Disclaimer: This research paper was written by a law student exploring whether victims of Jerk.com could file a class action lawsuit against Jerk.com. While this information may be useful in beginning legal research, do not rely on it as an accurate representation of the law.
Potential Claim Against Jerk.com
The claim arises from 17 U.S.C. § 501 which gives the owner of a copyright the right to institute an action pursuant to section 411 for damages for violation of an exclusive right of the copyright owner. Jerk LLC violated this section when they posted pictures, taken by plaintiffs, on their website, without permission.
Under Section 411, registration of a copyright with the Copyright Office is required before the commencement of an action. As such, we will need to ensure that at least one of the named plaintiffs has registered their copyright. In Muchnick, the United States Supreme Court held that the District court had subject-matter jurisdiction to certify a class, in copyright infringement action, that included not only holders of registered copyrights but also holders of unregistered copyrights, and had subject-matter jurisdiction to approve a class action settlement encompassing the alleged infringement of both registered and unregistered works. Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010). Thus we will be able to certify a class so long as several of our named plaintiffs have registered in accordance with section 411 to give the court proper jurisdiction.
This is a federal claim brought under Title 17 of the U.S.C., as such, for subject matter jurisdiction we would need to pursue this claim in federal court in the United States District of Minnesota. In order to have Personal Jurisdiction for this court we will need to show that the defendant satisfies minimum contacts. This can be done by illustrating that the site was available to residents in this state and that plaintiffs are in fact on the site, thus satisfying the minimum contacts to subject Jerk LLC to the jurisdiction of the court.
We will seek both temporary and permanent injunctive relief under Section 502. This section provides for injunctive relief as is “reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502. Relief included will be temporary and permanent removal of all images violating Section 501 that are contained on Jerk.com and stored by JERK LLC.
Further, we will seek monetary damages under Section 504. Under this section, “The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. § 504. While proving actual damages suffered may be difficult, we could attempt to do so by showing harm as a result of being displayed on such a site. A specific instance may be difficulty in finding a job, etc. Easier to prove will be the profits of the infringer that are attributable to the infringement. This may be done by showing the gross revenue associated with the infringement. Instances, would be any fee’s JERK LLC has received as a result of a plaintiff attempting to remove themselves from the site, advertising associated with the site etc. Most likely, it will be a percentage of the total gross revenue that JERK LLC has earned based on the amount of infringing vs. non-infringing.
Class Action Lawsuit Status
In order for a suit to be filed as a class action, we must meet the following requirements: 1. Commonality; 2. Typicality; 3. Adequacy; and 4. Numerosity; See Fed. R. Civ. P. 23(a).
The third and fourth elements of adequacy and numerosity should be met without much challenge. Generally, numersosity is never challenged and is obviously met, or not. Adequacy may be questioned in certain cases to ensure that the class is properly represented and the interests of the attorneys are not in contrast of the class’s interest. Here, I do not see us having a problem with either element.
Our claim may be challenged by the first and second elements of commonality and typicality. These two elements are usually inter-related. “Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 158 (1982).
Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean merely that they have all suffered a violation of the same provision of law. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (citation omitted).
Typicality requires the named plaintiff’s claims to be representative of the class. The fourth Rule 23(a) requirement requires that “a class representative … be part of the class and possess the same interest and suffer the same injury as the class members.” Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358, 371 (E.D. Ark. 2007) (citation omitted).
Further, a suit must meet the requirements of Fed. R. Civ. P. 23(b). “The superiority portion of Rule 23(b)(3) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). In determining whether a class action is the superior method for adjudicating the claims before it, the Court looks at four factors: 1) the class members’ interest in individually controlling their separate actions; 2) the extent and nature of existing litigation by class members concerning the same claims; 3) the desirability of concentrating the litigation in the particular forum; 4) and the likely difficulties in the management of a class action. Fed.R.Civ.P. 23(b)(3).” Haney v. Recall Ctr., 282 F.R.D. 436, 442 (W.D. Ark. 2012).
In our case we would want to show that the class has generally the same interest, that being the removal of their copyrighted material and compensation for the damages. Further, the difficulties of many similar suits and managing them makes it economical for the court to allow for the class action. “A class action serves to conserve the resources of the court and the parties by permitting an issue that may affect every class member to be litigated in an economical fashion.” Luiken v. Domino’s Pizza, LLC, 277 F.R.D. 395, 398 (D. Minn. 2011). Our case also involves relatively small damage awards on an individual basis making individual suits cost ineffective. “The most compelling rationale for finding superiority in a class action is whether the action is a negative value suit. In re Baycol Products Litig., 218 F.R.D. 197, 210 (D. Minn. 2003) (citation omitted).
