Nicholas Malfitano May 24, 2016, 9:43am


PHILADELPHIA – A trial court order of summary judgment for Amazon CEO Jeff Bezos and Amazon.com and against an author seeking allegedly unpaid royalties will remain in place, per a Monday decision from the U.S. Court of Appeals for the Third Circuit.

According to a per curiam decision from Third Circuit judges, Amazon’s reception of summary judgment versus appellant Joseph Carlin was confirmed. The federal appellate court believed Carlin had not established a valid case of copyright infringement.

Carlin wrote four self-published books: Muraldelphia: Black and White Edition; Muraldelphia: Full Color Edition; Repeal Roe . . . I tried; and Real Estate Sales and Listing Training Manual. In 2011, Carlin registered with CreateSpace, a subsidiary of Amazon.com, and agreed to the terms of CreateSpace’s service agreement.

Through this agreement, Carlin granted CreateSpace a non-exclusive license to “publish, distribute, and sell his books through Amazon.com and other sales channels," and CreateSpace pledged to pay Carlin royalties for sales generated. Further, Carlin listed his books in Amazon.com’s “expanded distribution” program, which permitted retailers outside the Amazon.com umbrella to sell the books.

In April 2014, Carlin filed the instant complaint against Bezos and Amazon.com (Amazon), including a single count of copyright infringement. Carlin alleged, while Amazon had paid some royalties, it had not paid him nearly the amount he was due – and summarily requested $100 million in damages. Subsequent to discovery, each side filed cross-motions for summary judgment.

“The District Court granted Amazon’s motion and denied Carlin’s, concluding that any rational trier of fact would reject Carlin’s claim that Amazon had withheld royalties. Carlin filed a timely notice of appeal to this Court, and Amazon has filed a motion to file a supplemental appendix,” the Third Circuit said.

The Third Circuit stated it fully agreed with the District Court’s analysis of the case.

“To make out a valid claim of copyright infringement, a plaintiff must establish: (1) Ownership of a valid copyright; and (2) Unauthorized copying of original elements of the plaintiff’s work,” the Third Circuit said.

“In this case, it is undisputed that Carlin granted Amazon a non-exclusive license to his books. A copyright owner who grants a license to use his copyrighted material typically can maintain a claim of copyright infringement only by showing that the ‘licensee’s use goes beyond the scope of the non-exclusive license,” the Third Circuit added. “As noted above, Carlin contends that Amazon exceeded its license by selling his books – either directly or through third-party distributors – without paying royalties. We will assume that a licensee’s failure to make required payments constitutes copyright infringement.”

It is that same qualifying criteria of exceeding the scope where the Third Circuit believed Carlin’s claim failed.

“We agree with the District Court that a reasonable jury could not find that Amazon exceeded the scope of its license. In support of his contention that Amazon sold copies of his books without paying him royalties, Carlin presented screenshots listing a number of copies of his books that were “offered.”

The federal appellate court outlined one Amazon.com listing for Muraldelphia stated: “Paperback. $62.88 used & new (8 offers)”, and explained Carlin argued that each copy offered represented a copy sold, and thus demanded royalties totaling the number of copies that Amazon and its distributors offered.

However, Amazon countered such listings only act as offers and not “consummated sales” – where the consumer would have to accept the offer and make a purchase – and provided evidence it had sold 16 of Carlin’s books and paid him appropriate royalties for those consummated sales.

“In these circumstances, Carlin’s screenshots listing ‘offers’ for his books do not provide a sufficient evidentiary basis for a trier of fact to find that Amazon and third-party distributors have sold additional copies of his books without paying him,” the Third Circuit said. “Beyond his screenshots, Carlin has presented only speculation that Amazon has acted improperly. As the District Court concluded, this does not suffice to survive summary judgment.”

The Third Circuit concluded by upholding the District Court’s ruling, granting summary judgment to Amazon.

“Accordingly, we will affirm the District Court’s judgment. Amazon’s motion to file a supplemental appendix is granted and the supplemental appendix is deemed filed on March 16, 2016. To the extent that Carlin’s response in opposition to Amazon’s motion to file a supplemental appendix requests affirmative relief, the motion is denied,” the Third Circuit stated.

The appellees are represented by J. Kevin Fee and Andrew C. Whitney of Morgan Lewis & Bockius, in Washington, D.C. and Philadelphia, respectively.

U.S. Court of Appeals for the Third Circuit case 15-2774

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-02406

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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