Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`SMITH VIL,
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`Plaintiff,
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`v.
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`JACKY POTEAU F/K/A
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`JACQUES POTEAU,
`FOUNDATION FOR THE
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`TECHNOLOGICAL AND ECONOMIC
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`ADVANCEMENT OF
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`MIREBALAIS, INC.,
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`RICARDO BONACY TELEMAQUE
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`F/K/A BEAUDELAIRE
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`TELEMAQUE,
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`JOHN ERICK NOEL, and
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`GABRIELLE RENE ,
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`Defendants.
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`MEMORANDUM AND ORDER
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`Casper, J.
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`July 26, 2013
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`Introduction
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`Plaintiff Smith Vil (“Vil” or the “Plaintiff”) filed an amended complaint against Jacky
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`I.
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`Poteau f/k/a Jacques Poteau (“Poteau”), Ricardo Bonachy Telemaque f/k/a Beaudelaire
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`Telemaque (“Telemaque”), John Erick Noel, Gabrielle Rene (collectively, the “Individual
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`Defendants”) and the Foundation for the Technological and Economic Advancement of
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`Mirebalais, Inc. (“FATEM”) (together with the Individual Defendants, the “Defendants”)
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`asserting claims for copyright infringement, unfair competition, breach of an implied contract,
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`1
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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 2 of 21
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`declaratory judgment and equitable relief. Poteau has filed a counterclaim against Vil seeking a
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`permanent injunction as well as monetary sanctions.
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`Before this Court are three separate motions to dismiss: the Defendants have filed a
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`motion to dismiss Vil’s amended complaint, Poteau has separately filed a motion to dismiss the
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`claims against him and Vil has filed a motion to dismiss Poteau’s counterclaim. For the reasons
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`set forth below, the Court DENIES the Defendants’ motion to dismiss, GRANTS Poteau’s
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`motion to dismiss and DENIES Vil’s motion to dismiss Poteau’s counterclaim.
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`II.
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`Burden of Proof and Standard of Review
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`Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss a
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`complaint is appropriate where the Plaintiff “fail[s] to state a claim upon which relief can be
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`granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must make
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`sufficient factual allegations “to state a claim to relief that is plausible on its face.” Bell Atlantic
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility requires the facts in the
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`complaint to “allow[ ] the court to draw the reasonable inference that the defendant is liable for
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`the misconduct alleged” and that relief is “more than a sheer possibility.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009). In cases where the plaintiff is a pro se litigant, the complaint must “be
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`liberally construed [and] however inartfully pleaded, must be held to less stringent standards than
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`formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
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`Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted). At the motion to
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`dismiss stage, all well-pled facts in the complaint are entitled to an assumption of veracity and all
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`reasonable inferences must be drawn in the Plaintiff’s favor. Ruiz v. Bally Total Fitness Holding
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`Corp., 496 F.3d 1, 5 (1st Cir. 2007).
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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 3 of 21
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`III.
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`Factual Background1
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`In 2006, Vil founded the non-profit organization FATEM and served as its Vice President
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`and a member of its board of directors. Am Compl. ¶ 9. Poteau is President and Executive
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`Director of FATEM. Id. ¶ 3. Telemaque is an Associate Executive Director of FATEM. Id. ¶ 4.
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`All of the Individual Defendants serve on FATEM’s board of directors. Id. ¶¶ 3–6.
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`In 2007, Vil “created” a “learning program” called “Learn to Read and Write is a Right”
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`(the “Program”). Id. ¶ 10. He “secured the exclusive rights and privileges for his creative
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`works” and received a copyright for his “creative works” from the Register of Copyrights which
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`bore the registration number TXu 1-703-966. 2 Id. ¶ 18.
