`
`n the 'uprcm Court of the Mniteb 'tate.
`
`THOMAS S. ROSS,
`
`Petitioner,
`
`-v-
`
`APPLE, INC.,
`A California Corporation,
`Respondent.
`
`On Petition for Writ of Certiorari to the
`United States Court of Appeals for the Eleventh Circuit
`
`PETITION FOR WRIT OF CERTIORARI
`
`THOMAS S. Ross
`PETITIONER PRO SE
`P.O. Box 279381
`MIRAMAR, FL 33027
`(954) 312-7532
`ERD1992@GLoBARIzE.COM
`
`OCTOBER 10; 2018
`SUPREME COURT PRESS
`
`•
`
`(888) 958-5705
`
`•
`
`BOSTON, MASSACHUSETTS
`
`
`
`1
`
`QUESTIONS PRESENTED'
`The Copyright Act grants copyright owners certain
`exclusive right's, including the rights to reproduce,
`distribute, and publicly display their copyrighted works.
`See 17 U.S.C. § 106. Direct copyright infringement
`occurs when a plaintiff proves ownership of the work at
`issue, and violation of at least one of the rights estab-
`lished by 17 U.S.C. § 106, 17 U.S.C. § 501(a).
`This case presents one question concerning the
`Standard of Review for a Motion of Dismissal in a
`Copyright Act:
`Whether the Eleventh Circuit correctly held that
`granting defendant's Motion for Dismissal was justi-
`fied even though a) plaintiff proved ownership of copy-
`rights that were the subject of the Complaint, and b)
`plaintiff alleged at least one violation of his rights
`established by 17 U.S.C. § 106, 17 U.S.C. § 501(a).
`
`
`
`11
`
`PARTIES TO THE PROCEEDING
`In addition to the parties named in the caption, the
`following entity was a party to the proceeding before
`the United States Court of Appeals for the Eleventh
`Circuit and may therefore be considered a respondent
`under this Court's Rule 12.6:
`• John F. O'Sullivan
`Jason Sternberg
`Hogan Lovells US LLP
`Brickell World Plaza
`600 Brickell Ave. Suite 2700
`Miami, FL 33131
`• Jane Zenzi Li Carter
`Hogan Lovells US LLP
`3 Embarcadero Center, Suite 1500
`San Francisco, CA 94111
`• Clayton C. James
`Jessica Black Livingston
`Katherine A. Nelson
`Hogan Lovells US LLP
`1601 Wewatta Street Suite 900
`Denver, CO 80202
`• Catherine Emily Stetson
`Hogan Lovells US LLP
`555 13th St NW, 7W-302
`Washington DC 20004-1109
`
`
`
`111
`
`RULE 29.6 STATEMENT
`Petitioner Pro Se, Thomas S. Ross, is not a
`corporation.
`
`
`
`iv
`
`TABLE OF CONTENTS
`
`Page
`
`QUESTIONS PRESENTED........................................i
`PARTIES TO THE PROCEEDING ...........................ii
`RULE 29.6 STATEMENT .........................................iii
`TABLE OF AUTHORITIES ......................................vi
`OPINIONS BELOW ...................................................1
`JURISDICTION..........................................................1
`STATUTORY PROVISIONS INVOLVED.................2
`STATEMENT OF THE CASE....................................3
`Facts of the Case..............................................3
`1. Ross's Lawsuit in the District Court..........4
`The District Court Proceedings.......................5
`Appellant Proved Ownership of Copy-
`rights in Question ....................................... 5
`Appellant Alleged Copying by Apple,
`Inc................................................................5
`Appellant Alleged Striking Similarity.......6
`The Appellate Court Proceedings.................... 7
`Statutory Framework ...................................... 7
`REASONS FOR GRANTING THE PETITION.......10
`I. THE ELEVENTH CIRCUIT'S STANDARD FOR
`GRANTING Mo'noN TO Disrvllss Is WRONG AND
`CREATES A SPLIT BETWEEN THE ELEVENTH
`CIRCUIT AND OTHER CIRCUITS ........................10
`CONCLUSION .......................................................... 12
`
`
`
`V
`
`TABLE OF CONTENTS - Continued
`
`Page
`
`APPENDIX TABLE OF CONTENTS
