1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) MICHAEL S. ELKIN (pro hac vice) melkin@winston.com STACEY FOLTZ STARK (pro hac vice) sfstark@winston.com WINSTON & STRAWN LLP 200 Park Avenue New York, NY 10166-4193 Telephone: (212) 294-6700 Facsimile: (212) 294-4700 JENNIFER A. GOLINVEAUX (SBN 203056) jgolinveaux@winston.com WINSTON & STRAWN LLP 101 California Street, 35th Floor San Francisco, CA 94111-5840 Telephone: (415) 591-1000 Facsimile: (415) 591-1400 VIVIAN S. KUO (pro hac vice) vkuo@winston.com WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, D.C. 20006-3817 Telephone: (202) 282-5000 Facsimile: (202) 282-5100 ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE Attorneys for Defendants Cox Media Group, LLC, AOL Inc., 5 Minutes LLC, Verizon Digital Media Services, Inc., and Brightcove, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRAND TECHNOLOGIES, INC., Plaintiff, v. COX MEDIA GROUP, LLC, AOL, INC., VERIZON DIGITAL MEDIA SERVICES, INC., 5 MINUTES LLC, and BRIGHTCOVE, INC., Defendants. Case No. CV 2:16-cv-05038-AB-JEM NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS I AND II OF PLAINTIFF’S SECOND AMENDED COMPLAINT AND TO DISMISS THE SAC AGAINST 5 MINUTES, LLC PURSUANT TO RULE 12(b)(6) Date: April 17, 2017 at 10:00a.m. Judge: Hon. André Birotte, Jr. Place: Courtroom 7B United States Courthouse, 350 West First Street Los Angeles, CA 90012 Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 1 of 25 Page ID #:1334 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) TABLE OF CONTENTS Page(s) I. INTRODUCTION .............................................................................................1 II. PROCEDURAL HISTORY ...............................................................................2 III. SUMMARY OF RELEVANT ALLEGATIONS ...............................................4 IV. LEGAL STANDARD ........................................................................................7 V. THE SAC FAILS TO STATE A CLAIM UNDER SECTION 1202 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT (CLAIMS I-II) ................8 A. The SAC Fails to State a Claim for a Violation of § 1202(a)....................8 1. The SAC Fails to Adequately Allege that CMG Provided False CMI ...............................................................................................9 2. The SAC Also Fails to Plead That CMG Had The Requisite Intent To Induce, Enable, Facilitate, Or Conceal Infringement............... 13 B. The SAC Does Not State a Claim for a Violation of § 1202(b) .............. 14 1. The 5 Minute SID Is Not CMI ..................................................... 15 2. Brand’s Claims Under Section 1202(b) Fail Under Twombly ....... 15 3. The SAC Fails to Plead that Either AOL or CMG Knew or Had Reason to Know that Any Removal of CMI Would Induce, Enable, Facilitate, or Conceal Copyright Infringement ............................. 16 VI. THE SAC SHOULD BE DISMISSED WITH PREJUDICE AS TO DEFENDANT 5 MINUTES, LLC ................................................................... 18 VII. CONCLUSION................................................................................................ 19 Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 2 of 25 Page ID #:1335 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................ 8 Bell Atlantic v. Twombly, 550 U.S. 544 (2007) .............................................................................. 8, 15, 16, 17 Doe v. United States, 58 F.3d 494 (9th Cir. 1995) ................................................................................... 19 Frost-Tsuji Architects v. Highway Inn, Inc., 2014 WL 5798282 (D. Haw. Nov. 7, 2014) .......................................................... 17 Gardner v. CafePress Inc., 2014 WL 7183704 (S.D. Cal. Dec. 16, 2014)........................................................ 13 Gordon v. Nextel Commc’ns, 345 F.3d 922 (6th Cir. 2003) ................................................................................. 18 Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir. 2003) ................................................................................. 7 Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (C.D. Cal. 1999) ................................................................... 11 Lewis v. Cnty. Of San Diego, 2014 WL 3527719 (S.D. Cal. July 15, 2014) ........................................................ 16 London v. Coopers & Lybrand, 644 F.2d 811 (9th Cir. 1981) ................................................................................. 18 Ochre LLC v. Rockwell Architecture Planning & Design, P.C., 2012 WL 6082387 (S.D.N.Y. Dec. 3, 2012) ......................................................... 16 Simmons v. Aranda, 2014 WL 1868737 (N.D. Cal. May 7, 2014) ......................................................... 19 Stevens v. Corelogic, 2016 WL 4371549, at *1 (S.D. Cal. July 1, 2016) ................................................. 11 Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 3 of 25 Page ID #:1336 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 780 (9th Cir. 1996) ..................................................................................... 8 Suguri v. Wells Fargo Bank, 2009 WL 2486546 (C.D. Cal. Aug. 7, 2009) ......................................................... 16 Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184 (C.D. Cal. 2007) ................................................................. 10 Tomelleri v. Zazzle, Inc., 2015 WL 8375083 (D. Kansas, Dec. 9, 2015) ....................................................... 13 Ward v. Nat’l Geographic Soc’y, 208 F. Supp. 2d 429 (S.D.N.Y. 2002) ................................................................... 13 Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981 (9th Cir. 2009) ................................................................................. 19 Statutes 17 U.S.C. § 1202................................................................................................. passim Other Authorities Fed. R. Civ. P. 8(a)(2) .................................................................................................. 7 Fed. R. Civ. P. 12(b)(6)............................................................................................ 