Cite as 907 F.Supp. 1361 (N.D.Cal. 1995)
despite total copying. In Sony, the home viewers’ use was not commercial and the viewers were allowed to watch the entire shows for free. In Sega v. Accolade, the complete copying was necessitated to access the unprotectable idea in the original. Here, plaintiffs never gave either Erlich or Netcom permission to view or copy their works. Netcom’s use has some commercial aspects. Further, Netcom’s copying is not for the purpose of getting to the unprotected idea behind plaintiffs’ works. Although plaintiffs may ultimately lose on their infringement claims if, among other things, they cannot prove that posting their copyrighted works will harm the market for these works, see Religious Technology Center v. Lerma, 897 F.Supp. 260, 263 (E.D.Va.1995) (finding fair use defense exists where no separate market for works because Scientologists cannot effectively use them without the Church’s supervision); Religious Technology Center v. F.A.C.T.NET, Inc., 901 F.Supp. 1519, 1522–26 (D.Colo. September 15, 1995) (finding no showing of a potential effect on the market for plaintiffs’ works), fair use presents a factual question on which plaintiffs have at least raised a genuine issue of fact. Accordingly, the court does not find that Netcom’s use was fair as a matter of law.
C. Conclusion
The court finds that plaintiffs have raised a genuine issue of fact regarding whether Netcom should have known that Erlich was infringing their copyrights after receiving a letter from plaintiffs, whether Netcom substantially participated in the infringement, and whether Netcom has a valid fair use defense. Accordingly, Netcom is not entitled to summary judgment on plaintiffs’ claim of contributory copyright infringement. However, plaintiffs’ claims of direct and vicarious infringement fail.
II. Klemesrud’s Motion for Judgment on the Pleadings
A. Standards for Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is directed at the legal sufficiency of a party’s allegations. A judgment on the pleadings is proper when there are no issues of material fact, and the moving party is entitled to judgment as a matter of law. General Conference Corp. v. Seventh Day Adventist Church, 887 F.2d 228, 230 (9th Cir.1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1989). In ruling on a motion for judgment on the pleadings, district courts must accept all material allegations of fact alleged in the complaint as true, and resolve all doubts in favor of the nonmoving party. Id. The court need not accept as true conclusory allegations or legal characterizations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Materials submitted with the complaint may be considered. Hal Roach Studios, 896 F.2d at 1555. All affirmative defenses must clearly appear on the face of the complaint. McCalden v. California Library Ass’n, 955 F.2d 1214, 1219 (9th Cir.1990).
B. Copyright Infringement
- 1. Direct Infringement
First, plaintiffs allege that Klemesrud directly infringed their copyrights by “reproduc[ing] and publish[ing] plaintiffs’ works.” FAC ¶ 35. The complaint alleges that “Erlich … caused copies of [plaintiffs’ works] to be published, without authorization, on the BBS computer maintained by Klemesrud” and that “Klemesrud’s BBS computer, after receiving and storing for some period of time the copies of the Works sent to it from Erlich, created additional copies of the works and sent these copies to Netcom’s computer.” FAC ¶ 34. The allegations against Klemesrud fail for the same reason the court found that Netcom was entitled to judgment as a matter of law on the direct infringement claim. There are no allegations that Klemesrud took any affirmative steps to cause the copies to be made. The allegations, in fact, merely say that “Erlich … caused” the copies to be made and that Klemesrud’s computer, not Klemesrud himself, created additional copies. There are
