throbber
Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 1 of 15 PageID #: 119
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`UNITED STATES DISTRICT COURT
`
`DISTRICT OF SOUTH DAKOTA
`
`SOUTHERN DIVISION
`
`
`
`TRAVIS EDLAND,
`
`Plaintiff,
`
`
`
`vs.
`
`BASIN ELECTRIC POWER
`COOPERATIVE,
`
`Defendant.
`
`
`
`
`
`
`
`4:21-CV-04008-KES
`
`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANT’S
`MOTION TO DISMISS
`
`Plaintiff, Travis Edland, brought suit against defendant, Basin Electric
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`Power Cooperative, alleging three counts of copyright violations. Docket 1.
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`Basin moves to dismiss the three counts in the complaint and seeks attorneys’
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`fees. Docket 10. Edland opposes the motion in part and asks the court to
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`dismiss Count III without prejudice. Docket 13. For the following reasons, the
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`court grants in part and denies in part Basin’s motion to dismiss.
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`FACTUAL BACKGROUND
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`
`
`
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`The facts alleged in the complaint, accepted as true, are as follows:
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`Prior to July 11, 2020, Edland was employed at Basin’s Deer Creek
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`Station power plant located near Elkton, South Dakota. Docket 1 ¶ 8. Basin
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`terminated Edland’s employment on July 11, 2020. Id. ¶ 9.
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`
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`For many years, Edland has maintained a YouTube channel with videos
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`about his experiences with coyotes. Id. ¶ 10. YouTube uses technological
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`protection measures (TPMs) to prevent unauthorized copying, recording, and
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`

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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 2 of 15 PageID #: 120
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`distribution of video content posted by creators. Id. ¶ 15. Under YouTube’s
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`terms of service, users are forbidden from screen-capturing, recording,
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`downloading, or otherwise copying videos posted and streaming on the site. Id.
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`¶ 16.
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`Before July 11, 2020, Edland posted videos to his YouTube channel that
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`advocated for workplace protections at the Deer Creek Station in response to
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`the COVID-19 pandemic. Id. ¶ 11. In these videos, Edland discussed
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`recommendations from the Centers for Disease Control (CDC). Id. Two
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`particular videos (the Videos) posted by Edland on or about July 11, 2020,
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`caused Basin to terminate Edland’s employment. Id. ¶ 12. The first video was
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`about 30 minutes in duration and had a file name of IMG_0599.MP4. Id. ¶ 13.
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`The second video was about 37 minutes in duration and had a file name of
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`IMG_0599.MP4. Id. Edland removed the videos from public viewing shortly
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`after he posted them to his YouTube channel. Id. ¶ 14. On July 11, 2020,
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`Basin, through an employee, used a mobile phone to record the Videos without
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`authorization from Edland or YouTube and in violation of YouTube’s terms of
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`service. Id. ¶¶ 17-18, 20. Without the use of technology to circumvent
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`YouTube’s TPMs, Basin would not have been able to obtain a copy of the
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`Videos absent authorization from Edland. Id. ¶ 19. Basin made additional
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`copies, distributed additional copies, and otherwise used, copied, reproduced,
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`performed, and viewed the Videos without Edland’s authorization and in
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`violation of Edland’s rights. Id. ¶ 21.
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`2
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 3 of 15 PageID #: 121
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`Edland was and remains the exclusive owner of all copyrights associated
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`with the Videos. Id. ¶ 23. His copyrights associated with the Videos are
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`registered with the United States Copyright Office, registration number
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`Pau004055591. Id. ¶ 24. Edland’s complaint alleges violations of the federal
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`Copyright Act and the Digital Millennium Copyright Act and common law
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`copyright infringement. See Docket 1 ¶¶ 22-46.
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`LEGAL STANDARD
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`Rule 12(b)(6) provides for dismissal of a claim if the claimant has failed to
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`state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “To
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`survive a motion to dismiss, a complaint must contain sufficient factual
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`matter, accepted as true, to ‘state a claim to relief that is plausible on its
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`face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)).
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`The court must accept the well-pleaded allegations in the complaint as
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`true and draw all reasonable inferences in favor of the non-moving party.