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`Vil alleges that in 2009, Poteau, along with the other Individual Defendants, secretly
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`acted to remove him from FATEM’s operations. Id. ¶ 11. However, the Defendants, without
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`authorization, continued to reproduce, display, advertise and distribute Vil’s “owned and
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`copyrighted works.” Id. ¶ 15. The Defendants also “continued to use [Vil’s] creative works to
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`attract donors,” including Zynga, which contributed over a million dollars to the Program. Id.
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`¶¶ 11–12. As a result of donations, FATEM grew from a budget of less than $30,000 to having
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`over $2 million in assets. Id. ¶ 12.
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`IV.
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`Procedural History
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`On September 21, 2011, Vil filed a complaint in this Court against the Defendants. D. 1.
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`On November 28, 2012, the Court dismissed certain claims in that complaint and granted Vil
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`leave to amend his intellectual property claims. D. 25. On January 9, 2013, Vil filed an
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`1 Unless otherwise noted, the following factual summary is based on the facts alleged in the
`amended complaint, D. 29.
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` Although the amended complaint never explicitly states which of the Plaintiff’s “creative
`works” are covered by the copyright, Vil’s opposition to the Defendants’ motion to dismiss
`indicates that he is referring to the Program. See D. 39 at 4.
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` 2
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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 4 of 21
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`amended complaint against the Defendants, which asserts claims for copyright infringement
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`pursuant to 17 U.S.C. §§ 101 et seq. (Count I), unfair competition in violation of 15 U.S.C.
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`§§ 1117, 1125(a) (Count II), breach of an implied contract (Count III), declaratory relief (Count
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`IV) and injunctive relief (Count V). Am. Compl., ¶¶ 17-36. On February 1, 2013, the
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`Defendants collectively filed a motion to dismiss the amended complaint pursuant to Fed. R.
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`Civ. P. 12(b)(6), D. 34, and Poteau individually filed a motion to dismiss the claims against him,
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`D. 36.
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`On January 11, 2013, Poteau filed a counterclaim against Vil seeking injunctive relief
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`and monetary sanctions. Countercl., D. 30. The counterclaim arises out of Poteau’s voluntary
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`Chapter 13 Petition filed on August 13, 2009 in the United States Bankruptcy Court for the
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`District of Massachusetts. Id. ¶ 1. On May 29, 2012, Poteau converted his Chapter 13 case into
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`a Chapter 7 case. Id. ¶ 2. As part of his bankruptcy proceeding, Poteau added Vil as an
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`“unsecured creditor” for Vil’s claims against him. Id. ¶ 3. On August 28, 2012, Poteau was
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`granted a discharge order under § 727 of the Bankruptcy Code. Id. ¶ 7. On January 16, 2013,
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`Vil moved to dismiss the counterclaim pursuant to Fed. R. Civ. P. 12(b)(6). D. 31.
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`V.
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`The Defendants’ Motion to Dismiss the Amended Complaint
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`A.
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`Vil’s Copyright Infringement Claim (Count I)
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`Vil alleges that he obtained a valid copyright granting him “the exclusive rights and
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`privileges” in the Program. See Am. Compl. ¶ 18. Vil received a certificate of registration from
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`the Register of Copyrights which bore the number “TXu 1-703-966.” Id. Vil alleges that the
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`Defendants committed copyright infringement because they “reproduced, displayed, advertized,
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`pitched to donors, and distributed” the copyrighted materials without his consent. Id. ¶ 15. The
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`Defendants have moved to dismiss the copyright infringement claim on two bases: (1) Vil’s
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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 5 of 21
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`copyright is not valid because the Program does not qualify as a “work of authorship” under 17
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`U.S.C. § 102 and (2) even if the copyright is valid, their use of the Program constituted “fair use”
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`under 17 U.S.C. § 107. D. 34.
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`1.
