The district court correctly concluded Mr. Greer âsufficiently allegedâ direct copyright infringement by a third party.â
Mr. Greerâs complaint alleged copyright violations related to his book and music. Mr. Greer provided the registration numbers and effective dates for both. RI.15, 17 (providing registration number of TX0008469519 and registration date of October 2017 for the book); RI.19 (providing registration number of SRu001366535 and registration date of April 2019 for the song). He included certificates from the United States Register of Copyrights. And Mr. Moon and Kiwi Farms do not dispute these copyrights were validly registered and their certificates appropriately issued pursuant to 17 U.S.C. §§ 408â410.
Recall, the Copyright Act grants copyright holders like Mr. Greer the generally exclusive rights âto reproduce the copyrighted work in copiesâ and
âto distribute copies . . . of the copyrighted work to the public . . . .â 17 U.S.C. § 106(1), (3). Usually, when a third party reproduces or distributes a copyrighted work without authorization, they infringe on the exclusive rights of a copyright holder under 17 U.S.C. § 501.
In his complaint, Mr. Greer alleged he discovered the book âhad been illegally put onto Kiwi Farmsâ in January 2018. RI.18. âSomebody,â he explained, âcreated a copy of [his] book and put it in a Google Drive that is accessible on Kiwi Farms.â RI.18. The complaint also included allegations "[o]ther users on Kiwi Farms have created unauthorized audio recordings ofâ the book âand have put them on various sites.â RI.19. Kiwi Farms, Mr. Greer continued, âhas links to these audio recordings.â RI.19. As to the song, Mr. Greer alleged he found an âMP3 of his song was . . . on Kiwi Farmsâ in April 2019. RI.20. A Kiwi Farms user posted the song with the comment âEnjoy this repetitive turd.â RI.20. Another user commented, âUpload it here so no one accidentally gives [Mr. Greer] money.â RI.20. The complaint also alleged âMr. Moonâs users spread Greerâs song across different sites.â RI.21.
Based on the complaint, we conclude, like the district court, Mr. Greer plausibly alleged direct, third-party infringement of copyright under 17 U.S.C. § 501.10
- On appeal, Mr. Moon and Kiwi Farms suggest the copyright infringement here may have been âfor purposes such as criticism and/or commentâ and is thus protected under the âfair useâ limitation of 17 U.S.C. § 107. Appellees Br. at 33. The paragraph discussion identifies the four factors in 17 U.S.C. § 107 but fails to explain what those factors are or why they apply here. We do not address this passing mention of a novel issue. See Day v. SkyWest Airlines, 45 F.4th 1181, 1192 (10th Cir. 2022) (declining âto consider [a] newly raised, inadequately briefed, and analytically complex issue in the first instance on appealâ).
- In any case, Mr. Moon and Kiwi Farms did not plead the affirmative defense of fair use, and, â[a]s a general rule, a defendant waives an affirmative defense by failing to plead it.â Burke v. Regalado, 935 F.3d 960, 1040 (10th Cir. 2019) (citing Bentley v. Cleveland Cnty. Bd. of Cnty. Commârs, 41 F.3d 600, 604 (10th Cir. 1994)); see also Fed. R. Civ. P. 8(c) (explaining âa party must affirmatively state any avoidance or affirmative defenseâ).
- Perhaps to get around the bar of waiver, Mr. Moon and Kiwi Farms describe fair use as âmore than an affirmative defense; the language of the statute makes it clear that fair use is not infringement at all.â Appellees Br. at 33 (citing 17 U.S.C. § 107). But we decline the invitation to transfigure fair use into an un-waivable defense. See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1285 n.21 (2023) (explaining âfair use is an affirmative defenseâ and the party invoking it âbears the burden to justify its takingâ of the protected work); id. at 1288 (Gorsuch, J., concurring) (discussing a partyâs invocation of âthe affirmative defense of âfair useâ to a claim of copyright infringementâ).
The district court also concluded Mr. Greer âsufficiently allegedâ âthe defendant knew of the direct infringement.â RI.134â35. Here, too, we
agree.
Mr. Greerâs takedown notices complied with 17 U.S.C. § 512(c)(3). A takedown notice under the DMCA needs to identify âthe copyrighted work claimed to have been infringedâ and âthe material that is claimed to be infringing or to be the subject of infringing activity . . . .â 17 U.S.C.§ 512(c)(3)(A)(ii)â(iii). Here, Mr. Greerâs original email and DMCA notices identified the book and song protected by copyright, pointed to the locations on Kiwi Farms where these works were being copied and shared without authorization, and requested Mr. Moon, as site administrator, remove the infringing materials.
While Mr. Moon debated the merits and style of Mr. Greerâs takedown noticesâclaiming in emails the infringements were protected under fair use and mocking the use of a âtemplateâ for the DMCA requestâthe complaint sufficiently alleged that Mr. Moon knew of the alleged direct infringement.