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`Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). The
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`“plaintiff’s obligation to provide the grounds of his entitle[ment] to relief
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`requires more than labels and conclusions, and a formulaic recitation of the
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`elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration
`
`in original) (internal quotation marks and citation omitted). “If a plaintiff
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`cannot make the requisite showing, dismissal is appropriate.” Abdullah v.
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`Minnesota, 261 F. App’x 926, 927 (8th Cir. 2008).
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`
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`3
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 4 of 15 PageID #: 122
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`DISCUSSION
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`Consideration of Materials Outside the Pleadings on a Rule 12(b)(6)
`Motion
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`I.
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`
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`Basin asks the court to consider 4 exhibits in support of its motion to
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`dismiss. Docket 12. The exhibits are: (1) a screenshot of Edland’s copyright
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`registration for the Videos, (2) Edland’s OSHA complaint, (3) Basin’s response
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`to Edland’s OSHA complaint, and (4) a letter between counsel discussing, inter
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`alia, dismissal of Count III. See Dockets 12-1, 12-2, 12-3, 12-4. Edland agrees
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`that exhibit 1 is proper for the court to consider, but he opposes consideration
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`of exhibits 2, 3, and 4.
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`“Though matters outside the pleading may not be considered in deciding
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`a Rule 12 motion to dismiss, documents necessarily embraced by the
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`complaint are not matters outside the pleading.” Ashanti v. City of Golden
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`Valley, 666 F.3d 1148, 1151 (8th Cir. 2012) (quoting Enervations, Inc. v. Minn.
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`Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004)). “Documents
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`necessarily embraced by the pleadings include ‘documents whose contents are
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`alleged in a complaint and whose authenticity no party questions, but which
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`are not physically attached to the pleading.’ ” Id. (quoting Kushner v. Beverly
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`Enters., Inc., 317 F.3d 820, 831 (8th Cir. 2003)). Materials that are part of the
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`public record may also be considered by a court in deciding a Rule 12(b)(6)
`
`motion. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).
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`Here, exhibit 1 is a screenshot of a public record available online, and it
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`is embraced by the complaint by specific reference to the copyright registration
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`
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`4
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`

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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 5 of 15 PageID #: 123
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`number. Both parties agree as to the document’s authenticity and urge the
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`court to consider it. Thus, the court considers exhibit 1 in its analysis of
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`Basin’s motion to dismiss.
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`Basin asks the court to consider exhibits 2, 3, and 4 on the same
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`grounds as exhibit 1. But Basin provides no support for its conclusion that the
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`exhibits are embraced by the pleadings or a matter of public record. As to
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`exhibits 2 and 3, the complaint makes no mention of an OSHA proceeding that
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`occurred after Edland was terminated by Basin. And exhibit 4 is a private letter
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`between counsel that discusses how litigation would proceed after the
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`complaint was filed. Basin relies on Federal Rule of Evidence 201 and asks the
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`court to take judicial notice of the information in exhibits 2, 3, and 4. Docket
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`11 at 6 n.2; Docket 14 at 3-4. Taking judicial notice of information filed in or
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`attached to an affidavit, though, would create endless exceptions to the limited
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`material the court considers on a motion to dismiss. The discovery and trial
`
`processes, not a motion to dismiss, allow the parties a full exchange of
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`information and resolution of questions of fact. Thus, the court will not
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`consider exhibits 2, 3, and 4 when analyzing Basin’s motion. And because
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`exhibits 2, 3, and 4 were “presented to [but] excluded by the court,” Basin’s
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`motion is analyzed under Rule 12(b)(6) and not under Rule 12(d), which
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`converts a motion to dismiss into a motion for summary judgment. Fed. R. Civ.
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`P. 12(d); Sorace v. United States, 788 F.3d 758, 767 (8th Cir. 2015).
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`5
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`

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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 6 of 15 PageID #: 124
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`II.
