Advanced Copyright Issues on the Internet - Fenwick & West LLP

The plaintiff also claimed that the act of printing constituted unauthorized copying. Thedefendant brought a motion to dismiss. 555 The court found fault with the plaintiff’s DMCAclaims:These concepts seem to be logically inconsistent and, when asserted together, doappear to blur the carefully constructed distinction between “access controls” and“rights controls.” If the court accepts Coupons’ argument that each coupon is“unique,” then can there be a claim of improper copying ….? On the other hand,if the coupons are not unique, then the allegations against Stottlemire appear tofall within the “rights controls” (i.e., permitting users to print more copies ofcoupons than were authorized by Plaintiff). 556The court was also not convinced that the addition of a bar code or other functionaldevice on the coupon qualified it as a unique copyrighted work. But in any event, if Couponswanted to make the argument, then the court noted that it needed to actually allege it in thecomplaint, and the plaintiff’s reference to “unique coupons” in the complaint was not sufficientto put the defendant on notice of the claims against him. The court ruled that the plaintiff neededto clarify which theory it was pursuing (a “unique” coupon theory or a “general” coupon theory).Accordingly, the court dismissed the DMCA cause of action with leave to amend the complaintto clarify whether the plaintiff was asserting a claim under a Section 1201(b) “rights controls”theory (i.e., allowing users to print more than the authorized number of copies) or a claim undera Section 1201(a) “access controls” theory (i.e., “unique” coupons). 557After the plaintiff amended its complaint, the defendant again brought a motion todismiss, which the court denied. 558 In the amended complaint, the plaintiff claimed that eachprinted coupon’s identification number marked it as an authorized copy of a copyrighted work,and did not create a derivative work. The plaintiff asserted claims under both Sections 1201(a)and 1201(b). The court ruled that the plaintiff had sufficiently alleged facts that its softwarecontrolled access to the printing of the copyrighted coupon to state a claim under Section1201(a). With respect to Section 1201(b), the court ruled that the plaintiff had adequatelyalleged that its software controlled copying and distribution in two ways: the registry keylimited the number of coupons distributed to a single computer (simultaneously limiting thenumber of authentic copies that the computer could print), and the software’s counter limited thenumber of authentic coupons distributed as a whole. The court held that, although the plaintiffwould have to prove that its software actually worked as both an access and use control, it hadsufficiently alleged facts that supported its theory that the defendant had violated Section1201(b), and the motion to dismiss was denied. 559555556557558559Coupons, Inc. v. Stottlemire, No. CV 07-03457 HRL (N.D. Cal. July 2, 2008), slip op. at 1, 4.Id. at 4-5.Id. at 5.Coupons, Inc. v. Stottlemire, 588 F. Supp. 2d 1069, 1072 (N.D. Cal. 2008).Id. at 1073-75.- 134 -