Premium Sports, Inc. v. Barbosa et al. (18-cv-11502).

  • July 20, 2018

In 2022, Matthew Power filed a pro se complaint accusing Connectweb, Anchor Rubber Stamp and Printing Co., Google, J.P. Cooke Co., Rubber Stamp Champ, Inc. and Michael and Paul Beaulieu of copyright infringement.  The complaint seeks a declaration that Power is either the exclusive author of a derivative work or the co-author, along with Connectweb, of a joint work.  Power says that he is a prolific software writer who was employed by Connectweb for about18 months in 2014-2015, at which point he was laid off due to lack of funding.  During the time he was employed, Power also ran an independent software business, of which he says Connectweb was aware.  Power says that he was rehired as an independent contractor to create a new version of Connectweb’s “Custom Vantage Web” (“CVW”) software.  The work was to be performed by Power at his home, using his own tools, time and  expense, to be purchased by Connectweb once completed.  Power created a first update in March 2016, and a total of 38 different versions over the next several years.  Power says that he was not an employee of Connectweb at the time, and that the copyright in this update was never assigned to Connectweb and would not qualify as a work made for hire. 

Power alleges that Connectweb published his work to an unknown number of clients, without having obtained a commercial license from Power.  He says that when he refused to do further work for Connectweb, the company agreed to pay him a bare minimum towards the 50% of the earnings from the updated CVW software that he believes he is due, with the rest to be paid once Connectweb became solvent.   Power brought counts for declaratory judgment of copyright ownership, copyright infringement, conspiracy to commit copyright infringement, breach of fiduciary duty, conversion/theft of trade secrets, violation of c. 93A, violation of the computer fraud and abuse act, secondary copyright infringement (basically contributory infringement), vicarious copyright infringement, unfair competition, replevin, imposition of a constructive and/or resulting trust, and defamation.  He also began sending DCMA takedown notices to sites, including Google, that he contends used his copyrighted software in connection with their sites. Connectweb filed counterclaims for a declaration that it owned the copyrights on the software in question as well as trade secret misappropriation claims. 

The defendants filed a motion to dismiss, citing numerous grounds for dismissal.  When Power failed to appear for the hearing on the motion, the court indicated that it would decide the motion on the papers.  Magistrate Judge Dein granted Anchor Rubber Stamp and Printing Co.’s, Rubber Stamp Champ, Inc.’s, and J.P. Cooke’s motion to dismiss for lack of personal jurisdiction, finding that Power had not made a prima facie case of sufficient contacts with Massachusetts.  In the meantime, Connectweb filed an emergency motion seeking an order prohibiting Power from posting the source code for the contested software on the internet and soliciting harassment of Connectweb by hackers.  This motion was granted in part by Judge Dein. 

In analyzing the motion to dismiss, Judge Dein looked to 28 U.S.C. § 1915€, which provides that a pro se complaint must be dismissed if the court determines the action to be “frivolous or malicious.”  Here, the Court deemed the copyright claim was not, on the face of the complaint, “clearly baseless” or “wholly incredible” and thus survived a motion to dismiss.  The complaint alleged that Power was not an employee, that he never assigned the copyright, and that he was granted co-ownership of the software in lieu of payment at a time when Connectweb was in financial difficulty.  Judge Dein likewise denied dismissal with respect to the declaratory judgment count.  The complaint alleged that Power had been granted permission by Connectweb to create derivative works – software updates – sufficiently to maintain the claim.  Judge Dein rejected Connectweb’s argument that the statute of limitations precluded the declaratory judgment claim, noting that while the first publication of the updates by Connectweb occurred more than four years before the suit was filed, his claim did not “accrue” within the meaning of the statute of limitations until years later, when Connectweb stopped paying royalties and first disputed his co-ownership of the work.

Judge Dein granted Connectweb’s motion with respect to the copyright infringement count, finding Power’s allegations that he and Connectweb were co-owners defeated any claim that Connectweb’s publication was illicit – co-owners have full rights to use a copyrighted work subject only to an accounting of any profits.  She also dismissed the conspiracy to commit copyright infringement claim, finding it both unavailable due to Connectweb’s publication of the software not being infringing and because it is preempted by the Copyright Act.  The injunctive relief claim was dismissed because it is only a remedy, and not a stand-alone cause of action, in Massachusetts.  The breach of fiduciary duty claim was also dismissed, because the complaint did not allege facts sufficient to establish a duty of trust and confidence between Power and Connectweb.

Finally, the c. 93A claim was not dismissed.  Connectweb asserted that the claim was inapplicable because any dispute arose through Power’s employment with Connectweb, but the facts as pled indicate that Power was not employed by Connectweb but instead was an independent contractor, for which a 93A claim might apply.

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