"Winning isn't normal." That's the titular quote from author Keith F. Bell's sports psychology book, the beginning of the book's most notable passage, and part of a tweet initially posted by a third party and retweeted by Joshua Lifrak, director of the Chicago Cubs' Mental Skills Program. Based on that retweet, Dr. Bell brought a copyright infringement lawsuit against Mr. Lifrak and the Chicago Cubs. The District Court for the Northern District of Illinois recently denied in part the defendants' motion to dismiss Dr. Bell's complaint, allowing the retweet-based lawsuit to continue.

In May 2016, Mr. Lifrak retweeted an allegedly exact copy of "the WIN passage," taken from Dr. Bell's book, Winning Isn't Normal, without attributing its content to Dr. Bell.  The author sued, alleging that Mr. Lifrak had directly infringed his copyright and that the Cubs had committed contributory copyright infringement and were vicariously liable for Mr. Lifrak's infringement. The defendants moved to dismiss Dr. Bell's complaint for failure to state a claim.

On February 4, 2020, the court issued a mixed opinion. First, the court denied the defendants' motion to dismiss the direct infringement claim against Mr. Lifrak because it was unclear whether retweeting creates a copy of the content on the user's computer. The court explained that defendants may be liable for direct infringement if their conduct creates a new electronic copy of copyrighted material—but are not liable if they simply link to the original copy.  Based on Dr. Bell's original complaint, which stated that a copy of the retweet existed on servers controlled by the defendant, the court could not find that the defendants had definitively not created an additional copy. 

However, the court granted the defendants' motion to dismiss the contributary copyright infringement claim. The court found that Dr. Bell did not allege any plausible facts that suggested that the Cubs had actual knowledge of the allegedly infringing activity. Rather, the retweet itself did not attribute the quote to Dr. Bell; the Cubs could thus not have known that it infringed Dr. Bell's copyright.  And Dr. Bell did not give either defendant notice of the allegedly infringing conduct prior to filing suit. 

Dr. Bell was more successful in his claim for vicarious liability against the Cubs. That claim required Dr. Bell to prove two elements: first, that the Cubs had the right and ability to supervise the infringing conduct; and second, that the Cubs had a direct financial interest in that conduct. The court found that the complaint, which alleged that the Cubs had the right to police Mr. Lifrak's personal social media presence, had sufficiently pled the supervision element. The complaint further alleged that the Cubs had a direct financial interest in Mr. Lifrak's tweets because his social media presence increased the exposure of the Cubs. The court found these allegations minimally sufficient and thus denied the motion to dismiss.

Although the court allowed most of Dr. Bell's suit to continue, it expressed skepticism about his claims. The court warned, for example, that the complaint's assertion that a copy of the retweet remained on servers controlled by the defendants may turn out to be factually inaccurate. The court also questioned whether the plaintiff would be able "to marshal any actual evidence" that the individual retweet resulted in direct financial gain to the Cubs.  And even if that assertion is factually true and the plaintiff gathers evidence showing direct financial gain, the court noted that it may be difficult for Dr. Bell to "ever be able to establish knowledge or willfulness," which would be required to support a claim for more than the $200 minimum statutory damages under 17 U.S.C. § 504(c)(2).  

The decision is Bell v. Chi. Cubs Baseball Club, LLC, No. 19-cv-2386, 2020 U.S. Dist. LEXIS 17527 (N.D. Ill. Feb. 4, 2020).

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