case is attached hereto as Exhibit 2. A copy of Mr. Chambers’ Complaint in the instant case was previously filed in this case on May 11, 2017 [Doc. 4, Complaint]. Although Mr. Chambers filed the instant case in Colorado State Court, he copied his exact same allegation of federal question jurisdiction from his First Case. Compare Paragraph 2 of Exhibit 1 with Paragraph 2 of the Complaint [Doc. 4]. The substantive allegations in the First Case and the instant case are strikingly similar. On November 7, 2014, United States Magistrate Judge Paige J. Gossett issued a Report and Recommendation that Defendants’ Motion to Dismiss the First Case be granted. A copy of the Report and Recommendation by Magistrate Judge Gossett is attached hereto as Exhibit 3. By Opinion and Order dated December 12, 2014, United States District Judge Mary G. Lewis accepted the Report and Recommendation of Magistrate Judge Gossett, granted Defendants’ Motion to Dismiss and dismissed the Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 2 of 8 3 First Case. A copy of Judge Lewis’s Opinion and Order of December 12, 2014 is attached hereto as Exhibit 4. B. The Second Case. On or about December 30, 2014, Mr. Chambers filed a Complaint commencing his second case in the United States District Court for the District of South Carolina in the matter of Chambers v. Amazon.com Inc., et al., No. 3:14-CV-04890-MGL (the “Second Case”). A copy of the Docket Entries for the Second Case is attached hereto as Exhibit 5. A copy of the Complaint in the Second Case is attached hereto as Exhibit 6. In the Second Case, Mr. Chambers added CCMusic.com, CD Universe, HBDirect.com and Sears.com as Defendants. The factual allegations of the Complaint in the Second Case are virtually identical to the instant case. In fact, in both the instant case and the Second Case, Mr. Chambers attached the same exact spreadsheet claiming $4,284,800,000 in damages. Compare the Complaint in the instant case [Doc. 4] and Exhibit 6 (Complaint in the Second Case). The Second Case was assigned to Magistrate Judge Gossett who reviewed the Complaint in detail and on February 5, 2015 issued a Report and Recommendation that the Second Case be summarily dismissed without issuance of service of process. A copy of the Report and Recommendation to dismiss the Second Case is attached hereto as Exhibit 7. On or about July 1, 2017, Judge Lewis again accepted the Report and Recommendation of Magistrate Judge Gossett and issued an Opinion and Order summarily dismissing the Second Case without issuance and service of process. A Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 3 of 8 4 copy of the July 1, 2017 Opinion and Order dismissing the Second Case is attached hereto as Exhibit 8. Mr. Chambers appealed the dismissal of the Second Case to the United States Court of Appeals for the Fourth Circuit (“4th Circuit”) at No. 15-1767. A copy of the Docket Entries for Mr. Chambers’ appeal to the 4th Circuit is attached hereto as Exhibit 9. The 4th Circuit affirmed the dismissal of the Second Case by the District Court and issued an unpublished Per Curiam Opinion on December 15, 2015, a copy of which is attached hereto as Exhibit 10. Upon entry of Judgment by the 4th Circuit, Mr. Chambers filed a Petition for Rehearing and Rehearing En Banc, which the 4th Circuit denied by Order filed on January 15, 2016. See Exhibit 9, 4th Circuit Docket Entries, at Document No. 11. On or about April 13, 2016, Mr. Chambers filed a Petition for Writ of Certiorari with the Supreme Court of the United States (“Supreme Court”). A copy of the Docket Entries of the Supreme Court is attached hereto as Exhibit 11. On October 3, 2016, the Supreme Court denied Mr. Chambers’ Petition for Writ of Certiorari. See Exhibit 11. C. The Instant Case. Mr. Chambers filed this lawsuit pro se on March 3, 2017, in the State District Court in and for Arapahoe County, Colorado, styled Roland Chambers, Jr. c/o Reliable Brokering v. Amazon.com, CC Music.com, CD Baby.com, CD Universe.com, HB Direct.com and Sears.com, and assigned Civil Action No. 2017CV73 (the “State Court Action”). On May 10, 2017, Defendants removed the State Court Action to this Court. Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 4 of 8 5 Mr. Chambers alleges that at some time in the year 2001, he provided CD Baby with five copies of a compact disc “which contained 11 songs and 1 video” of which six songs were registered with the United States Copyright Office “for exclusive copyright ownership to Reliable Brokering a business owned and operated by Roland Chambers Jr.” See Complaint [Doc. 4] at ¶ 6. In his attachment to the Complaint entitled “STATUTORY DAMAGES (willful infringement)”, as to his alleged copyright claims, Mr. Chambers admits the “violation [was] realized in 02/14”.1 See Plaintiff’s Complaint in the instant case [Doc. 4] and the exhibits thereto. Not only do Mr. Chambers’ own exhibits show his claims would be barred by the three-year statute of limitations for copyright infringement, but Mr. Chambers also attaches documents showing that the entity Reliable Brokering with EIN 72-1473055 is the owner of the copyright registration upon which Mr. Chambers brings his claims. See Plaintiff’s Complaint [Doc. 4] at Exhibit 8 thereto. III. Argument The factual allegations upon which Mr. Chambers makes his Complaint have been analyzed at length in the attached well-reasoned Reports and Recommendations and Opinions by the Judges of the United States District Court for the District of South Carolina and the United States Court of Appeals for the Fourth Circuit. Defendants incorporate by reference all of the exhibits attached hereto and respectfully request that 1 Even if the Complaint did state a claim upon which relief could conceivably be granted, Mr. Chambers’ own documents attached to his Complaint show he “realized” the alleged violation of copyright in February 2014, more than three years before filing the State Court Action and eleven years after he consigned five copies of a compact disc to CD Baby to sell with his permission. On its face, Mr. Chambers’ Complaint is barred by the three-year statute of limitations provided by 17 U.S.C. § 507. Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 5 of 8 6 this Court take judicial notice of those exhibits as official public records of the United States Courts. Generally, a court considers only the contents of the complaint when ruling on a 12(b)(6) motion. Berneike v. CitiMortgage, Inc., 708 F.3d 1141 (10th Cir. 2013), citing Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this general rule include the following: documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes its authenticity; and "'matters of which a court may take judicial notice.'" Id. (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed. 2d 179 (2007)). For the reasons set forth in the attached Reports and Recommendations and Opinions, this Court should dismiss this case with prejudice pursuant to F.R.C.P. 12(b)(6) for failure to state a claim upon which relief may be granted. In the alternative, this Court should strike Plaintiff’s request for punitive damages pursuant to F.R.C.P. 12(f). Mr. Chambers’ Complaint fails to state any claim upon which relief in the form of damages may be granted, whether in the form of traditional compensatory damages, statutory damages or punitive damages. Even assuming, arguendo, that Mr. Chambers could make allegations, within the confines of Rule 11, to state a claim for copyright infringement upon which relief may be granted, as a matter of law, the Copyright Act does not provide for punitive damages and courts have consistently held that punitive damages are unavailable in a copyright infringement action. See Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 931 (7th Cir. 2003) Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 6 of 8 7 (noting that the Copyright Act does not authorize punitive damages); cf. 17 U.S.C. §§ 504, 505 (specifying the remedies available under the Copyright Act). WHEREFORE, Defendants Amazon.com, CC Music.com, CD Baby.com, CD Universe.com, HB Direct.com and Sears.com respectfully request that this Court grant their Motion to Dismiss and dismiss this case with prejudice, or in the alternative, strike Plaintiff’s claim for punitive damages and award such further relief as the Court finds proper. Respectfully submitted this 17th day of May, 2017. WELBORN SULLIVAN MECK & TOOLEY, P.C.: s/ Edward J. Blieszner Edward J. Blieszner, Esq. 1125 Seventeenth Street, Suite 2200 Denver, CO 80202 Phone: (303) 830-2500 Fax: (303) 832-2366 eblieszner@wsmtlaw.com Attorneys for Defendants Amazon.com, CC Music.com, CD Baby.com, CD Universe.com, HB Direct.com and Sears.com OFFIT KURMAN: s/ Joseph M. Armstrong Joseph M. Armstrong (Pro Hac Vice) Ten Pen Center 1801 Market Street, Suite 2300 Philadelphia, PA 19103 Phone: (267) 338-1300 Fax: (267) 338-1335 jarmstrong@offitkurman.com Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 7 of 8 8 CERTIFICATE OF SERVICE The undersigned hereby certifies that on May 17, 2017, a true and correct copy of the foregoing DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT, OR IN THE ALTERNATIVE, TO STRIKE PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES was e-filed via CM/ECF and served via U.S. mail, first-class postage prepaid, on the following: Roland Chambers, Jr. c/o Reliable Brokering 16890 E. Alameda Pkwy., Unit #471866 Aurora, CO 80047 s/ Joan E. Hoover Joan E. Hoover Case 1:17-cv-01166-STV Document 17 Filed 05/17/17 USDC Colorado Page 8 of 8 3:14-cv-00972-JFA-PJG Date Filed 03/18/14 Entry Number 1 Page 1 of 6 1-1 EXHIBIT 1 COMPLAINT Roland Chambers 210 White Wing #B Columbia, SC 29229 T: (504) - 407-5970 RECEIVED. CLERKS OFFICE m fiflfi is rpi io 3i US DISTRICT CT COLA. SC E: reliablebrokering@gmail.com In pro persona DISTRICT COURT OF SOUTH CAROLINA FEDERAL JURISDICTION Roland Chambers Case No.: Plaintiff COMPLAINT FOR: v. Apple Inc.. 1) COPYRIGHT INFRINGEMENT, Amazon.com Inc., and 2) DMCA VIOLATION, and/or CD Baby 3) EXCLUSIVE REPRODUCTION RIGHTS Defendants 1. Plaintiff Roland Chambers (hereinafter "Plaintiff'), makes the following allegations against Defendants Apple Inc, Amazon.com Inc, and CD BABY (hereinafter "Defendants"). JURISDICTION AND VENUE 2. This Court has jurisdiction over all causes of action asserted herein pursuant to the Federal Question, because this case is a cause given by statute to federal courts. 4. Also, venue is proper because the causes of action stated herein arose in this judicial district, and: (a) Plaintiff resides in this Richland County, SC (b) Plantiffs principal place of business in Richland County, SC I Case 1:17-cv-01166-STV Document 17-1 Filed 05/17/17 USDC Colorado Page 1 of 6 3:14-cv-00972-JFA-PJG Date Filed 03/18/14 Entry Number 1 Page 2 of 6 1-2 EXHIBIT 1 PARTIES 5. Plaintiff, Roland Chambers ("Plaintiff') is an individual who resides in the County of Richland, State of South Carolina. 6. Defendants Apple Inc., Amazon.com Inc., and CD Baby are corporations in the state of California, Washington, and Oregon, respectively. FACTUAL ALLEGATIONS 7. On or about July of 2001, Plaintiff provided Defendant #3 (CD Baby) with five (5) compact disc including 12 original pieces of copyrighted sound recordings and two (pieces of artwork for the album cover. 8. In consideration for the compact disc, Defendant #3 executed a consignment only contract, which included distribution of the five disc sent only, no reproduction clause, warehouse storage fees ifnot sold, and no ownership transfer of copyright. *A true and correct copy of the Note is attached hereto as Exhibit "A." 9. No payment was reported or issued to plaintiff for any of the five disc. 10. Plaintiff discovered the compact disc were still selling in March 2014(beyond the quantity ever legally produced) and in various formats and demanded explanation, as well as payment. 