Appeal: FOURTH ESTATE PUBLIC BENEFIT CORPORATION, Plaintiff, v. WALL-STREET.COM, LLC, and Jerrold Burden. Defendants

Added By FourthEstate - Aug 26, 2016 - Court and Legal


WALL-STREET.COM, LLC, and Jerrold Burden. Defendants

FOURTH ESTATE PUBLIC BENEFIT CORPORATION (“Fourth Estate”) appeals the final judgment of the United States District Court for the Southern District of Florida, Miami Division, entered May 23, 2016. (Doc. 20). This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

Whether the District Court’s dismissal of Fourth Estate’s complaint for copyright infringement based upon Fourth Estate’s failure to obtain a registration certificate for the works at issue prior to initiating suit was erroneous where the complaint alleged that Fourth Estate complied with the requirements of 17 U.S.C. § 411(a) by filing an application for registration prior to filing suit.


The internet has challenged the business of journalism for profit. Fourth Estate was created to provide a viable alternative. Fourth Estate is a public benefit corporation dedicated to fostering, supporting and incubating a sustainable model for journalism. (Doc. 1:1). Fourth Estate is a growing community of individuals and organizations dedicated to journalism in the public interest and united by the common desire to support a vibrant free press. (Doc. 1:1).
In service to its mission, Fourth Estate produces high quality, timely, accurate and compelling journalism created by reporters working all over the world. (Doc. 1:2). Fourth Estate affordably licenses its content to AHN Feed Syndicate (“Feed Syndicate”), a global leader of cloud-based news and content solutions. (Doc. 1:2). Feed Syndicate has a non-exclusive license agreement with Fourth Estate under which Fourth Estate retains the copyrights to its content, as well as the rights to pursue infringement of its content and recover damages for infringement. (Doc. 1:2).
Feed Syndicate sells subscriptions to the Fourth Estate owned content pursuant to a Terms of Use to websites who want to feature the quality, timely, and compelling journalism Fourth Estate produces. (Doc. 1, Ex. 2). The Terms of Use includes a limited license and requires that “[p]rior to account cancellation you must stop display of all Feed Syndicate provided content and permanently take down, remove and/or delete all cached, saved, archived, stored or databased content or data.” (Doc. 1:4, Ex. 2)., Inc. (“Wall-Street”) owns and operates an online news and advertising website on the internet at (Doc. 1:2). On January 30, 2012, Wall-Street purchased a subscription to Feed Syndicate articles owned by Fourth Estate for display on Wall-Street’s website. (Doc. 1:2; Ex. 2). Wall-Street agreed to the Terms of Use and was required to take down the Fourth Estate content from its site prior to canceling its subscription. (Doc. 1:2; Ex. 2).
Thereafter, Wall-Street canceled its subscription but refused to take down Fourth Estate’s content. (Doc. 1:2). Wall-Street continued to copy, display and distribute Fourth Estate’s copyrighted articles without the permission of Fourth Estate. (Doc. 1:2). On March 11, 2016, Fourth Estate filed suit in the United States District Court for the Southern District of Florida against Wall-Street and its owner Jerrold D. Burden for copyright infringement in violation of 17 U.S.C. § 501. (Doc. 1:5). Prior to filing suit, Fourth Estate filed an application to register the copyrighted articles that Wall-Street infringed with the Copyright Office, made the required deposit and paid the fee. (Doc. 1:3). Fourth Estate listed 244 copyrighted articles at issue by title in Exhibit 1. (Doc. 1:4, Ex. 1). Fourth Estate asserted that upon receipt of the registration certificate for these works it would file the certificate with the court. (Doc. 1:3). Consistent with the Copyright Act, 17 U.S.C. § 410(d), and the regulations promulgated thereunder, when issued by the Register of Copyrights the registration certificate will be dated prior to the filing of this action. (Doc. 1:3).

In response to the Complaint, Wall-Street and Burden filed a motion to dismiss pursuant to Fed. R. Civ. P. Rule 12(b)(6) based upon Fourth Estate’s failure to attach a registration certificate to its Complaint. (Doc. 9). Wall-Street argued that without a registration certificate Fourth Estate lacked standing to sue. (Doc. 9). Fourth Estate opposed the motion. (Doc. 18). Fourth Estate argued that the Complaint sufficiently pled compliance with 17 U.S.C. § 411 because it had filed an application to register the works prior to filing the complaint. (Doc. 18). Defendants filed a reply repeating the arguments in their original motion. (Doc. 19).

On May 23, 2016, the District Court granted the motion to dismiss in a two page order. (Doc. 20). The District Court dismissed the Complaint because Fourth Estate had failed to obtain a registration certificate for the works infringed prior to initiating suit. (Doc. 20). This appeal followed.


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