Pseudonymous defendant, AK47, had his motion to quash heard on Monday, May 5. He was represented by court-appointed counsel.
The fact that the court appointed counsel to represent AK47 in a civil case suggests that Judge Droney realizes the important First Amendment issue in this case, and he does not want to wind up being the judge in a “bad case” because the party was incapable of making his arguments pro se.
Judge Droney did not rule on AK47’s motion yet. He did ask plaintiffs’ counsel to file a supplemental memorandum within one week on whether the court has subject matter jurisdiction. That memorandum is attached here.
All of the claims in this case are state law claims except the copyright infringement claim. It is upon that claim that the entire federal case hinges, and that claim is (at best) only valid against one defendant — and questionable (at best) against even that single defendant. If that claim vaporizes, the whole federal case might be dismissed.
The supplemental jurisdiction argument seems rather flimsy. Allegedly, someone took a photograph of one of the plaintiffs from a public website, where she had posted it, then uploaded it to a website called “hide behind.” Technically, yes, that is copyright infringement (unless it was fair use, an issue I will not spend my time analyzing at this point). Then, someone linked to those images from other websites.
Since the copyright in that image was not registered until after the infringement, the only damages available are actual damages or disgorgement of the infringer’s profits — no statutory damages nor attorney’s fees are available. Since we are talking about a personal photo, not a commercial image, nor are we talking about a photo used for profit, the “actual damages” from the copyright infringement are unlikely to be more than a token amount.
This case is not about copyright infringement. The “real claims” are appropriation of another’s name or likeness, unreasonable publicity, false light, intentional and negligent infliction of emotional distress, and libel. If those claims have any merit against any of the remaining defendants, then those claims are more properly litigated in state court.
The copyright claim seems to be a manufactured excuse to get this action into federal court. As the plaintiffs own attorney has written. “By mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Rationalizing Internet Safe Harbors, Mark Lemley at 11.