11. CD Baby was to distribute disc and not authorized to create any reproductions; however, more than five disc exist today, and CD Baby is only definitely aware of the whereabouts ofone (1) disc. A representative states one (1) disc was sold and (3) were likely recycled/destroyed. This leaves one more disc unaccounted for prior to counterfeit units being placed on the market 12. Amazon.com, including not only the U.S. Website, but domains in Spain, Italy, England, Germany, India, France, Japan, Denmark, and several more are actively selling disc and allowing third party sellers to continue selling copyrighted material not owned, and likely counterfeit based on disc produced, even as of03/16/2014. This is after multiple take-down request made electronically online and by hard copy via mail. 13. Apple Inc, has without any consent or permission provided access to 12 pieces of work in digital formats. These were not only illegally provided and spread to other websites that promote digital piracy, but only three (3) of the 12 songs were available online through Garageband.com for a short period in 2000-2002. These three (3) pieces were not available for download, but only for streaming to poll the audience. The other nine (9) songs were converted without the knowledge of the copyright owner. 14. To the filing ofthis action, Defendants #l(Apple), #2(Amazon), and #3(CD Baby)have failed and refused to provide payment resolution for the illegal use of registered copyrighted materials over the last 14 years. 15. Defendants are therefore in breach of the Copyright Act for Sound Recordings (physical), Digital Millennium Copyright Act, and the Exclusive Reproduction Rights the Plaintiff has as the copyright owner. I Case 1:17-cv-01166-STV Document 17-1 Filed 05/17/17 USDC Colorado Page 2 of 6 3:14-cv-00972-JFA-PJG Date Filed 03/18/14 Entry Number 1 Page 3 of 6 1-3 EXHIBIT 1 WHEREFORE, Plaintiffprays for judgment against Defendants as follows: 1 . The demand amount of $5,206,860,000.00 plus interest at the rate of 2.5% from March 14, 2014 until judgment is entered. 2. The demand amount for each defendant that amounts to the above mentioned amount is: Apple Inc. $1,735,860,000.00, Amazon.com Inc. $1,735,500,000.00, and CDBaby $1,735,500,000.00, which totals to the total demand amount of $5,206,860,000.00 3. Explanation for demand is included. 4. Reasonable attorneys' fees and costs of suit herein incurred, as well as further relief as the court may deem proper is also requested. demand breakdown attached DATED: March /^20 1 4 RESPECTFULLY SUBMITTED, By: Roland Chambers Plaintiff I Case 1:17-cv-01166-STV Document 17-1 Filed 05/17/17 USDC Colorado Page 3 of 6 3: 14 -c v- 00 97 2- JF A -P JG D at e F ile d 03 /1 8/ 14 E nt ry N um be r 1 P ag e 4 of 6 1- 4 E X H IB IT 1 H CD 00Sheet I Sheetl O Chambers v. Apple I.nc XCD Case # iijO) cti CL Based on Amendments of STATUTORY DAMAGES ENHANCEMENT Section 504(c) of title 1 7, United States Code ...also Section 106 of title 17 CD .Q Violation Realized by Plaintiff on: / /2014 E Years of ongoing violation; 2001 -2014 1 3 years z > Number of days in years of violation: 13*365 4745 days-b c LU Number of songs or pieces of work violated (copyright/DMCA) for 1 3 years: 12 12 pieces Cost of daily violation for 12 tracks ?(according to statutory damages allowed under Digital Theft Deterrence and Copyright Damages Improvement Act of 1999) 12*30000*4745 daily calculation due to global significance $1,708,200,000.00 I I ¦CO Cost of statutory damage allowed for 12 pieces of work (ringtones): 12*30.000 S360,000.00 o ¦a Punitive damage not requiring proof (based on $ 1 00,000 annually): 13*100,000 $1,300,000.00 CD LL Punitive damage based on evidence: (3% of punitive damages to be returned to state for benefits received) 13*1,000,000 $13,000,000.00 CD Cti O Violation of copyright sound recordings: 13*500.000 $6,500,000.00 Violation of album images being displayed: 13*500,000 $6,500,000.00 o ¦-j Total Demand based on violations recognized by law: CL < LL ¦-> CM 1^ CD O O > o Page I Page 2 S-I CO Case 1:17-cv-01166-STV Document 17-1 Filed 05/17/17 USDC Colorado Page 4 of 6 3: 14 -c v- 00 97 2- JF A -P JG D at e F ile d 03 /1 8/ 14 E nt ry N um be r 1 P ag e 5 of 6 1- 5 E X H IB IT 1 H CD 00Sheet3 Sheet3 O Chambers v. Cd Baby LO XCD Case # iijO) cti CL Based on Amendments of STATUTORY DAMAGES ENHANCEMENT Section 504(c) of title 1 7, United Stales Code ...also Section 106 of title 1 7 sH CD Violation Realized by Plaintiff on..Q 1/2014 E Years of ongoing violation: 2001 -2014 1 3 years z > Number of days in years of violation: 13*365 4745 days id c Number of songs or pieces of work violated (copyright) for 13 year s: 12 12 piecesLLI Cost of daily violation for 12 tracks: "(according to statutory damages based on Copyright Damages Improvement Act of 1999) 12*30000*4745 daily calculation due to global significance $1,708,200,000.00 r-I 00 Punitive damage not requiring proof (based on $100,000 annually): 13*100,000r-I $1,300,000.00 IX) 00 o Punitive damage based on evidence, including negligence: 13*1,000,000 $13,000,000.00 ¦a CD Violation of copyright sound recordings: 13*500,000 $6,500,000.00 $6,500,000.00 M.7X5,5».wifC0 LL Violation of album images being displayed: 13*500,000CD Cti Total Demand based on violations recognized by law:o o ¦-) CL < LL ¦-> CM 1^ CD O O > o Page 1 Page 2 r-I CO Case 1:17-cv-01166-STV Document 17-1 Filed 05/17/17 USDC Colorado Page 5 of 6 3: 14 -c v- 00 97 2- JF A -P JG D at e F ile d 03 /1 8/ 14 E nt ry N um be r 1 P ag e 6 of 6 1- 6 E X H IB IT 1 H CD 00Sheet2 Sheet2 O Chambers v. Amazon.com CO XCD Case # iijO) cti CL Based on Amendments of STATUTORY DAMAGES ENHANCEMENT Section 504(c) oftitle 17, United States Code ... also Section 106 of title 1 7 sH CD _Q Violation Realized by Plaintiff on. / /2014 E Years of ongoing violation: 200 J - 20 14 13 years z > Number of days in years of violation: 13*365 4745 days -b c LU Number of songs or pieces of work violated (copyright) for 1 3 years: 12 12 pieces Cost of daily violation for 12 tracks: '(according to statutory damages based on Copyright Damages Improvement Act of 1 999) 12*30000*4745 daily calculation due to global significance SI,708,200.000. 00 s-I 00 s-I Punitive damage not requiring proof (based on $100,000 annually): 13*100,000 SI,300,000. 00 (0 00 o Punitive damage based on evidence: 13*1,000,000 $13,000,000.00 ¦a CD Violation of copyright sound recordings: 13*500,000 $6,500,000.00 LL 13*500,000Violation of album images being displayed: $6,500,000.00CD Cti SI, 73J, 400.01X1 00o Total Demand based on violations recognized by law: o ¦-j CL < LL ¦-> CM 1^ CD O O > o Page 1 Page 2 S-1 CO Case 1:17-cv-01166-STV Document 17-1 Filed 05/17/17 USDC Colorado Page 6 of 6 U.S. District Court District of South Carolina (Columbia) CIVIL DOCKET FOR CASE#: 3:14-cv-00972-MGL Chambers v. Apple Inc et al Assigned to: Honorable Mary Geiger Lewis Cause: 17:101 Copyright Infringement Plaintiff Roland Chambers v. Defendant Apple Inc represented by represented by Date Filed: 03/18/2014 Date Terminated: 12/12/2014 Jury Demand: None Nature of Suit: 820 Copyright Jurisdiction: Federal Question Roland Chambers 21 0 White Wing Dr B Columbia, SC 29229 PROSE Cherie Wilson Blackburn Nexsen Pruet (Chas) POBox486 Charleston, SC 29401 843-720-1728 Fax: 843-414-8236 Email: cblackburn@nexsenpruet.com LEAD ATTORNEY AITORNEY TO BE NOTICED David R Eberhart O'Melveny & Myers LLP Two Embarcadero Center 28th Floor San Francisco, CA 94111 415-984-8700 Fax:415-984-970l Email: deberhart@omm.com PROHACVICE ATTORNEY TO BE NOTICED David J Sepanik 2-1 EXHIBIT 2 Case 1:17-cv-01166-STV Document 17-2 Filed 05/17/17 USDC Colorado Page 1 of 7 Defendant Amazon.com Inc represented by Defendant CD Baby represented by O'melveny & Myers LLP Two Embarcadero Center 28th Floor San Francisco, CA 94111 415-984-8700 Fax:415-984-9701 Email: dsepanik@omm.com PROHACVICE ATTORNEY TO BE NOTICED William Francis Marion , Jr Haynsworth Sinkler Boyd PO Box2048 Greenville, SC 29602 864-240-3200 Fax: 864-240-3300 Email: fmarion@hsblawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Joseph M Armstrong Offit Kurman, P .A. 1801 Market Street Suite 2300 Philadelphia, P A 19103 267-338-1300 Fax: 267-338-1335 Email: jarmstrong@offitkurman.com PRO HAC VICE ATTORNEY TO BE NOTICED William Francis Marion , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Joseph M Armstrong (See above for address) PROHACVICE ATTORNEY TO BE NOTICED 2-2 EXHIBIT 2 Case 1:17-cv-01166-STV Document 17-2 Filed 05/17/17 USDC Colorado Page 2 of 7 ··················'·'"'·"' ·'·'·······- ················-·····'"'·'··"'·'·'·'·······'"'"'·'·'-'·'·'·'·'·-····-'"'·'·'·'·'·'·'"""'·'·'·'~·'"·"'"'"'·'·'···'·'"'·'·'"'·'·'·· ·······-····'··"'"'-·-'···-·······= :.;.:.:.:.: ••••••••••••••• ;.;.:.;.:.;.:.:...,...;...;_.;.;.:.:o'-:.:.. •. -"'·-'-······· ············--···---- ·····-'"'"'"'·'·'"'·'·'"'·'"'"'-·'··-····-· Da .... ~ ..J Docket Text : 03/18/2014 1 COMPLAINT against Amazon.com Inc, Apple Inc, CD Baby, filed by Roland Chambers. Service due by 7/2112014(jpet,) (Entered: 03/18/2014) l MOTION for Leave to Proceed in forma pauperis (Restricted Access) by Roland Chambers. Response to Motion due by 4/4/2014. Motions referred to Paige J Gossett.(jpet, ) (Entered: 03/18/20 14) 03/18/2014 l Local Rule 26.01 Answers to Interrogatories by Roland Chambers.(jpet, ) (Entered: 03/18/20 14) 03/18/2014 l Report on the Filing or Determination of an Action or Appeal Regarding a Copyright. (jpet,) (Entered: 03/18/2014) 03/18/2014 8 ***DOCUMENT E-MAILED l Report on the Filing or Determination of Copyright to Copyright Office (jpet,) (Entered: 03/18/2014) 04/08/2014 ll PROPER FORM ORDER( Case to be brought into proper form by 5/2/2014.) Motions granted: 2 MOTION for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Paige J Gossett on 4/8/2014. (jpet,) (Entered: 04/08/2014) 04/08/2014 12 ***DOCUMENT MAILED 11 Proper Form Order, 3 USM 285s placed in U.S. Mail to Roland Chambers (jpet,) (Entered: 04/08/2014) 04/1112014 14 (Pro Se) Report on the Filing or Determination of an Action or Appeal Regarding a Copyright filed by Roland Chambers. (jpet,) (Entered: 04/1112014) 05/15/2014 rli ORDER authorizing service of process by clerk. Signed by Magistrate Judge Paige J Gossett on 5/14/2014. (jpet,) (Entered: 05/15/2014) 05/15/2014 19 ***DOCUMENT MAILED~ Order Service placed in U.S. Mail to Roland Chambers (jpet,) (Entered: 05/15/2014) 20 Summons Issued as to Amazon.com Inc, Apple Inc, CD Baby. Service due by 9/15/2014 I (jpet,) (Entered: 05/15/2014) I 06/23/2014 MOTION for Extension of Time to File Answer by Amazon.com Inc, CD Baby. Response to Motion due by 7/10/2014. (Attachments: # 1 Affidavit of W. Francis Marion, Jr.)No proposed order.Motions referred to Paige J Gossett.(Marion, William) (Entered: 06/23/2014) 2-3 EXHIBIT 2 Case 1:17-cv-01166-STV Document 17-2 Filed 05/17/17 USDC Colorado Page 3 of 7 ' 06/24/2014 i 23 CERTIFICATE OF SERVICE by Amazon.com Inc, CD Baby re 22 MOTION for Extension of Time to File Answer (Marion, William) (Entered: 06/24/2014) ' 06/24/2014 i 24 ] DOCKET TEXT ORDER granting 22 Motion for Extension of Time to Answer. Entered at the direction of Magistrate Judge Paige J. Gossett on 6/24/2014. (kkus,) (Entered: 06/24/2014) 06/25/2014 25 ***DOCUMENT MAILED 24 Order on Motion for Extension of Time to Answer placed in U.S. Mail to Roland Chambers Qpet,) (Entered: 06/25/2014) 06/25/2014 27 SUMMONS Returned Executed Amazon.com Inc served on 6/3/2014; Apple Inc served on 6/12/2014, answer due 7/3/2014. (Attachments:# l Certified mailing receipts)Qpet,) (Entered: 06/25/2014) 07/02/2014 28 MOTION to Dismiss by Apple Inc. Response to Motion due by 7/2112014. (Attachments: # l Memo in Support)No proposed order.Motions referred to Paige J Gossett.