Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 1 of 10 PageID #: 214
`Civil Action No.
`CV-04-5654 (DGT)
`California corporation doing business
`as BNE, BNE (USA), Inc., and ETTV
`CITY, INC., "ABC CORP." #1 through
`#20, "JOHN DOES" and/or "JANE DOES"
`#1 through #20, names of said
`individuals being fictitious and
`unknown to Plaintiff,
`On December 27, 2004, Plaintiff Eastern Broadcasting America
`Corp., or BNE Corp. ("BNE"), brought suit against several
`defendants, including Vidmart, for copyright infringement. In
`three causes of action, BNE seeks an injunction against further
`infringement by defendants, asserts that defendants have been
`unjustly enriched and seeks an accounting to determine the amount
`of damages. Compl. ¶¶ 20-27. On March 21, 2005, Vidmart filed a
`motion to dismiss under Rule 12(b)(6) and a motion for a more
`definite statement under Rule 12(e). Vidmart further claimed
`that there is no subject matter jurisdiction under federal

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 2 of 10 PageID #: 215
`copyright law in this case.
`BNE is the exclusive licensee in the United States or United
`States copyright holder of 126 Korean and Chinese language
`television programs that are filmed in Taiwan, China and Korea,
`all of which are listed in Exhibit A of the complaint. Compl.
`¶ 11, Ex. A. BNE manufactures, imports and distributes these
`programs within the United States. Compl. ¶¶ 11-13.
`On or about December 7, 2004, a representative of BNE
`visited Vidmart and found that a program titled "Tei Chi Tung Ya
`Ji Xiao Lan" had been reproduced into videocassettes and was
`being rented to customers. Compl. ¶ 15(c). BNE held an
`exclusive distribution license to that title and did not, at that
`time, have a contract with Vidmart granting it the right to copy,
`rent or otherwise use the program. Id., see also Ex. A, 1.
`Plaintiff's representative rented the video and confirmed that
`the content was identical to the plaintiff's master copy of the
`program. Compl. ¶ 15(c). BNE further alleged that on or before
`December 7, 2004, the defendant "knowingly and willfully began to
`copy, manufacture, rent, sell, distribute and/or otherwise
`exploit copies" of BNE's protected material, referencing the list
`1 Plaintiff BNE alleges the following facts in its
`complaint, which, for the purposes of this motion to dismiss, are
`taken as true.

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 3 of 10 PageID #: 216
`of 126 programs in Exhibit A. Id.
`Vidmart argues that because a licensing agreement with BNE
`granted Vidmart permission to copy and rent the videos in
`question, the instant action is a breach of contract action, not
`an action for infringement. Mem. of Law in Support of Def.
`Vidmart's Mot. to Dismiss ¶ 12 ("Def. Mem. of Law"). This
`argument and Vidmart's arguments in support of dismissal for
`failure to state a claim for relief or for a more definite
`statement are addressed below.
`Copyright Infringement Versus Breach of Contract
`Vidmart argues that a previous agreement between BNE and
`Vidmart requires BNE to raise this claim under state contract
`law, rather than under federal copyright law.2 Both sides agree
`that at one time, Vidmart was a licensee of BNE. BNE's complaint
`makes clear that as of December 7, 2004 Vidmart had no rights
`under a license, but does not reference the previous license.
`2 While evidence outside the pleadings is generally not
`considered on a motion to dismiss, plaintiff has an affirmative
`duty to prove by a preponderance of the evidence that subject
`matter jurisdiction exists and a court, therefore, may rely on
`facts outside the pleadings for that limited purpose. Makarova
`v. U.S., 201 F.3d 110, 113 (2d Cir. 2000) (citing Malik v.
`Meissner, 82 F.3d 560, 562 (2d Cir. 1996); Kamen v. American Tel.
`& Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)); Wiesman v.
`C.I.R., 103 F. Supp. 2d 621, 623 n. 2 (E.D.N.Y. 2000).