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`Count I: Copyright Act – Infringement
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`In Count I, Edland asserts that Basin infringed on Edland’s exclusive
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`rights in violation of the Copyright Act, 17 U.S.C. § 106, when it willfully
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`reproduced, distributed, performed, and displayed the Videos without Edland’s
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`authorization. Docket 1 at ¶¶ 26-34. Basin argues that Count I should be
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`dismissed because Edland fails to establish a valid copyright registration as a
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`precondition for an infringement claim. Docket 11 at 7. Basin also argues that
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`its use of the Videos is protected by the fair use defense. Id.
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`
`
`
`
`A.
`
`Validity of Copyright Registration
`
`Under the Copyright Act, “no civil action for infringement of the copyright
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`in any . . . work shall be instituted until preregistration or registration of the
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`copyright claim has been made . . . .” 17 U.S.C. § 411(a). A certificate of
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`registration is prima facie evidence of a valid copyright and establishes a
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`rebuttable presumption of validity. Taylor Corp. v. Four Seasons Greetings, LLC,
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`315 F.3d 1039, 1042 (8th Cir. 2003) (citing 17 U.S.C. § 410(c)). A certificate of
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`registration is valid, regardless of whether it contains any inaccurate
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`information, unless “inaccurate information was included on the application for
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`copyright registration with knowledge that it was inaccurate” and “the
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`inaccuracy of the information, if known, would have caused the Register of
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`Copyrights to refuse registration.” § 411(b)(1).
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`
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`Basin argues that Edland’s certification of registration is invalid because
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`his application for registration contained inaccurate information and he
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`“should have known” that the information was inaccurate. Docket 11 at 7.
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`6
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 7 of 15 PageID #: 125
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`Specifically, Basin argues that the Videos were incorrectly registered as
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`“unpublished” works when in fact they had previously been “published” on
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`YouTube. Id. at 6-7. But whether the Videos were actually published or
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`unpublished, whether Edland’s application contained inaccurate information,
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`and whether he knew the application contained inaccurate information are
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`questions of fact that go beyond the court’s Rule 12(b)(6) inquiry.
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`
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`Here, the complaint states that the Videos are registered with the United
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`States Copyright Office, and exhibit 1 submitted by Basin also indicates that
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`Edland holds a copyright registration in the Videos. This allows the court to
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`draw the inference that Edland has a valid copyright registration for the
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`Videos. Thus, Basin’s motion to dismiss Count I based on invalid copyright
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`registration is denied.
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`
`
`B.
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`Copyright Infringement
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`Basin argues that Edland’s copyright infringement claim should be
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`dismissed based on Basin’s assertion of the fair use defense. Docket 11 at 8-
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`14. Edland asserts that the complaint states a claim for copyright
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`infringement, and Basin’s fair use defense relies on materials not contained in
`
`or embraced by the pleadings. Docket 13 at 13-14.
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`Under 17 U.S.C. § 102, copyright protects “original works of authorship
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`fixed in any tangible medium of expression,” including “motion pictures and
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`other audiovisual works.” A claim of copyright infringement must establish
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`“ownership of a valid copyright” and “copying of original elements of the work.”
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`Infogroup, Inc. v. DatabaseLLC, 956 F.3d 1063, 1066 (8th Cir. 2020) (citation
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`
`
`7
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`

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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 8 of 15 PageID #: 126
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`omitted); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361
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`(1991). Section 106 of the Copyright Act states, in relevant part:
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`[T]he owner of a copyright under this title has the exclusive rights to
`do and to authorize any of the following:
`(1) to reproduce the copyrighted work in copies or phonorecords
`(2) to prepare derivative works based upon the copyrighted work;
`(3) to distribute copies or phonorecords of the copyrighted work to
`the public by sale or other transfer of ownership, or by rental, lease,
`or lending;
`(4) in the case of . . . motion pictures and other audiovisual works,
`to perform the copyrighted work publicly;
`(5) in the case of . . . the individual images of a motion picture or
`other audiovisual work, to display the copyrighted work publicly[.]
`
`(emphasis added).