(Blackburn, Cherie) Modified to replace attachment 1 with corrected document at filing user's request on 7/7/2014 Qpet, ). (Entered: 07/02/2014) 07/02/2014 29 Corporate Disclosure Statement by Apple Inc. (Blackburn, Cherie) (Entered: 07/02/2014) 07/02/2014 30 CERTIFICATE OF SERVICE by Apple Inc re 28 MOTION to Dismiss and Memorandum in Support on ProSe Plaint(ff(Blackburn, Cherie) (Entered: 07/02/2014) 07/02/2014 .ll CERTIFICATE OF SERVICE by Apple Inc re 29 Corporate Disclosure Statement on ProSe Plaint(ff(Blackburn, Cherie) (Entered: 07/02/2014) 07/03/2014 32 ROSEBORO ORDER directing clerk to forward summary judgment explanation to the opposing party and directing that party to respond in 34 days. Response due to 28 MOTION to Dismiss Response to Motion due by 8/7/2014. Signed by Magistrate Judge Paige J Gossett on 07/03/2014. (gmil) (Entered: 07/03/2014) 07/03/2014 33 ***DOCUMENT MAILED 32 Roseboro Order, placed in U.S. Mail to Roland Chambers (gmil) (Entered: 07/03/2014) 07/07/2014 .J1 MOTION to Appear Pro Hac Vice by Joseph M. Armstrong (Filing fee $ 250 receipt number 0420-5428088) by Amazon.com Inc, CD Baby. Response to Motion due by 7/24/2014. (Attachments:# l Application/Affidavit ofPHV Admission,# 2 Certificate of Good Standing, # J. Certificate of Service )Proposed order is being emailed to chambers with copy to opposing counsel.Motions referred to Paige J Gossett.(Marion, William) (Entered: 07/07/2014) 07/09/2014 35 MOTION to Appear Pro Hac Vice by David R. Eberhart ( Filing fee $ 250 receipt number 0420-5432218) by Apple Inc. Response to Motion due by 7/28/2014. (Attachments: # l Pro Hac Vice Application, # 2 Court Admissions, # J. Certificate of 2-4 EXHIBIT 2 Case 1:17-cv-01166-STV Document 17-2 Filed 05/17/17 USDC Colorado Page 4 of 7 ' \ Good Standing, # .1 Certificate of Service on Pro Se Plaintift)Proposed order is being i emailed to chambers with copy to opposing counsel.Motions referred to Paige J I Gossett.(Blackbum, Cherie) (Entered: 07/09/2014) ! i r-----------;-·-r- - - ' I 07/09/2014 36 i MOTION to Appear Pro Hac Vice by David J. Sepanik (Filing fee$ 250 receipt number i , - I 0420-5432339) by Apple Inc. Response to Motion due by 7/28/2014. (Attachments: . I # l Application for Pro Hac Vice Admission, # 2. Certificate of Good Standing, I # 2 Certificate of Service on Pro Se Plaintiff) Proposed order is being emailed to . ! chambers with copy to opposing counsel.Motions referred to Paige J Gossett.(Blackbum, ! i Cherie) (Entered: 07/09/2014) . i 07/11/2014 137 I DOCKET TEXT ORDER granting 34 Motion to Appear Pro Hac Vice. Entered at the I direction of Magistrate Judge Paige J. Gossett on 7/11/2014. (kkus,) (Entered: L ! 07/11/2014 I I 07/11/2014 07114/2014 07/16/2014 07/28/2014 07/30/2014 07/31/2014 I o7!1112014) i DOCKET TEXT ORDER granting 35 Motion to Appear Pro Hac Vice. Entered at the ' direction of Magistrate Judge Paige J. Gossett on 711112014. (kkus,) (Entered: I 07111/2014) ........... ! ................ .. ' ········································-··-··-·············- ......................................................................................................................... ; 139 140 42 44 45 46 I DOCKET TEXT ORDER granting 36 Motion to Appear Pro Hac Vice. Entered at the ! direction of Magistrate Judge Paige J. Gossett on 711112014. (kkus,) (Entered: 07/11/2014) i ***DOCUMENT MAILED 37 Order on Motion to Appear Pro Hac Vice, 38 Order on I Motion to Appear Pro Hac Vice, 39 Order on Motion to Appear Pro Hac Vice placed in I U.S. Mail to Roland Chambers. (gmil) (Entered: 07/14/2014) RESPONSE in Opposition re 28 MOTION to Dismiss Response filed by Roland Chambers.Reply to Response to Motion due by 7/28/2014 (Attachments: # l Supporting Documents)Gpet,) Modified to edit text on 7/17/2014 Gpet, ). (Additional attachment(s) added on 7/24/2014: # 2. Signature Page) (ttil, ). (Entered: 07117/2014) REPLY to Response to Motion re 28 MOTION to Dismiss Response filed by Apple Inc. Re-filed for event type. Gpet,) (Entered: 07/29/2014) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Response to Motion due by 8/18/2014.), MOTION to Strike Plaintiffs Request for Punitive Damages by Amazon.com Inc, CD Baby. (Attachments:# l Memo in Support,# 2. Exhibit A- Email from R. Chambers to J. Andrew dated 3/7/14)No proposed order.Motions referred to Paige J Gossett.(Marion, William) (Entered: 07/30/2014) ROSEBORO ORDER directing clerk to forward summary judgment explanation to the opposing party and directing that party to respond in 34 days. Response due to 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Response to 2-5 EXHIBIT 2 Case 1:17-cv-01166-STV Document 17-2 Filed 05/17/17 USDC Colorado Page 5 of 7 i I I 07/3112014 08/1112014 09/18/2014 09/19/2014 Motion due by 9/5/2014. Signed by Magistrate Judge Paige J Gossett on 7/3112014. Qpet,) (Entered: 07/3112014) 47 ***DOCUMENT MAILED 46 Roseboro Order, placed in U.S. Mail to Roland Chambers Qpet, ) (Entered: 07/3112014) 48 CERTIFICATE OF SERVICE by Amazon.com Inc, CD Baby re 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Strike Plaintiffs Request ifor Punitive Damages (Marion, William) (Entered: 07/31/2014) 49 SUMMONS Returned Executed CD Baby served on 7/17/2014. Qpet, ) (Entered: 08/1112014) 21. ORDER directing the plaintiff to advise the court as to whether he wishes to continue with his claims against these defendants and to file a response to the defendants' motion to dismiss within fourteen days from the date of this order; re 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM.( Response to Motion due by 10/3/2014.) Signed by Magistrate Judge Paige J Gossett on 9118/2014. Gpet,) (Entered: 09/19/2014) 52 ***DOCUMENT MAILED 21. Order placed in U.S. Mail to Roland Chambers Qpet,) (Entered: 09/19/2014) 09/22/2014 In (Unsigned)RESPONSE in Opposition re 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Strike Plaintiffs Request for Punitive i Damages Response filed by Roland Chambers.Reply to Response to Motion due by 10/2/2014 (Attachments:# l Supporting Documents)Qpet,) (Entered: 09/22/2014) i 1 0/02/20 14 55 i CERTIFICATE OF SERVICE by Amazon.com Inc, CD Baby re 54 Response in I Support of Motion to Dismiss Plaintiffs Complaint, and in the alternative, to Strike ~..... ____ I Plaintiffs R~~·~~or P~: Damages~~~il~~ ~~te:~0/~~/~0-I~--j 110/02/2014 54 I REPLY to Response to Motion re 45 MOTION TO DISMISS FOR FAILURE TO I STATE A CLAIM MOTION to Strike Plaintiffs Request for Punitive I Damages Response filed by Amazon.com Inc, CD Baby. Re-filed for event type on j 10/3/2014. Qpet,) (Entered: 10/03/2014) 10/08/2014 56 SUR REPLY to REPLY to Response to Motion re 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Response filed by Roland Chambers. (Attachments: # l Supporting Documents)Qpet,) (Entered: 10/09/2014) 11107/2014 59 I REPORT AND RECOMMENDATION recommending that the defendants' motions to i dismiss be granted, re 28 MOTION to Dismiss and 45 MOTION TO DISMISS. IT IS ! FURTHER RECOMMENDED that the alternative motion filed by Defendants Amazon I and CD Baby to strike the Complaint's request for punitive damages be terminated as 2-6 EXHIBIT 2 Case 1:17-cv-01166-STV Document 17-2 Filed 05/17/17 USDC Colorado Page 6 of 7 l moot, re 45 MOTION to Strike. Objections to R&R due by 11124/2014. Signed by Magistrate Judge Paige J Gossett on 11/7/2014. Gpet,) (Entered: 11107/2014) 11/07/2014 60 ***DOCUMENT MAILED: 59 REPORT AND RECOMMENDATION placed in U.S. Mail to Roland Chambers Gpet,) (Entered: 11107/2014) 11113/2014 62 OBJECTION to 59 Report and Recommendation by Roland Chambers.Reply to Objections due by 12/4/2014 (Attachments:# 1 Exhibit A- CD Universe & Amazon.com Screen Shots (best possible scan made from copies provided))(bshr, ) (Entered: 11114/2014) 11119/2014 63 Case Reassigned to Judge Mary G Lewis. Judge Joseph F Anderson, Jr no longer assigned to the case. (suro,) (Entered: 11119/2014) 12/03/2014 64 REPLY by Apple Inc to 62 Objection to Report and Recommendation. Filing corrected for event type (cbru,) (Entered: 12/04/2014) 12/04/2014 65 REPLY by Amazon.com Inc, CD Baby to 62 Objection to Report and Recommendation. Filing corrected for event type (cbru,) (Entered: 12/04/2014) 66 CERTIFICATE OF SERVICE by Amazon.com Inc, CD Baby re 65 Reply (cbru, ) (Entered: 12/04/2014) 12/12/2014 67 OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION accepting 59 Report and Recommendation, granting 45 Motion to Dismiss for Failure to State a Claim, granting 28 Motion to Dismiss. Signed by Honorable Mary G Lewis on 12/12/2014. (cbru,) (Entered: 12/12/2014) 12112/2014 68 WDGMENT dismissing this action without prejudice. (cbru,) (Entered: 12/12/2014) I 12/17/2014 69 ***DOCUMENT MAILED 68 Judgment, 67 Order Ruling on Report and Recommendation, placed in U.S. Mail to Roland Chambers (cbru,) (Entered: 12117/2014) 2-7 EXHIBIT 2 Case 1:17-cv-01166-STV Document 17-2 Filed 05/17/17 USDC Colorado Page 7 of 7 3-1 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DNISION Roland Chambers, ) CIA No. 3:14-972-JFA-PJG ) Plaintiff, ) ) v. ) REPORT AND RECOMMENDATION ) Apple Inc.; Amazon.com Inc.; and CD Baby, ) ) Defendants. ) ) The plaintiff, Roland Chambers, a self-represented litigant, filed this action alleging that the defendants infringed on Chambers's exclusive right to reproduction of copyrighted material in violation of the Copyright Act, 17 U.S.C. § 101 et seq., and violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the defendants' motions to dismiss.' (ECF Nos. 28, 45.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Chambers ofthe summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motions. (ECF Nos. 32, 46.) Chambers filed a response in opposition to the defendants' motions (ECF Nos. 42, 53), and the defendants replied (ECF Nos. 44, 54). Chambers additionally filed a sur-reply? (ECF No. 1 The motion to dismiss filed by Defendants Amazon.com Inc. and CD Baby seeks, in the alternative, dismissal of Chambers's request for punitive damages. (ECF No. 45.) 2 The Local Rules make no provision for sur-replies. Further, under Local Civil Rule 7.07 DSC, "[r]eplies to responses are discouraged." Page 1 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 1 of 9 3-2 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 2 of 9 56.) Having reviewed the parties' submissions and the applicable law, the court finds that the defendants' motions to dismiss should be granted. BACKGROUND Chambers alleges that he provided Defendant CD Baby with five compact discs including twelve "original pieces of copyrighted sound recordings and two pieces of artwork for the album cover" in July of 2001. (ECF No. 1 at 2.) Chambers claims that he and CD Baby executed a "consignment only'' contract for distribution of the five compact discs.3 (Id.) In March of2014, Chambers discovered that the compact discs were still selling and allegedly demanded an explanation and payment; however, no "payment was reported or issued to [Chambers] for any of the five disc[s]." (Id.) Chambers claims that Defendant Amazon.com Inc. ("Amazon") allowed "third party sellers to continue selling copyrighted material not owned, and likely counterfeit based on disc produced." (Id.) Defendant Apple Inc. ("Apple") is named for providing access to twelve pieces of work in digital formats without Chambers's consent or permission. (Id.) Chambers seeks over five billion dollars in damages. ~at 3.) DISCUSSION A. Motion to Dismiss Standard A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiffs complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. 3 The Complaint indicates that a "true and correct copy of the Note is attached hereto as Exhibit' A.'" (ECF No. 1 at 2.) However, Chambers failed to submit a copy of any note or contract with the Complaint. Page 2 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 2 of 9 3-3 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 3 of 9 v. Twombly, 550 U.S. 544, 555 (2007). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. I d. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). A court may consider "documents attached or incorporated into the complaint" without converting a motion to dismiss into a motion for summary judgment. E.I. duPont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Further, "a court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 F. App'x 395,396- 97 (4th Cir. 2006) (citing Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999) (permitting consideration of extraneous material if such materials are "integral to and explicitly relied on in the complaint"); Gasner v. Dinwiddie, 162 F .R.D. 280, 282 (E.D. Va. 1995) (permitting district court to take judicial notice of public documents, such as court records, even when the documents are neither referenced by nor integral to plaintiff's complaint). In applying this standard, the court observes that it is required to liberally construe pro se complaints. Erickson, 551 U.S. at 94. Such prose complaints are held to a less stringent standard than those drafted by attorneys, id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Page 3 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 3 of 9 3-4 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 4 of 9 Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a prose complaint, the plaintiffs factual allegations are assumed to be true. Erickson, 551 U.S. at 93. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so; however, a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 17 4 F .3d 1128 (lOth Cir. 1999), construct the plaintiffs legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993 ), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). B. Copyright Act and Digital Millennium Copyright Act Claims The Copyright Act grants copyright protection to "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a). To establish a claim of copyright infringement, a plaintiff must show: ( 1) ownership of a valid copyright, and (2) that the defendant copied the original elements ofthe copyrighted work. Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Keeler Brass Co. v. Cont'l Brass Co., 862 F.2d 1063, 1065 (4th Cir. 1988). The Digital Millennium Copyright Act ("DMCA") "was enacted both to preserve copyright enforcement on the Internet and to provide immunity to service providers from copyright infringement liability'' for certain actions. ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 625 (4th Cir. 2001 ). Although the Complaint fails to cite any particular statutory provision of either Act, Chambers indicates a violation of his exclusive reproduction rights, and "[s]ection 106 of the Copyright Act confers a bundle of exclusive rights to the owner ofthe copyright," including the right to reproduce the copyrighted work. Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, Page 4 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 4 of 9 3-5 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 5 of 9 546 (1985); ~also 17 U.S.C. § 106. Further, the Complaint references unauthorized access to Chambers's work, which the DMCA provides measures to prevent. See 17 U.S.C. § 1201 et ~ In its motion to dismiss, Apple argues that two fatal defects subject the Complaint to dismissal: (1) Chambers's failure to adequately describe the alleged copyrighted works; and (2) Chambers's failure to allege that the works at issue have been registered with the United States Copyright Office. (ECF No. 28-1 at 1.) Chambers filed a response in opposition to Apple's motion, alleging that he provided Apple with an adequate description of the copyrighted works prior to filing the Complaint, via a "Copyright Registration Verification" form submitted to the court, and in an email to Apple's attorney subsequent to filing this action. (ECF No. 42 at 5.) Chambers's response further claims that the submission of the copyright registration form establishes his registration of the works at issue with the United States Copyright Office. ffih at 6.) In reply, Apple argues that the copyright registration Chambers submitted with his response lists "six (not twelve) tracks, references no artwork" and suggests that an entity named Reliable Brokering controls any copyright in the allegedly registered material. (ECF No. 44 at 2.) Apple's reply further argues that a computer screen-print submitted by Chambers with his response lists eleven tracks "rather than the twelve referenced in the Complaint," and "depicts a third-party website (Artist Direct) with no affiliation to Apple." ffih at 2-3.) Apple notes the Complaint's failure to allege that Chambers "ever purchased the tracts from the iTunes Store or directly observed that they were available there." ffih at 3.) Thus, Apple asserts that the Complaint should be dismissed for failure to state a claim pursuant to Rule 12(b) ofthe Federal Rules of Civil Procedure. (ld.) Defendants Amazon and CD Baby also argue in their motion to dismiss that the Complaint fails to "identify the musical compositions at issue," fails to allege clearly that Chambers is the Page 5 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 5 of 9 3-6 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 6 of 9 copyright holder for any of the recordings at issue, and fails to allege whether the mentioned pieces of artwork are copyrighted material. (ECF No. 45-1 at 2-3.) Defendants Amazon and CD Baby further note that the Complaint admits Chambers contracted with CD Baby for the distribution of up to five copies of a compact disc. ffih at 5.) Chambers's unsigned response in opposition to this motion seeks to "present additional evidence to back [the] claim of copyright infringement and violation of the Digital Millennium Act" by these defendants. (ECF No. 53.) Chambers attaches sixteen exhibits to the response, purportedly showing that he is a partner in Reliable Brokering and explaining that the "Cd in question has 6 tracks of original musical work and an image of the cd cover .. . . the additional 6 tracks are remixed versions of the first 5 submitted to the copyright office." (ECF No. 53 at 2; ECF No. 53-1.) In reply, Defendants Amazon and CD Baby assert that Chambers's response confirms that he authorized distribution of the works in question and demonstrates that only one copy of Chambers's disc was ever sold. (ECF No. 54 at 2.) Therefore, these defendants assert that the Complaint should be dismissed, or in the alternative, any portions of the Complaint requesting punitive damages should be stricken. ffih at 3.) Chambers's sur-reply argues that the motion to dismiss filed by Amazon and CD Baby "is an admission of guilt and negligence on behalf of said parties." (ECF No. 56 at 4.) The court agrees with the defendants that the instant Complaint should be dismissed. Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although the court must liberally construe a prose complaint, the United States Supreme Court has made clear that a plaintiff must do more than make conclusory statements to state a claim and provide sufficient factual information to put defendants on notice of their wrongdoing. See Iqbal, 556 U.S. at 677-79; Page 6 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 6 of 9 3-7 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 7 of 9 Twombly, 550 U.S. at 555. Further, the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79. In applying Rule 8 to copyright infringement claims, courts have held that the plaintiff must identify the specific original work at issue. See Transcience Corp. v. Big Time Toys, LLC, Cl A No. 13-CV -6642 (ER), 2014 WL 4827878, at *3 (S.D.N.Y. Sept. 23, 2014) (collecting cases); Flava Works, Inc. v. Clavio, CIA No. 11-C-05100, 2012 WL 2459146, at *1-2 (N.D. ill. June 27, 2012) (granting defendant's motion to dismiss where plaintiff's "broad and conclusory allegations" did not "point to a specific copyrighted work that was infringed" and were not sufficient to put the defendant on notice); Home Design Servs., Inc. v. JF Schoch Bldg. Corp., CIA No. 2:11cv574, 2012 WL 442008, at *4 (E.D. Va. Feb. 10, 2012) (same). The instant Complaint describes the works at issue as "12 original pieces of copyrighted sound recordings and two pieces of artwork for the album cover." (ECF No. 1 at 2.) While Chambers asserts that he submitted a form to the court verifying his copyright registration and identifying the alleged copyrighted materials, the only documents attached to the Complaint are associated with Chambers's calculation of damages against each defendant. ffih at 4-6.) Further, the documents submitted by Chambers in response to the defendants' motions reference between six and eleven songs registered to copyright claimant Reliable Brokering. (ECF No. 42-1; ECF No. 53- 1.) Even if the court presumes, without deciding, that Chambers controls the copyright to the six (or eleven) songs referenced in his responses, this information does not match the allegations of the Complaint. Because the Complaint's reference to twelve unidentified pieces of work falls short of satisfying the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure, the defendants' motions to dismiss should be granted. Page 7 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 7 of 9 3-8 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 8 of 9 In addition, the Complaint provides no factual support for Chambers's conclusory assertion that the defendants provided unauthorized access to, or made an unauthorized copy of, any copyrighted material. Instead, Chambers alleges that he authorized Defendant CD Baby to distribute five compact discs containing twelve original pieces of copyrighted sound recordings and discovered that the material was still being sold by Amazon in 2014. While Chambers asserts that it is "likely'' that the recordings have been counterfeited, the Complaint provides nothing more than speculation that Chambers's original work has been copied by any defendant. Further, documents submitted by Chambers demonstrate that only one of the five originally contracted compact discs has been definitively sold. (ECF No. 53-1 at 4, 12.) Chambers's allegation that Apple provided unauthorized access to twelve pieces of work is likewise factually unsupported in the Complaint, or other associated documents submitted by Chambers, which reflects the work being offered by a third-party website. As Chambers's speculative and conclusory allegations are insufficient to show that the defendants violated the Copyright Act or Digital Millennium Copyright Act, see Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555, the court concludes that the defendants' motions to dismiss should be granted. RECOMMENDATION For the foregoing reasons, the court recommends that the defendants' motions to dismiss (ECF Nos. 28, 45) be granted. Because the case is recommended for dismissal, the court further recommends that the alternative motion filed by Defendants Amazon and CD Baby to strike the Complaint's request for punitive damages (ECF No~e tepninated as oot.~ t;bl _. November 7, 2014 Paige J. ssett Columbia, South Carolina UNITED STATES MAGISTRATE JUDGE The parties ' attention is directed to the important notice on the next page. Page 8 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 8 of 9 3-9 EXHIBIT 3 3:14-cv-00972-JFA Date Filed 11/07/14 Entry Number 59 Page 9 of 9 Notice of Right to File Objections to Report and Recommendation The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' " Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to: Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201 Failure to timely flle specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(l); Thomas v. Am, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). Page 9 of 9 Case 1:17-cv-01166-STV Document 17-3 Filed 05/17/17 USDC Colorado Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Roland Chambers, Plaintiff, v. Apple Inc., Amazon.com, Inc., and CD Baby, Defendants. __________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.: 3:14-cv-00972-MGL OPINION AND ORDER Pro Se Plaintiff Roland Chambers (“Plaintiff”) brought this action against Defendants Apple Inc., Amazon.com Inc., and Audio and Video Labs, Inc. d/b/a CD Baby (collectively “Defendants”) alleging that Defendants infringed on Plaintiff’s exclusive right to reproduction of copyrighted material in violation of the Copyright Act, 17 U.S.C. § 101 et seq., and violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. Defendant Apple filed a motion to dismiss on July 2, 2014 (ECF No.28) and Defendant Audio and Video Labs, Inc. d/b/a CD Baby and Amazon.com, Inc. filed their motion on July 30, 2014. (ECF No. 45.) Pursuant to the provisions of 28 U.S.C. § 636 and Local Rule 73.02 D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial management and consideration of pretrial motions. In her Report and Recommendation (“Report”), the Magistrate Judge recommends that Defendants’ motions to dismiss be granted because the allegations of Plaintiff’s complaint are speculative and conclusory, and are insufficient to