For contributory liability to attach, the final Diversey prong requires a defendant to âcauseâ or âmaterially contribute toâ third-partiesâ direct infringement. Diversey, 738 F.3d at 1204. The Supreme Court has described âcontributory infringersâ as those who are âin a position to control the use of copyrighted works by othersâ and who âauthorize[] the use without permission from the copyright owner.â Sony Corp., 464 U.S. at 437. As applied here, Mr. Greer was required to plausibly allege Mr. Moon and Kiwi Farms caused, materially contributed to, or authorized the direct infringement by Kiwi Farms users and other third parties of Mr. Greerâs book and song. We conclude he did so.
The district court correctly explained the Diversey factors and rightly identified the liberal pro se pleading standard. Nevertheless, it dismissed Mr. Greerâs contributory infringement claim after concluding, â[w]hat is missing is the Defendantsâ intentionally causing, inducing, or materially contributing to the infringement.â RI.135. âIt is not enough,â the district court continued, âfor a defendant to have merely âpermittedâ the infringing material to remain on the website, without having âinduc[ed] or encourage[ed]â the initial infringement.â11 RI.135 (citing Grokster, 545 U.S. at 930).
On appeal, Mr. Greer contends he âsufficiently pleaded factual allegations of inducementâ and encouragement. Appellant Br. at 46â52. Mr. Moon and Kiwi Farms reply they simply âallow[ed] an infringing use to exist on their websiteâ and so cannot be âliable for the actions of [their] users, even if [they] knew about the alleged infringement.â Appellees Br. at 35.12
We discern no error in the district courtâs explanation that contributory liability requires more than âmerely âpermittingâ the infringing material to remain on the website.â RI.135. And we conclude Kiwi Farms and Mr. Moon accurately state the law when they argue âa website owner or operator must do something other than allow an infringing use to exist on their website.â Appellees Br. at 35.
But these general principles of law are of little help here, where the record showsâand Mr. Greerâs complaint plausibly allegedâfar more than âa failure to take affirmative steps to prevent infringement . . . .â Grokster, 545 U.S. at 939 n.12 (emphasis added
When Mr. Greer discovered the book had been copied and placed in a Google Drive on Kiwi Farms, he âsent Mr. Moon requests to have his book removed . . . .â RI.18. Mr. Moon pointedly refused these requests. RI.18. In fact, instead of honoring the requests, Mr. Moon posted his email exchange with Mr. Greer to Kiwi Farms, belittling Mr. Greerâs attempt to protect his copyrighted material without resort to litigation. RI.18â19.
After the email request, Kiwi Farms users continued to upload audio recordings of Mr. Greerâs book, followed by digital copies of his song. When Mr. Greer discovered the song on Kiwi Farms, he sent Mr. Moon a takedown notice under the DMCA. Mr. Moon not only refused to follow the DMCAâs process for removal and protection of infringing copies, he âpublished [the] DMCA request onto [Kiwi Farms],â along with Mr. Greerâs âprivate contact information.â RI.22. Mr. Moon then âemailed Greer . . . and derided him for using a template for his DMCA requestâ and confirmed âhe would not be removing Greerâs copyrighted materials.â RI.23. Following Mr. Moonâs mocking refusal to remove Mr. Greerâs book and his song, Kiwi Farms users âhave continued to exploit Greerâs copyrighted material,â including two additional songs and a screenplay. RI.23.
Construing the pro se complaint liberally and drawing all reasonable inferences in Mr. Greerâs favor, we find Mr. Moonâs alleged conduct to fit within our understanding of material contribution.13 Mr. Greer sent repeated requests to Mr. Moon, identifying the materials on which he held the copyright, as well as where and how his rights were being infringed. Mr. Moon not only expressly refused to remove the materials, he mockingly posted the correspondence to Kiwi Farms. Under the circumstances, this is not the passive behavior of one âmerely permittingâ infringing material to remain on his site. Rather, we conclude a reasonable inference from the facts alleged is that the reposting of the takedown notice, combined with the refusal to take down the infringing material, amounted to encouragement of Kiwi Farms usersâ direct copyright infringement.
Mr. Greerâs complaint alleged Mr. Moon knew Kiwi Farms was an audience that had been infringing Mr. Greerâs copyrights and would happily continue to do so. Indeed, Kiwi Farms users had been uploading Mr. Greerâs copyrighted materials with the explicit goal of avoiding anyone âaccidentally giv[ing] [Mr. Greer] money.â RI.20. Further infringement followedâencouraged, and materially contributed to, by Mr. Moon. See Diversey, 738 F.3d at 1204. IV
We hold Mr. Greer has stated plausible claims of contributory copyright infringement against Mr. Moon and Kiwi Farms. The judgment of the district court is REVERSED and this case is REMANDED for further proceedings.