`
`Fair use, codified at § 107, is an affirmative defense and a statutory
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`exception to a claim of copyright infringement. Campbell v. Acuff-Rose Music,
`
`Inc., 510 U.S. 569, 590 (1994); Bill Graham Archives v. Dorling Kindersley Ltd.,
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`448 F.3d 605, 608 (2d Cir. 2006). Section 107 states, “the fair use of
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`copyrighted work, including such use by reproduction in copies or
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`phonorecords or by any other means specified by [§ 106], for purposes such as
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`criticism, comment, news reporting, teaching . . ., scholarship, or research, is
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`not an infringement of copyright.” When determining fair use under § 107, the
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`court must consider:
`
`(1) the purpose and character of the use, including whether such
`use is of a commercial nature or is for nonprofit educational
`purposes;
`(2) the nature of the copyrighted work;
`(3) the amount and substantiality of the portion used in relation to
`the copyrighted work as a whole; and
`(4) the effect of the use upon the potential market for or value of the
`copyrighted work.
`
`
`
`
`
`8
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 9 of 15 PageID #: 127
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`§ 107. When an affirmative defense “is apparent on the face of the
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`complaint . . . [it] can provide the basis for dismissal under Rule 12(b)(6).”
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`Zean v. Fairview Health Servs., 858 F.3d 520, 526 (8th Cir. 2017)
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`(alteration in original) (quoting Noble Sys. Corp. v. Alorica Cent., LLC, 543
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`F.3d 978, 983 (8th Cir. 2008)).
`
`Here, the complaint states that Edland had valid copyright ownership of
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`the Videos. The complaint also states that Basin, without Edland’s permission
`
`or authorization, reproduced, distributed, performed, and displayed the Videos.
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`This allows the court to draw the inference that Basin copied original elements
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`of the Videos. Thus, the complaint states a claim for copyright infringement.
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`Basin’s fair use defense relies on its claim that it “submitted the Videos
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`in response to Edland’s OSHA complaint.” Docket 11 at 8. Basin also claims
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`that it submitted copies of the Videos “in support of a no trespass order”
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`against Edland. Id. But nothing in the complaint itself, or materials embraced
`
`by the complaint, mention the OSHA complaint or a no trespass order, or any
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`other instance of fair use by Basin. Because a fair use defense is not apparent
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`on the face of the complaint, it cannot be grounds for dismissal under Rule
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`12(b)(6).
`
`III. Statutory Damages and Attorneys’ Fees
`
`
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`Basin argues that the court should dismiss Edland’s claim for statutory
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`damages and attorneys’ fees for infringement under the Copyright Act. Docket
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`11 at 14-16. While the Copyright Act provides for both statutory damages and
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`
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`9
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 10 of 15 PageID #: 128
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`attorneys’ fees, Basin contends that such relief is barred in Edland’s case
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`under § 412 of the Copyright Act:
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`In any action under this title . . . no award of statutory damages or
`of attorney’s fees, as provided by sections 504 and 505, shall be
`made for—
`(1) any infringement of copyright in an unpublished work
`commenced before the effective date of its registration; or
`(2) any infringement of copyright commenced after first publication
`of the work and before the effective date of its registration unless
`such registration is made within three months after the first
`publication of the work.
`
`
`The Eighth Circuit Court of Appeals has yet to analyze the application of § 412
`
`of the Copyright Act. In Feldhacker v. Homes, the district court relied on the
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`Fifth Circuit’s reasoning that “a plaintiff may not recover an award of statutory
`
`damages and attorney’s fees for infringements that commenced after
`
`registration if the same defendant commenced an infringement of the same
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`work prior to registration.” Feldhacker v. Homes, 173 F. Supp. 3d 828, 833
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`(S.D. Iowa 2016) (quoting Mason v. Montgomery Data, Inc., 967 F.2d 135, 144
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`(5th Cir. 1992)). The court in Feldhacker found that the First, Second, Fourth,
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`Sixth and Ninth Circuits have reached the same conclusion. Id. at 833-834
`
`(citations omitted).