Overall, our weakest elements are commonality and perhaps typicality depending on our named plaintiffs and the fact that the two issues go hand-in-hand.
Piercing Jerk.com’s Corporate Veil
Assuming Jerk LLC has limited funds, making the monetary incentive to go after them very little, we will want to be able to go after the people behind the LLC. In order to do this we have an option other than the traditional veil piercing. Vicarious liability is highly applicable in a copyright infringement case. “The prerequisites for vicarious liability for copyright infringements are: 1. the right and ability to supervise the infringing activity; and 2. an obvious and direct financial interest in exploitation of copyrighted materials.” RCA/Ariola Intern., Inc. v. Thomas & Grayston Co., 845 F.2d 773, 781 (8th Cir. 1988). “The purposes of copyright law may be best effectuated by the imposition of liability upon the beneficiary of that exploitation.” Rosenthal v. MPC Computers, LLC, 493 F. Supp. 2d 182, 189 (D. Mass. 2007). “It is thus unnecessary to pierce the corporate veil before imposing personal liability for copyright infringement on a corporate officer.” Graham Hanson Design LLC v. 511 9th LLC, 10 CIV. 5493 KMW, 2011 WL 744801 (S.D.N.Y. 2011).
It appears that John Fanning, millionaire owner of Napster, is the president and owner of Jerk LLC, which owns jerk.com. As such in order to attach liability to him we will need to show that he meets both of these elements. If he is in fact the president of Jerk LLC he almost certainly has the right and ability to supervise. We need not prove that he had the intent or knowledge of the infringement. “Actual intent to infringe is not necessary for liability under the Act. Therefore, individual liability may be imposed on a corporate officer who had no knowledge of the infringement.” Pandaw Am., Inc. v. Pandaw Cruises India Pvt. Ltd., 842 F. Supp. 2d 1303, 1314 (D. Colo. 2012) (citations omitted). This may be proven by showing the rights and duties the president has under the LLC operating agreement. Further, by being the owner of Jerk LLC we will be able to show that he had an obvious and direct financial interest. If the infringing material were removed, the site would lose the content that allows for internet users to actually be able to use the site.
I have two major issues I have been un-able to resolve which would prevent this case from moving beyond a motion to dismiss.
The first issue is that the actual person in the pictures posted on jerk.com, are almost certainly not taken by that same person. If this is the case, it appears they would not have any claim to copyright. In order for them to have copyright they either need to have taken the picture themselves or been given the exclusive rights to the picture. Exclusive rights may only be given by a signed writing. As such, I believe we would fail in being able to show that the plaintiffs are in fact the copyright owners. See 17 U.S.C. § 101 (copyright owner definition). See 17 U.S.C. § 204 (Transfer of copyright ownership). See 17 U.S.C. § 501 (only copyright owner may institute an action).
The second issue that we run into is whether or not the plaintiffs actually gave permission to Jerk LLC. Based on the initial research the majority of the pictures on jerk.com were grabbed from facbook via an app. Most likely this app requested the permission to use the pictures and the plaintiffs accepted those permissions when they clicked through the acknowledgment form to use the app. If this is the case, we would have no claim because the plaintiffs did in fact grant the license of their pictures through their own negligence.
Based on these two issues I see a major hurdle. Ultimately it would require a lot of time and effort to file the initial complaint only to have the case dismissed on these grounds. Further, I am unable to find a single case against Jerk LLC completed or still pending regarding any issues with jerk.com. I believe this may be a result of the fact that, while the site is repugnant, it is unfortunately legal. The best remedy for people who are injured by this site would be education in IP and protecting themselves from the start by making sure they understand what they are agreeing to before granting permissions, etc. to others online.
Although those featured in pictures on jerk.com are not the copyright holders of those pictures, whoever took the picture may have a claim against jerk.com for copyright infringement because whoever took the picture is a copyright holder. To sue for copyright infringement, the person who took the picture must register the copyright with the U.S. Copyright office.
Victims of jerk.com may have “invasion of privacy” rights in various states that make it illegal (a tort) to invade someone’s privacy by publicly posting private information (including images) about a person.