Facebook Preliminarily Wins Copyright Lawsuit over Third Party App–Miller v. Facebook

By Eric Goldman

Miller v. Facebook, Inc., 2010 WL 1292708 (N.D. Cal. March 31, 2010)

Miller developed a videogame called Boomshine. He is upset that Yeo made an allegedly infringing knockoff variation of the game, called ChainRxn, and distributed the knockoff as a Facebook app. Miller sued both Yeo and Facebook for copyright infringement. In January, I blogged on Facebook’s success invoking the venue clause in its user agreement to move the case to its home court.

The court dismissed Miller’s first amended complaint because the copyright infringement allegations were too vague. Miller alleged “that defendant Facebook ‘published ChainRxn in their [sic] Application Directory’ and that defendant Facebook ‘took the affirmative step to approve ChainRxn for publication on its Application Directory’,” but according to the court, these allegations do not make it clear “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.”

The court also rejects Miller’s allegations of Facebook’s secondary infringement for Yeo’s activity. The contributory claim fails because Miller did not adequately allege material contribution given that the judge can’t figure out what Facebook did wrong. The vicarious infringement claim fails because Miller did not adequately allege a right and ability to supervise the infringement given the ambiguity over what took place on Facebook’s premises.

The judge does give Miller another chance: “Within FOURTEEN CALENDAR DAYS, plaintiff may file a motion on a normal 35-day track seeking to cure the foregoing deficiencies and appending to the motion a proposed amended complaint. The motion should explain why each new claim overcomes the deficiencies. Leave to amend is otherwise denied.” I’m sure Miller will avail himself of this opportunity, but I don’t see a rosy long-term prognosis to his litigation efforts.