Page:Datastorm Technologies v. Excalibur Communications.pdf/3

 by attached documents. Such documents are deemed part of the complaint and may be considered in determining whether the plaintiff can prove any set of facts in support of the claim. Durning at 1267.


 * B. Copyright Infringement

To prevail on its claim of copyright infringement, Datastorm must prove ownership of a valid copyright in the PROCOMM PLUS computer program, and that Excalibur infringed upon Datastorm’s exclusive right to reproduce the program. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 (9th Cir.1989).

II. ANALYSIS


 * A. Datastorm’s Amendment to the Original Complaint

Excalibur filed a Motion to Dismiss Datastorm’s original complaint on March 17, 1995. While that Motion was pending, Datastorm amended the complaint to add Excalibur’s president, Eric Bruce Weber, as a defendant. A complaint that has been amended pursuant to Fed.R.Civ.P. 15(a) supersedes the pleading it modifies, rendering the original pleading void. Loux v. Rhay, 375 F.2d 55 (9th Cir.1967); 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1476 at 556–557 (2d ed. 1990). Although Excalibur’s Motion to Dismiss is directed at the original complaint, which is now void, the Court will not require Excalibur to file another Motion to Dismiss directed at the First Amended Complaint. The original complaint was only amended to add a new party. This amendment does not effect the defects to which Excalibur bases its Motion to Dismiss. Accordingly, the Court will consider the Motion to Dismiss to be directed at the First Amended Complaint. For the Court to do otherwise would exalt form over substance. ''Patton Elec. Co. v. Rampart Air, Inc.'', 777 F.Supp. 704, 712 (N.D.Ind.1991); 6 Wright, Miller & Kane, Federal Practice and Procedure, § 1476 at 556–558 (2d ed. 1990).


 * B. Excalibur’s Motion to Dismiss

In support of the motion to dismiss, Excalibur argues that Datastorm does not possess a valid copyright to the WMODEMS.DAT file in the PROCOMM PLUS program. Excalibur bases this conclusion on Datastorm’s failure to sufficiently answer Question 6B in the Application for Copyright Registration submitted to the Copyright Office. Question 6B of the application is to be answered where a compilation is the subject of the copyright. It requires the applicant to “[g]ive a brief, general statement of the material that has been added to this work and in which copyright is claimed.” In response to Question 6B, Datastorm wrote “N/A” followed by “[COMPLETE PROGRAM].” Excalibur asserts that this answer is insufficient. Instead, Datastorm should have responded that, “[t]he WMODEMS.DAT file is a compilation.” In essence, Excalibur asserts that Datastorm’s response constituted fraud on the copyright office, thereby precluding enforcement of the copyright over the WMODEMS.DAT file.

Registration is not a prerequisite to a valid copyright, although it is a prerequisite to suit. 17 U.S.C. §§ 408(a), 411; S.O.S., Inc., 886 F.2d at 1085. A certificate of registration made within five years of first publication is prima facie evidence of the validity of the copyright. 17 U.S.C. § 410(c); S.O.S., Inc. at 1085. Inaccuracies in copyright registration may bar actions for infringement. Id. at 1086. However, enforcement of a copyright is precluded only if the inaccuracies were entered with the intent to defraud and the infringing party was prejudiced by such inaccuracies. Id., citing Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir.1984).

In a motion to dismiss, the Court must assume the truth of all factual allegations in the Complaint and any attached documents. Durning, 815 F.2d at 1267. Here, Datastorm has alleged that it holds a valid copyright to the PROCOMM PLUS program. Supporting this allegation, Datastorm