1, 7 Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 4 of 25 Page ID #:1337 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) NOTICE OF MOTION AND MOTION TO PLAINTIFF AND ITS ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on April 17, 2017, at 10:00 a.m., or as soon thereafter as counsel may be heard, before the Honorable Judge André Birotte, Jr. in Courtroom 7B of the United States Federal Courthouse located at 350 West First Street, Los Angeles, CA 90012, Defendants Cox Media Group, LLC and AOL Inc. will and hereby do move the Court for an order dismissing with prejudice Claims I (“Falsification of Copyright Management Information in Violation of 17 U.S.C. § 1202(a) et seq. by CMG”) and II (“Removal/Alteration of Copyright Management Information in Violation of 17 U.S.C. § 1202(b) et seq. by AOL and CMG”) of Plaintiff’s Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). In addition, Defendant 5 Minutes, LLC will and hereby does move the Court for an order dismissing with prejudice the SAC in its entirety as to 5 Minutes, against whom no specific claims are alleged. This Motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the pleadings and papers on file herein, and any further material and argument presented to the Court at the time of the hearing. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place beginning on January 26, 2017. Dated: February 9, 2017 WINSTON & STRAWN LLP By: /s/ Jennifer A. Golinveaux . Jennifer A. Golinveaux Attorneys for Defendants Cox Media Group, LLC, AOL Inc., 5 Minutes LLC, Verizon Digital Media Services, Inc., and Brightcove Inc. Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 5 of 25 Page ID #:1338 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) MEMORANDUM OF POINTS AND AUTHORITIES Defendants Cox Media Group, LLC (“CMG”), AOL Inc., and 5 Minutes, LLC, (collectively, “Defendants”) respectfully submit this Memorandum of Points and Authorities in support of their partial motion to dismiss the Second Amended Complaint (“SAC”) filed by Plaintiff Brand Technologies, Inc. (“Brand”). Specifically, for the reasons stated below, Defendants move to dismiss: (1) Brand’s claim under Section 1202(a) of the DMCA against CMG for falsification of copyright management information (“CMI”) (Claim I of the SAC); (2) Brand’s claim under Section 1202(b) of the DMCA against AOL and CMG for removal or alteration of CMI (Claim II of the SAC); and (3) Brand’s SAC in its entirety as to 5 Minutes, against whom Brand did not allege any specific claims. I. INTRODUCTION At its core, this is a copyright infringement lawsuit concerning Plaintiff Brand’s allegation that Defendants continued to distribute Brand’s video content after termination of a license agreement. In an apparent effort to expand Defendants’ exposure, Brand has struggled to creatively frame its allegations to support other, non- copyright claims and to include unrelated defendants. In addition to the core copyright claims, Brand’s initial complaint sued parent entities with no connection to the allegations at issue and included claims for trademark infringement, unfair competition, and DMCA Section 1202 claims related to alteration of copyright management information, none of which were supported by Brand’s allegations. Brand amended its complaint in an effort to shore up those claims. The Court granted Defendants’ Motion to Dismiss the non-copyright claims from the First Amended Complaint. Brand has now filed its Second Amended Complaint. The trimmed-down SAC foregoes the trademark and unfair competition claims, but presses forward with the DMCA Section 1202 claims as to CMG and AOL. Those claims focus on certain metadata that was allegedly associated with Brand’s videos as part of the automatic Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 6 of 25 Page ID #:1339 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) processing of those videos for distribution by 5 Minutes and display by CMG via the Brightcove video platform. Brand alleges that CMG somehow provided “false” CMI under Section 1202(a) when the videos were allegedly uploaded onto the Brightcove video platform, and that a metadata field identifying CMG as the Brightcove account- holder was systematically added to the videos. Brand separately alleges that both CMG and AOL are liable under Section 1202(b) for purportedly removing an account identifier called a “SID,” which was automatically associated with the videos by 5 Minutes when they were uploaded to 5 Minutes’ system. The Section 1202 claims fail for at least two reasons. First, this type of backend account-identifier metadata that was automatically created by operation of the technological platforms and players allegedly used-and which was authorized under the operative license agreement referenced in the SAC-is not “copyright management information” as contemplated by Section 1202. Second, the SAC fails to allege facts in connection with the application of this account-identifier metadata sufficient to support the requisite intent to conceal or facilitate copyright infringement required to state a claim under Section 1202. In fact, the SAC specifically alleges facts that refute the requisite intent, including that CMG publicly discussed its agreement with 5 Minutes to distribute video content using the Brightcove video platform. The SAC fails to state a claim for violation of Section 1202, and Claims I and II should be dismissed. Because Brand has now had three chances to adequately allege these claims, and was on notice of the deficiencies outlined in the Court’s order dismissing the claims from the FAC, at this stage dismissal should be with prejudice. In addition, because the SAC does not allege any specific claims against Defendant 5 Minutes, the SAC should be dismissed with prejudice in its entirety as to 5 Minutes. II. PROCEDURAL HISTORY Brand initially filed this lawsuit on July 8, 2016, alleging copyright infringement, trademark infringement, unfair competition, and violations of the Digital Millennium Copyright Act (“DMCA”) against CMG, AOL, 5 Minutes, Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 7 of 25 Page ID #:1340 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) Brightcove, Inc., Verizon Digital Media Services, Inc. (“VDMS”), Cox Entertainment, Inc., (“CEI”) and Verizon Communications, Inc. (“VCI”) based upon the alleged unauthorized distribution of 545 short-form online videos following AOL’s termination of a license agreement between Brand and AOL’s subsidiary, 5 Minutes. Since it filed the initial Complaint, Brand’s causes of action-and the Defendant pool-have diminished significantly. On September 8, 2016, the parties stipulated to the voluntary dismissal of VCI, which was ordered by the Court on September 14, 2016. ECF No. 41. Also on September 8, 2016, CEI and CMG filed a Partial Motion to Dismiss Brand’s trademark claims. ECF No. 32-1. Rather than opposing the motion, on September 22, 2016, Brand filed its FAC against the remaining Defendants, alleging all of the same causes of action as the original Complaint. ECF No. 46. On November 7, 2016, the remaining defendants moved to dismiss the trademark and DMCA claims as to CMG, AOL, 5 Minutes, VDMS, and Brightcove and all claims against the Cox parent, CEI. See ECF No. 58. On December 6, 2016, the Court granted Defendants’ motion and dismissed the FAC’s trademark, unfair competition, and DMCA claims, and all claims against CEI, with leave to amend. ECF No. 79 (“FAC Order”). The Court held that the FAC failed to plead facts sufficient to support the trademark and unfair competition claims, and dismissed Brand’s DMCA claims on the grounds that the FAC did not adequately allege which Defendant distributed false CMI or altered or removed Brand’s CMI, nor facts demonstrating that any Defendant had the requisite intent to induce or conceal copyright infringement. Id. at 7-12. With respect to Brand’s Section 1202(a) claim, the Court also noted that Brand’s affirmative allegations (such as “that the Works retain Plaintiff’s true CMI”) “undermine[] the inference that the allegedly false CMI was placed on the Works with the intent to induce or conceal infringement by concealing Plaintiff’s CMI.” Id. at 11-12. The Court found Brand’s Section 1202(b) claim “extremely confusing such that it is not at all clear what Plaintiff is alleging.” Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 8 of 25 Page ID #:1341 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) Id. at 12. Finally, the Court dismissed CEI altogether in light of Brand’s failure to allege facts “charging CEI itself with any conduct” nor any facts that would establish alter ego liability. Id. at 12. The Court provided Brand 30 days to attempt to cure the deficiencies identified in the FAC, instructing Brand to provide “necessary, comprehensible, operative factual allegations” and avoid “strings of boilerplate, irrelevant characterizations, lengthy series of indeterminate and/or alternative constructions, and extensive evidence.” Id. at 13-14. On January 19, 2017, Brand filed its SAC, alleging falsification of CMI under Section 1202(a) of the DMCA by CMG (Claim I), removal or alteration of CMI under Section 1202(b) of the DMCA against AOL and CMG (Claim II), and direct and indirect copyright infringement by CMG, Brightcove, VDMS, and AOL (Claims III - VI). While the SAC names 5 Minutes in the caption of the SAC, no specific causes of action are alleged against 5 Minutes. III. SUMMARY OF RELEVANT ALLEGATIONS Brand alleges infringement of 545 short-form online videos (the “Brand Videos”), listed in Exhibit A to the SAC. Brand claims that in 2012, it entered into a syndication partnership with 5 Minutes to distribute Brand’s “Original Digital Video” (“ODV”) content through 5 Minutes’ content distribution network (the “5Min Network”), which aggregates and distributes short-form videos to partner websites. SAC ¶¶ 20, 26. Pursuant to this agreement, Brand alleges that 5 Minutes (a subsidiary of AOL) “published Brand’s ODV content to select websites through respective embedded proprietary 5min Network players on those websites,” and that Brand and 5 Minutes shared the revenue associated with advertisements sold against Brand’s videos. Id. ¶ 27. During the term of the license agreement, Brand alleges that it distributed its ODV content by uploading the Brand Videos to a 5 Minutes web server and entering “video-specific metadata in the four required, 5min Network-specific metadata fields,” specifically “title, description, category, and tags.” Id. ¶¶ 49, 56. Brand Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 9 of 25 Page ID #:1342 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) alleges that the 5Min Network then automatically added additional metadata, specifically: (1) a “5min Network Syndicator ID (‘sid’), an account associated identifier for Brand,” and (2) “a unique VideoID associated with the video.” Id. ¶ 50. Brand alleges that the license agreement permitted 5 Minutes to distribute Brand’s videos “through the 5min Network,” which it claims was comprised of “5min’s own ODV network as well as the ODV Networks of ‘5min Affiliates.’” Id. ¶¶ 29-30. The SAC sets forth that 5 Minutes was granted the exclusive right to sell advertisements against Brand’s content displayed within the 5Min Network, with Brand receiving 40% of the advertising revenue. Id. ¶ 31. Brand alleges that AOL and 5 Minutes provided the Brand Videos to CMG, who used the Brand Videos through the Brightcove video platform. Id. ¶¶ 71-75. To support its claim that AOL and 5 Minutes were sharing the Brand Videos with CMG, Brand alleges that CMG publicly discussed at a conference in 2012-with AOL’s Head of Business Development also present-that CMG was working with 5 Minutes to expand its video content in various categories like “sports, entertainment, hard news … .” Id. ¶ 74. Brand alleges that its videos were provided to CMG pursuant to this partnership, and that CMG admitted at the conference that it was using the Brightcove video platform in connection with its arrangement with AOL and 5 Minutes. Id. ¶¶ 74-75. Brand claims that this violated the license agreement because, supposedly, the term “5Min Network” encompassed only 5 Minutes’ own proprietary video player and not another 5 Minutes-authorized video player or platform such as Brightcove’s. Id. ¶¶ 72-74. The relevant license agreement (the “License Agreement”) is incorporated by reference into the SAC and is attached as Exhibits 1 through 5 to the Declaration of Robert Lloyd, of which Defendants request that the Court take judicial notice.1 The 1 The relevant license agreement is Brand’s Content License and Video Player Distribution Agreement with 5 Minutes (Lloyd Decl. Ex. 1), and the Third Amendment thereto (separately set out as Lloyd Decl. Ex. 4). As set forth in the original agreement, dated February 14, 2012, Brand and 5 Minutes initially contracted for Brand to be just a publisher, i.e., an end-distributor, of 5Min Network video Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 10 of 25 Page ID #:1343 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) agreement granted a broad license to 5 Minutes to distribute Brand’s content “through the 5min Network,” SAC ¶ 29, defined as “any product, service, or property owned, operated, distributed, or authorized to be distributed” by 5 Minutes or any of its worldwide affiliates, “regardless of transmission speed” or “type of device (PC, PDA, mobile phone, etc.).” See Lloyd Decl., Ex. 4 at §§ 1, 2.1 (emphasis added). Notably, this License Agreement definition of the “5min Network” does not, as the SAC suggests, contain any limitation whatsoever on incorporating a non-5 Minutes proprietary video player or platform like the Brightcove platform, if 5 Minutes chose to authorize distribution in that manner.2 In addition, the License Agreement granted 5 Minutes a license to “translate” Brand’s video content “from … one machine language to another in order to utilize such intermediate, transient processes as may be technically necessary to optimize the way users experience [Brand’s] content.” Lloyd Decl., Ex. 4 at §§ 1, 2.1. The SAC further alleges that in order to publish the Brand Videos “through the Brightcove Platform, CMG employees must have first uploaded MP4 Content Files for the Brand Registered Videos into the Brightcove Network console and provided additional metadata to complete the metadata fields that CMG has selected as mandatory for all videos that it publishes through the Brightcove Platform.” SAC ¶ 96. Brand alleges, on information and belief, that it thus “appears that CMG was responsible for the reorganization of the existing metadata,” and the “inclusion” of content created by others, using 5 Minutes’ video player embedded in Brand’s websites “or other technology to enable distribution of the 5Min hosted Content” on Brand’s sites. Lloyd Decl., Ex. 1 § 1; see also SAC ¶ 39 (quoting from this agreement). On September 12, 2012, the parties amended the agreement (the Third Amendment) to provide, for the first time, for the distribution of Brand’s original video content through the 5Min Network. Lloyd Decl., Ex. 4. 