United States District Court, District of Columbia
B. WALTON, UNITED STATES DISTRICT JUDGE.
plaintiff, DBW Partners, LLC, doing business as The Capitol
Forum (the “Capitol Forum”), brings this civil
action against the defendants, Bloomberg, L.P. and Bloomberg
Finance, L.P. (collectively, “Bloomberg”),
alleging federal claims of direct and contributory copyright
infringement pursuant to the Copyright Act of 1976, 17 U.S.C
§ 101 (2018), as well as a common law claim of
misappropriation of proprietary information under the
“hot news” doctrine. See Complaint
(“Compl.”) ¶¶ 19-33. Currently before
the Court is the Defendants' Motion to Dismiss
(“Defs.' Mot.”), which seeks dismissal of the
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction,
or pursuant to Federal Rule of Civil Procedure 12(b)(6) for
“failure to state a claim upon which relief may be
granted.” Defs.' Mot. at 1, 5. Upon careful
consideration of the parties' submissions,  the Court
concludes for the following reasons that it must grant in
part and deny as moot in part Bloomberg's motion to
Forum is an “investigative news and legal analysis
company” that “publishes a premium internet-based
subscription service.” Compl. ¶¶ 2, 13. Each
month, Capitol Forum issues a number of reports on various
subjects concerning “the effect of government policy on
publicly traded corporations and market competition.”
Id. According to Capitol Forum, a typical report
“may include an in-depth analysis of the market impact
of a significant policy or detail a parallel investigation of
a major antitrust review[, ]” id. ¶ 14,
and is “presented in a manner that is intended to
inform . . . a subscriber's investment decisions[,
]” id. ¶ 15.
Forum's reports are intended to be “distributed . .
. only to paid subscribers, or to other authorized
recipients, ” all of whom “must execute [a
subscription agreement] [that] prohibits redistribution of
Capitol Forum's content.” Id. ¶ 17.
Additionally, Capitol Forum's reports purportedly
“contain copyright notices and state that they may not
be reproduced or distributed without [the] [p]laintiff's
permission.” Id. ¶ 16.
to Capitol Forum, “[o]n numerous occasions”
Bloomberg “impermissibly solicited and obtained
[Capitol Forum's] proprietary reports, ”
“copied and quoted the most creative and original
aspects of the reports, ” “published its own
summary or abstract . . . in the form of a ‘news alert,
'” and “distributed these ‘news
alerts' to its own subscribers on its ‘First
Word' news service.” Id. ¶ 22.
Bloomberg purportedly “solicits Capitol Forum
subscribers to forward the Capitol Forum publications to
it.” Id. ¶ 28. Allegedly, Joshua Fineman,
an employee of Bloomberg, “induced one of Capitol
Forum's subscribers . . . to provide him with Capitol
Forum reports in exchange for . . . market
information.” Id. “Other than including
a current market price or a reference to a past article,
Bloomberg [allegedly] does not add any of its own analysis or
contribute any meaningful reporting to [Capitol Forum's]
work.” Id. ¶ 22. Thereafter, Bloomberg
allegedly “extract[s] the key information from [Capitol
Forum's] reports, and repackage[s] [its] work in a
bullet-point form for a quick read.” Id.
However, Capitol Forum admits that “Bloomberg cites
Capitol Forum as the source of its summaries and
Forum filed its Complaint in this case on February 7, 2019.
See Compl. at 1. Thereafter, Bloomberg filed its
motion to dismiss, see generally Defs.' Mot.,
which is the subject of this Memorandum Opinion.
STANDARD OF REVIEW
12(b)(6) motion tests whether a complaint “state[s] a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “To survive a motion to dismiss [under Rule
12(b)(6)], a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw [a] reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556).
evaluating a motion to dismiss under Rule 12(b)(6),
“the Court must construe the complaint in favor of the
plaintiff, who must be granted the benefit of all inferences
that can be derived from the facts alleged.”
Hettinga v. United States, 677 F.3d 471, 476 (D.C.
Cir. 2012) (internal quotation marks omitted). “[T]he
complaint need only set forth ‘a short and plain
statement of the claim,' Fed.R.Civ.P. 8(a)(2), giving the
defendant fair notice of the claim and the grounds upon which
it rests.” Kingman Park Civic Ass'n v.
Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing
Conley v. Gibson, 355 U.S. 41, 47 (1957)). While the
Court must “assume [the] veracity” of any
“well-pleaded factual allegations” in a
complaint, conclusory allegations “are not entitled to
the assumption of truth.” Iqbal, 556 U.S. at
679. Thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Also, the Court need not
accept “legal conclusions cast as factual allegations,
” or “inferences drawn by [the] plaintiff if
those inferences are not supported by the facts set out in
the complaint.” Hettinga, 677 F.3d at 476.
Moreover, the Court “may consider only the facts
alleged in the complaint, any documents either attached to or
incorporated in the complaint[, ] and matters of which [the
Court] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.
Forum alleges that Bloomberg has “infringed [Capitol
Forum's] copyright in its proprietary reports by copying
and distributing content from the reports to its own
subscribers without [Capitol Forum's] consent or
authorization.” Compl. ¶ 39. Bloomberg argues in
response that the Complaint fails to state a claim upon which
relief may be granted because it “does not identify the
specific works [that] Capitol Forum claims were directly or
indirectly infringed by Bloomberg, ” and instead
“makes only vague, blanket assertions that . . .
Bloomberg has ‘infringed [Capitol Forum's]
copyright in its proprietary reports.'” Defs.'
Mem. at 9-10 (quoting Compl. ¶¶ 38-39). The Court
agrees with Bloomberg that Capitol Forum has not sufficiently
stated a claim for copyright infringement.
prevail on a copyright claim, a plaintiff must prove both
ownership of a valid copyright and that the defendant copied
original or ‘protectible' aspects of the
copyrighted work.” Sturdza v. United Arab
Emirates, 281 F.3d 1287, 1295 (D.C. Cir. 2002) (citing
Feist Publ'ns, Inc. v. Rural Tele. Serv. Co.,
499 U.S. 340, 348, 361 (1991)). A plaintiff may prove that a
defendant “copied” its copyrighted work with
either direct evidence, or by establishing: (1) that the
defendant had access to the copyrighted work, and (2) the
substantial similarity between the protectable material in
the plaintiff's and the defendant's works. See
Prunte v. Universal Music Grp., 484 F.Supp.2d 32, 40-41
(D.D.C. 2007); see also Whitehead v. Paramount Pictures
Corp., 53 F.Supp.2d 38, 46 (D.D.C. 1999). In determining
whether there is substantial similarity, the Court must
conduct a two-step analysis. First, the Court must identify
which parts of the author's work are protectable by
copyright. See Sturdza, 281 F.3d at 1295. Second,
after excluding the unprotectable ideas, the Court must
determine whether the allegedly infringing work is
substantially similar to the protectable ideas and
expressions in the author's work. See id. at
1296. “Substantial similarity is a question that should
be decided either by a factfinder at trial or, in some cases,
in the context of a motion for summary judgment, not on a
motion to dismiss for failure to state a claim under Rule
12(b)(6).” Prunte, 484 F.Supp.2d at 41.
Capitol Forum has failed to allege sufficient facts for the
Court to draw a reasonable inference that Bloomberg is liable
for copyright infringement. As Bloomberg correctly notes, the
Complaint fails to identify not only “the specific
works [that] Capitol Forum claims were directly or indirectly
infringed by Bloomberg, ” Defs.' Mem. at 9, but
also the “news stories [published by Bloomberg that]
purportedly infringed those works, ” id. at
10. Instead, the Complaint simply states that
“Bloomberg has ‘infringed [Capitol Forum's]
copyright in its proprietary reports.'”
Id. at 9-10 (quoting Compl. ¶¶ 38-39).
Such a conclusory statement is insufficient to allow the
Court to determine what materials have allegedly been
infringed, and consequently, to draw a reasonable inference
that Bloomberg is liable for copyright infringement. See
Hettinga, 677 F.3d at 476. Although the Court need not
engage in the substantial similarity analysis at this
juncture, see Prunte, 484 F.Supp.2d at 41, Capitol
Forum must nonetheless allege more than conclusory
generalizations before the Court can make this determination.
Capitol Forum must first identify the copyrighted works that
form the basis of its claims, and failure to do this makes it
“virtually impossible to determine what materials have
allegedly been infringed.” Newborn v. Yahoo!,
Inc., 391 F.Supp.2d ...