show that Defendants violated the Copyright Act or Digital Millennium Copyright Act. (ECF No. 59.) Plaintiff filed objections to the Report (ECF No. 3:14-cv-00972-MGL Date Filed 12/12/14 Entry Number 67 Page 1 of 3 4-1 EXHIBIT 4 Case 1:17-cv-01166-STV Document 17-4 Filed 05/17/17 USDC Colorado Page 1 of 3 62) and Defendants filed responses in support of their motions on December 3, 2014 (ECF No. 64) and December 4, 2014. (ECF No. 65.) For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge and GRANTS Defendants’ Motions to Dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. STANDARD OF REVIEW The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of any portions of the Magistrate Judge's Report to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). ANALYSIS Plaintiff objects to the Report maintaining his contention that he has previously submitted sufficient factual evidence to support his claims against Defendants. (ECF No. 62.) Defendant Apple responds that Plaintiff’s objection and other submissions to the Court support the Magistrate Judge’s recommendation finding that Plaintiff failed to provide factual allegations to support his bare speculation that Apple copied his works or provided access to his material, and also failed to sufficiently describe the specific works at issue. Defendants Audio and Video Labs, Inc. d/b/a CD Baby and Amazon.com, Inc. also respond to Plaintiff’s objection, joining Defendant Apple’s response and asking this Court -2- 3:14-cv-00972-MGL Date Filed 12/12/14 Entry Number 67 Page 2 of 3 4-2 EXHIBIT 4 Case 1:17-cv-01166-STV Document 17-4 Filed 05/17/17 USDC Colorado Page 2 of 3 to adopt the Magistrate Judge’s Report and recommended reading of Plaintiff’s complaint in light of Rule 8. This Court agrees with Defendants-Plaintiff’s objection fails to cast any doubt on the well-reasoned substantive findings and analysis of the Magistrate Judge. The Court finds no error. Plaintiff’s complaint falls short of satisfying the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. CONCLUSION For the reasons set out above and in the Report and Recommendation, Plaintiff’s objection is overruled and the Report and Recommendation of the Magistrate Judge is accepted. Defendants’ motions to dismiss (ECF Nos. 28 & 45) are hereby GRANTED and this case is dismissed. IT IS SO ORDERED. s/ Mary G. Lewis United States District Judge Columbia, South Carolina December 12, 2014 -3- 3:14-cv-00972-MGL Date Filed 12/12/14 Entry Number 67 Page 3 of 3 4-3 EXHIBIT 4 Case 1:17-cv-01166-STV Document 17-4 Filed 05/17/17 USDC Colorado Page 3 of 3 5-1 EXHIBIT 5 U.S. District Court District of South Carolina (Columbia) CIVIL DOCKET FOR CASE#: 3:14-cv-04890-MGL Chambers v. Amazon.com Inc et al Assigned to: Honorable Mary Geiger Lewis Cause: 17: 101 Copyright Infringement Plaintiff Roland Chambers, Jr c/o Reliable Brokering v. Defendant Amazon.com Inc Defendant Apple Inc Defendant Artist Direct.com Defendant Bop.fm Defendant represented by Date Filed: 12/30/2014 Date Terminated: 07/01/2015 Jury Demand: Plaintiff Nature of Suit: 820 Copyright Jurisdiction: Federal Question Roland Chambers, Jr 1805 Clemson Rd Unit 290504 Columbia, SC 29229 PROSE Case 1:17-cv-01166-STV Document 17-5 Filed 05/17/17 USDC Colorado Page 1 of 4 5-2 EXHIBIT 5 CCMusic.com Defendant CD Baby Defendant CD Universe Defendant HBDirect.com Defendant Rakuten.com Defendant Sears. com Defendant Tower.com Date Filed # Docket Text j 12/30/2014 1 COMPLAINT against All Defendants, filed by Roland Chambers, Jr. Service due by 5/4/2015Gpet,) (Entered: 12/30/2014) 12/30/2014 ~ MOTION for Leave to Proceed in forma pauperis (Restricted Access) by Roland Chambers, Jr. Motions referred to Paige J Gossett.Gpet,) (Entered: 12/30/2014) Case 1:17-cv-01166-STV Document 17-5 Filed 05/17/17 USDC Colorado Page 2 of 4 5-3 EXHIBIT 5 12/30/2014 3 Local Rule 26.01 Answers to Interrogatories by Roland Chambers, Jr.(jpet, ) (Entered: 12/30/2014) 12/30/2014 7 Report on the Filing or Determination of an Action or Appeal Regarding a Copyright. (jpet, ) (Entered: 12/30/2014) 12/30/2014 ***DOCUMENT E-MAILED 7 Report on the Filing or Determination of Copyright to Copyright Office (jpet, ) (Entered: 12/30/2014) 8 02/05/2015 12 ORDER directing Clerk not to authorize service and advising plaintiff to notify Clerk in writing of any change of address. Motions granted: 2 MOTION for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Paige J Gossett on 2/5/2015. (jpet, ) (Entered: 02/05/2015) " 02/05/2015 13 REPORT AND RECOMMENDATION recommending that the Complaint be summarily dismissed without prejudice and without issuance and service ofprocess, re 1 Complaint. Objections to R&R due by 2/23/2015. Signed by Magistrate Judge Paige J Gossett on 2/5/2015. (jpet, ) (Entered: 02/05/2015) * * *DOCUMENT MAILED Y2 Order and 13 REPORT AND RECOMMENDATION placed in U.S. Mail to Roland Chambers, Jr (jpet, ) (Entered: 02/05/2015) 02/05/2015 14 02/23/2015 15 OBJECTION to 13 Report and Recommendation by Roland Chambers, Jr.Reply to Objections due by 3/12/2015 (Attachments: # 1 Cover Page, # 2 Envelope)(cbru, ) (Entered: 02/24/2015) 05/20/2015 18 MOTION to Expedite Ruling by Roland Chambers, Jr. Response to Motion due by 6/8/2015. No proposed order.(cbru, ) (Entered: 05/20/2015) 07/01/2015 20 OPINION AND ORDER accepting 13 Report and Recommendation, dismissing this action without prejudice and without issuance and service of process, denying as moot J_8 Motion to Expedite. Signed by Honorable Mary G Lewis on 7/1/2015. (cbru, ) (Entered: 07/01/2015) 07/01/2015 JUDGMENT dismissing this action without prejudice (cbru, ) (Entered: 07/01/2015)21 07/01/2015 * * *DOCUMENT MAILED 20 Order Ruling on Report and22 Recommendation, 21 Judgment placed in U.S. Mail to Roland Chambers, Jr (cbru, ) (Entered: 07/01/2015) 07/09/2015 23 NOTICE OF APPEAL as to 20 Order Ruling on Report and Recommendation, by Roland Chambers, Jr. - Filing fee unpaid. The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Attachments: # I Supporting Document)(cbru, ) (Entered: 07/09/2015) I Case 1:17-cv-01166-STV Document 17-5 Filed 05/17/17 USDC Colorado Page 3 of 4 5-4 EXHIBIT 5 07/09/2015 24 Transmittal Sheet for Notice of Appeal to USCA re 23 Notice of Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (cbru,) (Entered: 07/09/20 15) 07/09/2015 25 ASSEMBLED INITIAL ELECTRONIC RECORD TRANSMITTED TO FOURTH CIRCUIT COURT OF APPEALS re 23 Notice of Appeal, Electronic record successfully transmitted. (cbru,) (Entered: 07/09/2015) 07/09/2015 26 ***DOCUMENT MAILED 24 Transmittal Sheet for Notice of Appeal to USCA, 23 Notice of Appeal, placed in U.S. Mail to Roland Chambers, Jr. (cbru,) (Entered: 07/09/20 15) 12/16/2015 27 USCA OPINION for 23 Notice of Appeal, filed by Roland Chambers, Jr. Decision of Appeals Court Affirmed Decision of District Court. ( cbru, ) (Entered: 12/16/20 15) 6 28 USCA MANDATE and JUDGMENT as to 23 Notice of Appeal, filed by Roland Chambers, Jr (Attachments:# l4CCA Judgment)(cbru,) (Entered: 01/25/2016) Case 1:17-cv-01166-STV Document 17-5 Filed 05/17/17 USDC Colorado Page 4 of 4 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 1 of 18f RECEIVED US DC CLERK.'cOLUHilA, SC 201^ DEC 30 PH !2: 37 COMPLAINT Roland Chambers Jr. c/o Reliable Brokering 1 805 Clemson Rd. Unit # 290504 Columbia, SC 29229 In pro persona DISTRICT COURT OF SOUTH CAROLINA FEDERAL JURISDICTION Plaintiff: Roland Chambers Jr. c/o Reliable Brokerina Vs. Defendants: Amazon.com Inc., Apple Inc.. Artist Direet.com. Bop.fm. CCMusic.com. CD Baby. CD Universe. HBDirect.com. Rakuten.com, Sears.com. Tower.com COMPLAINT FOR: COPYRIGHT INFRINGEMENT, DMCA VIOLATION, AND EXCLUSIVE RIGHT TO REPRODUCTION EXHIBIT 77-16 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 1 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 2 of 18 The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of techi leviees, or sei vie nded to -invent inear 'ires (comrn known ligital rights n na, r ent or ARM) that cr-ntro.' access right n .Its criminal e act of circumventing access con : nd, whether or not there is actual irn ...Jigemeiit m m w right i elf. In addition, the DMCA heightens the penalties fo copyright iwTingement m the "lnteren « Section 106 of the copyright law provides the owner of copyright in a work the exclusive right: • rodncf ork in ies; • To { »are r- wative weUcs based iiptc. tin -fork; • IT distribute > of tin rk to the t jj by sale or ither ti iiisfer of owi rship- or by ; ntal, lease, - lending; • To perform the work pi:b • To display the copyrighted work publicly • In the case of sound record nigs, to p >rm t work publwly by foe uis of a dig fa audio tra tssion. Section 501 of the copyright law states hat "anyon who violates «y of the exclusi rights of the copyright o • er ...is an tiger off1"" copyright ght of the or." Generally, u • the utw ore who in_ n >•' -'ie< ; acti\ Tie. without < ining the fht owi lermissic i be lial oi s^i^BSSSSiisswi^tisafsieBBSs^/KKassaKsSsKasiKss!^^ infringement 1 . Plaintiff Roland Chambers Jr. c/o Reliable Brokering (hereinafter "Plaintiff') makes the claims of Copyright Infringement, violation of the DMCA, and violation of Exclusive Right to Reproduction. The claim is made against the Defendants: Amazon.com Inc., Apple Inc., Artist Direct.com, Bop.fm, CCMusic.com, CD Baby, CDUniverse.com, HBDirect.com, Rakuten.com, Sears.com, and Tower.com (hereinafter "Defendants"). EXHIBIT 77-26 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 2 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 3 of 18 Jurisdiction and Venue 2. This Court has jurisdiction over all causes of action asserted herein pursuant to the Federal Question, because this case is a cause given by statute to federal courts. 3. Also, venue is proper because the causes of action stated herein arose in this judicial district, and Plaintiff resides in this Richland County, SC. Parties 4. Plaintiff is an individual who resides in the County of Richland, State of South Carolina. 5. Defendants are corporations outside the State of South Carolina. Factual Claims 6. In the year of 200 1 Plaintiff provided Defendant (CD Baby ) with 5 compact discs, which contained 1 1 songs and 1 video to act as an "online consigner" only. Out of the 1 2 pieces of work 6 songs were registered with the United States Copyright Office for exclusive copyright ownership to Reliable Brokering a business owned and operated by Roland Chambers Jr. 7. Plaintiff discovered the compact disc including the 6 songs registered with the Copyright Office were still selling in 2014 beyond the quantity ever produced, and in various formats including digital files and physical discs. 8. Defendant (CD Baby) made no payment for the disc until 20 14 after Plaintiff purchased one disc via Amazon.com. CD Baby could not account for the other 4 disc, which; defendant has a 20 14 email proving such. 9. CD Baby was discovered selling the copyrighted works in digital download fonnat and the physical compact disc format. The plaintiff never made the files in a digital form and this action by CD Baby not only violates the Copyright Act, but it also violates the DMCA and exclusive right to reproduce, Tti« barco e vert ne and d»« files ic no contain it »per ISRC codes. 10. The remaining defendants also violated the Plaintiffs rights. The Plaintiff has URL links from Apple iTunes/gargeband.com offering the digital formats of the 6 copyrighted works, which; constitutes infringement and violates the DMCA. Along with screenshots of Artist Direct.com and EXHIBIT 77-36 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 3 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 4 of 18 Bop.fm offering digital files that were taken in 2014. As well as sereenshots of Amazon.com, CCMusic.com, CDUniverse.com, HBDirect.com, Rakuten.com, Sears.com, and Tower.com offering the physical copy for sale, which; violates the Plaintiffs copyrights. Amazon.com offered the disc through third party vendors on the United States website including domains in Spain, Italy, England, Germany, India, France, Japan, and Denmark for prices around $200.00. I l.The demand breakdowns for each defendant are attached along with explanation of S TATUTORY and PUNITIVE DAMAGES. 