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 4 of 10 PageID #: 217
`Compl. ¶ 15. At the February 10, 2005, evidentiary conference
`for this motion, Vidmart's witness Johnny Cheung, an employee of
`the store, admitted that the license agreement had lapsed and
`that the store was in the process of attempting to negotiate a
`new agreement. Tr. 62, 67-8. According to the complaint, the
`defendant continued to copy and rent the programs after the end
`of the agreement. Compl. ¶ 15.
`Under these facts, plaintiff has clearly alleged a cause of
`action under copyright law. Even if a license agreement
`previously existed, a copyright action can arise once a licensee
`makes himself a "stranger" to the licensor by using the
`copyrighted material in a way that exceeds the duration or scope
`of the license. Microsoft Corp. v. Harmony Computers & Elecs.,
`Inc., 846 F. Supp. 208, 214 (E.D.N.Y. 1994) (finding that
`defendants made themselves strangers to plaintiffs by exceeding
`the scope of licensing agreements); Kamakazi Music Corp. v.
`Robbins Music Corp., 684 F.2d 228, 228 (1982) (construing the
`claim as one arising under copyright because once defendant's
`contract to print sheet music expired, it no longer had the right
`to print the copyrighted material).
`Here, BNE's complaint makes clear that the licensing
`agreement with Vidmart was no longer in effect, a fact confirmed
`by Vidmart's own witness. Compl. ¶ 15. Vidmart, therefore, had
`no right to duplicate the copyrighted material or rent it to its

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 5 of 10 PageID #: 218
`customers. In the absence of such a right, the claim is not one
`for breach of contract but rather arises under the copyright
`The Standard for a Copyright Infringement Claim Under Rule 8(a)
`Rule 8 requires "a short and plain statement of the claim
`showing that the pleader is entitled to relief." Fed. R. Civ. P.
`8(a)(2). To show a prima facie case of copyright infringement,
`the plaintiff must allege "(1) it is the valid owner of a
`copyright and (2) defendant has engaged in unauthorized
`'copying,' where 'copying' is shorthand for the infringing of any
`of the copyright owner's five exclusive rights, described at 17
`U.S.C. § 106." Microsoft Corp. v. Harmony Computers &
`Electronics, Inc., 846 F. Supp. 208, 210 (E.D.N.Y. 1994)
`(citations omitted); see also Tangorre v. Mako's, Inc., No. 01-
`cv-4430, 2002 WL 313156, at *2 (S.D.N.Y. Jan. 30, 2002) (citing
`Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
`(1991). To be sufficient, a copyright infringement claim must
`allege: "(1) which specific original works form the subject of
`the copyright claim; (2) that plaintiff owns the copyrights in
`those works; (3) that the copyrights have been registered in
`accordance with the statute; and (4) by what acts [and] during
`what time the defendant infringed the copyright." Home & Nature

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 6 of 10 PageID #: 219
`Inc. v. Sherman Specialty Co., Inc., 322 F. Supp. 2d 260
`(E.D.N.Y. 2004); see also Kelly v. L.L. Cool J., 145 F.R.D. 32,
`36 (S.D.N.Y. 1992), aff'd, 23 F.3d 398 (2d Cir. 1994) (citing
`Franklin Elec. Publishers v. Unisonic Prod. Corp., 763 F. Supp.
`1, 4 (S.D.N.Y. 1991), aff'd, 23 F.3d 398 (2d Cir. 1994)).
`Defendant does not contest that plaintiff met its burden in
`regard to pleading with respect to the second and third elements,
`that it owned and registered the works at issue. Defendant
`argues that plaintiff has not sufficiently pled the first and
`fourth elements: which original works are the subject of the
`claim and by what acts and in what time period defendant
`infringed the copyright.
`a. Works that are the Subject of the Copyright Claim
`In the instant motion, defendant claims that the complaint
`is defective because it only gives the title of one program upon
`which Vidmart was infringing, but also states that Vidmart was
`infringing on "other" titles as well. Defendant argues that this
`failure to specify every title results in a lack of adequate
`notice. With respect to "Tei Chi Tung Ya Ji Xiao Lan," the one
`title that BNE specifically alleged that Vidmart was infringing,
`BNE stated in the complaint that it viewed the tape and verified
`that it was a duplicate of a program for which BNE seeks
`copyright protection. This allegation, in and of itself,