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`The Validity of Vil’s Copyright
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`While “registration is not a condition of copyright protection,” 17 U.S.C. § 408(a), “the
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`Copyright Act makes registration a precondition to filing a valid copyright infringement claim
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`under the federal statute,” Airframe Sys., Inc. v. L-3 Commc’ns Corp., 658 F.3d 100, 105 (1st
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`Cir. 2011). In addition to the registration requirement, a plaintiff alleging copyright infringement
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`must prove the following elements: “(1) ownership of a valid copyright; and (2) copying of
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`constituent elements of the work that are original.” Id. (quoting Situation Mgmt. Sys., Inc. v.
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`ASP Consulting LLC, 560 F.3d 53, 58 (1st Cir. 2009)) (internal quotation marks omitted).
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`Copyright ownership is shown by proof “that the work as a whole is original and that the
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`plaintiff complied with applicable statutory formalities.” CMM Cable Rep, Inc. v. Ocean Coast
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`Props., Inc., 97 F.3d 1504, 1513 (1st Cir. 1996). “[A] certificate of copyright registration
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`constitutes prima facie evidence of copyrightability and shifts the burden to the defendant to
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`demonstrate why the copyright is not valid.” Lotus Dev., Inc. v. Borland Intern., Inc., 49 F.3d
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`807, 813 (1st Cir. 1995) (quoting Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1106
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`(9th Cir. 1990)) (internal quotation mark omitted).
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`The Defendants argue that Vil’s copyright is invalid because it does not satisfy the
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`requirements of the Copyright Act, 17 U.S.C. § 102, because the Program is a “learning
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`program” and does not qualify as a “work of authorship” under § 102, and instead falls under the
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`§ 102(b) exclusion that prohibits copyright protection for “any idea, procedure, process, system,
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`method of operation, concept, principle or discovery.” 17 U.S.C. § 102(b); D. 35 at 4–5. The
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`Court, however, finds that Vil has pled sufficient facts to establish the facial plausibility of his
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`claim.
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`A certificate of copyright registration creates a rebuttable presumption in favor of the
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`validity of the copyright. Lotus, 49 F.3d at 813. Here, Vil has alleged that he possesses a
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`certificate of copyright registration for the Program. Am. Compl. ¶ 18. Therefore, the
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`presumption of validity applies to Vil’s copyright, and it is the Defendants’ burden to rebut. The
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`Defendants cite to Situation Management Systems v. ASP Consulting Group, 535 F. Supp. 2d
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`231, 238 (D. Mass. 2008), in support of their position that the Program is an “un-copyrightable”
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`process. D. 35 at 4. They appear to rely upon a blanket rule that would exclude all “[w]orks that
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`offer techniques for developing a skill or reaching a goal” from copyright eligibility. Id. This
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`argument, however, was rejected by the First Circuit, which reversed the district court because it
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`“improperly denied copyright protection to large portions of [the plaintiff’s] works because it, in
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`an error of law, found ‘they focus on concepts and teach a noncopyrightable process.’” Situation
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`Mgmt., 560 F.3d at 61 (quoting Situation Mgmt., 535 F. Supp. 2d at 240). The First Circuit held
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`that although a process or system itself is not copyrightable, a description thereof may be. Id. at
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`61–62 (holding that “[t]he fact that [the plaintiff’s] works describe processes or systems does not
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`make their expression noncopyrightable” and thus, the plaintiff’s “creative choices in describing
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`those processes and systems . . . are subject to copyright protection”). Accordingly, to the extent
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`that the Program offers a description of a learning technique, it may be copyrightable under the
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`Situation Management standard. As a result, the Defendants have failed to rebut the presumption
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`of validity.
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`2.
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`The “Fair Use” Defense
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`The Defendants next argue that even if Vil’s copyright is valid, their use of the
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`copyrighted material constituted “fair use” under 17 U.S.C. § 107. D. 35 at 5–8. Section 107
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`provides four factors to be considered in determining whether an alleged act of infringement
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`constitutes fair use: (1) “the purpose and character of the use, including whether such use is of a
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`commercial nature or is for nonprofit educational purposes”; (2) “the nature of the copyrighted
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`work”; (3) “the amount and substantiality of the portion used in relation to the copyrighted work
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`as a whole”; and (4) “the effect of the use upon the potential market for or value of the
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`copyrighted work.” 17 U.S.C. § 107.