1 2. Plaintiff (Roland Chambers Jr.) is in fear of his life including the lives of his three children and their mother. As well as the lives of his elderly parents who are not able to defend their selves due to the nature of this civil lawsuit. It is the request of the Plaintiff that the court does NOT honor a Motion to Dismiss made by the defendants due to the circumstances. Signed by: T cH Qcvyk , Roland Chambers Jr. Plaintiff Date ^ UPC Barcode: 643157039525 Album Title: Planet Pimp Artist Name: Pimp Associates Tower ID# 106198652 Cd Universe Part#7 145399 Catalog #5637432920 Amazon.com Item #B000CADC7Q entertainment.sears.com/pimp-associates-planet-pimp/643 157039525 HBDirect.com Catalog # CDBY 5637432920 CCMusic.com Item# CDBY39525 7-4 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 4 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 5 of 18 STATUTORY DAMAGES {willful infringement) Chambers vs. Amaion.com Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title 17. United States Code Violation Realized in 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation: 13(365) = 4745 Number of songs or pieces of work violated by copyright infringement: 6 songs Cost of daily violation for 6 songs: (150,000) 16) (4/45) = 4.270,500,000 ?(according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) - 6,500,000 Violation of alburn images displayed: 13(500,000) = 6,500,000 iotal demands based on Copyright Act: 4,284,800,000 7-5 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 5 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 6 of 18 STATUTORY DAMAGES (willful infringement) CHAMBERS vs. APPLE INC. Itunes/garageband.com Based on Amendments of the Statutory Damages Enhancement Section S04(d of title 17, United States Code Violation Realised in 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation; 13(365) 4745 Number of songs or pieces of work violated by copyright infringement: 6 songs Digital Millennium Copyright Act violation (digital downloads made available); 6 songs Cost of daily violation for 6 songs: {150,000) (6) (4745) - 4,270,500,000 "(according to statutory damages based on Copyright Damages Enhancement Act of 1999) Cost of allowed for Ringtones made available: (b) (5,000)(4745) = 142,350,000 Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) = 6,500,000 Punitive damages for violation of DMCA: (5/000j{6)(4/45)= 142,350,000 Violation of album images displayed; 13(500,000) = 6,500,000 Total demands based on Copyright Act and DMCA: 4,569,500,000 7-6 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 6 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 7 of 18 STATUTORY DAMAGES {willful infringement) Chambers vs. Artist Direct.com Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title 17, United States Code Violation Realised in 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation: 13(365) - 4745 Number of songs or pieces of work violated by copyright infringement: 6 songs Digital Millennium Copyright Act violation {digital downloads made available): 6 songs Cost of daily Violation for 6 songs: (150,OtO) (6) (4745) - 4,270,500,000 ?(according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) = 6,500,1)00 Punitive damages for violation of DMCA: (5,000)(6){4745)= 142,350,000 Violation of album images displayed; 13(500,000) = 6,500,000 Total demands based on Copyright Act and DMCA: 4,427,150,000 7-7 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 7 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 8 of 18 STATUTORY DAMAGES (willful infringement} Chambers vs. BOP.fm Based on Amendments of the Statutory Damages Enhancement •section 504(c) of title 17, United States Code Violation Realized in 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation: 13(365) = 4745 Number of songs or pieces of work violated by copyright infringement: 6 songs Digital Millennium Copyright Act violation (digital downloads made available): 6 songs Cost of daily violation for 6 songs: (150,000) (6) (4745) = 4,2/0,Su0,000 * (according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,OoO) = 6,500,000 Punitive damages for violation of DMCA: (5,000)(6}(4745)= 142,350,000 Violation of alburn images displayed: 13(500,000) = b,500,000 Total demands based on Copyright Act and DMCA: 4,427,150,000 7-8 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 8 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 9 of 18 STATUTORY DAMAGES (willful infringement) Chambers vs. CD Baby Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title I?, United States Code Violation Realized in 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation: 13(365) 4245 Number of songs or pieces of work violated by copyright infringement: 6 songs Digital Millennium Copyright Act: violation (digital downloads made available): 6 songs Cost of daily violation for 6 songs: (150,000) (6) (4745) = 4,270,500,000 * (according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) = 6,500,000 Punitive damages for violation of DMCA: (5,000)(6)(4745)= 142,350,000 Violation of album images displayed; 13(500,000) = 6,500,000 Total demands based on Copyright Act and DMCA: 4,427,150,000 7-9 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 9 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 10 of 18 STATUTORY DAMAGES (willful infringement) Chambers vs. CD Universe,corn Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title 17, United States Code Violation Realised in 02/2014 2001-2014 (13)Years of ongoing violation; 13(365) « 4745Number of days in years of violation; Number of songs or pieces of work violated by copyright infringement; 6 songs Lost of daly violation for 6 songs: (150,000) (6) (4745) =t 4,270,500,000 ?{according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) = 6,500,000 Violation of alburn images displayed: 131500,000) = 6,500,000 Total demands based on Copyright Act: 4,284,800,000 7-10 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 10 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 11 of 18 STATUTORY DAMAGES {willful infringement) Chambers vs. Collector's Choice/ CCMusic.com Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title 17, United States Code Violation Realised in 02/2014 2001 -2.014 (13)Years of ongoing violation! 13(365) = 4745Number of days in years of violation: Number of songs or pieces of work violated by copyright infringement: 6 songs Cost of daily violation for 6 songs: (150,000) (6) (4745) - 4,270,500,000 "(according to statutory damages based on Copyright Damages enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) = 6,500,000 Violation of album images displayed: 13(500,000) = 6,500,000 Total demands based on Copyright Act; 4,284,800,000 7-11 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 11 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 12 of 18 STATUTORY DAMAGES (willful infringement) Chambers vs. HBDIrect.com Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title 17, United States Code Violation Realized in 02/2014 Years of ongoing violation: 2001 2014 (13) Number of days in years of violation: 13(365) = 4745 Number of songs or pieces of work violated by copyright infringement: 6 songs Cost: of daily violation for 6 songs: (150,000) (6) (4745) = 4,270,500,000 '(according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof {100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) - 6.500,000 Violation of album images displayed: 13(500,000) = 6,500,000 lotal demands based on Copyright Act: 4,284,800,000 7-12 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 12 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 13 of 18 STATUTORY DAMAGES (willful infringement) Chambers vs. Rakuten.com Based on Amendments of the Statutory Damages enhancement Section 504(c) of title 17, United States Code Violation Realized in 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation: 13(365) = 4745 Number of songs or pieces of work violated by copyright infringement:: 6 songs Cost of daily violation for 6 songs: (150,000) (6) (4745) = 4,270,500,000 *(according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,OuOj - 6,500,000 Violation of album images displayed; 13(500,000) = 6,500,000 Total demands based on Copyright Act: 4,284,800,000 7-13 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 13 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 14 of 18 STATUTORY DAMAGES (willful infringement) Chambers vs. Sears.com Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title 17, United States Code Violation Realized in 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation: 13(365) = 4745 Number of songs or pieces of work violated by copyright infringement: 6 songs Cost of daily violation for 6 songs: (150,000) (6) (4745) =- 4,270,500,000 ?(according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,0001 = 6,500,000 Violation of album images displayed: 13(500,000} =• 6,500,000 Total demands based on Copyright Act: 4,284,800,000 7-14 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 14 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 15 of 18 STATUTORY DAMAGES (willful infringement! Chambers vs. Towerrecords.com Based on Amendments of the Statutory Damages Enhancement Section 504(c) of title 17, United States Code Violation Realized In 02/2014 Years of ongoing violation: 2001-2014 (13) Number of days in years of violation: 13(365} 4745 Number of songs or pieces of work violated by copyright infringement: (5 songs Cost of daily violation for 6 songs: (150,000) (6) (4745) = 4,270,500,000 ?(according to statutory damages based on Copyright Damages Enhancement Act of 1999) Punitive damages not requiring proof (100,000 annual): 1,300,000 Punitive damages based on evidence of "willful" infringement for profit: 13(500,000) = 6,500,000 Violation of album images displayed: 13(500,000) = 6,500,000 Total demands based on Copyright Act: 4,284,800,000 7-15 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 15 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 16 of 18 RESPONDENTS /' DEFENDANTS: Amazon Amazon.com Inc. Attn: Jeffrey P. Bezos or CEO I 5 1 ft 2'"1 Ave. Seattle, WA 98 ! 01 Artist Direct Legal & Business Affairs ARTISTdirect.com c/o Relativity Media. LLC 8899 Beverly Blvd. Ste 510 West Hollywood. CA 90048 Bop. F VI Shehzad Dared ia 260 King St unit 623 San Francisco. CA 94107 ¦ u v 6061 Apple Apple inc. Attn; Timothy D. Cook or CEO 1 infinite Lp Cupertino. CA 95014 Collector's Choice CT57Vjusic.com 740 Hilltop Dr Itasca. 1L 60143 ph# (630) 919 - 2247 CD Baby CD BABY d'Tvat Audio Video Lab Attn; Joel Andrew or CEO 13909 NE Airport Way Portland. OR 97230 ' CD Universe Cduniverse.com 101 N Plains Industrial Rd Wallingford, CT 06492 ph# (800) 23 1 - 7937 hbDirect.com HBDircct P.O. Box 309 Waterbury Center. VI 05677 (800) 222* - 6872 7-16 EXHIBIT 76 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 16 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 17 of 18f Rakuten USA Corporate Office Headquarters Rakuten, Inc.( Formerly Buy.com) 85 Enterprise Ste 100 Aliso Viejo, CA 9265 ph# (949) 448 - 5 400 Rakuten, Inc. Japan Corporate Office Shinagawa Seaside Rakuten Tower 4-12-3 Higashi-shinagawa Shinagawa-ku, Tokyo 140-0002 Scars Sears Corporate Office 3333 Beverly Rd Hoffman Estates, IL 60179 ph# ; (847) 286-2500 Tower Records Tower.com 2500 Del Monte St Bldg C West Sacramento, CA 95691 (800) 369 - 8693 EXHIBIT 77-176 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 17 of 18 3:14-cv-04890-MGL Date Filed 12/30/14 Entry Number 1 Page 18 of 18&ge 1 of { Type of Work: Music Registration N umb e r /' Date: PA000 1022 566 / 2000-07-07 T i 1 1 e : til a net Pimp. liescript i on : Compact disc. 6 songs.Notes : Performer : Performed by Pimp Associates. Copyr i ght C I a imant : Reliable Brokering Date of Creation: 2000 Date of Publication: 2000-06-27 Authorship on Application: words & music: Pimp Associates, pseud. Copyright Note: C.G. correspondence. Names : Reliable Brokering Pimp Associates, pseud. http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi 7/15/2014 EXHIBIT 77-186 6 Case 1:17-cv-01166-STV Document 17-6 Filed 05/17/17 USDC Color do Page 18 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Roland Chambers, Jr., c/o Reliable Brokering, Plaintiff, v. Amazon.com Inc.; Apple Inc.; Artist Direct.com; Bop.fm; CCMusic.com; CD Baby; CD Universe; HBDirect.com; Rakuten.com; Sears.com; Tower.com, Defendants. _____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) C/A No. 3:14-4890-MGL-PJG REPORT AND RECOMMENDATION The plaintiff, Roland Chambers, Jr.1 (“Plaintiff”), a self-represented litigant, filed this action alleging that the defendants infringed on Plaintiff’s exclusive right to reproduction of copyrighted material in violation of the Copyright Act, 17 U.S.C. § 101 et seq., and violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC. Having reviewed the Complaint in accordance with applicable law, the court concludes that it should be summarily dismissed. 