`
`Opinion of the Eleventh Circuit
`(July 12, 2018) .....................................................la
`Order of the District Court of Southern District
`of Florida (July 19, 2017) ...................................9a
`Order of the District Court of Southern District
`of Florida (December 30, 2016)........................21a
`
`
`
`V1
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Associated Builders, Inc. v. Ala. Power Co.,
`505 F.2d 97 (5th Cir. 1974) .................................8
`Beal v. Paramount Pictures Corp.,
`20 F.3d 454 (11th Cir. 1994).................................7
`Blackburn v. City ofMarshall,
`42 F.3d 925 (5th Cir. 1995).................................. 9
`Campbell v. Wells Fargo Bank,
`781 F.2d 440 (5th Cir. 1986).................................8
`Fernandez-Mon tes v. Allied Pilots Ass 'n,
`987 F.2d 278 (5th Cir. 1993) ...............................8
`Garrett v. Commonwealth Mortgage Corp.,
`938 F.2d 592 (5th Cir. 1991) ............................... 9
`Herzog v. Castle Rock Entm 't,
`193 F.3d 1241 (11th Cir. 1999)..............................8
`Hishon v. King & Spalding,
`467 U.S. 69 (1984) ................................................8
`Kaiser Aluminum & Chem. Sales v.
`A von dale Shipyards, Inc.,
`677 F.2d 1045 (5th Cir. 1982) .........................8, 9
`Lowrey v. Texas A &M Univ. Sys.,
`117 F.3d 242 (5th Cir. 1997) ...............................8
`Newborn v. Yahoo!, Inc.,
`391 F. Supp.2d 181,
`76 U.S.P.Q. 2d 1845 (D.C.C. 2005)....................11
`OriinalAppalachian Artworks, Inc. v. Toy Loft,
`Inc., 684 F.2d 821 (11th Cir. 1982).......................7
`
`
`
`Vii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Petrella v. Metro Goldwyn-Mayer, Inc.
`EtAL, 134 S.Ct. 1962 (2014) ............................... 6
`Sony Corp. ofAm. v. Universal City Studios,
`Inc., 464 U.S. 417 (1984)......................................7
`Spiller v. City of Tex. City, Police Dept,
`130 F.3d 162 (5th Cir. 1997).................................8
`Swierkie wicz v. Sorema NA.,
`534 U.S. 506, 122 S.Ct. 992 (2002) ..................... 9
`Tin Pan Apple, Inc. v. Miller Brewing Co., Inc.,
`737 F. Supp. 826, 17 Media L. Rep. (BNA)
`2273,15 U.S.P.Q. 2d 1412 (S.D.N.Y. 1990).......12
`
`STATUTES
`17 U.S.C. § 102(a) .......................................................7
`17 U.S.C. § 106.....................................................i, 2, 7
`17 U.S.C. § 501(a) ................................................i, 3,7
`28 U.S.C. § 1254(1) .....................................................1
`
`JUDICIAL RULES
`Fed. R. Civ. P. 8 ....................................................9, 11
`LR7.1(a)(c)(1) .............................................................4
`Sup. Ct.R. 12.6 ...........................................................ii
`Sup. Ct. R. 29.6 ..........................................................iii
`
`
`
`1
`
`OPINIONS BELOW
`Opinion issued by the U.S. Court of Appeals for
`the Eleventh Circuit as to Appellant Thomas S. Ross.
`Decision: Affirmed. Opinion type: Non-Published. Opin-
`ion method: Per Curiam. The opinion is also available
`through the Court's Opinions page at this link http://
`www.call.uscourts.gov/opinions. [Entered: 07/12/2018
`11:45 AM]
`Order of the U.S. District Court for The Southern
`District of Florida as to Plaintiff Thomas S. Ross.
`Decision: Granted Defendant's Motion to Dismiss
`(Entered December 30, 2016)
`Order of the U.S. District Court for The Southern
`District of Florida as to Plaintiff Thomas S. Ross.
`Decision: Denied Motion for Leave to File Amended
`Complaint (Entered July 19, 2017).