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`“Fair use is a mixed question of law and fact,” Harper & Row Publishers, Inc. v. Nation
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`Enters., 471 U.S. 539, 560 (1985), and an affirmative defense for which the Defendants in this
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`case bear the burden, see Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d
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`29, 59 (1st Cir. 2012). An affirmative defense may be adjudicated on a motion to dismiss for
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`failure to state a claim, however, (1) the “facts that establish the defense must be definitively
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`ascertainable from the allegations of the complaint” or the limited scope of documents upon
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`which a court may rely for deciding a motion to dismiss (e.g., documents incorporated into the
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`complaint and matters of public record or judicial notice); and (2) such facts must “conclusively
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`establish the affirmative defense.” In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16 (1st
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`Cir. 2003). The fact-sensitive nature of the fair use defense has caused courts to be reluctant to
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`allow it as grounds for dismissal at this early juncture in the litigation. See Katz v. Chevaldina,
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`900 F. Supp. 2d 1314, 1316 (S.D. Fla. 2012) (noting the “general rule that fair use defenses are
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`not ripe for determination before the summary judgment stage”); Sony BMG Music Entm’t v.
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`Tenenbaum, 672 F. Supp. 2d 217, 219 n.2 (D. Mass. 2009) (noting that “[a]lthough affirmative
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`defenses may be raised in a motion to dismiss, defenses such as the fair use doctrine involve a
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`more detailed analysis of the facts at issue and are best resolved by summary judgment or
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`adjudication at trial” (quoting E. Gluck Corp. v. Rothenhaus, 585 F. Supp. 2d 505, 514
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`(S.D.N.Y. 2008))); Browne v. McCain, 612 F. Supp. 2d 1125, 1130 (C.D. Cal. 2009) (explaining
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`that “in light of a court’s narrow inquiry at [the motion to dismiss] stage and limited access to all
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`potentially relevant and material facts needed to undertake the [fair use] analysis, courts rarely
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`analyze fair use on a 12(b)(6) motion”).
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`a.
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`Purpose and Character of the Use
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`The Defendants contend that this factor favors a finding of fair use because the Program
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`is being used for “non-profit educational purposes.” D. 35 at 6. However, the Supreme Court
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`has held that “the mere fact that a use is educational and not for profit does not insulate it from a
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`finding of infringement.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994). “In
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`effect, the commercial-noncommercial distinction the law draws centers not on whether a user
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`intends to line his own pockets, but rather on ‘whether the user stands to profit from exploitation
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`of the copyrighted material without paying the customary price.’” Gregory, 689 F.3d at 61
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`(quoting Harper & Row, 471 U.S. at 562). Thus, “profit” is “not limited simply to dollars and
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`coins; instead, it encompasses other non-monetary calculable benefits or advantages.” Id. Here,
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`Vil alleges that the Defendants did financially profit from the use of the Program by successfully
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`soliciting donations without giving him “just compensation,” “recognition” or “credit,” Am.
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`Compl. ¶¶ 12, 23, and thus benefited from using the Program.
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`The “commercial or nonprofit educational purpose of a work is only one element of the
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`first factor enquiry into its purpose and character.” Campbell, 510 U.S. at 584. The first factor
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`analyzing the purpose and character of the use of the copyrighted material also requires the Court
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`to assess “whether and to what extent the new work is ‘transformative,’ that is, ‘whether the new
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`work merely supersedes the objects of the original creation’ or whether it ‘adds something new,
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`with a further purpose or different character, altering the first with new expression, meaning, or
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`message.’” Gregory, 689 F.3d at 59–60 (quoting Campbell, 510 U.S. at 579) (internal quotation
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`marks omitted). Here, Vil alleges that the Defendants’ use is not transformative. Vil created the
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`Program, which was intended to educate and be “presented to donors to fund the organization.”
