On February 7, 2013, defendants/counter-plaintiffs Marques Gunter (doing business as myVidster.com) and SalsaIndy, LLC (collectively, "myVidster") filed an amended answer to the Sixth Amended Complaint as well as affirmative defenses and a two-count counterclaim. Plaintiff/counter-defendant, Flava Works, Inc. ("Flava"), had moved to dismiss the original counterclaim, to which the amended counterclaim is largely identical. Count I of this counterclaim is a state-law claim for tortious interference with contract. In Count II, myVidster asserts that Flava violated the Digital Millennium Copyright Act (the "DMCA"), 17 U.S.C. § 512(f),(Limitations on liability relating to material online) by knowingly and materially misrepresenting that certain content that allegedly infringed copyrights was available on myVidster's website.
Count I of the counterclaim alleges that Flava tortiously interfered with myVidster's contractual relationships with three companies—Server Beach, Voxel Dot Net, Inc., and FDC Servers— whose servers hosted myVidster's web site. The claim was based on two types of conduct. MyVidster alleges that Flava (1) "improperly filed this lawsuit" and (2) in notices sent pursuant to the DMCA, misrepresented to the three companies the extent of infringing material that appeared on myVidster's site, in order to "intentionally and injustifiably induce" the companies' terminations of their contracts with myVidster.
In Count II of the counterclaim, myVidster alleges that Flava violated the DMCA, 15 U.S.C. § 512(f), by knowingly and materially misrepresenting that allegedly infringing content was available on myVidster, despite myVidster's previous expeditious removal of that content and despite Flava having received correspondence from myVidster confirming that the content had been removed.
Flava argued that myVidster fails to state a § 512(f) claim because it pleads knowledge in only a conclusory manner. The Court disagreed. MyVidster alleged that Flava knowingly misrepresented that certain infringing content was available on myVidster's web site despite having received notification from myVidster that the content had been removed and that Flava did so purposefully, in an effort to "improperly exaggerate the actual amount of infringing content available on the myVidster.com website."
For the foregoing reasons, the motion of plaintiff/counter-defendant Flava Works,Inc. to dismiss the counterclaim was granted in part as to Count I, which was dismissed with prejudice, but only to the extent that the claim was based on the alleged wrongful filing of this lawsuit. The motion was denied as to Count I to the extent that the claim was based on the alleged misrepresentation of intellectual-property infringement, and as to Count II.
FLAVA WORKS, INC., Plaintiff,
v.
MARQUES RONDALE GUNTER d/b/a myVidster.com; SALSAINDY, LLC d/b/a myVidster.com; JOHN DOES 1-26; and LEASEWEB B.V. d/b/a LeaseWeb.com, Defendants.
No. 10 C 6517.
United States District Court, N.D. Illinois, Eastern Division.
September 3, 2013.
United States District Court, N.D. Illinois, Eastern Division.