`
`JURISDICTION
`The judgment of the court of appeals was entered
`on July 12, 2018. On July 14, This Court's jurisdiction
`is invoked under 28 U.S.C. § 1254(1).
`
`
`
`2
`
`STATUTORY PROVISIONS INVOLVED
`. 17U.S.C.106
`The Copyright Act provides in pertinent part that:
`Subject to sections 107 through 122, the owner of
`copyright under this title has the exclusive rights
`to do and to authorize any of the following:
`to reproduce the copyrighted work in copies
`or phonorecords;
`to prepare derivative works based upon the
`copyrighted work;
`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;
`in the case of literary, musical, dramatic,
`and choreographic works, pantomimes, and
`motion pictures and other audiovisual works,
`to per-form the copyrighted work publicly;
`in the case of literary, musical, dramatic,
`and choreographic works, pantomimes, and
`pictorial, graphic, or sculptural works, in-
`cluding the individual images of a motion
`picture or other audiovisual work, to display
`the copy-righted work publicly;
`
`
`
`3
`
`17 U.S.C. § 501(a)
`The Copyright Act further provides in pertinent
`part that:
`Anyone who violates any of the exclusive rights
`of the copyright owner as provided by section El
`106 * * * is an infringer of the copyright.
`
`-1.,.
`
`STATEMENT OF THE CASE
`
`A. Facts of the Case
`In 1992, Ross created a set of original drawings
`in free-hand style and on plain lined medium paper,
`each depicting different views of what Ross called an
`Electronic Reading Device ("ERD") collection.
`On or about May 4, 2014, Ross registered his works
`of original authorship, with the United States Copyright
`Office, and secured Certificates of Registration for
`each of the works of original authorship.
`The One work of original authorship, that is
`relevant in this cause of action, is the drawing identified
`by the U.S. Copyright Office as Certificate of Regis-
`tration VAu 1-186-491 (491):
`On March 10, 2015, Ross sent a cease and
`desist letter to Apple, stating that Apple (1)
`infringed on his exclusive copyrights, (2)
`copied Ross's original design, (3) prepared
`derivative works based upon Ross's copy-
`righted work, (4) distributed copies of Ross's
`protected work to the public, and, (5) caused
`
`
`
`images of Ross's copyrighted work to be dis-
`played publicly without Ross's permission.
`On June 10, 2015, Apple sent a reply letter
`to Ross declining to comply.
`
`1. Ross's Lawsuit in the District Court
`On or about June 27, 2016, Ross filed an action
`in the United States Court for the Southern District
`of Florida alleging 17 counts relating to copyright
`infringement and misappropriation of intellectual
`property by Defendant-Appellee Apple, Inc. ("Apple").
`On December 30, 2016, the court granted Apple's
`motion to dismiss, holding that "Ross's Complaint
`satisfies the first element of an infringement claim"
`because Ross holds five copyright registrations for
`his drawings and these Certificates were attached to
`the Complaint. However, the district court dismissed
`the initial Complaint on the second element of the
`infringement claim, holding that it "d[id] not present
`with particularity" a description of how Apple's in-
`fringing designs were "strikingly similar" to the
`drawings copyrighted by Ross.
`The district court allowed Ross to seek leave to
`amend his complaint by January 21, 2017. Because
`January 21 fell on a Saturday, the actual due date
`was January 23, 2017. See Local Rule 7. 1 (a)(c)(1).
`On January 23, 2017, Ross filed a Motion for Leave
`to File an Amended Complaint, attaching the Amended
`Complaint to his motion. The Amended Complaint
`alleged a single count of copyright infringement against
`Apple's designs, and, as the district court noted, "ex-
`pand[ed] on the descriptions of the similarities between
`the ERD and Apple's products."
`
`
`
`5
`
`On July 18, 2017, the district court issued a
`Judgment and Order denying Ross's Motion to File an
`Amended Complaint
`
`B. The District Court Proceedings
`
`Appellant Proved Ownership of Copyrights in
`Question
`Appellant attached to his original Complaint,
`the Certificates of Copyright that were at issue in his
`original Copyright infringement allegations against
`Respondent, and the District Court acknowledged, in
`her Order Granting Motion To Dismiss, that "Ross's
`Complaint satisfies the first element of an infringement
`claim by alleging that he holds five copyright regis-
`trations in relation to each ERD Written Material." See
`Order of the U.S. District Court For The Southern
`District of Florida as to Plaintiff Thomas S. Ross.
