Does publication on the web give rise to “access” in copyright infringement analysis?

2003lookbackPlaintiff sued defendant for copyright infringement. Defendant moved for judgment on the pleadings (which is essentially the same thing as a motion to dismiss for failure to state a claim except it is after defendant files an answer). Defendant asserted that plaintiff had not pled copyright infringement because under the Seventh Circuit’s “substantial similarity” test to demonstrate infringement, plaintiff had not pled defendant had “access” to the allegedly infringed work.

The court rejected defendant’s argument and denied the motion for judgment on the pleadings on this issue.

In some copyright infringement cases, a plaintiff may not have direct evidence that the defendant committed infringement. In those situations, a finder of fact may infer that infringement has occurred when it is shown that:

  • the defendant had access to the copyrighted work; and
  • the accused work is substantially similar to the copyrighted work.

In this case, defendant argued it never had access to plaintiff’s designs that it was alleged to have infringed. But the court considered the online publication, 11 years ago, of plaintiff’s designs, to find access for purposes of the motion for judgment on the pleadings:

With regard to online publication, in 2003, [plaintiff] first published the [allegedly infringed work] at [its website]. The Internet already was widely used and accessible at that time. Because the non-movant is entitled to reasonable favorable inferences in evaluating a motion for judgment on the pleadings, the online publication is enough to establish access for purposes of denying [defendant's] motion for judgment on the pleadings.

The court’s decision provides no meaningful analysis as to why publication on the web gives rise to access. It states the finding above in such a conclusory manner as if to indicate it sets forth some per se rule. But one is left to wonder whether other factual nuance would change the answer to the inquiry: What if publication were in 1993 rather than 2003, at a time when many, many fewer people were on the web? What if the publication were behind a paywall for which defendant had no authorization to pass? What if defendant pled it did not utilize the web for this sort of information, or, even more compellingly, not at all?

Skyline Design, Inc. v. McGrory Glass, Inc., 2014 WL 258564 (N.D.Ill. January 23, 2014)