Plaintiff had standing under the DMCA even though lost sales had not been alleged with particularity. Bose BV v. Zavala, 2010 WL 152072 (D. Mass. Jan. 14, 2010). Cases of Interest >  IP >  Copyright Cases of Interest >  IP >  Copyright >  DMCA Cases of Interest >  Cyberlaw

Bose BV v Zavala

Plaintiff Bose manufactures, markets, and sells home theater systems known as Bose Lifestyle home theater systems which include a DVD player. Bose sets each DVD player to a specific region code that corresponds to the geographical region where the player will be sold. The DVD players can only play DVD’s with matching region codes. Bose sets the region code using proprietary firmware within the Lifestyle systems.
Defendant Zavala sells Bose Lifestyle home theater systems in auctions on eBay.com. In such auctions, Zavala offers to unlock the region coding within the DVD player or to give the purchaser directions on how to do so.

Plaintiff sought injunctive relief and damages in connection with the defendant’s alleged violations of the Digital Millennium Copyright Act (DMCA). Plaintiff moved to dismiss arguing that Bose lacks standing to assert claims under the DMCA because Bose never specifically alleged lost sales.

Must a Plaintiff allege lost sales with particularity to support a cause of action under the DMCA?

To have standing to assert claims under the DMCA, he plaintiff must (1) have constitutional standing; and (2) be a “person injured” within the meaning of 17 U.S.C. 1203(a).

Constitutional standing requires an “injury-in-fact.” In CoxCom v. Chaffee, the First Circuit held that a “plaintiff need only allege that the sale of the defendant’s products set in motion a chain of events from which a loss of remuneration ... could reasonably be expected” to be “injured in fact.” Applying this principal, the court reasoned that the plaintiff had sufficiently alleged that the defendant’s sales of Bose Lifestyle systems whose region coding was altered “could reasonably have been expected to deprive it of the opportunity to earn profits form the sale of legitimate Bose products to customers.”

The DMCA gives a cause of action to “any person injured by a violation of section 1201.” The court reasoned that because Bose controls the region coding, a technological measure that protects copyrighted DVDs, this was sufficient to allege that it is a “person injured” within the meaning of the DMCA.

Plaintiff Bose had constitutional standing and was a “person injured” within the meaning of the DMCA. Defendant’s Motion to Dismiss denied.

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