Nordstrom Consulting, Inc. v. M&S Techs., Inc., No. 06 C 3234, 2006 WL 2931677 (N.D. Ill. Oct. 12, 2006) (Darrah, J.).
Judge Darrah held that plaintiff plead sufficient allegations to meet the pleading requirements to include the individual defendants, Marino and Butler who were both employees of the corporate defendant, M&S Technologies ("M&S"). Plaintiff alleged that Marino and Bulter, acting on M&S’s behalf, broke into plaintiff’s computer, bypassed its digital security system and then downloaded, copied and distributed plaintiff’s copyrighted software. Based on these allegations plaintiff alleged copyright infringement, violation of the Digital Millennium Copyright Act, unfair competition and other common law claims.
Marino sought dismissal claiming that plaintiff’s complaint did not allege sufficient facts to meet the "special showing" required for a corporate officer to be individually liable for the corporation’s infringements. The Court held that plaintiff need not plead facts corresponding to each element of the claim, in this case the special showing. It was enough that there were any facts consistent with plaintiff’s allegations which would entitle plaintiff to succeed and which could be established at a trial.
Similarly, Butler sought dismissal claiming he only acted at M&S’s direction through Marino. But the Court held that plaintiff stated claims that Butler’s actions — specifically, making unauthorized copies of plaintiff’s copyrighted software or installing unauthorized copies of the software — were the basis for his personal liability. The Court also quoted the copyright statute, 17 USC Section 501(a), for the proposition that "anyone who violates any of the exclusive rights of the copyright owner . . . is an infringer . . . ."