Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DBW Partners, LLC v. Bloomberg, L.P.

United States District Court, District of Columbia

November 12, 2019

DBW PARTNERS, LLC, d/b/a THE CAPITOL FORUM, Plaintiff,
v.
BLOOMBERG, L.P. and, BLOOMBERG FINANCE, L.P. Defendants.

          MEMORANDUM OPINION

          REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE.

         The 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.[1] 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)[2] 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, [3] the Court concludes for the following reasons that it must grant in part and deny as moot in part Bloomberg's motion to dismiss.

         I. BACKGROUND

         Capitol 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.

         Capitol 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.

         According 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 abstracts.” Id.

         Capitol 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.

         II. STANDARD OF REVIEW

         A Rule 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).

         In 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. Cir. 1997).

         III. ANALYSIS

         Capitol 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.

         “To 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.

         Here, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.