Filmon Cnet Memo
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
Case No.
CV 11-9437 DSF (JCx)
Date
7/13/12
Title
Alkiviades David, et al., v. CBS Interactive Inc., et al.Present: TheHonorableDALE S. FISCHER, United States District JudgeDebra PlatoNot PresentDeputy ClerkCourt ReporterAttorneys Present for Plaintiffs:Attorneys Present for Defendants:Not PresentNot Present
Proceedings:
(In Chambers) Order GRANTING in part and DENYING in partDefendants’ Motion to Dismiss Complaint (Docket No. 14)
I. INTRODUCTION
Defendant CBS Interactive is the owner and operator of Defendant corporationCNET Networks, Inc. (Mot. Dismiss 4.) CNET is a website network that specializes ininformation about technology, software, and consumer electronics. (Id. 3.) One of thewebsites in CNET’s network is download.com, which provides its users with downloadlinks for third-party software that is submitted by the software publishers. (Id.)Hundreds of thousands of products are accessible on download.com, including peer-to-peer (P2P) file-sharing software. (Id. 4.)Based upon allegations that Defendants distributed P2P software that was used toinfringe copyrights, Plaintiffs brought suit, asserting claims for (1) vicarious copyrightinfringement, (2) contributory infringement, and (3) inducement of infringement. (Id. 5;Pls.’ Complaint ¶ 2.) Beyond allegations that Defendants distributed P2P software,Plaintiffs also allege that Defendants published articles, videos, and reviews thatencouraged users to download copyrighted material with the available P2P software.(Pls.’ Complaint ¶ 10.)Defendants filed a Motion to Dismiss, seeking to dismiss all claims. (Docket No.14.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings for
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
failure to state a claim upon which relief can be granted. “[W]hen ruling on a defendant’smotion to dismiss, a judge must accept as true all of the factual allegations contained inthe complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, allegationscontradicted by matters properly subject to judicial notice or by exhibit need not beaccepted as true, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);and a court is “not bound to accept as true a legal conclusion couched as a factualallegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marksomitted). “Nor does a complaint suffice if it tenders naked assertion[s] devoid of furtherfactual enhancement.” Id. (alteration in original; internal quotation marks omitted). Acomplaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.Twombly, 550 U.S. 544, 570 (2007). This means that the complaint must plead “factualcontent that allows the court to draw the reasonable inference that the defendant is liablefor the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is notakin to a ‘probability requirement,’ but it asks for more than a sheer possibility that adefendant has acted unlawfully.” Id. Ruling on a motion to dismiss will be “a context-specific task that requires the reviewing court to draw on its judicial experience andcommon sense. But where the well-pleaded facts do not permit the court to infer morethan the mere possibility of misconduct, the complaint has alleged – but it has notshow[n] – that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (alteration inoriginal; internal quotation marks and citation omitted).“Normally, when a viable case may be pled, a district court should freely grantleave to amend.” Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir.2011).
III. DISCUSSIONA.Vicarious Copyright Infringement
To state a claim for vicarious copyright infringement, a plaintiff must allege thatthe defendant is (1) profiting from the direct infringement, and (2) declining to exercise aright and ability to stop the infringement. Metro-Goldwyn-Mayer Studios Inc. v.Grokster, Ltd. 545 U.S. 913, 930 (2005) (Grokster); see also Perfect-10, Inc. v. Visa Int’lServ., Ass’n, 494 F.3d 788, 802 (9th Cir. 2007) (Perfect-10 Visa). Vicarious liabilitydoctrine arises from the principles of
respondeat superior
, and focuses on the degree of direct control that the defendant has over the directly infringing party. Perfect-10 Visa,494 F.3d at 802-03. Defendant must have more than just an opportunity to control theinfringement, they must have a legal right to do so. Id. (“[T]he mere ability to withdrawa financial ‘carrot’ does not create the ‘stick’ of ‘right and ability’ that vicariousinfringement requires.”); see also Perfect-10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,1173 (9th
Cir. 2007) (Perfect-10 Amazon).
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In Perfect-10 Amazon, the Ninth Circuit affirmed the dismissal of a vicariouscopyright infringement claim against an internet search engine because it had neither acontractual nor implied right to “stop direct infringement by third-party websites,”despite its ability to control its index, search results, and web pages. 508 F.3d at 1173-74. Even though the search engine’s policies stated that it reserved “the right to monitorand terminate partnerships with entities that violate others’ copyright[s],” the NinthCircuit affirmed that the search engine did not have the right to stop direct infringementby third party web sites, because the web site could continue to infringe copyrights evenafter the partnership was terminated. Id.Similarly, the Ninth Circuit affirmed the dismissal of a vicarious infringementclaim against companies that provided payment services to third-party file-sharingwebsites in Perfect-10 Visa, 494 F.3d at 802-03. The necessary level of control was notestablished because, “[d]efendants cannot take away the software the offending websitesuse to copy, alter, and distribute the infringing images, cannot remove those websitesfrom the internet, and cannot themselves block the distribution of those images over theinternet.” Id. at 805. Though the companies had the right to deny their services, “andhence, the literal power to ‘stop or limit’ the infringement, they . . . do not exercisesufficient control over the actual infringing activity for vicarious liability to attach.” Id.at 806.Here, Plaintiffs do not sufficiently allege that Defendants have the ability to controlthe direct infringement. If Defendants removed the links to P2P software from their site,infringing third-parties would not be prevented from seeking the software out elsewhereand continuing to pirate copyrighted music. Defendants control whether infringing third-parties can access the P2P software through their site, but do not have the right to stopusers from using the software to download copyrighted material illegally. Similar to thesearch engine in Perfect-10 Amazon, Defendants exercise control over their index andsearch results, curating the programs available through their services. This does notequate to control over direct infringement.Because Plaintiffs fail to allege that Defendants had the right and ability to controlthe direct infringement, the Motion to Dismiss is GRANTED as to the vicariouscopyright infringement claim.
B.Contributory Copyright Infringement
Traditionally, a party who “induces, causes or materially contributes to theinfringing conduct of another,” and who has knowledge of the infringing conduct, may beheld liable for contributory infringement. A&M Records, Inc. v. Napster, Inc., 239 F.3d1004, 1019 (9th Cir. 2001) (Napster). In Grokster, the Supreme Court identified twovariations on contributory liability: “Liability under our jurisprudence may be predicated
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