2 The language quoted in SAC ¶ 39 about the “5Min Player” is not from the part of the License Agreement concerning 5 Minutes’ distribution of Brand’s content, i.e., the Third Amendment. Rather, that language comes from the original agreement setting out Brand’s particular rights as a publisher on its own sites of content from the 5Min Network. See Lloyd Decl., Ex. 1. Even there, the definition of “5Min Player” is “the 5min designated video player on the Company Site or other technology to enable distribution of the 5 min hosted Content (the ‘5Min Player’).” See Lloyd Decl., Ex. 1 § 1 (emphasis added); SAC ¶ 39 (quoting this language). Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 11 of 25 Page ID #:1344 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) additional metadata comprising “‘data-account’ metadata identifying CMG as the author and/or copyright owner of the video and uniquely identifying the video itself.” Id. ¶ 97. Brand alleges that the 10-digit number string “1398322598” is an example of a “data-account ID” that “identifies CMG or some portion thereof.” Id. ¶ 90. The SAC further alleges that “Brand’s 5min Network ‘sid’ value was removed” from copies of the Brand Videos “distributed through the Brightcove Platform.” Id. ¶ 97. Brand also claims that on some of the Brand Videos that were playable on CMG’s Palm Beach Post website, CMG placed a watermark of the Palm Beach Post domain name. Id. ¶ 105. Brand claims that, following the termination of the License Agreement in early 2015, Brand discovered that the Brand Videos continued to be available through websites owned and operated by CMG. Id. ¶¶ 77-83; id. at 79 (alleging that Brand discovered the alleged infringement in April 2015). The SAC does not allege that Brand communicated with any of the Defendants about the matter prior to filing its original Complaint more than one year later, on July 8, 2016. Brand alleges that the Brand Videos are displayed by dozens of CMG websites and that it has identified at least 5,424 separate instances of the Brand Videos on more than 100 CMG websites. Id. ¶ 86. Based upon these allegations, the SAC asserts claims for direct and indirect copyright infringement of the 545 videos by CMG, Brightcove, VDMS, and AOL and for violations of the DMCA by CMG and AOL for falsifying, altering, and removing copyrighted information. The SAC does not allege any claims against 5 Minutes. IV. LEGAL STANDARD A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal pursuant to Rule 12(b)(6) is proper where a cause of action fails to state a claim upon which relief can be granted. A Rule 12(b)(6) motion to dismiss “tests the legal sufficiency of the claims asserted in the complaint.” Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). To survive a motion to dismiss, a complaint must include “facts to state a Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 12 of 25 Page ID #:1345 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). This requires more than mere “labels and conclusions, and a formulaic recitation of a cause of action’s elements,” id. at 555, and must be supported by more than mere conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In Iqbal, the Supreme Court established a two-step approach for determining whether a complaint may survive a Rule 12(b)(6) motion to dismiss. First, the Court identifies conclusory allegations and disregards them because they are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. Second, the Court “consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the Court finds that the plaintiff does not allege sufficient facts “to raise a right to relief above the speculative level” and support a “cognizable legal theory,” it may dismiss the complaint as a matter of law. Twombly, 550 U.S. at 555; SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996) (affirming dismissal of complaint “notwithstanding its conclusory language regarding the elimination of competition and improper purpose”). Complaints that allege “facts that are merely consistent with a defendant’s liability” fail to satisfy the “plausibility” requirement. Iqbal, 556 U.S. at 678 (internal quotation marks omitted); see also Twombly, 550 U.S. at 557. V. THE SAC FAILS TO STATE A CLAIM UNDER SECTION 1202 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT (CLAIMS I-II) Claim I of the SAC is against CMG for “falsification” of CMI pursuant to Section 1202(a) of the DMCA. SAC ¶¶ 98-111. Claim II of the SAC is against AOL and CMG for “alteration or removal” of CMI pursuant to Section 1202(b) of the DMCA. SAC ¶¶ 112-41. The SAC fails to adequately state a claim under either section. A. The SAC Fails to State a Claim for a Violation of § 1202(a) Section 1202(a) prohibits a person from “knowingly and with the intent to induce, enable, facilitate, or conceal infringement (1) provid[ing] copyright Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 13 of 25 Page ID #:1346 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) management information that is false, or (2) distribut[ing] or import[ing] for distribution copyright management information that is false.” 17 U.S.C. § 1202(a). This claim is asserted against CMG only. The SAC fails to adequately allege either prong of 1202(a) against CMG. 1. The SAC Fails to Adequately Allege that CMG Provided False CMI The SAC fails to adequately allege that CMG “provide[d] copyright management information that is false.” 