Miller v. 4Internet, LLC.
2:18-cv-02097
D. Nev.Apr 30, 2019Background
- Plaintiff Robert Miller sued 4Internet, LLC for copyright infringement, alleging the defendant reposted his photograph without permission.
- Defendant answered with ten affirmative defenses challenging originality, asserting licenses, alleging unclean hands, invoking fair use and statutory immunities, and raising constitutional challenges to the Copyright Act.
- Plaintiff moved under Fed. R. Civ. P. 12(f) to strike all ten affirmative defenses as insufficient, redundant, or legally invalid; defendant conceded one redundant defense (fifth).
- The magistrate judge applied Rule 12(f) standards, emphasizing notice pleading for defenses and the Ninth Circuit’s general disfavor of motions to strike absent prejudice.
- The court denied the motion as to defenses 1 (failure to state claim), 4 (unclean hands), 6 (implied license), 7 (express license/Twitter), and 10 (constitutional challenge); granted with leave to amend as to defenses 2 (originality/creativity), 3 (fair use), 8 (originality statutory/constitutional distinction), and 9 (§512 immunity); and granted without leave to amend as to defense 5 (redundant).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to state a claim (1st defense) | Miller: defense is a bare, catch-all that lacks detail | 4Internet: standard defensive boilerplate overlaps other defenses and is permissible | Denied strike—court kept defense (not worth striking to "polish" pleadings) |
| Originality/creativity (2nd & 8th defenses) | Miller: defenses are conclusory/redundant; photo meets low originality bar | 4Internet: photo may lack statutory or constitutional originality; changing tech may alter test | Stricken with leave to amend; defendant must state legal theory and grounds |
| Fair use (3rd defense) | Miller: inadequate factual or legal grounding in the defense | 4Internet: points to facts in counterclaim and ISP status | Stricken with leave to amend; fair-use defense must state its own grounds |
| §512 DMCA immunity (9th defense) | Miller: focuses on §512(c) but defense is vague | 4Internet: may be entitled to §512(b) or (c) protection as an ISP | Stricken with leave to amend; must identify applicable subsection and basis |
Key Cases Cited
- Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010) (purpose and caution for Rule 12(f) motions)
- Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) (motions to strike avoid litigating spurious issues)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (copyright litigation standards on related issues)
- Eyetalk365, LLC v. Zmodo Tech. Corp., 356 F. Supp. 3d 1059 (D. Nev. 2018) (discussing sufficiency of pleading a defense: legal theory vs. grounds)
- Agence France Presse v. Morel, 769 F. Supp. 2d 295 (S.D.N.Y. 2011) (district court decision on Twitter terms and licensing, considered but not controlling)
- Clark v. Martinez, 543 U.S. 371 (2005) (explaining the limited application of the canon of constitutional avoidance)