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HEALTHCARE ADVOCATES v. HARDING, EARLEY, FOLLMER
497 F.Supp.2d 627 (2007)
United States District Court, E.D. Pennsylvania.
July 20, 2007.
Healthcare Advocates' final two claims arise under the laws of Pennsylvania. In these allegations, Healthcare Advocates avers that the Harding firm interfered with its common law rights in respect to the copyrighted archived screenshots. In paragraph 98 of the Second Amended Complaint, it alleged that the Harding firm's "conduct amounted to an intermeddling with Healthcare Advocates' possessory rights in the archived historical content of the www.healthcare
advocates.com web site." In Paragraph 103, Plaintiff claims that the Harding firm's "conduct seriously interfered with Healthcare Advocates' lawful right of control over the content of the www. healthcareadvocates.com web site." The Copyright Act contains a provision explicitly stating that all common law or state law rights that are equivalent to the rights available under copyright protections are preempted. 17 U.S.C. § 301(a) (2007).7 The Third Circuit has articulated the extra element test to assess when common law claims are preempted by this provision. Under the test, "[I]f a state cause of action requires an extra element, beyond mere copying, preparation of derivative works, performance, distribution or display, then the state cause of action is qualitatively different from, and not subsumed within, a copyright infringement claim and federal law will not preempt the state action." Dun & Bradstreet Software Serv., Inc., v. Grace Consulting, Inc.,307 F.3d 197, 217 (3d Cir. 2002). These common law claims must require another element beyond what the copyright infringement test already requires to survive preemption. Under Pennsylvania law, the common law tort of trespass to chattels is governed by the Restatement (Second) of Torts § 217. That section states that a trespass to chattel may be committed by (a) dispossessing another of their chattel, or (b) using or intermeddling with a chattel in the possession of another. Pestco, Inc. v. Assoc. Products, Inc.,880 A.2d 700, 708 (Pa.Super.Ct.2005). Conversion is defined in § 222 of the Restatement (Second) of Torts as a serious interference with the chattel of another. Intermeddling means to interfere. The Random House College Dictionary 694 (1973). The tests for these claims require nothing more than what is required under copyright law to establish infringement. Healthcare Advocates merely seeks to remedy its federal copyright rights under the laws of Pennsylvania. These common law claims are preempted under 17 U.S.C. § 301(a). Thus, the Harding firm is granted summary judgment on counts V and VI of Healthcare Advocates' Second Amended Complaint. An appropriate Order follows. ORDERAND NOW, this 20th day of July 2007, upon consideration of Defendants' Motion for Summary Judgment, Plaintiffs Motion for Partial Summary Judgment, and the Responses in Opposition thereto, it is hereby ORDERED that Defendants' Motion for Summary Judgment (Doc. No. 56) is GRANTED, and Plaintiffs Motion for Partial Summary Judgment (Doe. No. 58) is DENIED.
1. A screenshot is an image taken by the computer to record the visible items displayed on the monitor or another visual output device. Usually this is a digital image taken by the host operating system or software running on the computer device, but it can also be a capture made by a camera or a device intercepting the video output of the computer. Wikipedia, The Free Encyclopedia, "Screenshot" available at http://en.wikipedia.org/wiki/ Screenshot.
2. § 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
3. § 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. The Second Circuit has said, "[t]he doctrine of fair use . . . permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Iowa State Univ. Research Found., Inc. v. Am. Broad. Co.,621 F.2d 57, 60 (2d Cir.1980).
4. It should be noted that the alleged infringing activity happened two weeks after the complaint in the Underlying Lawsuit was filed. Healthcare Advocates did not attach the materials that defendants, clients of the Harding firm, were alleged to have infringed. The defendants were not informed about what exactly they were alleged to have infringed. Acting prudently and reasonably, the Harding firm attempted to find all publicly available information on Healthcare Advocates in their efforts to decipher the allegations contained in the Complaint.
5. INTERROGATORY NO. 15Explain when and how HEFF first became aware that information relating to the conduct of its representatives on July 9, 2003 and July 14, 2003 as alleged in the Complaint may be relevant to the Underlying Action.
6. Copies of the archived screenshots were submitted to this Court in camera during the Underlying Litigation. Healthcare Advocates' has not claimed that this action by the Harding firm constitutes infringement of their copyright rights. According to a leading treatise on copyright law, no court has found that presentation of the copyrighted works to a court on which the infringement action is brought constitutes an instance of infringement. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyrights, § 13.05[D][2] (2003). This Court is not of the opinion that this action would be infringement, but a claim to this effect has not been raised, so this Court need not fully address the question.
7. § 301. Preemption with respect to other laws
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
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