The district court correctly concluded Mr. Greer āsufficiently allegedā direct copyright infringement by a third party.ā
Mr. Greerās complaint alleged copyright violations related to his book and music. Mr. Greer provided the registration numbers and effective dates for both. He included certificates from the United States Register of Copyrights. And Mr. Moon and Kiwi Farms do not dispute these copyrights were validly registered and their certificates appropriately issued pursuant to 17 U.S.C. Ā§Ā§ 408ā410.
Recall, the Copyright Act grants copyright holders like Mr. Greer the generally exclusive rights āto reproduce the copyrighted work in copiesā and āto distribute copies . . . of the copyrighted work to the public . . . .ā 17 U.S.C. Ā§ 106(1), (3). Usually, when a third party reproduces or distributes a copyrighted work without authorization, they infringe on the exclusive rights of a copyright holder under 17 U.S.C. Ā§ 501.
In his complaint, Mr. Greer alleged he discovered the book āhad been illegally put onto Kiwi Farmsā in January 2018. āSomebody,ā he explained, ācreated a copy of [his] book and put it in a Google Drive that is accessible on Kiwi Farms.ā The complaint also included allegations "[o]ther users on Kiwi Farms have created unauthorized audio recordings ofā the book āand have put them on various sites.ā Kiwi Farms, Mr. Greer continued, āhas links to these audio recordings.ā As to the song, Mr. Greer alleged he found an āMP3 of his song was . . . on Kiwi Farmsā in April 2019. A Kiwi Farms user posted the song with the comment āEnjoy this repetitive turd.ā Another user commented, āUpload it here so no one accidentally gives [Mr. Greer] money.ā The complaint also alleged āMr. Moonās users spread Greerās song across different sites.ā
Based on the complaint, we conclude, like the district court, Mr. Greer plausibly alleged direct, third-party infringement of copyright under 17 U.S.C. Ā§ 501.10
- On appeal, Mr. Moon and Kiwi Farms suggest the copyright infringement here may have been āfor purposes such as criticism and/or commentā and is thus protected under the āfair useā limitation of 17 U.S.C. Ā§ 107. Appellees Br. at 33. The paragraph discussion identifies the four factors in 17 U.S.C. Ā§ 107 but fails to explain what those factors are or why they apply here. We do not address this passing mention of a novel issue. See Day v. SkyWest Airlines, 45 F.4th 1181, 1192 (10th Cir. 2022) (declining āto consider [a] newly raised, inadequately briefed, and analytically complex issue in the first instance on appealā).
- In any case, Mr. Moon and Kiwi Farms did not plead the affirmative defense of fair use, and, ā[a]s a general rule, a defendant waives an affirmative defense by failing to plead it.ā Burke v. Regalado, 935 F.3d 960, 1040 (10th Cir. 2019) (citing Bentley v. Cleveland Cnty. Bd. of Cnty. Commārs, 41 F.3d 600, 604 (10th Cir. 1994)); see also Fed. R. Civ. P. 8(c) (explaining āa party must affirmatively state any avoidance or affirmative defenseā).
- Perhaps to get around the bar of waiver, Mr. Moon and Kiwi Farms describe fair use as āmore than an affirmative defense; the language of the statute makes it clear that fair use is not infringement at all.ā Appellees Br. at 33 (citing 17 U.S.C. Ā§ 107). But we decline the invitation to transfigure fair use into an un-waivable defense. See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1285 n.21 (2023) (explaining āfair use is an affirmative defenseā and the party invoking it ābears the burden to justify its takingā of the protected work); id. at 1288 (Gorsuch, J., concurring) (discussing a partyās invocation of āthe affirmative defense of āfair useā to a claim of copyright infringementā).
The district court also concluded Mr. Greer āsufficiently allegedā āthe defendant knew of the direct infringement.ā Here, too, we
agree.
Mr. Greerās takedown notices complied with 17 U.S.C. Ā§ 512(c)(3). A takedown notice under the DMCA needs to identify āthe copyrighted work claimed to have been infringedā and āthe material that is claimed to be infringing or to be the subject of infringing activity . . . .ā 17 U.S.C.Ā§ 512(c)(3)(A)(ii)ā(iii). Here, Mr. Greerās original email and DMCA notices identified the book and song protected by copyright, pointed to the locations on Kiwi Farms where these works were being copied and shared without authorization, and requested Mr. Moon, as site administrator, remove the infringing materials.
While Mr. Moon debated the merits and style of Mr. Greerās takedown noticesāclaiming in emails the infringements were protected under fair use and mocking the use of a ātemplateā for the DMCA requestāthe complaint sufficiently alleged that Mr. Moon knew of the alleged direct infringement.