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`Am. Compl. ¶ 10. Vil alleges that the Defendants used his Program as their own for these same
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`purposes. See id. ¶¶ 12 (alleging that the Program was “use[d] to obtain funds from a number of
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`donors including Zynga, which contributed over a million dollars to the education program
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`authored by [Vil]”), 13, 15. “[W]here . . . [the defendant’s] use is for the same intrinsic purpose
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`as [the plaintiff’s], . . . such use seriously weakens a claimed fair use.” Weissmann v. Freeman,
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`868 F.2d 1313, 1324 (2d Cir. 1989); see also Gregory, 689 F.3d at 60–61.
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`For these reasons, this factor weighs against a finding of fair use.
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`b.
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`Nature of the Copyrighted Work
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`The second factor, the “nature of the copyrighted work,” 17 U.S.C. § 107(2), requires the
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`Court to consider: (1) whether the Program is factual or creative; and (2) whether it has
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`previously been published, Gregory, 689 F.3d at 61. With respect to the first element, “[t]he
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`scope of fair use is greater when ‘informational’ as opposed to more ‘creative’ works are
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`involved.” Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1153–54 (9th Cir.
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`1986); see also Gregory, 689 F.3d at 62. The only description of the Program in the amended
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`complaint is that it is a “program geared to educate” and that Vil considered it to be “his creative
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`work.” Am. Compl. ¶¶ 10, 13. Thus, there are insufficient allegations in the amended complaint
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`for the Court to determine whether the Program falls closer to the creative end of the copyright
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`spectrum than the informational or factual end. See Gregory, 689 F.3d at 62 (determining
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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 10 of 21
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`whether the copyrighted works “reflected creativity, imagination, and originality in their
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`language, structure, word choice, and overall textual translation”).
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`The second element is intended to ascertain the copyright holder’s exercise of control
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`over the material and its overall availability to the public. See Harper & Row, 471 U.S. at 564
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`(discussing the creator’s “right to control the first public appearance of his expression”). “Where
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`a defendant has usurped an author’s right to decide whether previously unpublished material
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`should be made public, that weighs against fair use.” Fitzgerald v. CBS Broad., Inc., 491 F.
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`Supp. 2d 177, 187 (D. Mass. 2007); see also Harper & Row, 471 U.S. at 564 (noting that “the
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`scope of fair use is narrower with respect to unpublished works”). Here, Vil alleges that the
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`Program was intended to be presented to donors to fund FATEM and concedes that the Program
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`was published on FATEM’s website soon after its creation. Am. Compl. ¶ 10; D. 39 at 4.
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`However, because there is insufficient information in the amended complaint for the Court to
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`determine whether the Program is factual or creative, it is premature for the Court to determine
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`whether this factor supports a finding of fair use.
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`c.
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`Amount and Substantiality of the Use
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`The third factor requires the Court to consider “the amount and substantiality of the
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`portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). “While
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`‘wholesale copying does not preclude fair use per se,’ copying an entire work ‘militates against a
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`finding of fair use.’” Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110,
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`1118 (9th Cir. 2000) (quoting Hustler Magazine, 796 F.2d at 1155). However, the Court’s
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`inquiry is “not affixed by cold calculations of the percentage of a work used versus unused.”
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`Gregory, 689 F.3d at 62. Courts also consider the “qualitative nature of the taking,” Harper &
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`Row, 471 U.S. at 565, and whether the use is reasonable in relation to the purpose of the
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`copying, Campbell, 510 U.S. at 586–87 (noting that “the extent of permissible copying varies
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`with the purpose and character of the use”).
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`The Defendants correctly point out that the “Plaintiff fails to make any specific
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`allegations or identify the portions of the ‘Learn to Read and Write is a Right’ program that were
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`used by the Defendants.” D. 35 at 7. Vil simply alleges that the Defendants used the Program.
