United States District Court, D. Massachusetts
SMALL JUSTICE LLC, RICHARD A. GOREN, and CHRISTIAN DUPONT d/b/a ARABIAN NIGHTS-BOSTON, MASSACHUSETTS, Plaintiffs,
XCENTRIC VENTURES LLC, Defendant
[Copyrighted Material Omitted]
For Small Justice LLC, Christian Dupont, d/b/a Arabianights-Boston Massachusetts, Plaintiffs: Richard A. Goren, LEAD ATTORNEY, Law Office of Richard Goren, Boston, MA.
For Richard A Goren, Plaintiff: Richard A. Goren, LEAD ATTORNEY, Boston, MA.
For Xcentric Ventures LLC, Defendant, Counter Claimant: Maria Crimi Speth, LEAD ATTORNEY, PRO HAC VICE, Jaburg & Wilk PC, Phoenix, AZ; Daniel G. Booth, Booth Sweet LLP, Cambridge, MA.
For Christian Dupont, d/b/a Arabianights-Boston Massachusetts, Counter Defendant: Richard A. Goren, LEAD ATTORNEY, Law Office of Richard Goren, Boston, MA.
[114 U.S.P.Q.2d 1322] MEMORANDUM AND ORDER
Denise J. Casper, United States District Judge.
Plaintiffs Small Justice LLC (" Small Justice" ), Richard A. Goren (" Goren" ) and Christian DuPont d/b/a Arabiannights-Boston, Massachusetts (" DuPont" ) (collectively, the " Plaintiffs" ) have filed this lawsuit against Defendant Xcentric Ventures LLC (" Xcentric" ) seeking declaratory judgment as to the ownership of copyright and alleging copyright infringement. D. 13. The Plaintiffs also allege that Xcentric violated Mass. Gen. L. c. 93A. Id. Xcentric has moved for summary judgment. D. 55 at 1. For the reasons stated below, the Court ALLOWS the motion.
II. Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). " A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but must come forward with specific, admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court " view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
III. Factual Background
This factual recitation is drawn from the undisputed facts submitted by both parties,
unless otherwise noted. Goren is a practicing attorney. D. 56 ¶ 1. Xcentric operates a website called the RipoffReport.com (" ROR" ). Id. ¶ 4. ROR is an interactive website providing an online consumer advocacy forum allowing users to post free complaints, called " reports," about companies and individuals whom they feel have wronged them in some manner. D. 66 ¶ 5.
To post a report on the ROR website, a user must create a free account by providing his or her name, address, posting pseudonym, e-mail address and telephone number. D. 56 ¶ 6. After the user provides details regarding the company or individual at issue, D. 64-1 & 64-2, and writes his or her report, D. 64-3, the user encounters a screen that says " Submit your Report" and " File a Report," D. 64-5. Below those headings appears a box titled " Terms and Conditions" with a scroll bar running down the right side of the box. D. 64-5, D. 56 ¶ 7, D. 65 ¶ ¶ 14-16. One of the terms, which is not visible unless a user employs the scroll bar, provides that " [b]y posting information or content to any public area of [the ROR], you automatically grant and you represent and warrant that you have the right to grant to Xcentric an irrevocable, perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and distribute such information and content . . . ." D. 56 ¶ 8;  D. 65 ¶ 33. A check box appears beneath the box containing the terms and conditions. D. 65 ¶ 17. Next to the checkbox is text that provides, in relevant part: " By posting this report/rebuttal, I attest this report is valid. I am giving Rip-Off Report irrevocable rights to post it on the website. I acknowledge that once I post my report, it will not ...