1 The court has construed the Complaint to name Roland Chambers, Jr., as the sole Plaintiff in this case. To the extent Plaintiff is attempting to represent Reliable Brokering, he cannot do so. See Myers v. Loudoun Cnty. Publ. Sch., 418 F.3d 395, 401 (4th Cir. 2005) (finding that one pro se litigant cannot represent another’s interest in federal court); see also In re Under Seal, 749 F.3d 276, 290 n.17 (4th Cir. 2014) (noting that, while 28 U.S.C. § 1654 provides that a party may plead and conduct his or her own case, corporations, partnerships, or associations must appear in federal court through a licensed attorney). Page 1 of 7 3:14-cv-04890-MGL Date Filed 02/05/15 Entry Number 13 Page 1 of 7 7-1 EXHIBIT 7 Case 1:17-cv-01166-STV Document 17-7 Filed 05/17/17 USDC Colorado Page 1 of 7 BACKGROUND The Complaint alleges that Plaintiff provided Defendant CD Baby with five compact discs in 2001, containing eleven songs and one video. (ECF No. 1 at 3.) Plaintiff asserts that six of those “songs were registered with the United States Copyright Office for exclusive copyright ownership to Reliable Brokering” a business allegedly owned and operated by Plaintiff. (Id.) The Complaint alleges that “Plaintiff discovered the compact disc including the 6 songs registered with the Copyright Office were still selling in 2014 beyond the quantity ever produced, and in various formats including digital files and physical discs.” (Id.) The Complaint asserts that Plaintiff purchased one compact disc from Defendant Amazon.com in 2014. (Id.) Defendant CD Baby paid Plaintiff for the purchased disc, but allegedly could not account for the other four discs he originally provided in 2001. (Id.) The Complaint further claims that Defendant CD Baby was discovered selling the copyrighted works in digital download format and that Plaintiff has “URL links from Apple iTunes/garageband.com” and “screenshots of Artist Direct.com and BOP.fm” offering digital files in 2014. (Id. at 3-4.) Plaintiff claims that such screenshots also reflect physical copies of the copyrighted works for sale by Defendants Amazon.com, CCMusic.com, CD Universe.com, HBDirect.com, Rakuten.com, Sears.com, and Tower.com. (Id. at 4.) Plaintiff seeks statutory and punitive damages and alleges that he “is in fear of his life” as well as the lives of family members due to the nature of this civil lawsuit. (Id.) II. Discussion A. Standard of Review Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. This court is required to liberally construe pro se complaints. Erickson v. Page 2 of 7 3:14-cv-04890-MGL Date Filed 02/05/15 Entry Number 13 Page 2 of 7 7-2 EXHIBIT 7 Case 1:17-cv-01166-STV Document 17-7 Filed 05/17/17 USDC Colorado Page 2 of 7 Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys, id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint, the plaintiff’s allegations are assumed to be true. Erickson, 551 U.S. at 93 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so; however, a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the plaintiff’s legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). B. Analysis The Complaint asserts that the defendants have violated Plaintiff’s exclusive reproduction rights under the Copyright Act. See Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 546-47 (1985) (holding that “[s]ection 106 of the Copyright Act confers a bundle of exclusive rights Page 3 of 7 3:14-cv-04890-MGL Date Filed 02/05/15 Entry Number 13 Page 3 of 7 7-3 EXHIBIT 7 Case 1:17-cv-01166-STV Document 17-7 Filed 05/17/17 USDC Colorado Page 3 of 7 to the owner of the copyright,” including the right to reproduce the copyrighted work); see also 17 U.S.C. § 106. Further, the Complaint appears to allege that the defendants have provided unauthorized access to Plaintiff’s work, which the Digital Millennium Copyright Act provides measures to prevent. See 17 U.S.C. § 1201 et seq. This is the second case filed by Plaintiff in this court raising Copyright Act and Digital Millennium Copyright Act claims against Defendants Amazon.com Inc, Apple Inc, and CD Baby. See Chambers v. Apple Inc, C/A No. 3:14-972-MGL (D.S.C. Mar. 18, 2014).2 In Plaintiff’s prior case, the court granted the defendants’ motion to dismiss the action based on Plaintiff’s failure to adequately describe the copyrighted works at issue and failure to provide factual support for his conclusory allegations that the defendants copied such material. Id. at ECF No. 67. In the instant Complaint, Plaintiff clarifies that his claims involve six songs registered to copyright claimant Reliable Brokering. (ECF No. 1 at 3, 18.) However, while Plaintiff names additional defendants in this action, his allegations of Copyright Act or Digital Millennium Copyright Act violations are again factually unsupported in the Complaint. The Copyright Act grants copyright protection to “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). To establish a claim of copyright infringement, a plaintiff must show: (1) ownership of a valid copyright, and (2) that the defendant copied the original elements of the copyrighted work. Feist Publ’n, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991); Keeler Brass Co. v. Cont’l Brass Co., 862 F.2d 1063, 1065 (4th Cir. 1988). The Digital Millennium Copyright Act “was enacted both to preserve copyright enforcement 2 A court may take judicial notice of its own records. Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989) (noting that the most frequent use of judicial notice “is in noticing the content of court records”) (internal quotation marks and citation omitted). Page 4 of 7 3:14-cv-04890-MGL Date Filed 02/05/15 Entry Number 13 Page 4 of 7 7-4 EXHIBIT 7 Case 1:17-cv-01166-STV Document 17-7 Filed 05/17/17 USDC Colorado Page 4 of 7 on the Internet and to provide immunity to service providers from copyright infringement liability” for certain actions. ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 625 (4th Cir. 2001). As in the prior case, the instant Complaint alleges that Plaintiff authorized Defendant CD Baby to distribute five compact discs containing material registered with the United States Copyright Office. The Complaint asserts that Plaintiff discovered the material being offered for sale in 2014, and he appears to believe that the defendants are reproducing the allegedly copyrighted songs in both digital and physical format. However, Plaintiff’s factual allegations again demonstrate that only one of the five compact discs originally provided to Defendant CD Baby has been definitively sold or distributed. Thus, even if the court presumes, without deciding, that Plaintiff controls the copyright to the six songs, the Complaint provides insufficient factual allegations to show that any defendant made an unauthorized copy of the copyrighted material. See Nelson-Salabes, Inc. v. Morningside Dev., 284 F.3d 505, 513 (4th Cir. 2002) (holding that in order to show copyright infringement, a plaintiff “must establish that the defendant engaged in unauthorized copying of the work protected by the copyright”). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made clear that a plaintiff must do more than make conclusory statements to state a claim and provide sufficient factual information to put defendants on notice of their wrongdoing. See Iqbal, 556 U.S. at 677-79; Twombly, 550 U.S. at 555; see also Fed. R. Civ. P. 8(a)(2) (providing that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”). Further, the reviewing court need only accept as true the complaint’s factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79. As Plaintiff’s speculative and conclusory allegations are insufficient to show a violation of the Copyright Act or Digital Page 5 of 7 3:14-cv-04890-MGL Date Filed 02/05/15 Entry Number 13 Page 5 of 7 7-5 EXHIBIT 7 Case 1:17-cv-01166-STV Document 17-7 Filed 05/17/17 USDC Colorado Page 5 of 7 Millennium Copyright Act, the defendants are entitled to summary dismissal. Cf. Moore v. Lightstorm Entm’t, 992 F. Supp. 2d 543, 550 (D. Md. 2014) (noting that speculation and conjecture are insufficient to establish the elements of copyright infringement). III. Conclusion Accordingly, the court recommends that the Complaint be summarily dismissed without prejudice and without issuance and service of process. ____________________________________ Paige J. Gossett UNITED STATES MAGISTRATE JUDGE February 5, 2015 Columbia, South Carolina Plaintiff’s attention is directed to the important notice on the next page. Page 6 of 7 3:14-cv-04890-MGL Date Filed 02/05/15 Entry Number 13 Page 6 of 7 7-6 EXHIBIT 7 Case 1:17-cv-01166-STV Document 17-7 Filed 05/17/17 USDC Colorado Page 6 of 7 Notice of Right to File Objections to Report and Recommendation The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to: Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201 Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). Page 7 of 7 3:14-cv-04890-MGL Date Filed 02/05/15 Entry Number 13 Page 7 of 7 7-7 EXHIBIT 7 Case 1:17-cv-01166-STV Document 17-7 Filed 05/17/17 USDC Colorado Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Roland Chambers, Jr., c/o Reliable Brokering, Plaintiff, v. Amazon.com Inc.; Apple Inc.; Artist Direct.com; Bop.fm; CCMusic.com; CD Baby; CD Universe; HBDirect.com; Rakuten.com; Sears.com; Tower.com, Defendants. __________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.: 3:14-cv-4890-MGL OPINION AND ORDER Pro Se Plaintiff Roland Chambers (“Plaintiff”) brought this action against Defendants Amazon.com Inc., Apple Inc., Artist Direct.com, Bop.fm, CCMusic.com, CD Baby; CD Universe, HBDirect.com, Rakuten.com, Sears.com, and Tower.com (collectively “Defendants”) alleging that Defendants infringed on Plaintiff’s exclusive right to reproduction of copyrighted material in violation of the Copyright Act, 17 U.S.C. § 101 et seq., and violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. Pursuant to the provisions of 28 U.S.C. § 636 and Local Rule 73.02 D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial management and consideration of pretrial motions. Upon review of the complaint in accordance with the applicable law, the Magistrate Judge has issued a Report and Recommendation recommending that this matter be summarily dismissed. (ECF No.13.) Plaintiff filed objections to the Report on February 23, 2015 (ECF No. 15) and a motion to expedite on May, 20, 2015. (ECF No. 18.) For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge. 3:14-cv-04890-MGL Date Filed 07/01/15 Entry Number 20 Page 1 of 3 8-1 EXHIBIT 8 Case 1:17-cv-01166-STV Document 17-8 Filed 05/17/17 USDC Colorado Page 1 of 3 STANDARD OF REVIEW The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of any portions of the Magistrate Judge's Report to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). ANALYSIS The Magistrate Judge recommends that the Complaint be summarily dismissed because it contains insufficient factual allegations to show a violation of the Copyright Act or Digital Millennium Copyright Act. (ECF No. 13 at 5-6.) Plaintiff objects to the Report, reiterating his claims of unauthorized duplication and/ or reproduction of copyrighted material and claiming that “validity and ownership of copyright” has been established. (ECF No. 15.) The Court has reviewed Plaintiff’s objections de novo but Plaintiff’s arguments fail to cast any doubt on the well-reasoned substantive