Astral IP Enterprise LTD v. Care20 Fertility Calendar Cycle Tracker

• Court: District Court, N.D. California
• Decided: January 23, 2024
• Docket: 3:23-cv-03835
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ASTRAL IP ENTERPRISE LTD., Case No. 23-cv-03835-EMC

8 Plaintiff, ORDER RE SUPPLEMENTAL 9 v. BRIEFING AND/OR EVIDENCE

10 CARE20 FERTILITY CALENDAR CYCLE TRACKER, Docket No. 22 11 Defendant. 12 13 14 Having reviewed Astral’s motion for default judgment, the Court finds that supplemental 15 briefing and/or evidence on the issues identified below would be helpful. Astral shall file a 16 supplemental brief and/or evidence within one week of the date of this order. 17 1. Does Astral know what kind of entity Care20 is? If Care20 is a corporation or akin 18 to a corporation, where was it incorporated or formed? Astral has indicated in its pleadings that 19 Care20 has its principal place of business in Pakistan. See FAC ¶ 2. 20 2. Astral has claimed personal jurisdiction in part based on a provision in the DMCA. 21 See 17 U.S.C. § 512(g)(3)(D) (addressing contents of a counter-notice to a takedown notice; 22 counter-notice must include, inter alia, “[t]he subscriber’s name, address, and telephone number, 23 and a statement that the subscriber consents to the jurisdiction of Federal District Court for the 24 judicial district in which the address is located, or if the subscriber’s address is outside of the 25 United States, for any judicial district in which the service provider may be found, and that the 26 subscriber will accept service of process from the person who provided notification under 27 subsection (c)(1)(C) or an agent of such person”). Is consent under this statute limited to a dispute 1 infringement? Is consent under this statute for a DMCA/Copyright Act claim only, or does it 2 extend to non-DMCA/Copyright Act claims? 3 3. Can personal jurisdiction for the federal claims be based on Federal Rule of Civil 4 Procedure 4(k)? See Fed. R. Civ. P. 4(k) (“For a claim that arises under federal law, serving a 5 summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the 6 defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and (B) 7 exercising jurisdiction is consistent with the United States Constitution and laws.”). If so, how? 8 4. To the extent Astral is claiming that Care20 targeted California (or the United 9 States under Rule 4(k)), is the fact that Care20 made its application available on Google Play 10 enough to show targeting? What authorities are on point? See, e.g., Lang Van, Inc. v. VNG Corp., 11 40 F.4th 1034, 1042 (9th Cir. 2022) (taking note that “[t]wo courts have determined that a 12 defendant ‘purposefully availed itself of the privilege of conducting business in the United States 13 by distributing the Infringing [content] on platforms such as the Google Play store and Microsoft 14 App store’”). Compare Boschetto v. Hansing, 539 F.3d 1011, 1018-19 (9th Cir. 2008) (taking 15 note that plaintiff “does not allege that any of the Defendants are using eBay to conduct business 16 generally[;] [h]e does not allege that Defendants conduct regular sales in California (or anywhere 17 else) via eBay”). 18 5. It appears that Astral is claiming that it has works that are copyrighted under 19 Canadian law but that are protected under United States law under the Berne Convention. Is that 20 correct? See Canadian Stds. Ass'n v. P.S. Knight Co., No. 1:20-cv-01160-LY, 2022 U.S. Dist. 21 LEXIS 22970, at *7-8 (W.D. Tex. Feb. 9, 2022) (“For foreign works, copyright ownership is 22 determined by the law of the country in which the work is created, and infringement is governed 23 by the law where the infringement took place. Proof of U.S. registration is not a prerequisite to 24 suit if the work originated in a country that is a signatory to the Berne Convention. A party 25 relying on the registration exemption must sufficiently allege that the works are not United States 26 works within the meaning of Section 101 of the Copyright Act.”), report and recommendation 27 adopted by 2022 U.S. Dist. LEXIS (W.D. Tex. Feb. 25, 2022); cf. Des Auteurs v. Doe, No. No. 1 copyright registration is not necessary in this case because Plaintiffs assert copyrights in musical 2 works protected under the laws of the French Republic. . . . Recently the Supreme Court clarified 3 that, under Section 411(a) of the Copyright Act, a copyright registration is needed in order to file a 4 complaint for copyright infringement, but not when the plaintiff is asserting copyright in a foreign 5 work.”) (emphasis in original). If that is Astral’s position, can Astral explain how and provide 6 evidence that it has copyrighted works under Canadian law? 7 6. Can Astral provide bigger images of (a) its copyrighted works, (b) its trademark, 8 and (c) the alleged infringing icon? Is it correct that the trademark does not use any specific 9 colors? 10 7. Paragraph 2 of Astral’s Proposed Order states: “Defendant shall, within ten (10) 11 business days after receipt of such notice, remove its infringing mobile applications from all 12 online platforms [on] which Defendant’s mobile applications may be available.” Is there evidence 13 that Care20’s mobile application is available on a platform other than Google Play? 14 8. Paragraph 3 of Astral’s Proposed Order states: “Should Defendant’s infringing 15 mobile applications remain active on any online platform after ten (10) business days following 16 Defendant’s receipt of this Order, and upon Plaintiff’s request, any other online platforms 17 (collectively, the ‘Third Party Providers’), shall, within ten (10) business days after receipt of such 18 request by Plaintiff, remove Defendant’s infringing mobile applications from the Third Party 19 Provider’s respective online platform.” Should this language be modified to be more consistent 20 with Federal Rule of Civil Procedure 65? See Fed. R. Civ. P. 65(d) (providing that an injunction 21 “binds only the following who receive actual notice of it by personal service or otherwise: (A) the 22 parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons 23 who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)”). 24 /// 25 /// 26 /// 27 /// 1 Astral shall immediately serve a copy of this order by email and at Care20’s physical 2 || address in Pakistan, consistent with the Court’s prior orders. Astral shall promptly file a 3 declaration certifying service. 4 5 IT ISSO ORDERED. 6 7 || Dated: January 23, 2024 8 LL 9 ee -—_—$——__— 10 EDWAR . CHEN United States District Judge 11 12

13 («14 O g 15 16

4 18 19 20 21 22 23 24 25 26 27 28