HAROLD DAVIS, Case No. 19-cv-07650-HSG
Plaintiff, ORDER GRANTING MOTION TO DISMISS v. Re: Dkt. No. 27 Defendant.
Pending before the Court is Defendant Pinterest, Inc.’s motion to dismiss Count II of Plaintiff Harold Davis’s first amended complaint. See Dkt. No. 27. The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons discussed below, the Court GRANTS the motion to dismiss with leave to amend. A. Factual Background Plaintiff is a digital artist and professional photographer. See Dkt. No. 23 (“FAC”) at ¶ 1. Defendant is an online platform that allows users to create their own virtual “pinboards” or “boards,” by “pinning” images to their boards. See id. at ¶ 14. These images may be captured by Defendant’s users, or may be copied from other sources on the internet. See id. Once copied and displayed on Pinterest, Defendant allows users to copy, post, download, crop, alter, and share these images. See, e.g., id. at ¶¶ 309–315. 329. According to Plaintiff, Defendant “employs no system of screening for copyrighted images, copyright notices, or other indicia of copyright for images upload by Pinterest users, or saved by Pinterest users to Pinterest Boards.” See id. at ¶ 25. violate the intellectual property rights of others,” including photographers like Plaintiff. See id. at ¶ 17. Plaintiff alleges that Defendant “copied, posted, and distributed” several of Plaintiff’s copyrighted photographs. See id. at ¶¶ 27–306. Plaintiff alleges that Defendant’s display of these photographs included his name, and in many cases a copyright notice. See, e.g., id. at ¶¶ 153–306. Based on these facts, Plaintiff filed a complaint for both direct and contributory copyright infringement. See id. at ¶¶ 323–332. B. Procedural History Plaintiff filed his initial complaint on November 20, 2019. See Dkt. No. 1. Defendant subsequently moved to dismiss Plaintiff’s contributory infringement claim . See Dkt. No. 17. Rather than file an opposition or statement of non-opposition to the motion, see Civil L.R. 7-3(b), Plaintiff filed the operative amended complaint on March 11, 2020. See FAC. Plaintiff’s substantive allegations remain largely the same as those in his initial complaint, though the FAC includes 31 additional copyrighted photographs that Defendant allegedly infringed. Compare Dkt. No. 1 at ¶¶ 9–115 with FAC at ¶¶ 9–332. Defendant again moves to dismiss the contributory infringement claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). A. Motion to Dismiss Defendant filed the pending motion to dismiss on April 10, 2020. See Dkt. No 27. Plaintiff subsequently filed his response, styled as a “Response to Defendant’s Partial Motion to Dismiss and Request for Leave to Amend.” See Dkt. No. 36. The response itself is only a page and a half long and does not address the substance of Defendant’s motion to dismiss. See id. Indeed, Plaintiff describes the “statement of issue to be decided” in the response as whether he should be granted leave to amend due to newly discovered facts. See id. at 2. The Court interprets Plaintiff’s failure to oppose the motion, and request for leave to amend, as an acknowledgement that his contributory infringement claim should be dismissed. The Court also finds that dismissal is warranted based on the substance of Plaintiff’s complaint. To establish a claim for contributory copyright infringement, Plaintiff “must establish that there has been direct infringement by third parties.” See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007). Once this threshold issue has been established, Plaintiff must further allege that Defendant “(1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 670 (9th Cir. 2007) (quotation omitted). Material contribution “[i]n the online context” requires the defendant to have “actual knowledge that specific infringing material is available using its system, and . . . simple measures [would] prevent further damage to copyrighted works, yet [the defendant] continues to provide access to infringing works.” Id. at 671 (quotation omitted). And inducement requires the defendant to “distribute[] a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative Here, Plaintiff alleges that copyright infringement is rampant on the internet and that Defendant’s platform “provides a mechanism for people to easily and swiftly violate the intellectual property rights of others . . . .” See FAC at ¶¶ 14–17, 329. This “mechanism” includes allowing users to “copy, post, download, crop, alter, and share” copyrighted material. See id. at ¶ 329. Plaintiff further alleges that Defendant does not screen for copyright images and “openly encourages users to violate the copyrights of others.” See id. at ¶¶ 25–26. Yet critically, Plaintiff does not allege facts detailing direct infringement by a third party. Plaintiff only alleges that Defendant has infringed Plaintiff’s copyrights. See, e.g., id. at ¶¶ 329–331. Plaintiff likewise has not alleged that Defendant had actual knowledge of specific third-party infringement; what “simple measures” Defendant should have taken to prevent such infringement; or what “clear expression or other affirmative steps” Defendant has taken to induce or foster infringement. See Giganews, 847 F.3d at 671–72. The Court therefore GRANTS Defendant’s motion to dismiss Count II of Plaintiff’s amended complaint. B. Leave to Amend In response to Defendant’s motion, Plai
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HAROLD DAVIS, Case No. 19-cv-07650-HSG
Plaintiff, ORDER GRANTING MOTION TO DISMISS v. Re: Dkt. No. 27 Defendant.