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`See Am. Compl. ¶ 11. Thus, there is insufficient information for the Court to determine the
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`extent of the Defendants’ use.
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`d.
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`Effect on the Market
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`Finally, the fourth factor analyzes the “effect of the use upon the potential market for or
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`value of the copyrighted work,” 17 U.S.C. § 107(4), and is considered the “single most important
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`element of fair use,” Harper & Row, 471 U.S. at 566. The Court must consider: (1) “the degree
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`of market harm caused by the alleged infringer’s actions”; and (2) “whether unrestricted and
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`widespread conduct of the sort engaged in by the defendant . . . would result in a substantially
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`adverse impact on the potential market for the original.” Gregory, 689 F.3d at 64 (quoting
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`Campbell, 510 U.S. at 590) (internal quotation marks omitted).
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`The only market information in the amended complaint is Vil’s allegation that the
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`intended market for the Program was potential donors to FATEM, an organization concerned
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`with the technical and economic advancement of Mirebalais. See Am. Compl. ¶¶ 9–10, 15. The
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`Defendants identify information that is lacking from the complaint that would be key to
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`considering the effects of the Defendants’ conduct taken by itself and the market effects if others
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`were engaged in the same activity such as: (1) the “Plaintiff does not define the market for an
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`educational program,” (2) whether “any competition for providing educational assistance in
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`Mirebalais, Haiti exists beyond FATEM itself,” and (3) whether Vil is “a representative of an
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`organization similar to that of FATEM.” D. 35 at 8. However, this underdeveloped record is
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`detrimental to the Defendants’ fair use argument at this early stage because there is insufficient
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`information in the amended complaint to establish that there is no harm to the market for the
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`Program. See Campbell, 510 U.S. at 590 (explaining that “[s]ince fair use is an affirmative
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`defense, its proponent would have difficulty carrying the burden of demonstrating fair use
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`without favorable evidence about relevant markets”); Associated Press v. Meltwater U.S.
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`Holdings, Inc., No. 12 CIV. 1087 DLC, 2013 WL 1153979, at *19 (S.D.N.Y. Mar. 21, 2013)
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`(noting that “because fair use is an affirmative defense, it is the defendant’s burden to present
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`evidence of relevant markets that is favorable to its defense”). Thus, there is insufficient
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`information in the record for the Court to properly consider this factor. See Campbell, 510 U.S.
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`at 594 (stating that “it is impossible to deal with the fourth factor except by recognizing that a
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`silent record on an important factor bearing on fair use disentitled the proponent of the
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`defense . . . to summary judgment”).
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`e.
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`Conclusion as to Fair Use
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`Based upon the allegations in the amended complaint, the Court was only able to
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`adequately consider the first factor, which the Court finds weighs against a finding of fair use.
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`There are insufficient allegations for the Court to consider the second, third and fourth factors
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`adequately at this stage in the litigation. Thus, the Defendants have not met their burden of
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`demonstrating that their use of the Program is fair use under 17 U.S.C. § 107. As a result of the
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`foregoing analysis, the Court DENIES the Defendants’ motion to dismiss Vil’s copyright
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`infringement claim (Count I).
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`B.
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`Vil’s Remaining Claims (Counts II-V)
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`The Defendants’ motion to dismiss Vil’s remaining claims is entirely premised upon the
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`argument that Vil does not possess a valid copyright and that the Defendants’ alleged
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`infringement constitutes fair use. D. 34 at 2; D. 35 at 5. Because the Court has found that the
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`Defendants have failed to carry their burden of establishing the invalidity of Vil’s copyright and
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`fair use, the Court DENIES the Defendants’ motion to dismiss Vil’s remaining claims (Counts
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`II-V).
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`VI.