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 7 of 10 PageID #: 220
`satisfies the first requirement that a complaint must specify the
`work that is the subject of the copyright claim.
`Moreover, where plaintiff has listed the works at issue,
`there is no requirement that plaintiff plead exactly which
`individual copyrighted works are the subject of the infringement
`claim. Home & Nature Inc., 322 F. Supp. 2d at 299 (finding
`pleading sufficient where plaintiff listed "the copyright
`registration numbers issued by the United States that correspond
`to each of its copyrighted [material], annexing copies of the
`United states Certificates of Copyright Registration, and stating
`the defendant has infringed upon one or more of these
`copyrights"). Here, Plaintiff alleged that the defendant
`"knowingly and willfully began to copy, manufacture, rent, sell,
`distribute and/or otherwise exploit copies of the [programs
`listed in Exhibit A to the complaint]." Compl. ¶ 15. Any
`confusion as to which of these copyrighted works are the subject
`of the complaint "may be explored on discovery." Tin Pan Apple
`v. Miller Brewing Co., 737 F. Supp. 826, 828 (S.D.N.Y. 1990)
`(finding a complaint sufficient where plaintiff alleged that "one
`or more" of its songs had been infringed by defendant's parody).
`b. Alleged Acts and Time Period of the Copyright Infringement
`Plaintiff also sufficiently alleges the acts and time frame
`of the infringing activity. The complaint alleges:

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 8 of 10 PageID #: 221
`that on or before December 7, 2004, defendants, and each of
`them, knowingly and willfully began to copy, manufacture,
`rent, sell, distribute and/or otherwise exploit copies of
`the Programs [listed in Exhibit A], as well as other
`television programs, the exclusive distribution rights to
`which have been licensed to Plaintiff[.]
`Compl. ¶ 15. The complaint further alleges that on or around
`December 7, 2004, one of BNE's representatives rented the program
`"Tei Chi Tung Ya Ji Xiao Lan" from defendant Vidmart. Compl.
`¶ 15 (c). This program was licensed to BNE and Vidmart did not
`have any right to copy or distribute it. Id. These allegations
`are sufficient to put defendants on notice of the acts and time
`period that are the subject of plaintiff's complaint. Home &
`Nature, 322 F. Supp. 2d at 266-7.
`Motion for a More Definite Statement Under Rule 12(e)
`Rule 12(e) provides that "[i]f a pleading to which a
`responsive pleading is permitted is so vague or ambiguous that a
`party cannot reasonably be required to frame a responsive
`pleading, the party may move for a more definite statement before
`interposing a responsive pleading." Fed. R. Civ. P. 12(e); see
`also Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002) ("If
`a pleading fails to specify the allegations in a manner that
`provides sufficient notice, a defendant can move for a more
`definite statement under Rule 12(e) before responding."). A
`motion for a more definite statement should not be granted if a

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 9 of 10 PageID #: 222
`complaint meets the notice pleading requirements of Rule 8.
`Kelly, 145 F.R.D. at 35. As discussed above, plaintiff's
`complaint meets the Rule 8 requirements for a copyright
`infringement claim. Vidmart's request for a more definite
`pleading is, therefore, denied.
`For the foregoing reasons, Vidmart's frivolous motion to

`Case 1:04-cv-05654-DGT-JO Document 27 Filed 03/24/06 Page 10 of 10 PageID #: 223
`dismiss for lack of subject matter jurisdiction, motion to
`dismiss under Rule 12(b)(6), and motion for a more definite
`statement under Rule 12(e) and are denied.
`Dated: Brooklyn, New York
`March 24, 2006
` /s/
`David G. Trager
`United States District Judge

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