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Pearson Educ., Inc. v. Ishayev

United States District Court, S.D. New York

August 1, 2013

PEARSON EDUCATION, INC. et al., Plaintiffs,
v.
LAZAR ISHAYEV and YELENA LEYKINA, both d/b/a Solutions Direct d/b/a Solutions4Less d/b/a TextbookAnswers d/b/a SolutionManuals-Testbanks.com, and JOHN DOES 1-5, Defendants

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[Copyrighted Material Omitted]

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For Pearson Education, Inc., John Wiley & Sons, Inc., Cengage Learning, Inc., The McGraw-Hill Companies, Inc., Plaintiffs, Counter Defendants: William Irvin Dunnegan, LEAD ATTORNEY, Laura Jean Scileppi, Samantha Anne Morrissey, Dunnegan LLC, New York, NY.

Lazar Ishayev, doing business as Solutions Direct, Defendant, Pro se, Brooklyn, NY.

OPINION

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OPINION & ORDER

Paul A. Engelmayer, United States District Judge.

Plaintiffs Pearson Education, Inc. (" Pearson" ), John Wiley & Sons, Inc. (" Wiley" ), Cengage Learning, Inc. (" Cengage" ), and The McGraw-Hill Companies, Inc. (" McGraw-Hill" )[1] bring claims of copyright infringement against pro se defendants Lazar Ishayev and Yelena Leykina, allegedly together doing business as " Solutions Direct," " Solutions4Less," " TextbookAnswers," and/or " SolutionManuals-Testbanks.com" (collectively, " defendants" ).[2] Plaintiffs allege that Ishayev and Leykina violated the Copyright Act, 17 U.S.C. § § 501 et seq., and willfully infringed their copyrights, by selling unauthorized copies of instructors' solutions manuals over the internet. Plaintiffs seek to preliminarily and permanently enjoin defendants and their agents from selling the manuals. Plaintiffs also seek damages sustained as a result of the defendants' conduct, including defendants' profits, plaintiffs' damages, or statutory damages, as well as the costs incurred by plaintiffs in this action, including reasonable attorneys' fees. Ishayev and Leykina deny plaintiffs' claims. Ishayev, in his answer, brings a counterclaim for libel, alleging damages to his reputation, employment opportunities, and future earning capability arising from plaintiffs' claims against him for copyright infringement. Ishayev seeks $3.5 million in damages on his counterclaim.

On September 21, 2012, defendants moved for summary judgment on all claims, and, on December 17, 2012, plaintiffs cross-moved for summary judgment on all claims. For the reasons that follow, (1) as to plaintiffs' claims, the Court denies plaintiffs' and Ishayev's motions for summary judgment, but grants Leykina's; and (2) as to Ishayev's libel counterclaim, the Court grants plaintiffs' motion for summary judgment, and denies Ishayev's. Those portions of plaintiffs' motion that are denied are without prejudice to plaintiffs' right to renew their motion, this time on an intelligible factual record that permits

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the Court to make an informed assessment of plaintiffs' claims of copyright infringement.

I. Background[3]

A. Parties

Plaintiffs are companies that publish a variety of works, including educational textbooks and accompanying instructors' solutions manuals. FAC ¶ ¶ 11, 15-16. Plaintiffs hold numerous copyrights. They earn a substantial portion of their revenue from the publication of copyrighted works. The college textbooks that plaintiffs publish are chosen by college professors in part because of the quality of supplemental materials like instructors' solutions manuals. Plaintiffs earn significant revenue from the sale of such textbooks and solutions manuals. Id . ¶ ¶ 14-15.

Defendants Ishayev and Leykina are residents of Brooklyn, New York. FAC ¶ ¶ 8-9. The two have known each other since high school and have been in a romantic relationship for more than five years. See Scileppi Decl. Ex. X (" Ishayev Dep." ), at 22. It is undisputed that defendants did not have permission from plaintiffs to reproduce or sell the allegedly infringed works. FAC ¶ 21.

B. Relevant Events

As of fall 2010, websites existed that offered for sale unauthorized copies of the plaintiffs' instructors' solutions manuals. This lawsuit arises from a series of transactions conducted by Jennifer Siewert, a paralegal at plaintiffs' counsel, Dunnegan and Scileppi LLC (" Dunnegan" ), in which she sought to purchase those manuals from email addresses and websites allegedly affiliated with " Lazar Ishayev." Siewert Decl. ¶ 1. As described below, Siewert succeeded in purchasing copies of instructors' solutions manuals corresponding to six textbooks for which plaintiffs hold copyrights. Pl. 56.1 ¶ ¶ 8-14.[4]

Plaintiffs describe the content of their instructors' solutions manuals sparingly. They aver that these manuals " contain the answers to the problems in the textbooks."