`(Entered December 30, 2016) pg. 6-7.
`
`Appellant Alleged Copying by Apple, Inc.
`Respondent, by way of various Apple executives,
`publicly bragged about stealing abandoned ideas in
`order to profit from them and, not surprisingly did
`just that. They appropriated technologies and designs,
`aggregated all these components into their iPhone,
`iPad and iPod and created a money-making juggernaut.
`Apple, Inc., then, adopted a strategy to make slight
`changes or improvements to various components of
`these devices, in order to re-brand them as new
`generations of products, while maintaining the original
`design, that, by their own admission, was the thing
`that produced enormous sales worldwide from 2007 on.
`This is the design that Appellant alleges has "the same
`
`
`
`concept, feel and look" to that of Plaintiff's drawing
`identified as "drawing 491" in his Amended Complaint,
`that never saw the light of day because the District
`Court denied Appellant's Motion To File his Amended
`Complaint.
`As to this element, the District Court found that
`"It does not, however, allege any facts showing when
`and how Apple copied constituent elements of Ross's
`original works." See Order of the U.S. District Court
`For the Southern District of Florida as to Plaintiff
`Thomas S. Ross. (Entered December 30, 2016) pg. 7.
`
`3. Appellant Alleged Striking Similarity
`Ross alleged that APPLE, Inc. product line was
`strikingly similar to his copyright protected design
`because they have the "same overall look and feel"
`(See Petrella v. Metro Goldwyn-Mayer, Inc. Et Al,
`134 S.Ct. 1962 (2014)) consisting of a distinctive shape
`and appearance, a flat rectangular shape with rounded
`corners".1 Ross, then, enumerates all of APPLE, Inc.
`devices that infringe on his copyrighted design "491",
`and alleges that this is a continuous infringement
`running from 2007 and continuing to this date, thus
`inclusive of the last three years from the commence-
`ment of this action. The District Court saw it differ-
`ently, as it concluded that "This lack of specificity leaves
`
`1 This is the same standard of comparison that Apple, Inc. used
`in their Complaint when they claimed that Samsung was
`infringing on the designs of their products. (See Apple's Complaint
`in Apple v. Samsung. as filed in the United States District for
`The Northern District of California on April 11, 2011.) (* * * The
`iphone is radically different from the devices that preceded it. It
`has a distinctive shape and appearance-a flat rectangular shape
`with rounded corners * * *
`
`
`
`7
`
`the Complaint bereft of detail sufficient to afford Apple
`the opportunity to draft a meaningful responsive plead-
`ing." See Id. Pg 10.
`
`The Appellate Court Proceedings
`The U.S. Court of Appeals for the Eleventh Circuit
`Affirmed the decisions of the District Court for The
`Southern District of Florida, on July 12, 2018.
`
`Statutory Framework
`The Copyright Act grants copyright owners certain
`exclusive rights, among them the rights to reproduce,
`distribute, and publicly display their copyrighted works,
`and to authorize others to do the same. See 17 U.S.C.
`§ 106(1), (3), (5). As this Court has explained, "[alnyone
`who violates any of the exclusive rights of the copyright
`owner,' that is, anyone who trespasses into his exclusive
`domain by using or authorizing the use of the copy-
`righted work in one of the * * * ways set forth in the
`statute, 'is an infringer of the copyright."' Sony Corp.
`of Am. v. Universal City Studios, Inc., 464 U.S. 417,
`433 (1984) (quoting 17 U.S.C. § 501(a)).
`"Two elements must be proven to establish copy-
`right infringement: (1) ownership of a valid copyright,
`and (2) copying of constituent elements of the work
`that are original. Beal v. Paramount Pictures Corp.,
`'20 F.3d 454, 459 (11th Cir. 1994). As to the first prong,
`an "author has a valid copyright in an original work
`at the moment it is created—or, more specifically,
`fixed in any tangible medium of expression." See
`Original Appalachian Artworks, Inc. v. Toy Loft, Inc.,
`684 F.2d 821, 823 n.1 (11th Cir. 1982) (citing 17 U.S.C.
