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bensbargains v xpbargains

bensbargains v xpbargains

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Published by internetcases

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Published by: internetcases on Aug 31, 2007
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06cv1445 BTM
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF CALIFORNIA
BENSBARGAINS.NET, LLC,,Plaintiff,CASE NO. 06cv1445 BTM
ORDER GRANTING IN PART ANDDENYING IN PART MOTION FORSUMMARY JUDGMENT
vs.XPBARGAINS.COM, ET AL.,Defendants.AND RELATED COUNTERCLAIMS.Defendants have filed a motion for summary judgment on Plaintiffs’ Second AmendedComplaint for copyright infringement. For the reasons discussed below, Defendants’ motionis
GRANTED IN PART
and
DENIED IN PART
.
I. BACKGROUND
Benjamin Chui (“Chui”) is the owner of BensBargains.net LLC, which operates theinternet websitewww.Bensbargains.net.Chui posts daily lists of deals that he has chosenas the best deals. (Chui Decl., ¶ 2.) The deals pertain to a variety of products, includingelectronics, software, computer hardware, lawn furniture, sporting goods, bicycles andcameras. (Id.) Chui compiles his list by searching the Internet and by learning of deals from
 
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vendors with whom Chui has a relationship. (Chui Decl., ¶ 4.) Chui typically posts only oneproduct from any given category of products. (Id.) When users click a deal on theBensBargains website, the users are directed to the vendor’s website. (Chui Decl, ¶ 3.) Ifthe users make a purchase, BensBargains typically receives a commission from the vendor.(Id.)Chui claims: “My compilations of postings are unique in that they are eclectic, oftengoing from a deal on a ream of paper to a Mont Banc pen, to a mountain bike. Eachseemingly random compilation, keeps the user engaged by offering disparate products pricedfrom very small amounts to very high amounts, but intentionally not in any monetary order,and offers the user a bargain on something at almost every given price point.” (Chui Decl.,¶ 5.) Chui explains that his eclectic grouping of deals tends to create an excitement amongusers and create an experience similar to a “flea market” or estate sale. (Id.)In late 2002, Chui suspected that Defendants were copying significant portions of hiscompilations onto their website,www.xpbargains.com.Chui began registering his dailycompilations of deals. Between February 27, 2004 and October 31, 2005, Chui registered29 compilations. (Defs.’ Lodgements 4-30.)According to Chui, BensBargains would publish its compilation at 11:00 p.m., or so,and Defendants would typically begin copying these compilations around 6:00 a.m. thefollowing morning. (Chui Decl., ¶ 7.) Because Defendants would copy starting from the topof BensBargain’s list, their list would be in the inverse order. (Id.) Additional deals addedby Chui during a given day would be copied within a matter of hours to XPBargains. (Id.)On or about October 9, 2005, Chui began placing intentional misspellings in individualdeals in some of the compilations by inserting his name, “Ben,” into the text. On October 9,2005, 7 instances of the misspellings were reflected on XPBargains. On October 16, 2005,6 instances appeared on XPBargains. (Pl.’s Ex. C.)In his Second Amended Complaint, Plaintiff asserts a single claim of copyrightinfringement. Defendants have asserted Counterclaims against Plaintiff and Mr. Chui. Mr.Chui has filed state counterclaims against all Defendants.
 
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II. DISCUSSION
Defendants move for summary judgment against Plaintiff on Plaintiff’s claim forcopyright infringement. Defendants argue that (1) Plaintiff’s compilations are not sufficientlyoriginal to qualify for copyright protection; and (2) Even if Plaintiff’s compilations areprotected by copyright laws, Plaintiff cannot show substantial similarity between itscompilations and Defendants’. As discussed below, Plaintiff’s compilation consists of anoriginal selection of deals and, arguably, an original arrangement of deals. However, thereare only a few instances where there is sufficient similarity between the protected featuresof Plaintiff’s compilation and Defendants’ corresponding compilation to raise a triable issueas to copyright infringement.1. OriginalityThe Copyright Act of 1976 defines compilation as “a work formed by the collection andassembling of preexisting materials or of data that are selected, coordinated, or arranged insuch a way that the resulting work as a whole constitutes an original work of authorship.” 17U.S.C. § 101. Under the statute, three distinct elements must be met for a work to qualifyas a copyrightable compilation: (1) the collection and assembly of pre-existing material, facts,or data; (2) the selection, coordination, or arrangement of those materials; and (3) thecreation, by virtue of the particular selection, coordination, or arrangement, of an originalwork of authorship. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340,357 (1991).The originality requirement is not a stringent one. As explained by the SupremeCourt:A compiler may settle upon a selection or arrangement that others have used;novelty is not required. Originality requires only that the author make theselection or arrangement independently . . . and that it display some minimallevel of creativity. Presumably, the vast majority of compilations will pass thistest, but not all will.Id. at 359.In Feist, the Court held that the selection, coordination and arrangement of the
 
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