Free Speech Sys., LLC v. Menzel
390 F. Supp. 3d 1162
N.D. Cal.2019Background
- Peter Menzel, a photographer and author of Hungry Planet, owns and registered the photographs at issue; he posted them on his website with textual credits and metadata and licensed some images requiring attribution.
- InfoWars (owned by Free Speech Systems, LLC — FSS) published a post on April 30, 2012 that reproduced nine of Menzel's photographs; the post credited the book but not Menzel personally and linked to Natural Society.
- Menzel sent a cease-and-desist in December 2018; FSS removed the post in January 2019 and filed for declaratory relief in February 2019 seeking a declaration of noninfringement and that the statute of limitations bars Menzel’s claims.
- Menzel’s First Amended Answer and Counterclaims (FAAC) asserts direct and contributory copyright infringement and DMCA (17 U.S.C. §1202) violations and pleads multiple affirmative defenses.
- FSS moved to dismiss Menzel’s counterclaims (statute of limitations, failure to state copyright/DMCA claims, and fair use) and moved to strike most affirmative defenses.
- The court treated factual disputes (e.g., where images were hosted, whether Menzel discovered the post earlier) as improper to resolve on a 12(b)(6) motion and limited judicial notice to the post itself.
Issues
| Issue | Plaintiff's Argument (Menzel) | Defendant's Argument (FSS) | Held |
|---|---|---|---|
| Statute of limitations (3-year discovery rule) | Menzel discovered the InfoWars post in Dec. 2018 and routinely polices his works, so delay was reasonable | Post published in 2012; Menzel could have discovered it earlier (e.g., via reverse image search) and thus claims are time-barred | Denied dismissal — factual dispute on reasonable discovery; not unreasonable as a matter of law |
| Direct copyright infringement (display) | FSS publicly displayed Menzel’s photos without authorization | FSS argues Perfect 10 server test shields it because images were hosted elsewhere and FSS only linked/pointed to them | Denied dismissal — Menzel adequately pleaded direct display infringement; server-test facts unresolved on pleadings |
| Contributory infringement | Menzel alleges FSS materially contributed to infringement (points to Natural Society) | FSS contends Menzel fails to identify any third-party direct infringer or plausible facts showing FSS’s knowledge | Grant dismissal with leave to amend — contributory claim inadequately pleaded (no identified third-party direct infringer) |
| DMCA §1202 (removal/distribution of CMI) | Menzel alleges removal/alteration of metadata/textual credits (CMI) accompanying images | FSS argues Menzel fails to identify which images had what CMI removed or how distribution occurred | Grant dismissal with leave to amend — pleadings lack specific facts identifying removed/altered CMI or distribution details |
| Fair use defense | N/A (plaintiff’s claim) | FSS asserts fair use as a complete defense | Denied dismissal — fair use involves disputed factual issues; not resolvable at pleading stage |
| Motion to strike affirmative defenses | N/A | FSS seeks to strike 10 defenses as redundant/impertinent/insufficiently pleaded | Denied — defenses permissible at this stage; little prejudice and may be resolved by evidence |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards and conclusory allegations)
- Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (separate-accrual rule for successive copyright violations)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (server-test and display rule for online images)
- Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (contributory infringement—inducement/encouragement)
- Monge v. Maya Magazines, Inc., 688 F.3d 1164 (burden and framework for fair use defense)
- Stevens v. CoreLogic, Inc., 899 F.3d 666 (mental-state requirement under §1202 for inducing/facilitating infringement)