UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
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
, 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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