Miller v. Facebook, Inc. (N.D. Cal. 2010)

The rightsholder of a video game distributed on Facebook brought suit against the company, alleging that it had committed direct and secondary copyright infringement by publishing an infringing video game in its application directory.The rightsholder also brought suit against the allegedly infringing video game designer itself.

The Central District of California dismissed the complaint against Facebook, with leave to amend, finding that the rightsholder had not alleged sufficient factual allegations. The Court cited Twombly for the proposition that “mere legal conclusions disguised as factual allegations will not suffice” and found the following in regard to direct liability:

The complaint merely alleges that defendant Facebook “published [the infringing game] in their [sic] Application Directory” and that defendant Facebook “took the affirmative step to approve [the infringing game] for publication on its Application Directory” (Compl. ¶¶ 15, 16). As alleged, the application directory “allows every Facebook user to search and view the application from within the directory” (Compl. ¶ 15). These allegations are insufficient. The complaint does not specify what is actually published on the application directory. As the complaint currently reads, it is unclear whether defendant Facebook published a copy of the game on its application directory, published a link to the game, included a place for Facebook users to blog about the game, or published a combination of these and/or other things. Alleging that the application directory allows every Facebook user to “search and view” the application from within the directory is vague and also very different from alleging that the application directory allows Facebook users to play the ChainRxn game from within the directory. This difference is important because of its legal implications.

The Court also found, in regard to secondary liability, that the plaintiff did not sufficiently allege that Facebook induced, caused or materially contributed to the infringing product. The Court noted that that the complaint was ambiguous about how and what Facebook published its app directory, and that “merely alleging that defendant Facebook “induced and encouraged” the infringement of [the rightsholder's program] is a legal conclusion disguised as a factual allegation.”

(H/t Eric Goldman.)