Apple Gets Partial Win in Case Alleging Copyright Infringement by iPhone App — Stewart v. Apple Inc.

[Post by Venkat]

Stewart v. Apple Inc., 10-Cv-01012-RSL (W.D. Wash.; Nov. 08, 2010) (Order on Motion to Dismiss) (Complaint) (Answer)

Martyn Stewart recorded a bunch of nature sounds, including bird sounds, which a third party developer allegedly incorporated into the “iBird” app. Stewart sued the developer and, predictably, sued Apple as well.

Apple (and the developer) moved to dismiss for failure to state a claim. Apple tried to poke holes in Stewart’s copyright registrations, arguing that Stewart did not adequately allege ownership, and only had rights in the compilations of the sounds, which did not give him copyrights in the individual recordings. The court rejects these arguments, holding that Stewart’s allegations were sufficient to state a claim at the pleading stage. If defendants want to conduct discovery around ownership and the underlying copyrighted material, they are free to do so, after which they can bring a motion for summary judgment.

The court did, however, grant defendants’ request to strike Stewart’s claim for statutory damages and attorneys’ fees. Since Stewart filed his copyright registrations after defendants’ alleged infringements commenced, there was no dispute about this, and Stewart conceded this issue.

What’s interesting is that Apple did not raise an argument that it was entitled to DMCA 512 protection either in its motion to dismiss or its answer (which it recently filed). The pleadings do not contain any allegations that Stewart sent Apple takedown notices or that Apple did not comply with any requests that he sent. It seems like Apple could certainly make the case that it is entitled to DMCA protection. Mike Masnick asks the same question in his initial post about the case: “Apple Sued For Copyright Infringement Because Third Party App Has Someone Else’s Bird Sounds.”

This isn’t the first time a platform such as Apple or Facebook will be sued for an allegedly infringing third party app (see the Miller case linked below for discussion about a case where the plaintiff brought copyright infringement claims against Facebook based on an allegedly infringing app), and the platform’s review process for the app certainly should not cause it to lose DMCA protection. (See CoStar Group, Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688 (D. Md. 2001) (screening of uploaded photos for subject matter and obvious infringements did not undermine DMCA protection).) I’m curious why Apple did not even make the argument here?

Related posts:

Online Video Publisher Learns Why You Should Register Your Copyrights Early–LTVN v. Odeh

Tip for Clean Living: Don’t Use a 14 Year Old’s Self-Portrait in Advertising for Porn–Lara Jade Coton v. TVX

Contributory Copyright Infringement Claim May Need Direct Infringer as a Defendant to Succeed–Miller v. Facebook

Facebook User Agreement Upheld in Copyright Infringement Lawsuit Over Third Party App–Miller v. Facebook

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