Pending before the Court is Defendant Pinterest, Inc.’s motion to dismiss Count II of Plaintiff Harold Davis’s first amended complaint. See Dkt. No. 27. The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons discussed below, the Court GRANTS the motion to dismiss with leave to amend. A. Factual Background Plaintiff is a digital artist and professional photographer. See Dkt. No. 23 (“FAC”) at ¶ 1. Defendant is an online platform that allows users to create their own virtual “pinboards” or “boards,” by “pinning” images to their boards. See id. at ¶ 14. These images may be captured by Defendant’s users, or may be copied from other sources on the internet. See id. Once copied and displayed on Pinterest, Defendant allows users to copy, post, download, crop, alter, and share these images. See, e.g., id. at ¶¶ 309–315. 329. According to Plaintiff, Defendant “employs no system of screening for copyrighted images, copyright notices, or other indicia of copyright for images upload by Pinterest users, or saved by Pinterest users to Pinterest Boards.” See id. at ¶ 25. violate the intellectual property rights of others,” including photographers like Plaintiff. See id. at ¶ 17. Plaintiff alleges that Defendant “copied, posted, and distributed” several of Plaintiff’s copyrighted photographs. See id. at ¶¶ 27–306. Plaintiff alleges that Defendant’s display of these photographs included his name, and in many cases a copyright notice. See, e.g., id. at ¶¶ 153–306. Based on these facts, Plaintiff filed a complaint for both direct and contributory copyright infringement. See id. at ¶¶ 323–332. B. Procedural History Plaintiff filed his initial complaint on November 20, 2019. See Dkt. No. 1. Defendant subsequently moved to dismiss Plaintiff’s contributory infringement claim . See Dkt. No. 17. Rather than file an opposition or statement of non-opposition to the motion, see Civil L.R. 7-3(b), Plaintiff filed the operative amended complaint on March 11, 2020. See FAC. Plaintiff’s substantive allegations remain largely the same as those in his initial complaint, though the FAC includes 31 additional copyrighted photographs that Defendant allegedly infringed. Compare Dkt. No. 1 at ¶¶ 9–115 with FAC at ¶¶ 9–332. Defendant again moves to dismiss the contributory infringement claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). A. Motion to Dismiss Defendant filed the pending motion to dismiss on April 10, 2020. See Dkt. No 27. Plaintiff subsequently filed his response, styled as a “Response to Defendant’s Partial Motion to Dismiss and Request for Leave to Amend.” See Dkt. No. 36. The response itself is only a page and a half long and does not address the substance of Defendant’s motion to dismiss. See id. Indeed, Plaintiff describes the “statement of issue to be decided” in the response as whether he should be granted leave to amend due to newly discovered facts. See id. at 2. The Court interprets Plaintiff’s failure to oppose the motion, and request for leave to amend, as an acknowledgement that his contributory infringement claim should be dismissed. The Court also finds that dismissal is warranted based on the substance of Plaintiff’s complaint. To establish a claim for contributory copyright infringement, Plaintiff “must establish that there has been direct infringement by third parties.” See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007). Once this threshold issue has been established, Plaintiff must further allege that Defendant “(1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 670 (9th Cir. 2007) (quotation omitted). Material contribution “[i]n the online context” requires the defendant to have “actual knowledge that specific infringing material is available using its system, and . . . simple measures [would] prevent further damage to copyrighted works, yet [the defendant] continues to provide access to infringing works.” Id. at 671 (quotation omitted). And inducement requires the defendant to “distribute[] a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative Here, Plaintiff alleges that copyright infringement is rampant on the internet and that Defendant’s platform “provides a mechanism for people to easily and swiftly violate the intellectual property rights of others . . . .” See FAC at ¶¶ 14–17, 329. This “mechanism” includes allowing users to “copy, post, download, crop, alter, and share” copyrighted material. See id. at ¶ 329. Plaintiff further alleges that Defendant does not screen for copyright images and “openly encourages users to violate the copyrights of others.” See id. at ¶¶ 25–26. Yet critically, Plaintiff does not allege facts detailing direct infringement by a third party. Plaintiff only alleges that Defendant has infringed Plaintiff’s copyrights. See, e.g., id. at ¶¶ 329–331. Plaintiff likewise has not alleged that Defendant had actual knowledge of specific third-party infringement; what “simple measures” Defendant should have taken to prevent such infringement; or what “clear expression or other affirmative steps” Defendant has taken to induce or foster infringement. See Giganews, 847 F.3d at 671–72. The Court therefore GRANTS Defendant’s motion to dismiss Count II of Plaintiff’s amended complaint. B. Leave to Amend In response to Defendant’s motion, Plaintiff seeks leave to amend based on “recently learned new facts.” See Dkt. No. 36 at 2. Plaintiff urges that granting leave to amend would allow him to buttress his claim for contributory infringement and address Defendant’s legal arguments. See id. at 3. Defendant, in response, contends that Plaintiff’s request is procedurally deficient because Plaintiff neither explains the new facts nor attaches the proposed amendment to his response. See Dkt. No. 38 at 2 (citing Civil L.R. 10-1). The Court understands Defendant’s concern that Plaintiff has had an opportunity to amend before and his complaint remains deficient. Nevertheless, there is a presumption under Federal Rule of Civil Procedure 15 that “[t]he court should freely give leave [to amend] when justice so requires.” See Fed. R. Civ. P. 15. The Ninth Circuit has emphasized that “[t]his policy is to be applied with extreme liberality.” See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). The Court cannot say at this stage that amendment would be futile. And because a case schedule has not yet been set, the Court cannot say that Defendant would be prejudiced by granting leave to amend. 2 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss Count II of □□□□□□□□□□□ 3 amended complaint with leave to amend. Plaintiff shall file an amended complaint by no later 4 than August 14, 2020, if he can do so consistent with his Rule 11 obligations. Plaintiff may not 5 add any additional defendants or new claims. The Court further SETS a telephonic case 6 management conference for August 25, 2020, at 2:00 p.m. The parties shall file a joint case 7 management statements by August 18, 2020. 8 All counsel as well as members of the public and press may use the following dial-in 9 information below to access the conference line: 10 Dial In: 888-808-6929 11 Access Code: 6064255
13 Dated: 7/22/2020 4 : HAYWOOD S. GILLIAM, JR. 15 United States District Judge 16
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