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Tower v. Amazon.com, Inc.

United States District Court, S.D. Ohio, Eastern Division

February 26, 2018

TABATHA TOWER, et al., Plaintiffs,
v.
AMAZON.COM, INC., et al., Defendants.

          Magistrate Judge, Vascura

          OPINION & ORDER

          ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Amazon.com, Inc.'s (“Amazon”) Motion for Summary Judgment (ECF No. 79) and Plaintiff Tabatha Tower's Cross-Motion for Summary Judgment (ECF No. 82). For the following reasons, the Court GRANTS Amazon's Motion for Summary Judgment (ECF No. 79) and DENIES Plaintiff's Cross-Motion for Summary Judgment (ECF No. 82).

         I. BACKGROUND

         A. Factual Background

         In 2005, Plaintiff Tabitha Tower authored a book entitled “Crossing The Enemy: The Identity Crisis, ” (the “Book”). (ECF No. 82 at 35, Tower Aff. at ¶ 1). In 2007, Ms. Tower received a copyright for the Book from the U.S. Copyright Office. (Id. at ¶ 3). Subsequently, Ms. Tower entered into a publishing contract with Dorrance Publishing/Rosedog Books (the “Publisher”). (Id. at ¶¶ 4-5). The Publisher listed the Book for sale on its website, and also listed the Book with other sellers, including Defendant Amazon. (Id. at ¶ 6). Defendants Kenkebook and Any Book listed the Book for sale on Amazon's website. (Id. at ¶ 10). Records submitted by Amazon show that seven copies of the Book have been sold on Amazon.com-one by Plaintiff's company, Tower Publishing Co., and six by Amazon. (ECF No. 79-1, McGrath Aff. ¶¶ 8-10). The six copies sold by Amazon were purchased from the Publisher. (Id. at ¶ 9, Ex. B). Neither Any Book nor Kenkebooks have sold any copies of the Book on Amazon.com. (Id. at ¶¶ 12-17, Ex. C).

         B. Procedural History

         Ms. Tower and other entities[1] filed a complaint on June 12, 2015 against Amazon, Rosedog Books, Kenkebooks, and Any Book. (ECF No. 1). This Court stayed the case as to Defendant Rosedog Books, pending arbitration of Ms. Tower's claims against Rosedog Books pursuant to an arbitration agreement. (ECF No. 55 at 12). Ms. Tower sought default judgment against Kenkebooks and Any Book, but later withdrew her request. (ECF Nos. 18-21, 25). After filing an amended complaint, she again applied for a default judgment against Kenkebooks and Any Book, which the Court denied without prejudice as premature on August 18, 2016, since the Clerk had not yet entered a default against them. (ECF Nos. 30, 50-51, 55). On November 9, 2016, the Court directed Ms. Tower to show cause within fourteen days why the action should not be dismissed against Kenkebooks and Any Book for failure to effect service. (ECF No. 58). The Magistrate Judge recently recommended dismissal of the action against Kenkebooks and Any Book. (ECF No. 88).

         As for Defendant Amazon, the amended complaint alleges that:

Amazon.com Inc was negligent by not exercising due care when paying vendors listing my materials on their Web site Amazon.com Inc repeatedly paid Kenkebooks and Any Book “first rights” to my copyrighted materials. Amazon paid Kenkebooks for selling more copies than the publisher said was printed. When you log onto Amazon's Web site to purchase my book, it defaults to Kenkebooks.

ECF No. 30 at 3. The relief Ms. Tower requests from Amazon is to:

cease and dissist [sic] order and remove Kenkebooks and Anybooks from selling my book. Find Amazon negligent by not exercising due care and due diligence in copyright first rights payment and a judgment for them to pay me all sales money for my book.

Id. at 4. On May 15, 2017, Amazon filed the instant motion for summary judgment (ECF No. 79) arguing that the claims against it must be dismissed for two reasons. First, Amazon argues that Ms. Tower fails to state a claim because neither Kenkebook nor Any Books sold any copies of her Book on Amazon. (Id. at 6). Second, Amazon argues that Ms. Tower's claims are barred by the first-sale doctrine because all copies of the Book allegedly listed on Amazon by Kenkebook and/or Any Book were “used” copies. (Id. at 7-9). Ms. Tower filed her response in opposition to Amazon's motion for summary judgment on May 30, 2017, and simultaneously requested summary judgment on her behalf. (ECF No. 82). She argues that Amazon does not reasonably demonstrate that only seven copies of the Book were sold and that Amazon and its third party sellers violated her copyright by selling materials that belong to her. (Id. at 2-3).

         II. ...


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