Retweet Of Infringing Materials Sufficient To Support Copyright Claim

"Winning isn't normal." That's the titular quote from author Keith F. Bell's sports psychology book, the beginning of the book's most notable passage, and part of a tweet initially posted by a third party and retweeted by Joshua Lifrak, director of the Chicago Cubs' Mental Skills Program. Based on that retweet, Dr. Bell brought a copyright infringement lawsuit against Mr. Lifrak and the Chicago Cubs. The District Court for the Northern District of Illinois recently denied in part the defendants' motion to dismiss Dr. Bell's complaint, allowing the retweet-based lawsuit to continue.

In May 2016, Mr. Lifrak retweeted an allegedly exact copy of "the WIN passage," taken from Dr. Bell's book, Winning Isn't Normal, without attributing its content to Dr. Bell. The author sued, alleging that Mr. Lifrak had directly infringed his copyright and that the Cubs had committed contributory copyright infringement and were vicariously liable for Mr. Lifrak's infringement. The defendants moved to dismiss Dr. Bell's complaint for failure to state a claim.

On February 4, 2020, the court issued a mixed opinion. First, the court denied the defendants' motion to dismiss the direct infringement claim against Mr. Lifrak because it was unclear whether retweeting creates a copy of the content on the user's computer. The court explained that defendants may be liable for direct infringement if their conduct creates a new electronic copy of copyrighted material—but are not liable if they simply link to the original copy. Based on Dr. Bell's original complaint, which stated that a copy of the retweet existed on servers controlled by the defendant, the court could not find that the defendants had definitively not created an additional copy.

However, the court granted the defendants' motion to dismiss the contributary copyright infringement claim. The court found that Dr. Bell did not allege any plausible facts that suggested that the Cubs had actual knowledge of the allegedly infringing activity. Rather, the retweet itself did not attribute the quote to Dr. Bell; the Cubs could thus not have known that it infringed Dr. Bell's copyright. And Dr. Bell did not give either defendant notice of the allegedly...