`
`Here, the date of registration of the Videos is December 16, 2020. This is
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`more than five months after the alleged acts of infringement that Edland states
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`took place on July 11, 2020. Docket 11 at 15-16; Docket 1 ¶ 17. Thus, whether
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`the Videos are published or unpublished works, § 412 bars Edland’s recovery
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`of statutory damages and attorneys’ fees. See 2 Melville B. Nimmer & David
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`Nimmer, Nimmer § 7.16(C)(1)(b)-(c) (Matthew Bender, rev. ed.) (noting that
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`
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`10
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`

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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 11 of 15 PageID #: 129
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`registration of a published or unpublished work would be “fruitless” to recover
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`statutory damages and attorneys’ fees if infringement commenced more than
`
`three months before registration).
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`Edland concedes that the complaint does not state a plausible claim for
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`statutory damages and attorneys’ fees for acts of infringement that occurred
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`before December 16, 2020. Docket 13 at 19-20. But Edland argues that the
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`complaint plausibly states a claim for statutory damages and attorneys’ fees
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`under the Copyright Act for acts of infringement committed by Basin after
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`December 16, 2020. Id. at 20. The complaint states, “[a]fter illegally recording
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`the Videos, [Basin] made additional copies, distributed additional copies, and
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`otherwise used, copied, reproduced, performed (by playing), and viewed the
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`Videos without Edland’s authorization and in violation of Edland’s rights.”
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`Docket 1 ¶ 21. But any subsequent act of infringement by Basin would be an
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`“infringement of the same work.” Feldhacker, 173 F. Supp. 3d at 833 (quoting
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`Mason, 967 F.2d at 144). “A series of repeated acts of infringement is
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`commenced on the date of the first act of infringement, and the individual acts
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`in the series are not deemed to commence on different dates.” 18 C.J.S.
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`Copyrights § 139 (2021). Because Basin allegedly commenced acts of
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`infringement six months prior to registration, § 412 bars Edland’s recovery of
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`statutory damages and attorneys’ fees for those acts occurring after, as well as
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`before, December 16, 2020. Thus, Basin’s motion to dismiss is granted as to
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`Edland’s claim for statutory damages and attorneys’ fees under the Copyright
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`Act.
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`11
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 12 of 15 PageID #: 130
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`IV. Count II: Digital Millennium Copyright Act - Circumvention
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`In Count 2, Edland avers that Basin violated the Digital Millennium
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`Copyright Act (DMCA), 17 U.S.C. § 1201(a)(1)(A), when it circumvented
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`YouTube’s TPMs to record the Videos. Docket 1 ¶¶ 37-39. The complaint states
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`that Basin “use[d] a mobile phone to record the Videos as they played on a
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`computer streaming the Videos on YouTube . . . all without Edland’s
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`permission or authorization.” Id. ¶ 39.
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`Section 1201(a)(1)(A) of the DMCA states “[n]o person shall circumvent a
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`technological measure that effectively controls access to a work protected
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`under [title 17, governing copyright].” “Circumvent,” as used in § 1201, “means
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`to descramble a scrambled work, to decrypt an encrypted work, or otherwise to
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`avoid, bypass, remove, deactivate, or impair a technological measure, without
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`the authority of the copyright owner[.]” § 1201(a)(3)(A). “[A] technological
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`measure ‘effectively controls access to a work’ if the measure, in the ordinary
`
`course of its operation, requires the application of information, or a process or
`
`a treatment, with the authority of the copyright owner, to gain access to the
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`work.” § 1201(a)(3)(B).
`
`Here, the complaint states that YouTube has “many [TPMs] to prevent
`
`unauthorized copying, recording, and distribution of video content posted by
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`creators, like Edland.” Docket 1 ¶ 17. It also states that Basin bypassed these
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`TPMs when it successfully copied, reproduced, and distributed the Videos, all
`
`without Edland’s authorization. See id. ¶¶ 18-21. This allows the court to draw
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`the inference that Basin circumvented YouTube’s technological measures to
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`
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`12
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 13 of 15 PageID #: 131
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`gain unauthorized access to the Videos. Thus, Edland has plausibly stated a
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`claim for violation of § 1201 of the DMCA.
`
`Basin asserts that Edland’s claim in Count II should be dismissed
`
`because he fails to identify a specific technological measure that Basin
`
`allegedly circumvented. Docket 11 at 18. But requiring specificity goes beyond
`
`the requirements of what must be averred in a complaint when evaluated
`
`under Rule 12(b)(6).