findings and analysis of the Magistrate Judge. Plaintiff’s complaint and the attachments, which primarily detail his alleged damages, fail to provide sufficient factual support for the Copyright Act or Digital Millennium Copyright Act allegations made by Ronald Chambers as the sole Plaintiff in this case. The Court finds no error and Plaintiff’s objections are overruled. -2- 3:14-cv-04890-MGL Date Filed 07/01/15 Entry Number 20 Page 2 of 3 8-2 EXHIBIT 8 Case 1:17-cv-01166-STV Document 17-8 Filed 05/17/17 USDC Colorado Page 2 of 3 CONCLUSION For the reasons set out above and in the Report and Recommendation, Plaintiff’s objections are overruled and the Report and Recommendation of the Magistrate Judge is accepted. (ECF No. 13.) This matter is hereby summarily dismissed without prejudice and without issuance and service of process. Plaintiff’s motion to expedite is denied as moot. (ECF No. 18.) IT IS SO ORDERED. s/ Mary G. Lewis United States District Judge Columbia, South Carolina July 1, 2015 ***** NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. -3- 3:14-cv-04890-MGL Date Filed 07/01/15 Entry Number 20 Page 3 of 3 8-3 EXHIBIT 8 Case 1:17-cv-01166-STV Document 17-8 Filed 05/17/17 USDC Colorado Page 3 of 3 9-1 EXHIBIT 9 General Docket United States Court of Appeals for the Fourth Circuit 1 Court of Appeals Docket#: 15-1767 Nature of Suit: 3820 Copyright Roland Chambers, Jr. v. Amazon.com, Inc. Appeal From: United States District Court for the District of South Carolina at Columbia Fee Status: in forma pauperis Case Type Information: 1) Civil Copyright 2) private 3) null Originating Court Information: District: 0420-3: 3:14-cv-04890-MGL Presiding Judge: Mary G. Lewis, U.S. District Court Judge Date Filed: 12/30/2014 Date Order/Judgment: 07/01/2015 Date Order/Judgment Date NOA EOD: Filed: 07/0112015 07/09/2015 07110/2015 ,]_ Copyright notice transmitted. [15-1767] (PKS) Docketed: 07/10/2015 Termed: 12/16/2015 DateRec'd COA: 07/09/2015 07110/2015 ...±.. INFORMAL BRIEFING ORDER filed. Mailed to: Chambers. Informal Opening Brief due 08/03/2015 Informal response brief, if any: 17 days after informal opening brief filed. [15-1767] (PKS) 07/27/2015 2.. INFORMAL OPENING BRIEF by Appellant Roland Chambers, Jr .. [15- 1767] (PKS) 12/16/2015 _Q_ UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cv-04890-MGL Copies to all parties and the district court/agency. [999719191]. Mailed to: Chambers. [15-1767] (PKS) 12/16/2015 ~ ruDGMENT ORDER filed. Disposition method: 15-1767 opn.u.sub. Decision: Affirmed. Originating case number: 3:14-cv-04890-MGL. Entered on Docket Date: 12/16/2015. [999719196] Copies to all parties and the district court/agency. Mailed to: Chambers. [15-1767] (PKS) 12/16/2015 JL Copyright notice transmitted. [15-1767] (PKS) 12/28/2015 _2_ PETITION for rehearing and rehearing en bane by Appellant Roland Chambers, Jr .. [15-1767] (PKS) 12/28/2015 .lQ_ Mandate stayed by FRAP 41(d)(l). Mailed to: Chambers. [15-1767] (PKS) Case 1:17-cv-01166-STV Document 17-9 Filed 05/17/17 USDC Colorado Page 1 of 2 9-2 EXHIBIT 9 01115/2016 _1_1 COURT ORDER filed [999736659] denying Motion for rehearing and rehearing en bane [.2.] Copies to all parties. Mailed to: Roland Chambers, Jr .. [15-1767] (CP) 01125/2016 Jl_ Mandate issued. Referencing: [.Q] Unpublished per curiam Opinion , [1] Judgment Order. Originating case number: 3:14-cv-04890-MGL.. [15- 1767] (JHM) Case 1:17-cv-01166-STV Document 17-9 Filed 05/17/17 USDC Colorado Page 2 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1767 ROLAND CHAMBERS, JR., Plaintiff - Appellant, v. AMAZON.COM INC.; APPLE INC.; ARTIST DIRECT.COM; BOP.FM; CCMUSIC.COM; CD BABY; CD UNIVERSE; HBDIRECT.COM; RAKUTEN.COM; SEARS.COM; TOWER.COM, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:14-cv-04890-MGL) Submitted: November 30, 2015 Decided: December 16, 2015 Before AGEE, DIAZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Roland Chambers, Jr., Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-1767 Doc: 6 Filed: 12/16/2015 Pg: 1 of 6 3:14-cv-04890-MGL Date Filed 12/16/15 Entry Number 27 Page 1 of 6 10-1 EXHIBIT 10 Case 1:17-cv-01166-STV Document 17- 0 Filed 05/17/17 USDC Color do Page 1 of 6 PER CURIAM: Roland Chambers, Jr., appeals the district court’s order adopting the recommendation of the magistrate judge and summarily dismissing this action alleging violations of the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA). We affirm. I In his complaint, Chambers stated that in 2001 he provided to Defendant CD Baby, an Oregon-based business entity, five compact discs (CD’s) containing 11 songs and one video, with CD Baby acting as an “online consignor.” Reliable Brokering, described as “a business owned and operated by Roland Chambers,” allegedly owned copyrights on six of the 12 pieces of work. In 2014, Chambers discovered that the material was allegedly selling beyond the quantity produced, and in various formats including digital files and physical discs. CD Baby did not pay Chambers for any of the CD’s until 2014, when Chambers purchased a CD from Amazon.com. Chambers discovered that CD Baby was selling the copyrighted works in digital form, although Chambers had not made the material available in such form. Additionally, he discovered that other Defendants, including Amazon.com and Apple, Inc., were offering the copyrighted material for sale in digital and/or physical form. Chambers claimed violations of Appeal: 15-1767 Doc: 6 Filed: 12/16/2015 Pg: 2 of 6 3:14-cv-04890-MGL Date Filed 12/16/15 Entry Number 27 Page 2 of 6 10-2 EXHIBIT 10 Case 1:17-cv-01166-STV Document 17- 0 Filed 05/17/17 USDC Color do Page 2 of 6 the Copyright Act and the DMCA. He sought damages exceeding $4 billion from various Defendants. The magistrate judge granted leave to proceed in forma pauperis and recommended summary dismissal. The magistrate judge found that Chambers had definitively stated facts showing that only one CD had been sold and, therefore, he failed to provide support for his claim that any defendant made an unauthorized copy of the copyrighted material. The district court overruled Chambers’ objections and adopted the recommendation, finding that the complaint and attachments thereto failed to provide sufficient factual support for a cause of action under either the Copyright Act or the DMCA. II Although the district court did not articulate a basis for its dismissal, it appears that the court was exercising its authority under 28 U.S.C. § 1915(e)(2) (2012) to dismiss Chambers’ in forma pauperis action sua sponte for failure to state a claim. The truncated treatment given the claims - dismissing the action without ordering service of process on Defendants - appears consistent with what Congress envisioned with § 1915(e), namely, requiring dismissal of insubstantial claims without requiring defendants to file responsive pleadings. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996) (en banc) (concluding that abbreviated treatment of Appeal: 15-1767 Doc: 6 Filed: 12/16/2015 Pg: 3 of 6 3:14-cv-04890-MGL Date Filed 12/16/15 Entry Number 27 Page 3 of 6 10-3 EXHIBIT 10 Case 1:17-cv-01166-STV Document 17- 0 Filed 05/17/17 USDC Color do Page 3 of 6 complaint was evidence of court’s intent to exercise its dismissal authority under predecessor to § 1915(e)). Section 1915(e)(2) directs a district court to dismiss a case if the court finds that it is frivolous or malicious, fails to state a claim, or seeks damages from a defendant who is immune from such relief. “A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S. 199, 215 (2007). Although “the allegations in pro se complaints should be liberally construed,” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003), the complaint must contain factual allegations sufficient “to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). We review de novo a § 1915(e)(2) dismissal. Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243, 248 (4th Cir. 2005). III “To establish a claim for copyright infringement under the Copyright Act . . . , a plaintiff must prove that [he] possesses Appeal: 15-1767 Doc: 6 Filed: 12/16/2015 Pg: 4 of 6 3:14-cv-04890-MGL Date Filed 12/16/15 Entry Number 27 Page 4 of 6 10-4 EXHIBIT 10 Case 1:17-cv-01166-STV Document 17- 0 Filed 05/17/17 USDC Color do Page 4 of 6 a valid copyright and that the defendant copied elements of [the] work that are original and protectable.” Copeland v. Bieber, 789 F.3d 484, 488 (4th Cir. 2015). “Absent direct proof of copying, which is hard to come by, a plaintiff may prove copying indirectly, with evidence showing that the defendant had access to the copyrighted work and that the purported copy is ‘substantially similar’ to the original.” Id. Chambers did not set forth sufficient facts to state a plausible claim of copyright infringement. Although he appeared to identify a copyright by number, he stated that the copyright was registered to Reliable Brokering - not to himself. Reliable Brokering was simply described as “a business owned and operated by Roland Chambers, Jr.” Chambers did not provide any details about the structure of Reliable Brokering. Chambers asserted in the complaint that numerous copies of his CD - more than the five he originally supplied CD Baby - were available from various Defendants but provided no evidence of this. We find that Chambers did not set forth sufficient facts in his complaint to establish either that he possessed a valid copyright or that any of the Defendants reproduced copyrighted work. Through the DMCA, “Congress sought to mitigate the problems presented by copyright enforcement in the digital age.” MDY Indus., LLC v. Blizzard Entertainment, Inc., 629 F.3d 928, 942 Appeal: 15-1767 Doc: 6 Filed: 12/16/2015 Pg: 5 of 6 3:14-cv-04890-MGL Date Filed 12/16/15 Entry Number 27 Page 5 of 6 10-5 EXHIBIT 10 Case 1:17-cv-01166-STV Document 17- 0 Filed 05/17/17 USDC Color do Page 5 of 6 (9th Cir. 2010). “The DMCA contains three provisions directed at the circumvention of copyright owners’ technological measures” that are either designed to control access to copyrighted works or to protect a copyright owner’s rights. Id. “A copyright owner alleging a violation of [the DMCA] must prove that the circumvention of the technological measure either infringes or facilitates infringing a right protected by the Copyright Act.” Storage Tech. Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307, 1318 (Fed. Cir. 2005) (internal quotation marks omitted). Chambers did not state any facts from which it might reasonably be inferred that there was a violation of the DMCA. Specifically, he did not claim to have put into place a technological measure that would have protected a copyright or that any Defendant circumvented such a measure. Thus, dismissal of the complaint insofar as it claimed a DMCA violation was proper. IV We therefore affirm. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED Appeal: 15-1767 Doc: 6 Filed: 12/16/2015 Pg: 6 of 6 3:14-cv-04890-MGL Date Filed 12/16/15 Entry Number 27 Page 6 of 6 10-6 EXHIBIT 10 Case 1:17-cv-01166-STV Document 17- 0 Filed 05/17/17 USDC Color do Page 6 of 6 No. 15-9743 Title: Docketed: Lower Ct: Case Nos.: Decision Date: Rehearing Denied: Roland Chambers, Jr., Petitioner v. Amazon.com Inc., et al. June 17, 2016 United States Court of Appeals for the Fourth Circuit (15-1767) December 16,2015 January 15, 2016 ~Date~- -·~~·-Proceedings and Orders-~~---~------~ Apr 13 2016 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 18, 20 16) Jul 15 2016 Waiver of right of respondents Amazon.com Inc. & CD Baby to respond filed. Jul28 2016 DISTRIBUTED for Conference of September 26,2016. Oct 3 2016 Petition DENIED. --Name Address-----~~~---- --Phone--- Attorneys for Petitioner: Roland Chambers Jr. Party name: Roland Chambers, Jr. Attorneys for Respondents: Joseph M. Armstrong Counsel of Record 1805 Clemson Road Unit #290504 Columbia, SC 29229 Offit Kurma, P.A. Tenn Penn Center Suite 2300 180 1 Market Street Philadelphia, P A 19103 jarmstrong@offitkurman.com Party name: Amazon.com Inc. & CD Baby (803) 348- 4962 (267) 338- 1379 11-1 EXHIBIT 11 Case 1:17-cv-01166-STV Document 17-11 Filed 05/17/17 USDC Colorado Page 1 of 1