17 U.S.C. § 1202(a). Brand alleges that, prior to publishing Brand’s videos on CMG’s websites, “the Brightcove Network systematically listed CMG’s data-account ID in the ‘data-account’ metadata field” on Brand’s videos, so that “the Brightcove Network would identify CMG, not Brand, as the author and/or copyright owner of” the Brand Videos in order to divert advertising revenue to CMG. SAC ¶¶ 101, 106; see also id. ¶¶ 60-65. The SAC alleges that the “data-account” metadata is “a Brightcove Network identifier associated with the author and/or copyright owner” made up of a string of numbers, and that, “on information and belief, the Brightcove data-account ID ‘1398322598,’” found within the HTML code on a CMG website allegedly displaying a Brand Video, “identifies CMG or some portion thereof.” Id. ¶¶ 60, 86, 90, 92. Brand further alleges that CMG placed a visible “Palm Beach Post” watermark on some of the Brand Videos played within the CMG websites. Id. ¶ 105. The “data-account” metadata does not properly qualify as CMI under the statute, much less false CMI. Under the DMCA, CMI is defined as “any of the following information conveyed in connection with copies … of a work … including in digital form …: (1) [t]he title and other information identifying the work, including the information set forth on a notice of copyright; (2) [t]he name of, and other identifying information about, the author of a work; (3) [t]he name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright… .” 17 U.S.C. § 1202(c). Brand alleges Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 14 of 25 Page ID #:1347 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) that CMI can also include “[i]dentifying numbers or symbols referring to such information or links to such information,” see 17 U.S.C. § 1202(c)(7), and claims that the “data-account” field “identif[ies] the author and/or copyright owner of a video.” SAC ¶ 65. But Brand alleges no facts regarding how a 10-digit account number- automatically applied by Brightcove’s video platform-serves as such identification or includes any information whatsoever identifying CMG as the copyright owner or author of the video content. Brand claims only in vague and conclusory terms that the number “1398322598” “identifies CMG or some portion thereof.” SAC ¶ 90. Nor does Brand allege that any CMI has been “falsified.” Taking Brand’s allegations at face value, the SAC does not allege that CMG provided false CMI in order to falsely attribute authorship or ownership of Brand’s videos to CMG; the “data-account” metadata that was automatically applied is merely backend information that accurately identifies CMG as the Brightcove account-holder. Id. ¶ 60. Section 1202 of the DMCA was enacted to “ensure the integrity of the electronic marketplace by preventing fraud and misinformation.” Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184, 1199 (C.D. Cal. 2007) (citing H.R. REP. NO. 105-551, pt. 1, at 10 (1998)). The Senate Committee Report on the DMCA noted that “[t]he purpose of CMI is to facilitate licensing of copyright for use on the Internet and to discourage piracy” and is a means of “indicating attribution, creation, and ownership.” Id. (citing S. REP. NO. 105-190, at 11, 16 (1998)). The language of Section 1202 is meant to further the DMCA’s purpose of “facilitat[ing] the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital world.” Id. (citing S. REP. NO. 105-190, at 1 (1998)). To hold that the definition of CMI encompasses backend, account-specific metadata associated with digital content files would subvert the purpose of Section 1202(a) and potentially hinder the expansion of electronic communications across such networks. Evan assuming that the “data-account” metadata constituted CMI under the Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 15 of 25 Page ID #:1348 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) DMCA (which it does not), Brand’s allegations that this metadata, purportedly identifying CMG, was automatically added to Brand’s videos by operation of the Brightcove video platform are insufficient to state a claim under Section 1202(a) against CMG. SAC ¶¶ 60, 101-02. The only affirmative conduct Brand alleges that CMG undertook was “importing the Brand Registered Videos into the Brightcove Network” with the purported knowledge that the “data-account” metadata, identifying CMG rather than Brand, would be added to Brand’s videos by the Brightcove video platform. Id. ¶ 102. But CMG’s alleged general awareness that the Brightcove video platform would “automatically assign” account information to Brand’s videos, see id., is insufficient to state a claim under Section 1202(a). Indeed, courts have repeatedly rejected claims under Section 1202 where the alleged falsification, alteration, or removal of CMI occurred as a result of an automated process, rather than by affirmative conduct of the defendant. In Stevens v. Corelogic, a group of professional photographers sued a developer of real estate software over the alteration or removal of metadata attached to photographs when they were uploaded in conjunction with real estate listings. No. 14-cv-1158-BAS-JLB, 2016 WL 4371549, at *1 (S.D. Cal. July 1, 2016). The court found that there was no evidence that Corelogic had removed or altered CMI because “[i]t did not upload any photographs. The act of uploading, which is what plaintiffs allege led to the removal of CMI, was done by a third party actor.” Id. at *5. The court further held that the plaintiffs had not proven that Corelogic intentionally removed or altered CMI “as opposed to removal being an unintended side effect of the fact that the software platform was based on a library that failed to retain metadata by default.” Id.; see also Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1122 (C.D. Cal. 1999), rev’d on other grounds (summary judgment granted where the plaintiff did not provide any evidence that the defendant intentionally removed CMI, rather than the removal being an automatic result of the fact that the software platform was based on a library that Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 16 of 25 Page ID #:1349 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) failed to retain metadata by default).3 Brand’s only other allegation of falsified CMI is that CMG placed a “Palm Beach Post” watermark on some of Brand’s videos playable on CMG’s Palm Beach Post website (just one of over a hundred CMG websites that Brand claims are at issue). SAC ¶ 105. Even if the watermark were deemed to constitute CMI under the DMCA, which is not the case as described below, any claims related to the watermark would be limited solely to content on that one Palm Beach Post website. As a preliminary matter, Brand’s anemic allegations regarding the watermark do not provide sufficient facts to demonstrate that the watermark constitutes false CMI under the statute. While the Court previously found that the FAC alleged sufficient facts demonstrating that the “Palm Beach Post” watermark constitutes CMI under the statutory definition because “a consumer could interpret a domain name placed on the Works as indicating the creator or owner of the Work,” the Court ultimately found that because the FAC also pled that the works still “retain Plaintiff’s true CMI,” no claim was stated since that demonstrated a lack of any intent to induce or conceal infringement. FAC Order at 11-12. Here, Brand alleges in the SAC that its videos and video descriptions visibly contain Brand’s own marks and domain names. SAC ¶¶ 41, 84, 92. Defendants submit that this retention of Brand’s CMI not only factors into the lack of the necessary intent (as the Court found in the FAC Order) but also undermines the plausibility that viewers would interpret the “Palm Beach Post” watermark as referencing the author or owner of Brand’s videos, as opposed to simply the host of Brand’s own content. And even if the watermark constituted CMG’s CMI under the DMCA, the addition of a website owner’s CMI on a website has been found to be insufficient to constitute the provision of false CMI under § 1202(a). Stevens, 2016 WL 4371549, at 3 While these cases dealt with alleged violations of Section 1202(b), the reasoning applies with equal force to claims under Section 1202(a) given that both sections require the plaintiff to prove affirmative, intentional conduct on the part of the defendant. Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 17 of 25 Page ID #:1350 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) *4 (plaintiffs failed to present any evidence that defendant provided or distributed false CMI where the plaintiffs alleged that the defendant displayed its own copyright notice on the same webpage as plaintiffs’ photographs and that the placement constituted false CMI); see also Tomelleri v. Zazzle, Inc., No. 13-cv-2576-EFM-TJJ, 2015 WL 8375083, at *12 (D. Kansas, Dec. 9, 2015) (finding that just because an image appears on a website does not mean the website owner is alleging he owns the image); Ward v. Nat’l Geographic Soc’y, 208 F. Supp. 2d 429, 450 (S.D.N.Y. 2002) (finding the fact that National Geographic’s copyright notice was on the same page as plaintiff’s photograph was insufficient to show false information based solely on proximity of the notice to the plaintiff’s photograph). 2. The SAC Also Fails to Plead That CMG Had The Requisite Intent To Induce, Enable, Facilitate, Or Conceal Infringement The SAC also fails to adequately allege that CMG falsified CMI “with the intent to induce, enable, facilitate, or conceal infringement” as required by Section 1202(a). First, the SAC alleges only that “[o]n information and belief, given its long- standing relationship with Brightcove and its regular use of the Brightcove Network for distribution of video content, CMG knew that the Brightcove Network uses the ‘data-account’ metadata field to identify the author and/or copyright owner of a video” and that therefore “CMG knew that the Brightcove Network would automatically assign CMG’s data-account ID to the videos … .” SAC ¶ 102. The SAC then alleges that “[a]s a sophisticated party that regularly deals with copyright law and has great familiarity with the process of monetizing video content online, CMG knew or had reasonable grounds to know that its conduct would induce, enable, facilitate, or conceal infringement.” Id. ¶ 103. Such weak and conclusory allegations of intent are insufficient. See Gardner v. CafePress Inc., No. 3:14-CV-0792-GPC-JLB, 2014 WL 7183704, at *4 (S.D. Cal. Dec. 16, 2014) (dismissing a Section 1202 claim where the plaintiff’s “allegations merely repeat the language of Section 1202”). Even if CMG for some reason had familiarity with the backend workings of the Brightcove video Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 18 of 25 Page ID #:1351 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) platform (and there are no such allegations) and knew that data-account metadata identifying CMG as the account holder would be applied to content it uploaded to Brightcove’s system, such knowledge does not evidence an intent to induce, enable, facilitate, or conceal infringement. In fact, Brand’s affirmative allegations that CMG made public statements at a conference in 2012 lauding its agreement with 5 Minutes to obtain access to its internet video archive via use of the Brightcove video platform directly negates Brand’s conclusory allegations that CMG somehow intended to conceal the fact that displaying the videos to which it was given access infringed Brand’s copyrights. SAC ¶ 74. If CMG was indeed providing false CMI in connection with Brand videos in order to knowingly conceal infringement, why would it publicly tout its deal to access such content? And Brand’s allegations that all of the works at issue also contained Brand’s own identifying information also specifically negates the requisite intent. By Brand’s own admission, the Brand Videos were visibly marked with one of Brand’s distinct online brands, such as GossipCenter, RecipeCorner, ExtremeFitness, and DIYfashion. Id. ¶¶ 41, 84. Like the allegations set forth in Brand’s FAC, these allegations are entirely at odds with any intent on the part of CMG to conceal copyright infringement. See FAC Order at 11-12 (dismissing Brand’s claim under Section 1202(a) because “that Plaintiff’s CMI still appears on the Works undermines the inference that the allegedly false CMI was placed on the works with the intent to induce or conceal infringement”). Because Brand does not allege plausible “affirmative allegations of intent,” the SAC again fails to state a claim under Section 1202(a) against CMG, and any effort to amend the allegations would be futile. Id. at 12. B. The SAC Does Not State a Claim for a Violation of § 1202(b) Section 1202(b)(1) prohibits the unauthorized intentional removal or alteration of CMI where such action is taken “knowing, or, … having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 19 of 25 Page ID #:1352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) under this title.” 17 U.S.C. § 1202(b)(1). Brand has the burden to allege three distinct elements of this statute: that AOL and CMG (1) without authorization from the copyright owner or the law; (2) intentionally removed or altered CMI; (3) knowing or having reasonable grounds to know that the removal will induce, enable, facilitate, or conceal federal copyright infringement. Id. The SAC fails to adequately allege a violation of this section against either AOL or CMG. 1. The 5 Minute SID Is Not CMI Brand alleges that a four-digit identification code, “1131,” was “assigned” to its videos by the 5Min Network after Brand completed the uploading process. SAC ¶¶ 50-52. As set forth above, the License Agreement gave 5 Minutes broad rights to manipulate Brand’s video data as necessary to optimize the viewing experience. See Lloyd Decl., Ex. 4 at §§ 1, 2.1; infra, Section V.B.3. Like the backend “data-account” metadata that Brand relies on for its Section 1202(a) claim, Brand fails to allege any facts setting forth how this four-digit account number automatically applied by the 5Min Network system (not Brand), identifies Brand as the copyright owner or author of the videos. See supra, Section V.A.1; SAC ¶ 50 (alleging in a conclusory manner that the code is “an account associated identifier for Brand”). The SAC therefore fails to allege that the 5 Minute SID constitutes CMI under the statute, and Brand’s claim under Section 1202(b) should be dismissed for this reason alone. 