`
`Basin also argues that “the DMCA creates liability for the act of
`
`circumvention, and not for copying.” Docket 11 at 16. In support, Basin cites to
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`Chamberlain Group, Inc. v. Skylink Technologies., Inc., 381 F.3d 1178, 1193
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`(Fed. Cir. 2004). Essentially, Basin argues that infringement, or “copying,” and
`
`circumvention are not the same thing. See id. But in Chamberlain Group, the
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`court found that while infringement and circumvention are distinct from each
`
`other, an act of infringement can also involve an act of unauthorized
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`circumvention under the DMCA § 1201. See id. at 1193-94. Here, the
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`complaint alleges that in addition to acts of copyright infringement, Basin
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`circumvented technological measures in order to gain unauthorized access to
`
`the Videos—access that the technological measures would have precluded but
`
`for Basin’s alleged circumvention. Thus, Basin’s motion to dismiss Count II is
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`denied.
`
`V.
`
`Count III: Common Law – Copyright Infringement
`
`
`
`Basin moves under Rule 12(b)(6) to dismiss Count III, Edland’s claim for
`
`common law copyright infringement. Docket 11 at 19-20. Edland concedes that
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`
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`13
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`

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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 14 of 15 PageID #: 132
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`Count III should be dismissed and requests that it be dismissed without
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`prejudice. Docket 13 at 6 n.2. Basin asserts that it should be dismissed with
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`prejudice. Docket 14 at 16.
`
`Motions to dismiss under 12(b)(6) “are generally without prejudice, where
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`there is no evidence of persistent pleading failures.” Finnegan v. Suntrust
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`Mortg., 140 F. Supp. 3d 819, 832 (D. Minn. 2015) (citation and internal
`
`quotations omitted). When the plaintiff requests dismissal but the defendant
`
`has already answered, then under Rule 41(a)(2), “an action may be dismissed
`
`at the plaintiff’s request only by court order, on terms that the court considers
`
`proper. . . . Unless the order states otherwise, a dismissal under this paragraph
`
`(2) is without prejudice.” Fed. R. Civ. P. 41(a)(2).
`
`Here, it appears that Edland intended to voluntarily dismiss Count III
`
`before Basin could answer or otherwise respond. See Docket 13 at 26. Basin
`
`does not point to any improper motive on Edland’s part regarding dismissal of
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`Count III, and the court finds none. See Graham v. Mentor Worldwide LLC, 998
`
`F.3d 800, 804-05 (8th Cir. 2021). Thus, the court dismisses Count III without
`
`prejudice.
`
`VI. Attorneys’ Fees
`
`
`
`Basin seeks an award of attorney’s fees under 17 U.S.C. § 505 “[i]f the
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`Court grants Basin’s motion to dismiss at least with respect to Edland’s
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`copyright infringement claim.” Docket 11 at 21. Because the court denies the
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`motion to dismiss as to Edland’s copyright infringement claim, see supra
`
`section II, the court denies Basin’s request for attorneys’ fees.
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`
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`14
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`Case 4:21-cv-04008-KES Document 16 Filed 07/21/21 Page 15 of 15 PageID #: 133
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`CONCLUSION
`
`
`
`Edland has stated a claim on which relief can be granted as to Counts I
`
`and II of his complaint. Basin has established that Edland is not entitled to
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`relief in the form of statutory damages and attorneys’ fees as to Count I. And
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`the parties agree that the court should dismiss Count III. Thus, it is
`
`
`
`ORDERED that Basin’s motion to dismiss (Docket 10) is denied as to
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`Counts I and II, but granted as to statutory damages and attorneys’ fees under
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`the Copyright Act.
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`It is FURTHER ORDERED that Count III is dismissed without prejudice.
`
`Dated July 21, 2021.
`
`BY THE COURT:
`
`/s/ Karen E. Schreier
`KAREN E. SCHREIER
`UNITED STATES DISTRICT JUDGE
`
`
`
`15
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