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Id . ¶ 6; see Morris Decl. ¶ 4; Murphy Decl. ¶ 4; Stitt Decl. ¶ 5; Beacher Decl. ¶ 4. Plaintiffs have supplied the Court with only a one-page excerpt from each instructors' solutions manual allegedly sold by Ishayev. Further, the excerpts supplied by plaintiffs have been redacted so as to lack any content other than the chapter number and/or chapter title.[5] The record on summary judgment also does not reflect whether the chapter titles that appear in the redacted excerpts of the instructors' solutions manuals are identical to corresponding chapter titles from the copyrighted textbooks.

Around September 21, 2010, Siewert contacted a " Lazar Ishayev" at lazarfb@gmail.com, at the direction of Laura Scileppi and Samantha Morrissey, attorneys at Dunnegan. Siewert Decl. ¶ 2.[6] At that time, Siewert purchased the manual for Intermediate Accounting from Ishayev via email, utilizing the online payment service PayPal, Inc. (" PayPal" ) to send money to a recipient listed on the receipt as Lazar Ishayev. Id . ¶ ¶ 2-3; id . Ex. E. On September 22, 2010, Siewert received an email from Lazar Ishayev at lazarfb@gmail.com attaching a zip file containing the manual for Intermediate Accounting, which Siewert then downloaded. Id . ¶ ¶ 4-5; id . Ex. E, G.

Around March 9, 2011, Siewert, at Morrissey's direction, purchased the manual for Financial Management: Theory & Practice from the website solutionsmanuals-testbanks.blogspot.com. Siewert Decl. ¶ 6. Siewert paid " Solutions Direct" for this manual via Google Checkout, another online payment service, id . at ¶ 7; id . Ex. H, received a confirmation page from solutionmanuals-testbanks.blogspot.com, id .¶ 8; id . Ex. I, and then received an email from " solutions4less" at solutions4less@optimum.net attaching a zip file containing the Financial Management manual, id . ¶ 9; id . Ex. J. Siewert then, again, downloaded the manual herself. Id . ¶ 10; id . Ex. K.

Around June 30, 2011, Siewert, again at Morrissey's direction, purchased the manual for Corporate Finance from the website solutionsmanuals-testbanks.blogspot.com. Siewert Decl. ¶ 11. She paid " Solutions Direct" for this manual via Google Checkout, id . at ¶ 12; id . Ex. L, received a confirmation page from solutionmanuals-testbanks.blogspot.com, id . ¶ 13; id . Ex. M, and then received an email from " solutions4less" at solutions4less@optimum.net attaching a zip file containing the Corporate Finance manual, id . ¶ 14; id . Ex. N. She then downloaded the manual herself. Id . ¶ 15; id . Ex. O.

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On October 13, 2011, Siewert received an unsolicited email from " TextbookAnswers" at textbookanwer@gmail.com directing her to a new website--solutionmanuals-testbank.com--for future purchases. On October 27, 2011, Morrissey directed Siewert, using that new website, to purchase manuals for the Auditing & Assurance Services, Financial Accounting, and Advanced Financial Accounting textbooks. Id . ¶ 18. That same day, Siewert received an email from textbookanswer@gmail.com confirming her purchase and instructing her to send payment via PayPal. Id . ¶ 20. Siewert complied; her receipt listed, as the payment recipient, " Yelena Leykina" at solutions4all@optimum.net. Id . ¶ 21; id . Ex. S. Also on October 27, 2013, Siewert received another email from textbookanswer@gmail.com containing three separate hyperlinks to a website called filesonic.com. Id . ¶ 22; id . Ex. T. Siewert downloaded the three manuals from that website herself. Id . ¶ 23; id . Ex. U. The parties dispute, and the record does not conclusively establish, whether Ishayev and/or Leykina were responsible for uploading the files containing allegedly infringing material stored on filesonic.com. See Pl. Reply Br. 4-5; Def. Br. 10.

C. Procedural History

On July 7, 2011, plaintiffs filed a complaint asserting claims of willful copyright infringement against defendants. Dkt 1. On May 4, 2012, defendants filed an answer that included a counterclaim for damages arising from, as Ishayev characterized it, plaintiffs' alleged defamation of Ishayev's character. Dkt. 12. On May 7, 2012, the Court approved a case management plan, which included a schedule for amended pleadings, deposition, and fact discovery. Dkt. 14. On June 8, 2012, plaintiffs filed an amended complaint. Dkt. 23. On September 21, 2012, defendants filed a motion for summary judgment on all claims, Dkt. 49; and, on December 17, 2012, plaintiffs filed their own motion for summary judgment on ...


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