Okocha v. Amazon.com ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-3-2005
Okocha v. Amazon.com
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4125
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"Okocha v. Amazon.com" (2005). 2005 Decisions. Paper 266.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4125
________________
BASIL E. OKOCHA;
BASIL PUBLISHING COMPANY
v.
AMAZON.COM
Basil E. Okocha,
Appellant
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-02115)
District Judge: Honorable Faith S. Hochberg
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 21, 2005
Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES
(Filed: November 3, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Basil E. Okocha appeals from an order of the United States District
Court for the District of New Jersey granting summary judgment in favor of
Amazon.com. We will affirm.
The procedural history of this case need not be discussed at length as it is well-
known to the parties and set forth in the District Court’s opinion. In 1993 Okocha wrote
and published a book in Nigeria entitled The Old Man Who Refused to Die. In 2001
Okocha moved to the United States. In 2002 Okocha decided to self-publish his book in
the United States through his publishing business, Basil Publishing Company. Okocha
planned to publish the book in 2006. In conjunction with his publishing company,
Okocha created two websites using his name as a key word for internet search engines.
Okocha subsequently visited a search engine and submitted his name as a search term.
The search returned a link to the title of his book on Amazon.com. By clicking on the
link, Okocha discovered that copies of his book were listed for sale by several third-party
sellers on the Amazon.com website. However, there were no listings for the sale of
Okocha’s book by Amazon.com itself.
In May 2003, Okocha filed a complaint against Amazon.com in the United States
District Court for the District of New Jersey alleging, inter alia, copyright infringement,
conspiracy, fraud, negligent/intentional infliction of emotional harm, and loss of future
wages. Amazon.com filed a motion to dismiss for failure to state a claim, which the
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District Court converted into a motion for summary judgment. Okocha then filed a
motion for summary judgment. By order entered October 13, 2004, the District Court
granted summary judgment in favor of Amazon.com. Okocha appeals.
After careful review of the record and consideration of the arguments on appeal,
we agree with the District Court that Amazon.com was entitled to judgment as a matter of
law. With regard to the copyright claim, Okocha failed to show that he owned a valid
United States or foreign copyright for The Old Man Who Refused to Die, or that
Amazon.com copied the material. See Masquerade Novelty, Inc., v. Unique Indus., Inc.,
912 F.2d 663, 667 (3d Cir. 1990) (setting forth the elements of a copyright infringement
claim). Even assuming that Okocha owned a valid copyright,1 Amazon.com did not
interfere with Okocha’s exclusive right to distribute his book because reselling a copy of
a previously purchased book does not infringe upon the right of distribution. See 17
U.S.C. § 109.
The internet printouts submitted by Okocha to prove that Amazon.com listed
several copies of his book for sale also clearly indicate that the books listed for sale were
published in 1993, the year the book was originally published in Nigeria. The fact that
the books listed for sale were published in 1993 indicates that they were not published at
a later date and redistributed internationally by Amazon.com as Okocha asserts. The
1
On appeal, Okocha submitted documents purporting to prove that he owned a valid
foreign copyright for The Old Man Who Refused to Die. We will not review the documents
because they were submitted for the first time on appeal.
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evidence instead established that the independent third-party sellers were selling used
copies of Okocha’s 1993 book. Summary judgment thus was properly granted in favor of
Amazon.com with respect to the copyright claim.
Amazon.com was likewise entitled to judgment as a matter of law with respect to
Okocha’s conspiracy claim. A conspiracy involves an intent to achieve a common
improper goal and an agreement to work together toward that improper goal. See, e.g.,
United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001). Okocha failed to provide
admissible evidence to show that Amazon.com and the third-party sellers conspired to
violate his copyrights. As for Okocha’s remaining claims alleging, inter alia, fraud,
negligent/intentional infliction of emotional harm, and loss of future wages, we have
thoroughly reviewed the record and conclude that Amazon.com was entitled to judgment
as a matter of law.
Accordingly, we will affirm the order of the District Court. Okocha’s motion to
expedite is denied. His motion to file supplementary proof and a supplemental appendix
is granted.
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