Roe v. Bernabei & Wachtel Pllc
85 F. Supp. 3d 89
D.D.C.2015Background
- Plaintiff (a journalist) secretly recorded an instance of sexual harassment by a supervisor on her iPhone in Sept. 2012, obtained a copyright registration for the ~1:53 video in Oct. 2013, and kept the file private as evidence.
- She showed the video to coworker Meixing Ren and permitted Ren to back it up to his computer to preserve evidence; she later settled her EEOC claim and did not publicly release the video.
- Coworkers (including Ren) sued Phoenix and retained Bernabei & Wachtel (B&W); the video became public during publicity surrounding that litigation.
- Plaintiff sued Ren, attorney Lynne Bernabei, and B&W for: (1) direct copyright infringement, (2) contributory copyright infringement, (3) RICO, and (4) CFAA (against Ren). Defendants moved to dismiss; plaintiff also moved belatedly to proceed under a pseudonym.
- Court: denied pseudonym request (name already publicing in related proceedings); denied dismissal of copyright claims at pleading stage; dismissed RICO (no pattern/continuity) and CFAA (Ren did not exceed authorized access).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Permission to proceed under pseudonym | Roe sought anonymity to protect privacy from further public association with the assault video | Defendants argued failure to seek leave vitiates jurisdiction and anonymity is unwarranted | Denied: plaintiff must litigate under true name (identity already public; anonymity not justified) |
| Copyrightability and infringement | Video is original (creative choices in recording) and plaintiff holds a valid registration; defendants copied/distributed it | Defendants argued the video lacks minimal creativity and fair use excuses any infringement | Copyright claims survive Rule 12(b)(6): registration and copying adequately alleged; fair use premature |
| RICO (pattern of racketeering) | Alleged criminal copyright infringement as predicate acts forming a pattern to injure plaintiff’s property interests | Defendants: single scheme/victim; no continuity or pattern; no distinct enterprise alleged | Dismissed: plaintiff failed to plead a RICO pattern (single victim/goal; no continuity) |
| CFAA (Ren’s copying/access) | Ren exceeded authorization when he later used/distributed the video beyond the backup permission | Ren: he had plaintiff’s assent to copy the file; did not access beyond authorization | Dismissed: under the narrower Brekka interpretation, Ren did not “exceed authorized access” when he copied with Roe’s consent |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standards for pleading plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must raise right to relief above speculative level)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (copyright originality requirement)
- H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (RICO: relatedness and continuity for pattern)
- Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (RICO standing: injury to business or property; proximate cause)
- LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir.) (narrow interpretation of "exceeds authorized access" under CFAA)
- Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir.) (broader view: misuse of access may void authorization)
- Los Angeles News Serv. v. Tullo, 973 F.2d 791 (9th Cir.) (raw video footage can be copyrightable)
- Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y.) (Zapruder film copyrightability)