Judge Dismisses Developer’s Copyright Infringement Lawsuit Against Facebook

A long-running court case accusing a Facebook application developer — and Facebook itself — of copyright infringement was recently dismissed. Many have been watching the case, as social games and other applications are widely copied on Facebook’s platform, and the difference between “inspiration” and illegal intellectual property theft is not always clear.

The reason for dismissal is that, according to the judge’s analysis (here), the plaintiff wasn’t clear about what the infringement was or how it was happening — and specifically how Facebook was allegedly responsible.

In other cases of copyright infringement on Facebook, as with Hasbro’s suit against the developers of Scrabulous, the plaintiff has not gone after Facebook itself. The reason is that content platforms are not easily held liable for what third parties do on them.

It can still be appealed, but in the meantime the case doesn’t seem to have resulted in more clarity about what qualifies as copyright infringement on Facebook.

Daniel P. Miller developed a Flash-based casual video game called Boomshine in early 2007. It’s one of a series of casual games that his company, K2lxl.com, has launched over the years. The game has you clicking your mouse to create a temporary circle on a black screen. Meanwhile, little colored balls are bouncing around, and if you trigger the circle right, you can use it to explode some of those little balls and get points. It’s surprisingly addictive.

Yao Wei Yeo built his own version of this game, named it Chain Rxn, and launched it on Facebook around a year ago under his developer name, Zwigglers Apps. Miller, who had previously copyrighted the game, sued both him and Facebook last year, after asking both parties to remove the app from the platform. The case has taken a couple twists and turns, as Eric Goldman has been covering on his Technology & Marketing Law Blog, with one being that Facebook got the case moved from where Miller had begun it in Atlanta, Georgia, to northern California.

That’s where the ruling — from last week — happened, as handed down by U.S. district judge William Alsup. The gist is that Miller tried to take on both Yao and Facebook in a single case, and didn’t clearly explain how Facebook’s platform works in relation to the issue.

Plaintiff alleges that he did not authorize defendant Facebook to copy, display or distribute infringing copies of Boomshine. Plaintiff, however, does not allege sufficient factual allegations to suggest how defendant Facebook copied, displayed or distributed infringing copies of Boomshine. The complaint merely alleges that defendant Facebook “published ChainRxn in their [sic] Application Directory” and that defendant Facebook “took the affirmative step to approve ChainRxn for publication on its Application Directory” (Compl. ¶¶ 15, 16). As alleged, the application directory “allows every Facebook user to search and view the application from within the directory” (Compl. ¶ 15). These allegations are insufficient. The complaint does not specify what is actually published on the application directory. As the complaint currently reads, it is unclear whether defendant Facebook published a copy of the game on its application directory, published a link to the game, included a place for Facebook users to blog about the game, or published a combination of these and/or other things.

Alleging that the application directory allows every Facebook user to “search and view” the application from within the directory is vague and also very different from alleging that the application directory allows Facebook users to play the ChainRxn game from within the directory. This difference is important because of its legal implications. If plaintiff wishes to proceed with his direct copyright infringement claim, he must include sufficient factual allegations that explain how defendant Facebook copied, displayed or distributed infringing copies of Boomshine.

Alsup also addresses the possibility that Miller is alleging that Facebook is guilty of indirect, contributor or vicarious copyright infringement, as the complaint is not clear. As Goldman summarizes:

The court also rejects Miller’s allegations of Facebook’s secondary [indirect] infringement for Yeo’s activity. The contributory claim fails because Miller did not adequately allege material contribution given that the judge can’t figure out what Facebook did wrong. The vicarious infringement claim fails because Miller did not adequately allege a right and ability to supervise the infringement given the ambiguity over what took place on Facebook’s premises.

Miller still has fourteen calendar days to appeal, and if his legal representation provides a clearer description of how the platform works, the case might go back to court.

But it’d most likely be a fight based on principle more than money. Chain Rxn peaked at under a million users last fall, according to our independent AppData tracking service, and it has fallen all the way to 204,000 monthly active users today. Simple casual games like this typically don’t monetize well on Facebook — there’s no meaningful paid model for it to take advantage of, and it doesn’t use virtual goods to convert some free users to paid. It’s running what look to be low-quality ads with the game now, but those don’t typically make much money, either, unless you have millions more users.