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`Poteau’s Motion to Dismiss the Amended Complaint
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`Although Poteau has moved to dismiss the amended complaint along with the other
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`Defendants, he has also filed a motion to dismiss on a different ground. Poteau argues that Vil’s
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`lawsuit is a prepetition debt that was discharged by the August 28, 2012 discharge order under
`
`§ 727 of the Bankruptcy Code (the “Code”). D. 37 at 6, D. 30-2.
`
`A.
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`Date of the Order for Relief for Purposes of the Discharge Order
`
`The general rule is that only debts that arose prior to the filing of the bankruptcy petition
`
`are eligible for discharge. See 11 U.S.C. § 727(b). Section 727 of the Code authorizes a
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`discharge in a Chapter 7 bankruptcy case. Id. § 727(a). Subsection (b) of that section provides
`
`in relevant part that “a discharge under subsection (a) of this section discharges the debtor from
`
`all debts that arose before the date of the order for relief under this chapter.” Id. § 727(b). For
`
`purposes of this general rule, the filing date of the bankruptcy petition and the “date of the order
`
`for relief” are synonymous. Id. § 301 (providing that the “commencement of a voluntary case
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`under a chapter of this title constitutes an order for relief under such chapter”); In re
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`Schlichtmann, 375 B.R. 41, 96 (Bankr. D. Mass. 2007). However, “the date of the entry of the
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`order for relief changes when a case is converted from Chapter 13 to Chapter 7.” In re Aboraia
`
`13
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`

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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 14 of 21
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`(Aboraia v. USDA Food & Nutrition Serv.), No. 04-04941-BGC-7, 2012 WL 385635, at *15
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`(Bankr. N.D. Ala. Feb. 6, 2012). A “debtor may convert a case under [Chapter 13] to a case
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`under chapter 7 of this title at any time.” 11 U.S.C. § 1307(a). Section 348(b) provides:
`
`“Unless the court for cause orders otherwise, in section[] . . . 727(b) . . . of this title, ‘the order
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`for relief under this chapter’ in a chapter to which a case has been converted under
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`section . . . 1307 of this title means the conversion of such case to such chapter.” Id. § 348(b).
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`Accordingly, reading §§ 727(b) and 348(b) together, when a case is converted from a Chapter 13
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`case to a Chapter 7 case, “the date of the order for relief under this chapter” refers to the date of
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`the conversion of the case to a Chapter 7 case for purposes of determining which debts arose
`
`before the date of the order for relief, and thus which debts are prepetition debts entitled to be
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`discharged. Therefore, all debts that arose before the conversion (except those listed in § 523)
`
`are treated as prepetition debts and thus are dischargeable. See In re Fickling (Fickling v.
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`Flower), 361 F.3d 172, 174 (2d Cir. 2004) (holding in Chapter 11 to Chapter 7 conversion case
`
`that because claims for attorneys’ fees and expenses were incurred after the filing of the Chapter
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`11 petition, but pre-conversion, and no exemption applies, such claims were dischargeable under
`
`§ 727); In re Villanueva, No. 08-20646, 2009 WL 2928496, at *3 (Bankr. D. Md. June 5, 2009)
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`(explaining that pursuant to §§ 348(b) and 727(b), a Chapter 7 discharge “had the effect of
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`discharging all of the Debtor’s debts that arose before . . . the date of conversion of that case
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`from Chapter 13 to Chapter 7”).
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`Poteau filed his Chapter 13 bankruptcy case on August 13, 2009. D. 37 at 2; Chapter 13
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`Voluntary Petition, In re Poteau, No. 09-17731-FJB (Bankr. D. Mass. Aug. 13, 2009), ECF No.
`
`14
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`

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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 15 of 21
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`1.3 On May 29, 2012, Poteau converted his Chapter 13 case to a Chapter 7 case pursuant to 11
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`U.S.C. § 1307. D. 37 at 3; Order, In re Poteau, No. 09-17731-FJB, (Bankr. D. Mass. May 29,
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`2012), ECF No. 67. On August 28, 2012, Poteau was issued a discharge order pursuant to § 727.
