United States District Court, S.D. New York
ENERGY INTELLIGENCE GROUP, INC. ET AL., Plaintiffs,
CANACCORD GENUITY, INC., ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
G. Koeltl United States District Judge.
plaintiffs Energy Intelligence Group, Inc.
(“EIG”) and Energy Intelligence Group (UK)
Limited (“EIG UK”) (collectively, “Energy
Intelligence” or “the plaintiffs”) sued
Canaccord Genuity, Inc. and Canaccord Genuity Corp.
(“Canaccord”) for copyright infringement under
the Copyright Act of 1976, 17 U.S.C. §§ 101 et
seq. The plaintiffs are the publishers of daily and
weekly newsletters covering developments and trends in the
global energy industry. They claim that the defendants
violated the plaintiffs' copyrights by auto-forwarding
the publications from a sole subscriber in Canada to
employees in offices located in New York, Houston, Canada,
and the United Kingdom. The defendants now move to dismiss
certain of the claims in the complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure
to state a claim. In particular, they ask the Court to
dismiss (1) any claims for infringement prior to July 2012
and (2) any claims based on copying and distribution that
occurred outside the United States. The Court has
jurisdiction under 28 U.S.C. § 1332(a). For the reasons
explained below, the motion to dismiss is granted in part and
denied in part.
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's
favor. McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). The Court's function on a
motion to dismiss is “not to weigh the evidence that
might be presented at a trial but merely to determine whether
the complaint itself is legally sufficient.”
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court should construe the factual
allegations in the light most favorable to the plaintiff,
“the tenet that a court must accept as true all of the
allegations contained in the complaint is inapplicable to
legal conclusions.” Id.; see also
Springer v. U.S. Bank Nat'l Ass'n, No.
15-cv-1107 (JGK), 2015 WL 9462083, at *1 (S.D.N.Y. Dec. 23,
presented with a motion to dismiss pursuant to Rule 12(b)(6),
the Court may consider documents that are referenced in the
complaint, documents that the plaintiff relied on in bringing
suit and that are either in the plaintiff's possession or
that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. See Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see
also Plumbers & Pipefitters Nat'l Pension Fund v.
Orthofix Int'l N.V., 89 F.Supp.3d 602, 607-08
following facts alleged in the complaint are accepted as true
for the purposes of this motion to dismiss.
plaintiffs publish newsletters that provide “news and
analysis covering the key developments and trends in the
North American energy industry, as well as the global oil and
gas industries.” Complaint (“Compl.”)
¶¶ 10, 11. Those publications include, as relevant
here, Oil Daily, Petroleum Intelligence
Weekly, and Natural Gas Week. Id.
¶ 10. Subscribers to the plaintiffs' publications
are individuals and organizations with an interest in the oil
and gas markets, including consultants, bankers, investors,
traders, commodity analysts, and others who sell goods or
services to participants in the oil and gas markets.
Id. ¶ 12. The plaintiffs make the relevant
publications available through various subscriptions or
licensing agreements tailored to the needs of the consumer.
Id. ¶¶ 18-19. Those with a subscription
may receive the publications either by email or by
password-protected access to the plaintiffs' website.
Id. ¶ 19. Those who do not maintain a
subscription or license agreement may purchase individual
articles from the relevant newsletters on a pay-per-article
basis for between $9 and $24 per article, and may purchase
individual issues of the publications on a pay-per-issue
basis for between $95 and $395. Id. ¶¶
plaintiffs are owners of U.S. Copyright Registrations (or
have applications pending) for volumes of Oil Daily,
Petroleum Intelligence Weekly, and Natural Gas
Week published between July 2012 and September 2016.
Id. ¶¶ 24-28. The plaintiffs include a
variety of copyright notices on their website, in emails, and
in publications informing readers that the works of
authorship are copyrighted and that “[u]nauthorized
access or electronic forwarding, even for internal use, is
prohibited.” Id. ¶¶ 30-31. Beginning
around June 2003, the defendants purchased either one or two
single-copy subscriptions to Oil Daily,
Petroleum Intelligence Weekly, and Natural Gas
Week. See id. ¶¶ 35-53. The
subscription agreements entered into by the defendants
included a notification that the unauthorized reproduction or
dissemination of the publications would constitute willful
infringement of the plaintiffs' copyrights. Id.
¶¶ 46, 51.
gist of the plaintiffs' allegations is that the
defendants willfully infringed those copyrights by purchasing
one or two individual subscriptions to the relevant
publications and then auto-forwarding those publications from
an employee in Canada to the defendants' employees in
other offices. See Id. ¶ 61. In particular, the
plaintiffs allege that, beginning in July 2012, copies of the
publications for which the defendants had single-copy
subscriptions were sent by email to Christy Valette, an
employee in the defendants' Calgary office. Id.
¶¶ 43, 49, 56. They further allege that, upon
receipt of the publications, Ms. Valette used auto forwarding
to distribute the publications by email to employees in the
defendants' offices in New York, Houston, Canada, and the
United Kingdom. Id. ¶ 61.
complaint asserts three counts of copyright infringement in
violation of 17 U.S.C. § 501(a) -- one each for each of
the three publications. See id. ¶¶ 66-95.
The plaintiffs seek actual and statutory damages, fees, and
injunctive relief. Id. pp. 27-28. The defendants now
move to dismiss all three claims insofar as they seek to
impose liability (1) for infringement predating July 2012 or
(2) based on copying and distribution which occurred entirely
outside the United States.
asserting that the Court has personal jurisdiction over
defendant Canaccord Genuity Corp, the complaint alleges that
the defendants have “sent numerous email
communications” to the plaintiffs in New York in order
to “manage, update and renew its subscriptions to the
publications [the] [d]efendants are alleged to have infringed
in this lawsuit over a period of thirteen (13) years.”
Compl. ¶ 8. The defendants read this as equivalent to an
allegation that the defendants' infringement has lasted
for a period of thirteen years. Although inartfully worded,
it is clear to the ...