Liveperson, Inc. v. 24/7 Customer, Inc.
83 F. Supp. 3d 501
S.D.N.Y.2015Background
- LivePerson sues 24/7 for ten claims including copyright, DMCA, CFAA, trade secrets, breach, and various forms of unfair competition.
- Parties formerly cooperated under CMA (2006) and MSA (2007) to market LivePerson technology with 24/7 call-center services.
- CMA/MSA limited licenses; each party reserved rights to its own products and services; schedules identify mutual customers.
- Allegations claim 24/7 copied LivePerson’s code, reverse engineered MSA/contractually protected tech, and used access to undermine LivePerson’s relationships.
- FOC requires detailed time of infringement, identification of infringing product, and which aspects are copyrightable; many claims lack these specifics.
- Court grants in part and denies in part; allows repleading of inadequately pled claims and requires a more definite statement for the Lanham Act claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright infringement timing adequacy | FAC fairly alleges period from 2006 to 2014. | No time of infringement is stated and no infringing product is identified. | Time of infringement not adequately pled; dismissed unless repleaded with time specifics. |
| DMCA circumvention pleading adequacy | Defendant circumvention alleged by mimicry and access to backend systems. | No specific technological measure identified or how it was circumvented. | Circumvention not adequately pled; dismisses DMCA claim. |
| CFAA claim adequacy (authorization and damages) | Defendant exceeded authorization causing losses over $5,000. | Misuse of authorized access and damages not properly pled; authorization element unclear. | CFAA claim inadequately pled; dismissal unless repleaded with proper authorization and $5,000+ loss. |
| Trade secrets misappropriation adequacy | Trade secrets include predictive algorithms and methodologies; alleged misappropriation via backend access. | Not all elements or secrecy factors are sufficiently pled. | Trade secrets claim adequately pled; survival to proceed. |
| Breach of contract adequacy | MSA and CMA exist; defendant allegedly misused licensed tech and breached provisions. | Arguments about cure rights and contractual interpretations misstate the governing terms. | Breach of contract adequately pled; damages alleged beyond jurisdictional threshold; can replead with specifics. |
Key Cases Cited
- Kelly v. L.L. Cool J., 23 F.3d 398 (2d Cir.1994) (pleading elements for copyright infringement)
- Dish Network L.L.C. v. World Cable Inc., 893 F.Supp.2d 452 (E.D.N.Y.2012) (circumvention and DMCA measure discussion)
- Nexans Wires S.A. v. Sark-USA, Inc., 166 Fed.Appx. 559 (2d Cir.2006) (loss/damage limits under CFAA; appellate authority)
- Lehman v. Dow Jones & Co., 783 F.2d 285 (2d Cir.1986) ( secrecy and misappropriation considerations in NY trade secrets analysis)
- Richard Feiner & Co. v. Larry Harmon Pictures Corp., 38 F.Supp.2d 276 (S.D.N.Y.1999) (pleading and continuing infringement concepts)