Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 1 of 10 PageID# 2225
`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`
`
`
`
`
`RMC PUBLICATIONS, INC., )
`)
`Plaintiff,
`)
`
`)
`v.
`) 1:15cv896(JCC/IDD)
`
`)
`PHOENIX TECNOLOGY SOLUTIONS,
`)
`
`LLC.
`)
`
`)
`)
`Defendant.
`M E M O R A N D U M O P I N I O N
`
`This matter is now before the Court on a motion to
`
`dismiss filed by Defendant Phoenix Technology Solutions, LLC.
`[Dkt. 31] For the following reasons, the Court denies
`Defendant’s Motion to Dismiss.
`I. Background
`At the motion to dismiss stage, the Court must read
`
`
`the complaint as a whole, construe the complaint in a light most
`favorable to the plaintiff, and accept the facts alleged in the
`complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
`
`The following facts, taken from the complaint and the
`parties’ briefs are undisputed unless otherwise indicated.
`Plaintiff RMC Publications Inc. (“RMC”) is a Minnesota
`corporation with its principal place of business in Minnesota.
`(Compl. [Dkt. 1] ¶ 1.) Defendant Pheonix Technology Solutions
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`
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`1
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`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`
`
`
`
`
`RMC PUBLICATIONS, INC., )
`)
`Plaintiff,
`)
`
`)
`v.
`) 1:15cv896(JCC/IDD)
`
`)
`PHOENIX TECNOLOGY SOLUTIONS,
`)
`
`LLC.
`)
`
`)
`)
`Defendant.
`M E M O R A N D U M O P I N I O N
`
`This matter is now before the Court on a motion to
`
`dismiss filed by Defendant Phoenix Technology Solutions, LLC.
`[Dkt. 31] For the following reasons, the Court denies
`Defendant’s Motion to Dismiss.
`I. Background
`At the motion to dismiss stage, the Court must read
`
`
`the complaint as a whole, construe the complaint in a light most
`favorable to the plaintiff, and accept the facts alleged in the
`complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
`
`The following facts, taken from the complaint and the
`parties’ briefs are undisputed unless otherwise indicated.
`Plaintiff RMC Publications Inc. (“RMC”) is a Minnesota
`corporation with its principal place of business in Minnesota.
`(Compl. [Dkt. 1] ¶ 1.) Defendant Pheonix Technology Solutions
`
`
`
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`1
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 2 of 10 PageID# 2226
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`(“Phoenix”) is a Maryland corporation with its principal place
`of business in Maryland, that transacts business and conducts
`classes in Alexandria, Virginia. (Id. at ¶ 2.) RMC publishes
`books and other materials in the area of project management
`including the PMP Exam preparation book PMP Exam Prep (Id. at ¶
`7). PMP Exam Prep is the bestselling PMP exam preparation book
`in the world, and RMC’s CAPM Exam Prep, PMI-ACP Exam Prep, and
`“Hot Topics Flashcards for Passing the PMP and CAPM Exams” are
`similarly leading publications. (Id. at ¶ 7.)
`PMP Exam Prep was the creation of Rita Mulcahy, the
`former President and founder of RMC. (Id. at ¶ 8.) In 1999,
`Mulcahy received a copyright registration for the first edition
`of PMP Exam Prep from the United States Copyright Office with an
`effective date of June 14, 1999. (Id. at ¶ 11). In 2000, 2001,
`2002, and 2005 Mulcahy received a copyright registration for the
`second, third, fourth, and fifth editions of PMP respectively.
`(Id. at ¶¶ 11-15). Mulcahy later assigned all her copyrights in
`PMP Exam Prep to RMC. (Id. at ¶ 16.) In 2009, 2011, and 2014
`RMC received copyrights for the sixth, seventh, and eighth
`editions of PMP Exam Prep respectively. (Id. at ¶¶ 17-19.) In
`2006, 2010, and 2014 RMC received a copyright registration for
`the first, second, and third editions of CAPM Exam Prep,
`respectively. (Id. at ¶¶ 20-22.) RMC also holds copyright
`registrations with respect to several editions of “Hot Topics
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`2
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 3 of 10 PageID# 2227
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`Flashcards for Passing the PMP and CAPM Exams.” (Id. at ¶¶ 25-
`30.) Phoenix is in the business of offering courses to help
`people pass the PMP Exam and other project management
`certification exams. (Id. at ¶ 32; Def.’s Mem. [Dkt. 32] at 3.)
`PMI is the leading professional association in project
`management, and administers the PMP Exam. (Compl. ¶ 8; Def.’s
`Mem. at 3.) In 2014 an individual named Al Howard is alleged to
`have informed RMC that Phoenix was using RMC’s copyrighted
`materials at least in the presentation materials for teaching
`one or more of its courses. (Compl. ¶ 33.) RMC has never
`licensed or otherwise authorized Phoenix to use its copyrighted
`materials in course presentation materials or other derivative
`work teaching materials. (Id. at ¶ 34.)
