Facebook Suit Against Social Networking Aggregator Power.com Survives Initial Court Test


Power.com is a social networking aggregator, boasting over 5 million users in India and Brazil, shutterstock_134112389that launched business in the U.S. in November 2008. It permits users to simultaneously log-in to multiple social networking sites, such as Myspace and Facebook and instant messaging sites, such as Twitter.

While some website operators might consider this service as free advertising, other might see it as posing the danger of supplanting the websites it aggregates. In fact, Power.com has already drawn significant lawsuit fire. In December 2008, shortly after the site premiered, Power.com was sued by Facebook. (Facebook, Inc. v. Power Ventures, Inc., et al., U.S.D.C., Northern District of California, Case No. C 08-5780).

Facebook claimed that Power.com was circumventing Facebook’s protocols for accessing its information, infringing on Facebook’s trademark, and inducing Facebook users to provide them with email addresses of Facebook contacts for the purposes of sending commercial messages that it falsely stated came from “The Facebook Team.” Facebook brought claims against Power.com under numerous legal theories, including violation of the CAN-SPAM act (15 USC §7701), copyright and trademark infringement, violation of the Digital Millennium Copyright Act and violation of California’s unfair competition law.

shutterstock_1561415934In response, Power.com brought a motion to dismiss/motion for more definite statement -challenging the sufficiency of the allegations in the complaint. However, the bar to survive such a motion in Federal court is not very high. Under Federal rules, a plaintiff generally does not have to be specific about the facts that underlie the claims he brings in a lawsuit. Federal courts deem it sufficient that the complaint merely contain sufficient facts to give the defendant “fair notice” of the nature of the claim and its basis. The courts rely on discovery and law and summary judgment to weed out unmeritorious claims. The main exception to this rule is for claims alleging fraud. For these claims, the complaint must state what the fraudulent representations were, who said them and where and when.

These rules largely dictated the outcome here. After Facebook filed its opposition, Power.com actually withdrew its motion as to the CAN-SPAM claims. According to Power.com’s reply brief, this did not amount to a concession that the claims had merit, but merely that Facebook had met the pleading standards for these claims.

indexAt the hearing on the motions, Judge Jeremy Fogel also found that Facebook had met Federal pleading standards for its copyright and trademark infringement, violation of the Digital Millennium Copyright Act. For example, to make out a claim under the Digital Millennium Copyright Act, a plaintiff must allege, inter alia, that the defendant circumvented a technological measure designed to protect the copyrighted material. See Chamberlain Group, Inc. v. Skylink Techs, Inc. 382 F.3d 1178, 2103 (Fed. Cir. 2003). Here, Facebook’s complaint had alleged that “Facebook implemented technological measures to block access to the Facebook site by Power.com” and that “Defendants’ deliberately circumvented Facebook’s technological security features . . .” These rather general allegations were cited by the Court as sufficient. (Order at 8:4). Fn1

Given the low pleading standards required for complaints, too much should not be made of the Court’s ruling. Internet content providers have often found ways to cope with aggregators. It will be interesting to see whether the tussle between Facebook and Power.com gets resolved via legal processes or business negotiations.