United States District Court, S.D. Ohio, Eastern Division
Magistrate Judge, Vascura
OPINION & ORDER
ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE
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.
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,
Tower and other entities 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).
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
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).