`Sometime around January 15, 2015 Phoenix conducted a
`January 2015 PMP exam preparation class, charging $1,990 for
`admission. (Id. at ¶¶ 35-36.) Among the course materials for
`Phoenix’s January 2015 class was RMC’s eighth edition of the PMP
`Exam Prep book. (Id. at ¶ 36). Plaintiff alleges that
`extensive portions of the presentation materials used by Pheonix
`during the January 2015 class were copied from several of
`Plaintiff’s copyrighted works. (Id. at ¶¶ 39-42). On July 10,
`2015, Plaintiff filed this action against Phoenix alleging
`copyright infringement on several of Plaintiff’s copyrighted
`works, namely RMC’s PMP Exam Prep sixth, seventh, and eighth
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`3
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 4 of 10 PageID# 2228
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`editions and RMC’s Topics Flashcards for Passing the PMP and
`CAPM Exams sixth, seventh, and eighth editions. (Id. at ¶ 45).
`II. Legal Standard
`Defendant moves to dismiss Plaintiff’s claims pursuant
`
`
`to Federal Rule of Civil Procedure 12(b)(6). “While the court
`must accept well-pleaded allegations as true when ruling on a
`Rule 12(b)(6) motion, the court need not accept as true legal
`conclusions disguised as factual allegations. Ashcroft v.
`Iqbal, 556 U.S. 662, 679-81 (2009). Therefore, a pleading that
`offers only a “formulaic recitation of the elements of a cause
`of action will not do.” Iqbal, 556 U.S. at 678; Bell Atl. Corp.
`v. Twombly, 550 U.S. 544, 557 (2007). Nor will a complaint that
`tenders mere “naked assertion[s]” devoid of “further factual
`enhancement.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557.
`“The purpose of a Rule 12(b)(6) motion is to test the
`sufficiency of a complaint; importantly, [a Rule 12(b)(6)
`motion] does not resolve contests surrounding the facts, the
`merits of a claim, or the applicability of defenses.” Edwards
`v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)
`(citation omitted) (internal quotation marks omitted). In the
`instance where sufficient facts are alleged in the complaint to
`rule on an affirmative defense, such as the statute of
`limitations, the defense may be reached by a motion to dismiss
`filed under Rule 12(b)(6). This principle only applies,
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`4
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 5 of 10 PageID# 2229
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`however, if all facts necessary to the affirmative defense
`“clearly appear[ ] on the face of the complaint.” Goodman v.
`Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (emphasis in
`original).
`
`III. Analysis
`To succeed in a copyright infringement action the
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`
`plaintiff must prove both ownership of a valid copyright and
`copying of protected original elements of the work. Ale House
`Mgmt. v. Raleigh Ale House, F.3d 137,143 (4th Cir. 2000)(Citing
`Feist Publ’ns, Inc. v. Rural Tel. Svcs. Co., 499 U.S. 340, 361
`(1991)). Defendant here does not challenge Plaintiff’s
`ownership of a valid copyright. Rather, Defendant focuses its
`attack on the requirements that Plaintiff show Defendant has
`copied original elements of Plaintiff’s work. Defendant first
`argues that Plaintiff has failed to adequately allege that any
`similarities between its products and Defendant’s are the result
`of copying. (Def.’s Mem. at 11.) Defendant then argues that
`even if Plaintiff adequately alleges copying, it fails to
`adequately allege that the copied material was original in
`nature, and therefor protected by the copyright. (Id. at 15.)
`The Court first addresses Defendant’s arguments on the adequacy
`of the copying allegations, then turns to the discussion of the
`originality requirement.
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`5
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 6 of 10 PageID# 2230
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` A. Copying
`Defendant asserts that “RMC does not provide any
`factual allegations to support the claim that similarities in
`the highlighted portions are the result of copying RMC’s work
`rather than the use of generic concepts and industry standards.”
`(Def.’s Mem. at 11.) There is no copyright infringement where
`the similarities between two works genuinely do not result from
`copying but merely “from the fact that both works deal with the
`same subject or have the same common sources.” Fuld v. Nat’l
`Broad, co., 390 F. Supp. 877,881 (S.D.N.Y.).
`If a plaintiff cannot show direct evidence that
`Defendant committed impermissible copying, then they must prove
`the copying indirectly by showing that Defendant had access to
`the copyrighted work and that there are substantial similarities
`between the allegedly copied work and the copyrighted work.
`Keeler Brass Co. v. Continental Brass Co., 862 F.2d 1063, 1065
`(4th Cir. 1988).1 A showing of access and substantial
`similarities creates “a presumption of copying”. Ale House
`Mgmt., 205 F.3d at 143 (4th Cir. 2000).
