Why Are Pizzerias Arguing Whether Web Browsing Is Copyright Infringement?–Imapizza v. At Pizza

“&Pizza” runs an East Coast pizzeria chain. “@Pizza” runs a UK pizzeria chain. Let’s disregard that both brands are terrible (the & and @ symbols plus the generic term–UGH) and that @Pizza may not own its eponymous Twitter account (the account is suspended). &Pizza claims @Pizza knocked off/copycatted it after visiting &Pizza’s stores. &Pizza sued @Pizza in Washington DC for copyright infringement, trademark infringement, and trespass, all of which struck me as unusually tendentious claims even for lawyers. The district court upheld personal jurisdiction, a dubious conclusion that necessitated a series of compensating doctrinal contortions, and then dismissed the claims. The appeals court agreed.

Copyright. The complaint talks about @Pizza “downloading” &Pizza’s website photos, which it allegedly used to help with the copycatting. However, the “downloading” verb masks important details. I can’t tell if @Pizza intentionally saved a copy to its hard drive or simply “downloaded” the photos as part of the ordinary process of web browsing. If @Pizza stored the photos on its hard drive, the file-sharing cases might analogously characterize that as infringement. See, e.g., Sony v. Tenenbaum, BMG v. Gonzalez, and countless others. But if the court was referring only to ordinary web browsing of photos, calling that infringement deserves some care and nuance.

Without clarifying what “downloading” meant, the appeals court assumes that downloading an image presumptively infringes because it creates a fixed copy of the original work. However, the fixation occurs only on the recipient computer (as opposed to at the server or in the scrambled bits transmitted over the Internet), and in this case, that occurred on computers outside the US. The court says:

IMAPizza asserts the U.S. servers from which the download occurred are “where the copying took place.” It provides no technical, legal, or other support, however, for the proposition that downloading a picture from a server located in the U.S. creates a copy of that picture in the U.S. in addition to the copy where the receiving device is located

So @Pizza isn’t infringing in the US because its downloading/browsing took place in a foreign location. That’s good news, I guess. It ought to mean that any foreign downloads of other material, such as file-shared music, should be outside the reach of US copyright law as well (uploads or storage in a shared directory may be a different story). Still, this result seems painfully complicated. Rather than addressing heavy epistemological questions like where is the geographic location of virtual activity on a borderless electronic network, it might have been simpler to resolve the photo download on implied license or fair use grounds. That would have been consistent with the de minimis nature of the alleged photo copyright violation.

&Pizza also claimed a copyright in their pizzeria’s interior design, and @Pizza taking photographs inside its pizzeria infringed the design. Really? That sounds like the kind of issue-spotter you expect to see on a law school exam, not in federal court. The court excuses @Pizza’s photos because photos of architectural works are permitted (17 USC 120(a)). By implication, the interior of a restaurant is a “public place.” When it’s safe to eat at restaurants again, go ahead and take in-restaurant selfies “enjoying” &Pizza’s food without fearing they will sue you for copyright infringement because their designs are in your photos’ background.

Finally, any preparatory acts @Pizza took in the US didn’t change the calculus so long as the allegedly infringing acts (the rendering of the photos from browsing, or building copycat pizzerias) took place outside the US.

Trademarks. US trademark law can’t reach @Pizza because:

the defendants here are foreign citizens; their business, which is “quintessentially local,” operates solely in the U.K.; they neither purchased supplies from nor made sales to the U.S.; and neither their products nor their advertisements are alleged to have “filtered through” to the U.S.

While those are good reasons to reject transborder application of US trademark rights, they sound like even better reasons to reject personal jurisdiction.

Trespass. &Pizza invited customers into its premises, then it sued one of them for trespass because it took photos?  The court says &Pizza “failed to allege the defendants accessed non-public areas of &pizza restaurants or observed any intellectual property that was not visible to the public during its visits.”

Seriously, &Pizza thought these arguments were worth litigating to the DC Circuit??? I hope their pizza is better than their legal judgment.

This case reminded me of Toys ‘R’ Us v. Step Two, a Third Circuit decision from 2003, which I still teach in Internet Law. That case also involved a US trademark owner’s efforts to suppress a transborder copycat retailer–in that case, the Imaginarium toy store chain. In Step Two, the appeals court ordered jurisdictional discovery, and the case settled after that. I’ll note that the foreign copycat has far outlasted the US Imaginarium brand, which Toys ‘R’ Us wound down before itself tragically imploding. &Pizza may want to take note.

Case citation: Imapizza LLC v. At Pizza Ltd., 2020 WL 4032650 (DC Cir. July 17, 2020)

Selected posts on web browsing as infringement

* There Is Essentially No Statute of Limitations for Online Copyright Infringement–APL v. US
* D.C. Circuit Makes Geoblocking De Facto Mandatory for Copyright Law Purposes–Spanski v. TV Polska
* Another Bad Ruling in Louis Vuitton v. Akanoc
* “DVR as a Service” Isn’t Copyright Infringement–Cartoon Network v. CSC Holdings
* Ticketmaster Wins Big Injunction in Hannah Montana Case, But Did the Public Interest Get Screwed?–Ticketmaster v. RMG