`§ 102(a)). Copyright law never protects an idea itself,
`
`
`
`[]
`
`but only protects the expression of that idea. Herzog v.
`Castle Rock Entin't, 193 F.3d 1241, 1248 (11th Cir.
`1999)." See Opinion of the United States Court of
`Appeals for the Eleventh Circuit (July 12, 2018), pg. 6.
`Standard of Review of a Motion to Dismiss.
`[A] motion to dismiss for failure to state a
`claim is viewed with disfavor and is rarely
`granted." Kaiser Aluminum & Chem. Sales
`v. Avondale Shipyards, Inc., 677 F.2d 1045,
`1050 (5th Cir. 1982). The court must accept
`as true all well pleaded, nonconclusory allega-
`tions in the complaint, and must liberally
`construe the complaint in favor of the plain-
`tiff. Lowrey v. Texas A &M Univ. Sys., 117
`F.3d 242, 246-247 (5th Cir. 1997); Campbell
`v. Wells Fargo Bank, 781 F.2d 440, 442 (5th
`Cir.1986). However, conclusory allegations,
`unwarranted deductions of fact, or legal
`conclusions masquerading as factual allega-
`tions will not suffice to prevent the granting
`of a motion to dismiss. Fernandez-Mon tes v.
`Allied Pilots Ass'n, 987 F.2d 278, 284 (5th
`Cir. 1993); Spiller v. City of Tex. City, Police
`Dep't, 130 F.3d 162, 167 (5th Cir. 1997); Asso-
`ciated Builders, Inc. v. Ala. Power Co., 505
`F.2d 97, 100 (5th Cir. 1974). A court should
`not dismiss a complaint for failure to state a
`claim unless it appears beyond doubt from
`the face of the plaintiffs pleadings that he
`can prove no set of facts in support of his
`claim that would entitle him to relief. Hishon
`v. King & Spalding, 467 U.S. 69, 73 (1984);
`Garrett v. Commonwealth Mortgage Corp.,
`
`
`
`938 F.2d 592, 594 (5th Cir. 1991); Kaiser Alu-
`minum, 677 F.2d at 1050. Dismissal is proper
`if the complaint lacks an allegation regarding
`a required element necessary to obtain relief.
`Blackburn v. City of Marshall, 42 F.3d 925,
`930 (5th Cir. 1995).
`[...1
`Rule 8 requires a short and plain statement
`of the claim showing that the pleader is
`entitled to relief. Fed. R. Civ. P. 8(a)(2). The
`statement must give the defendant fair
`notice of the plaintiffs claim and the grounds
`upon which it rests. Swierkiewicz, 534 U.S.
`at 512, 122 S.Ct. at 998. The simplified notice-
`pleading standard relies on liberal discovery
`rules and summary-judgment motions to
`define the disputed facts and issues and dis-
`pose of meritless claims. Id. at 512, 122 S.Ct.
`at 998.
`See Arista Records v. David Greubel Case 4:05-cv-
`00531-Y.
`
`
`
`10
`
`REASONS FOR GRANTING THE PETITION
`Whether the Eleventh Circuit should have denied
`Motion to Dismiss when Plaintiff attached certificates
`of Copyright to his Complaint and satisfying the
`question of ownership, thus Creating a Split Between
`The 11th Circuit and the 2nd and 5th Circuits.
`
`I. THE ELEVENTH CIRCUITS STANDARD FOR GRANTING
`MOTION TO Dismiss Is WRONG AND CREATES A Spu'r
`BETWEEN THE ELEVENTH CIRCUIT AND OTHER
`CIRCUITS
`In contemplating the course of events in this
`instant case, Appellant is reminded of a currently
`popular television advertisement, where, in the back-
`ground, it shows a mother manually washing dishes
`and then, putting them in the dishwasher, prompting
`the young girl in the foreground, to ask "what is the
`dishwasher for?".
`It strikes Appellant that much of these proceed-
`ing involving Copyright litigation prompts the same
`question.