For contributory liability to attach, the final Diversey prong requires a defendant to ācauseā or āmaterially contribute toā third-partiesā direct infringement. Diversey, 738 F.3d at 1204. The Supreme Court has described ācontributory infringersā as those who are āin a position to control the use of copyrighted works by othersā and who āauthorize[] the use without permission from the copyright owner.ā Sony Corp., 464 U.S. at 437. As applied here, Mr. Greer was required to plausibly allege Mr. Moon and Kiwi Farms caused, materially contributed to, or authorized the direct infringement by Kiwi Farms users and other third parties of Mr. Greerās book and song. We conclude he did so.
The district court correctly explained the Diversey factors and rightly identified the liberal pro se pleading standard. Nevertheless, it dismissed Mr. Greerās contributory infringement claim after concluding, ā[w]hat is missing is the Defendantsā intentionally causing, inducing, or materially contributing to the infringement.ā āIt is not enough,ā the district court continued, āfor a defendant to have merely āpermittedā the infringing material to remain on the website, without having āinduc[ed] or encourage[ed]ā the initial infringement.ā (citing Grokster, 545 U.S. at 930).
On appeal, Mr. Greer contends he āsufficiently pleaded factual allegations of inducementā and encouragement. Appellant Br. at 46ā52. Mr. Moon and Kiwi Farms reply they simply āallow[ed] an infringing use to exist on their websiteā and so cannot be āliable for the actions of [their] users, even if [they] knew about the alleged infringement.ā Appellees Br. at 35.12
We discern no error in the district courtās explanation that contributory liability requires more than āmerely āpermittingā the infringing material to remain on the website.ā And we conclude Kiwi Farms and Mr. Moon accurately state the law when they argue āa website owner or operator must do something other than allow an infringing use to exist on their website.ā Appellees Br. at 35.
But these general principles of law are of little help here, where the record showsāand Mr. Greerās complaint plausibly allegedāfar more than āa failure to take affirmative steps to prevent infringement . . . .ā Grokster, 545 U.S. at 939 n.12 (emphasis added
When Mr. Greer discovered the book had been copied and placed in a Google Drive on Kiwi Farms, he āsent Mr. Moon requests to have his book removed . . . .ā Mr. Moon pointedly refused these requests. In fact, instead of honoring the requests, Mr. Moon posted his email exchange with Mr. Greer to Kiwi Farms, belittling Mr. Greerās attempt to protect his copyrighted material without resort to litigation.
After the email request, Kiwi Farms users continued to upload audio recordings of Mr. Greerās book, followed by digital copies of his song. When Mr. Greer discovered the song on Kiwi Farms, he sent Mr. Moon a takedown notice under the DMCA. Mr. Moon not only refused to follow the DMCAās process for removal and protection of infringing copies, he āpublished [the] DMCA request onto [Kiwi Farms],ā along with Mr. Greerās āprivate contact information.ā Mr. Moon then āemailed Greer . . . and derided him for using a template for his DMCA requestā and confirmed āhe would not be removing Greerās copyrighted materials.ā Following Mr. Moonās mocking refusal to remove Mr. Greerās book and his song, Kiwi Farms users āhave continued to exploit Greerās copyrighted material,ā including two additional songs and a screenplay.
Construing the pro se complaint liberally and drawing all reasonable inferences in Mr. Greerās favor, we find Mr. Moonās alleged conduct to fit within our understanding of material contribution.13 Mr. Greer sent repeated requests to Mr. Moon, identifying the materials on which he held the copyright, as well as where and how his rights were being infringed. Mr. Moon not only expressly refused to remove the materials, he mockingly posted the correspondence to Kiwi Farms. Under the circumstances, this is not the passive behavior of one āmerely permittingā infringing material to remain on his site. Rather, we conclude a reasonable inference from the facts alleged is that the reposting of the takedown notice, combined with the refusal to take down the infringing material, amounted to encouragement of Kiwi Farms usersā direct copyright infringement.
Mr. Greerās complaint alleged Mr. Moon knew Kiwi Farms was an audience that had been infringing Mr. Greerās copyrights and would happily continue to do so. Indeed, Kiwi Farms users had been uploading Mr. Greerās copyrighted materials with the explicit goal of avoiding anyone āaccidentally giv[ing] [Mr. Greer] money.ā Further infringement followedāencouraged, and materially contributed to, by Mr. Moon. See Diversey, 738 F.3d at 1204. IV
We hold Mr. Greer has stated plausible claims of contributory copyright infringement against Mr. Moon and Kiwi Farms. The judgment of the district court is REVERSED and this case is REMANDED for further proceedings.
