Alla Zorikova v. Kineticflix, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2025
• Docket: 22-55531
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALLA ANATOLYEVNA ZORIKOVA, No. 22-55531

Plaintiff-Appellant, D.C. No. 2:19-cv-04214-ODW-GJS v.

KINETICFLIX, LLC, DBA KineticFlix.com, MEMORANDUM* a California corporation, Erroneously Sued As Elles, LLC; DOES, 1-5, individuals,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted March 10, 2025** San Francisco, California

Before: FRIEDLAND, BENNETT, and BADE, Circuit Judges.

Plaintiff-Appellant Alla Zorikova appeals the district court’s grant of

summary judgment in favor of Defendant-Appellee Kineticflix, LLC. Zorikova

sued Kineticflix, a mail-order DVD rental service, for copyright infringement,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). vicarious copyright infringement, and violation of California’s Unfair Competition

Law. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a district court’s grant of summary judgment. Johnson

v. Barr, 79 F.4th 996, 1003 (9th Cir. 2023) (citing Animal Legal Def. Fund v. FDA,

836 F.3d 987, 988 (9th Cir. 2016) (en banc)). “Pursuant to Federal Rule of Civil

Procedure 56(c), we ‘view the evidence in the light most favorable to the

nonmoving party, determine whether there are any genuine issues of material fact,

and decide whether the district court correctly applied the relevant substantive

law.’” Id. (quoting Animal Legal Def. Fund, 836 F.3d at 988).

1. Zorikova argues that the district court erred in concluding that the first

sale doctrine permits the rental of legally purchased audiovisual works. But the

first sale doctrine, codified at 17 U.S.C. § 109(a), provides that once a copyright

owner transfers ownership of a particular copy of their work to another, “the

person to whom the copy . . . is transferred is entitled to dispose of it by sale,

rental, or any other means.” Adobe Sys. Inc. v. Christenson, 809 F.3d 1071, 1078

(9th Cir. 2015) (alteration in original) (emphasis added) (quoting H.R. Rep. No.

94-1476, at 79 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5693); see also 2

Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.12[B][1][a]

(Dec. 2024) (explaining that once a first sale has occurred, “the copyright owner is

powerless to control both subsequent sale or lease of the affected copies”

2 (emphasis added)); Columbia Pictures Indus., Inc. v. Pro. Real Est. Invs., Inc., 866

F.2d 278, 279 (9th Cir. 1989) (holding that a “hotel did not violate the Copyright

Act by renting videodiscs for viewing on hotel-provided video equipment in

guests’ rooms”).

Zorikova’s argument that the word dispose, as used in § 109(a), does not

include the ability to rent is both unsupported and unpersuasive. Zorikova offers a

definition of dispose but does not cite the source of that definition. Merriam-

Webster, however, defines dispose as, inter alia, “to transfer to the control of

another,” e.g., “disposing of personal property to a total stranger.” Dispose,

Merriam-Webster, https://www.merriam-webster.com/dictionary/dispose

[https://perma.cc/M7LF-ZUWD]. This definition does not exclude the ability to

rent.

2. Zorikova next argues that the district court erred because it

overlooked material disputed facts. She suggests, without evidence, that

Kineticflix made unauthorized copies of her work. Zorikova reasons that

Kineticflix must have done so because she ceased selling physical copies of her

work on Amazon in 2014. But Zorikova’s declaration does not create a dispute of

material fact because Kineticflix’s owners and operators, Joshua and Candee

Parker, submitted a receipt and declarations that only state that they bought a copy

of the work on Amazon, not that Zorikova was the seller of the copy they

3 purchased. It is therefore undisputed that they purchased a legal copy of

Zorikova’s work. Zorikova’s other argument about diverging covers of the work

also fails to create a genuine dispute of material fact. The receipt indicates that a

physical DVD was delivered, and her argument that the cover art on the receipt

matches the cover art for the digital-only version of her work is unsupported.

3. Lastly, Zorikova argues that the first sale doctrine does not apply here

because her work is computer software exempted from the doctrine by

§ 109(b)(1)(A). She reasons that her work, an instructional DVD that teaches

ballet, is computer software because it has a searchable menu and contains encoded

digital data used to display moving visual images. But § 109(b)(1)(B)(i) plainly

states that the computer program exemption does not apply to computer programs

“embodied in a machine or product” that “cannot be copied during the ordinary

operation or use of the machine or product.” The district court was correct that

“[t]o the extent any of the interactive features Zorikova points out constitute[]

computer software, the product in which that computer software is embodied—the

DVD—cannot be copied during its ordinary operation or use in a DVD player.”

Accord Nimmer, supra, at § 8.12[D][2][b].

AFFIRMED.