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`D. 37 at 3; D. 37-3. Therefore, under operation of §§ 727(b) and 348(b) discussed above, when
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`Poteau converted his case to a Chapter 7 case, the date of his order for relief was changed to May
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`29, 2012 for purposes of his discharge order.
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`Therefore, the Court must determine whether Vil’s claims for copyright infringement,
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`unfair competition and breach of an implied contract and requests for monetary damages and
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`injunctive relief constitute a debt that arose before May 29, 2012 and thus are dischargeable.
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`B. Whether Vil’s Claims Constitute a Dischargeable Debt
`
`A “claim” is defined as:
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`(A) right to payment, whether or not such right is reduced to judgment, liquidated,
`unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal,
`equitable, secured, or unsecured; or
`
`(B) right to an equitable remedy for breach of performance if such breach gives
`rise to a right to payment, whether or not such right to an equitable remedy is
`reduced
`to
`judgment,
`fixed, contingent, matured, unmatured, disputed,
`undisputed, secured, or unsecured.
`
`11 U.S.C. § 101(5). The term “claim” is to be given “the broadest available definition.”
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`FCC v. NextWave Pers. Commc’n, Inc., 537 U.S. 293, 302 (2003) (quoting Johnson v. Home
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`State Bank, 501 U.S. 78, 83 (1991)) (internal quotation marks omitted). A “debt” is defined as
`
`“liability on a claim.” 11 U.S.C. § 101(12). “The reflexive definitions of ‘claim’ and ‘debt’
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`reveal ‘Congress’ intent that the[ir] meanings . . . be coextensive.’” In re Hann (Hann v. Educ.
`
`
`3 In deciding this motion to dismiss, the Court will consider filings in Poteau’s bankruptcy
`proceeding. Generally, in deciding a motion to dismiss, a court is limited to the facts alleged in
`the plaintiff’s complaint. However, a court may also look to matters of public record. Boateng
`v. InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000).
`
`
`15
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`

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`Case 1:11-cv-11622-DJC Document 41 Filed 07/26/13 Page 16 of 21
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`Credit Mgmt. Corp.), 476 B.R. 344, 354 (B.A.P. 1st Cir. 2012) (alteration and omission in
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`original) (quoting Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 558 (1990)).
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`Vil’s allegations of copyright infringement, unfair competition under § 1125(a) of the
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`Lanham Act and breach of contract squarely fit within the statutory definition of “claim”
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`because, if proven, they would obligate Poteau to pay money damages. See In re Cont’l Airlines
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`(Air Line Pilots Ass’n v. Cont’l Airlines), 125 F.3d 120, 133 (3d Cir. 1997) (noting that “a right
`
`of payment under the bankruptcy code is, essentially, an obligation to pay money”). The fact
`
`that Vil seeks both money damages and equitable relief in the form of an injunction does not
`
`change this analysis. Am. Compl. at 7–9. “Under § 101(5)(B), a right to an equitable remedy,
`
`whether or not fixed, disputed, or reduced to judgment, is a ‘claim’ within the meaning of the
`
`Bankruptcy Code, and subject to bankruptcy proceedings, if ‘a monetary payment is an
`
`alternative for the equitable remedy.’” Rederford v. U.S. Airways, Inc., 589 F.3d 30, 36 (1st Cir.
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`2009) (quoting In re Cont’l Airlines, 125 F.3d at 133).
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`Here, the payment of monetary damages is an alternative to the requested equitable
`
`remedies. Under the Copyright Act, if a court finds the defendant’s use unfair, the court
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`“may . . . grant temporary and final injunctions” under § 502(a). 17 U.S.C. § 502(a). Use of the
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`word “may” in the statutory language contemplates that in some cases courts will withhold
`
`permanent injunctive relief and limit the plaintiff to money dama