2. Brand’s Claims Under Section 1202(b) Fail Under Twombly The SAC alleges that when AOL provided CMG access to Brand’s videos, the Brightcove players on CMG’s websites accessed the videos without Brand’s “SID” attached. SAC ¶¶ 124-25. Brand claims that “the only reasonable inference” is that AOL “intentionally removed” the “SID” when it made the videos available to CMG. Id. ¶¶ 125-26. But Brand then goes on to allege additional and/or alternative theories: that AOL stored Brand’s videos on a video archive, at which point it was CMG who removed the “SID” prior to uploading them onto the Brightcove video platform (id. ¶ 127); and that AOL and/or CMG distributed falsified CMI when one or both made Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 20 of 25 Page ID #:1353 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) Brand’s videos available to third parties (i.e., advertisers) without Brand’s “SID” (id. ¶¶ 128-31). Thus, even assuming for the sake of argument that the 5 Minute SID account identifier properly constitutes CMI, which it does not, Brand has not sufficiently pled what actions CMG and/or AOL have taken to remove or alter the 5 Minute SID, or whether it was simply automatically replaced with Brightcove’s network identifier when the video content was allegedly uploaded into the Brightcove system. Brand’s vague allegations, presented in the alternative, fail at the pleadings stage. Twombly, 550 U.S. at 555; Suguri v. Wells Fargo Bank, No. CV 09-1828 (PSG) (PJWx), 2009 WL 2486546, at *6 (C.D. Cal. Aug. 7, 2009) (“[F]ormulaic allegations lumping all Defendants together are insufficient to state a claim”); Lewis v. Cnty. Of San Diego, No. 13-cv-2818-L (JMA), 2014 WL 3527719, at *6 (S.D. Cal. July 15, 2014) (dismissing complaint where “[p]laintiffs vaguely lump all defendants together without providing any factual allegations that specify separate acts of [individual defendants] that would subject them to liability”); see also Ochre LLC v. Rockwell Architecture Planning & Design, P.C., No. 12 Civ. 2837(KBF), 2012 WL 6082387, at *6 (S.D.N.Y. Dec. 3, 2012), aff’d, 530 Fed. Appx. 19 (2d Cir. 2013) (“Where a complaint names multiple defendants, that complaint must provide a factual basis to distinguish the conduct of each of the defendants.”). 3. The SAC Fails to Plead that Either AOL or CMG Knew or Had Reason to Know that Any Removal of CMI Would Induce, Enable, Facilitate, or Conceal Copyright Infringement Similarly, the SAC fails to even come close to alleging the requisite intent and knowledge. Like Section 1202(a), Section 1202(b)(1) requires that a defendant “intentionally remove or alter any copyright management information … knowing, or, … having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement … .” As set forth above, Brand specifically alleges that each work contained information identifying Brand that was not removed or altered, SAC ¶¶ 41, 84, and that CMG publicly touted the benefits of a deal with 5 Minutes under which it was provided access to 5 Minutes’ entire video library in 2012 utilizing the Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 21 of 25 Page ID #:1354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) Brightcove video platform. Id. ¶¶ 74-75. In light of these allegations, the SAC’s conclusory allegations that either AOL or CMG intentionally removed Brand’s CMI, id. ¶¶ 125-27, 134-36, are not plausible and should not be credited on a motion to dismiss. Twombly, 550 U.S. at 555. Similarly implausible would be any contention that AOL or CMG knew or had reasonable grounds to know that any removal of CMI would “induce, enable, facilitate, or conceal an infringement,” even if the SAC had made such an allegation in more than a conclusory manner. See, e.g., SAC ¶ 126 (“As a sophisticated party that regularly deals with copyright law and has great familiarity with the process of monetizing video content online, AOL knew or had reasonable grounds to know that its conduct would induce, enable, facilitate, or conceal infringement.”); id. ¶¶ 127-31 (same). Finally, as set forth above in Section III, the contract at issue provided 5 Minutes a license to “translate” Brand’s video content “from … one machine language to another in order to utilize such intermediate, transient processes as may be technically necessary to optimize the way users experience [Brand’s] content.” Lloyd Decl., Ex. 4 at §§ 1, 2.1. The fact that Brand granted 5 Minutes (and therefore, AOL) the right to access and alter the metadata within Brand’s video content contradicts Brand’s claim that any alleged removal of the 5 Minute SID was without its knowledge or consent and with the intent to induce or conceal copyright infringement. See SAC ¶¶ 126-28. Courts have consistently rejected claims under Section 1202(b) where the facts either fail to reflect or actually negate any intent on the part of the defendants to further copyright infringement. See Frost-Tsuji Architects v. Highway Inn, Inc., No. 13-00496 SOM/BMK, 2014 WL 5798282, at *8 (D. Haw. Nov. 7, 2014) (because the defendants had an implied nonexclusive license to use the copyrighted works, “no Defendant can be said to have removed any copyright management information ‘knowing or having reasonable grounds to know that the removal [would] induce, enable, facilitate, or conceal an infringement of the federal copyright laws.”); Gordon v. Nextel Commc’ns, 345 F.3d 922, 926-27 (6th Cir. 2003) (no violation of Section Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 22 of 25 Page ID #:1355 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) 1202(b) where the defendant’s “personnel believed that the poster had been cleared for use in television commercials” and therefore there was no evidence that the defendants “utilized the version of the illustrations ‘knowing that [CMI] had been removed or altered without authority of the copyright owner’” nor that the defendants “had any reason to know that the removal would facilitate or conceal an infringement”). Here, Brand’s affirmative allegations, as well as the further support from the language of the contract that is incorporated by reference into the SAC, contradict Brand’s conclusory allegations that AOL and CMG knew or had reason to know that any purported removal of CMI would induce or conceal copyright infringement. For these reasons, Brand has failed to allege a claim under Section 1202(b) of the DMCA and Claim II should be dismissed with prejudice. VI. THE SAC SHOULD BE DISMISSED WITH PREJUDICE AS TO DEFENDANT 5 MINUTES, LLC Despite including Defendant 5 Minutes in the caption of the SAC, Brand does not allege any causes of action against 5 Minutes. See SAC ¶¶ 98-216.4 This serves as an effective voluntary dismissal of 5 Minutes from the case, and Brand may not rely on allegations or causes of action against 5 Minutes from the FAC in order to keep 5 Minutes in the case. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981) (claims from an original complaint which are not realleged in an amended pleading are waived), rev’d on other grounds by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (affirming rule that “claims voluntarily dismissed [are] waived if not repled”); Simmons v. Aranda, No. C 11-6190 SBA (PR), 2014 WL 1868737, at *2 (N.D. Cal. May 7, 2014) (defendant dismissed with prejudice from 4 It should be noted that, in the FAC, Brand did not allege any of the causes of action specifically against 5 Minutes, though 5 Minutes was presumably included in Brand’s DMCA, Lanham Act, and unfair competition claims against “all Defendants.” Brand no longer asserts trademark or unfair competition claims, and its re-pled DMCA claims are clearly alleged only against CMG and AOL. See SAC ¶¶ 98-141. Nor does Brand anywhere define “AOL” in the SAC to include any other Defendant. Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 23 of 25 Page ID #:1356 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) case where the plaintiff failed to include any claims against that defendant in an amended pleading). 5 Minutes should be dismissed from the case with prejudice. VII. CONCLUSION Because the SAC fails to adequately allege the elements of its DMCA claim against CMG or AOL, Claims I and II should be dismissed. Because Brand has now had three chances to allege cognizable DMCA claims, dismissal should be with prejudice. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (dismissal with prejudice is appropriate where the deficiencies could not be cured by additional factual allegations); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (courts have broad discretion to deny leave to amend where “the plaintiff has previously been granted leave to amend” but failed to correct deficiencies previously identified by the court). Furthermore, the SAC should be dismissed with prejudice in its entirety as to 5 Minutes, against whom no specific claims are alleged at all. Dated: February 9, 2017 WINSTON & STRAWN LLP By: /s/ Jennifer A. Golinveaux . Jennifer A. Golinveaux MICHAEL S. ELKIN (pro hac vice) melkin@winston.com STACEY FOLTZ STARK (pro hac vice) sfstark@winston.com WINSTON & STRAWN LLP 200 Park Avenue New York, NY 10166-4193 Telephone: (212) 294-6700 Facsimile: (212) 294-4700 JENNIFER A. GOLINVEAUX (SBN 203056) jgolinveaux@winston.com WINSTON & STRAWN LLP 101 California Street, 35th Floor San Francisco, CA 94111-5840 Telephone: (415) 591-1000 Facsimile: (415) 591-1400 Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 24 of 25 Page ID #:1357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 NOTICE OF MOTION AND MOTION TO DISMISS- FED. R. CIV. P. 12(b)(6) VIVIAN S. KUO (pro hac vice) vkuo@winston.com WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, D.C. 20006-3817 Telephone: (202) 282-5000 Facsimile: (202) 282-5100 DAVID P. ENZMINGER (SBN 137065) denzminger@winston.com DIANA HUGHES LEIDEN (SBN 267606) dhleiden@winston.com KELLY N. OKI (SBN 304053) koki@winston.com WINSTON & STRAWN LLP 333 South Grand Avenue Los Angeles, CA 90071-1543 Telephone: (213) 615-1700 Facsimile: (213) 615-1750 Attorneys for Defendants Cox Media Group, LLC, AOL Inc., 5 Minutes LLC, Verizon Digital Media Services, Inc., and Brightcove Inc. Case 2:16-cv-05038-AB-JEM Document 95 Filed 02/09/17 Page 25 of 25 Page ID #:1358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRAND TECHNOLOGIES, INC., Plaintiff, v. COX MEDIA GROUP, LLC, AOL, INC., VERIZON DIGITAL MEDIA SERVICES, INC., 5 MINUTES LLC, and BRIGHTCOVE, INC., Defendants. Case No. CV 2:16-cv-05038-AB-JEM [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS CLAIMS I AND II OF PLAINTIFF’S SECOND AMENDED COMPLAINT AND THE SAC AGAINST 5 MINUTES, LLC PURSUANT TO RULE 12(b)(6) Date: April 17, 2017 at 10:00a.m. Judge: Hon. André Birotte, Jr. Place: Courtroom 7B United States Courthouse, 350 West First Street Los Angeles, CA 90012 Case 2:16-cv-05038-AB-JEM Document 95-1 Filed 02/09/17 Page 1 of 3 Page ID #:1359 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER This matter came before the Court on the motion to dismiss Claims I and II of the Second Amended Complaint (“SAC”) filed by Plaintiff Brand Technologies, Inc., and to dismiss the SAC in its entirety as to Defendant 5 Minutes, LLC, pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants as to Defendant Cox Media Group, LLC (“CMG”), AOL Inc., and 5 Minutes (collectively, “Defendants”). The Court has considered the briefing and argument of the parties, and hereby GRANTS Defendants’ Motion, dismisses Claims I and II with prejudice, and dismisses the SAC with prejudice in its entirety as against 5 Minutes. The Court finds that the SAC fails to state a claim against CMG or AOL under the Digital Millennium Copyright Act (“DMCA”) (Claims I and II of the SAC). With regard to Claim I against CMG, the SAC does not allege that either the “data-account” metadata or the “Palm Beach Post” watermark constitutes copyright management information (“CMI”), that CMG provided false CMI, or that CMG intended to induce, enable, facilitate, or conceal copyright infringement, and therefore Plaintiff has not stated a claim under Section 1202(a) of the DMCA. With regard to Claim II against AOL and CMG, the SAC does not allege facts demonstrating that the “SID” code purportedly assigned to Plaintiff’s videos by 5 Minutes constitutes CMI under Section 1202(c) of the DMCA, fails to allege plausible facts demonstrating that either AOL or CMG removed or altered the “SID,” and fails to allege that either Defendant knew or had reason to know that any removal or alteration of CMI would induce or conceal copyright infringement. Therefore, Plaintiff has not stated a claim under Section 1202(b) of the DMCA. The Court further finds that the SAC should be dismissed, in its entirety and with prejudice, as against 5 Minutes because Plaintiff fails to allege any causes of action against 5 Minutes. Accordingly, the Court hereby dismisses Claims I and II of the SAC for failure to state a claim, and further dismisses the SAC in its entirety as against 5 Minutes. Because Plaintiff has already been afforded three chances to adequately allege its Case 2:16-cv-05038-AB-JEM Document 95-1 Filed 02/09/17 Page 2 of 3 Page ID #:1360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] ORDER claims, this dismissal is with prejudice. IT IS SO ORDERED. Dated: ______________ ______________________________________ Hon. André Birotte, Jr. United States District Judge Case 2:16-cv-05038-AB-JEM Document 95-1 Filed 02/09/17 Page 3 of 3 Page ID #:1361