Page:Datastorm Technologies v. Excalibur Communications.pdf/4

 attached to the complaint a stamped Certificate of Registration from the Copyright Office regarding the PROCOMM PLUS computer program. This Certificate constitutes prima facie evidence of a valid copyright. See 17 U.S.C. § 410(c); see also S.O.S., Inc. at 1085. While the Certificate only grants the holder the presumption of a valid copyright, such a presumption is strong in a motion to dismiss since the court must assume all factual allegations are true.

Here, Excalibur’s only argument to rebut the presumption is that Datastorm committed fraud on the Copyright Office by providing an insufficient answer on the application. Fraud on the Copyright Office requires an intent to defraud by the copyright holder and prejudice to the infringing party. Harris, 734 F.2d at 1335. While it is questionable whether Excalibur has met either requirement, such a determination will not be made at this time. To do so would require the Court to go outside the pleadings and render a factual determination. Such action is improper in a motion to dismiss for failure to state a claim, and is more appropriate in a motion for summary judgment.

Assuming all of Datastorm’s allegations as true, Excalibur has failed to show that the law would not permit the requested relief. Datastorm has alleged a valid copyright and infringement of that copyright by Excalibur. While Excalibur has argued that Datastorm does not hold a valid copyright over the “WMODEM.DAT” file, in a motion to dismiss this Court declines to make the factual determination necessary for such a finding. Accordingly, Excalibur’s Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is DENIED.

IT IS SO ORDERED.