[This case came down over a month ago, but is worth writing about. Read more coverage about it here.]
In response to Shell’s threats of litigation and demands for payment, Internet Archive filed a declaratory judgment action in the Northern District of California, seeking a determination that its activities did not infringe Shell’s copyright. The action was later transferred to the District of Colorado.
Not surprisingly, Shell filed several counterclaims against the Internet Archive and members of its board of directors. She alleged causes of action for copyright infringement, conversion, civil theft, breach of contract, and racketeering under RICO and the corresponding Colorado statute.
Internet Archive filed a 12(b)(6) motion to dismiss the conversion, civil theft, breach of contract and racketeering claims. The court dismissed all but the breach of contract claim.
In dismissing the conversion and civil theft claims, the court held that although the claims were not preempted by the Copyright Act (as each claim included at least one element not included in a prima facie case of infringement), Shell failed to allege facts sufficient to support the causes of action. As for the conversion claim, it was undisputed that the Internet Archive had complied with Shell’s request to remove the cached pages from the archive. Accordingly, Shell would not be able to prove that the Internet Archive refused to return any property to her. Moreover, Shell had failed to allege that Internet Archive exercised dominion or control over her website, since it was undisputed that she continued to own and operate the site when it was archived.
The racketeering claims failed because Shell failed to allege that Internet Archive was involved in any racketeering enterprise.
The court rejected Internet Archive’s argument at this stage of the litigation, however, determining that the factual question of whether it knew about the terms could not be determined on the record before the court. Shell had satisfied the pleading requirements for federal litigation, by alleging the existence of a contract, breach and damages, which was sufficient to make out a claim for breach of contract.
Internet Archive v. Shell, (Slip Op.) 2007 WL 496680 (D.Colo., Feb. 13, 2007)
Suzanne Shell has been involved in other copyright litigation recently. Read more here. As has the Internet Archive and its founder Brewster Kahle. Read about that here.