`Consider the fact that we have a Copyright Office
`whose task is to determine what is copyrightable and
`what is not. Appellant waited a year, for the decision
`of the Copyright Office to determine that his sub-
`missions were, indeed, worthy of copyright protection.
`Then, there is a rule that requires a litigant to have
`a Certificate of Copyright before he/she can file a
`copyright infringement lawsuit. In addition, much is
`written to profess that the Office of Copyright is
`
`
`
`11
`
`given much deference during legal proceedings, with
`respect to copyrightability, and has been further
`widely held that the Certificate of Copyright creates
`a presumption of ownership.
`Yet, this Eleventh Court of Appeals has demon-
`strated that a judge has the power to declare a
`copyrighted design certified to be protectable, null
`and void, stating, "there is nothing uniQue or expressive
`about a handheld electronic device being rectangular
`with a screen" (See the Opinion at pg. 9), yet, that is
`exactly what the Copyright Office issued a Certificate
`of Copyright for. So, this begs the question, what is a
`Copyright Office for?
`In consideration of Rule 8 of Federal Rules of
`Civil Procedure, and the standard of Review relating
`to Motions to Dismiss, The Court of Appeals was wrong
`in Affirming the Motion to Dismiss. As in many other
`copyright litigations, lip service is given to 1) Rule 8,
`2) allowing Pro Se litigants a more liberal interpreta-
`tion, and 3) viewing the facts in light most favorable
`to the Plaintiff, but if fact, as in this instant case, all
`of this is, more often than not, is totally ignored.
`Even when a Plaintiff may fall short with allega-
`tions of copying or "Striking Similarity", a Plaintiff
`that has proven ownership of the subject Copyright
`protected designs, and has attached the Copyright
`Certificates to the Complaint, should be given a chance
`to test his claim of infringement through discovery and
`Trial by Jury, rather than by an Order by the
`"Bench". This is wrong, and this Court should overturn
`decisions by the lower courts. See Newborn v. Yahoo!,
`Inc., 391 F. Supp.2d 181, 76 U.S.P.Q. 2d 1845 (D.C.C.
`2005) citing Tin Pan Apple, Inc. v. Miller Brewing Co.,
`
`
`
`12
`
`Inc., 737 F. Supp. 826, 17 Media L. Rep. (BNA) 2273,
`15 U.S.P.Q. 2d 1412 (S.D.N.Y. 1990).
`
`.T.
`
`CONCLUSION
`The 11th Circuit Affirmed a dismissal of a Motion
`to Dismiss granted by the District Court in spite of
`Plaintiffs showing that he owned Certificates of
`Copyright by attaching same to the Complaint, and
`alleging that defendant copied his designs and alleged
`that the designs were infringing in that the overall
`concept, feel and look of them, are "strikingly similar"
`as viewed by an ordinary person, not an expert.
`Plaintiff should have been allowed to test the validity
`of his claims through discovery, and have a trier of
`facts, a Jury, determine whether Plaintiffs designs are
`copyrightable and whether Apple, Inc. infringed on
`his designs. We have the 11th Circuit ready to Affirm
`a dismissal of Plaintiffs case, whereas the 5th Circuit
`would have likely looked with "disfavor" at such a
`Motion, and the 2nd Circuit would have likely denied
`on the grounds that Plaintiff proved Ownership of the
`copyright, even if his/her allegation of copying and
`"striking similarity" might have been viewed as vague.
`Clearly there are conflicting applications of the
`Standard of Review of Motions to Dismiss in copyright
`infringement cases, among various Circuits, that this
`Court needs to address.
`
`
`
`13
`
`Respectfully submitted,
`
`THOMAS S. Ross
`PETITIONER PRO SE
`P.O. Box 279381
`MIRAMAIR, FL 33027
`(954) 312-7532
`ERD l992@GLoBARIzE.coM
`
`OCTOBER 10, 2018
`
`
`
`
`
`
`
`APPENDIX TABLE OF CONTENTS
`
`Opinion of the Eleventh Circuit
`(July 12, 2018) ....................................................la
`
`Order of the District Court of Southern District
`of Florida (July 19, 2017) ...................................9a
`
`Order of the District Court of Southern District
`of Florida (December 30, 2016)........................21a
`
`