`At the 12(b)(6) stage the Court must accept all
`
`1 Plaintiff may in fact have adequately alleged direct evidence of
`impermissible copying through its allegation that “an individual
`named Al Howard informed RMC that Defendant was RMC’s
`copyrighted materials.” (Compl. ¶ 33.) However, this argument,
`based on one alleged instance of hearsay is not particularly
`strong, and it ultimately leads to the same place as the Court’s
`analysis of Plaintiff’s allegations of access and similarity.
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 7 of 10 PageID# 2231
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`alleged facts as true and construe them favorably to the
`plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
`abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800
`(1982). Under that standard, RMC has satisfactorily alleged
`that Phoenix had access to RMC’s copyrighted material.
`Plaintiff alleges that PMP Exam Prep “is the bestselling PMP
`exam preparation book in the world,” and Plaintiff’s other
`copyrighted products “are similarly leading publications in
`their fields.” (Compl. ¶ 7.) Plaintiff also alleges that
`Defendant is in the business of offering PMP exam preparation
`classes. (Id. at ¶ 1.) It would be reasonable to assume a
`company who offers PMP exam preparation classes would have
`access to and some familiarity with the “bestselling PMP exam
`preparation book in the world.” (Id. at ¶ 7.) Plaintiff
`therefore alleges facts which, if true, would support a finding
`that Defendant had access to Plaintiff’s copyrighted material.
`Moreover, Plaintiff alleges that the “course materials for
`Defendant’s January 2015 class [included] a copy of RMC’s eighth
`edition of the PMP Exam Prep book. (Id. at ¶ 37). At this
`stage then, Plaintiff has certainly adequately alleged that
`Defendant had access to Plaintiff’s copyrighted material.
`However access is only the first element that the
`alleged facts must demonstrate to support an indirect showing of
`copying. The Court must also ask whether the facts alleged show
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 8 of 10 PageID# 2232
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`a substantial similarity between the plaintiff’s protected work
`and the work in question. Here, Plaintiff alleges that
`Defendant has engaged in extensive verbatim copying of
`Defendant’s copyrighted exam preparation material. (Compl. ¶
`39-40 (citing Ex. W; Ex. X; and Exhibit Y).) Few similarities
`could be more substantial than extensive verbatim reproductions
`of the copyrighted works. As Plaintiff alleges facts which
`would support a finding of access and substantial similarity if
`true, Plaintiff alleges sufficient facts to establish copying,
`at least under the 12(b)(6) standard.
`B. Originality
`In order to succeed in a copyright infringement
`action, the plaintiff also must show that the copied portions of
`its copyrighted work were original. Defendant’s argument
`against the originality of Plaintiff’s copyrighted work fails at
`this stage. Plaintiff’s complaint clearly alleges that the
`copyrighted material in PMP Exam Prep “was the creation of Rita
`Mulcahy” and “is the result of many years’ experience and
`feedback from Mulcahy’s work with more than 7,500 project
`managers.” (Compl. ¶¶ 8-9.) In Mulcahy v. Cheetah Learning
`LLC, the Eighth Circuit noted that Mulcahy has “done far more”
`than merely copy or distribute PMI’s materials in creating PMP
`Exam Prep. 386 F.3d 849, 853 (8th Cir. 2004)(holding that while
`PMP Exam Prep did not traditionally infringe the copyright of
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`Case 1:15-cv-00896-JCC-IDD Document 50 Filed 10/27/15 Page 9 of 10 PageID# 2233
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`PMI’s PMBOK, material issues of fact existed as to whether PMP
`Exam Prep was an unauthorized derivative work.) Mulcahy and RMC
`have attempted to condense and organize the material in a
`specific fashion to enhance comprehension by students, adding
`concrete examples to abstract concepts and regular tests to aid
`in retention. (Pl.’s Opp’n. [Dkt. 38] at 20-21.) The
`organization, explanation, and testing of material is the very
`essence of the profession of teaching, and while a jury may
`determine that Plaintiff has not demonstrated sufficient
`originality in its organization and explanation of material to
`create an original teaching resource, the Court cannot do so at
`this stage. Simply put, Plaintiff’s allegations regarding the
`work which RMC and Rita Mulcahy have done in creating PMP Exam
`Prep and their other works are sufficient, at the 12(b)(6)
`stage, to satisfy the requirement of originality.
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`Because Plaintiff alleges sufficient facts to show
`impermissible copying of original work, and Defendant does not
`otherwise challenge the validity of Plaintiff’s copyright, the
`Court denies Defendant’s Motion to Dismiss.
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`IV. Conclusion
`For the foregoing reasons, the Court denies
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`Defendant’s Motion to Dismiss. An appropriate Order shall issue.
`
`/s/
`October 27, 2015
`James C. Cacheris
`Alexandria, Virginia
` UNITED STATES DISTRICT COURT JUDGE
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`Case 1:l5—cv—00896—JCC—|DD Document 50 Filed 10/27/15 Page 10 of 10 Page|D# 2234
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