Pilkin v. Google LLC

• Court: District Court, N.D. California
• Decided: August 13, 2021
• Docket: 4:21-cv-01483
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VITALY PILKIN, Case No. 21-cv-01483-DMR

8 Plaintiff, ORDER ON MOTION TO DISMISS 9 v. Re: Dkt. No. 19 10 GOOGLE LLC, 11 Defendant.

12 Plaintiff Vitaly Pilkin, representing himself, filed this case on March 1, 2021, alleging a 13 claim for copyright infringement against Google LLC. Pilkin filed a first amended complaint on 14 June 21, 2021. [Docket No. 14 (“FAC”).] Google now moves to dismiss the FAC.1 [Docket Nos. 15 19 (“Mot.”); 28 (“Reply”).] Pilkin opposes. [Docket No. 25 (“Opp.”).] The court held a hearing 16 on August 12, 2021. 17 For the reasons stated below, the motion is granted. 18 I. BACKGROUND 19 The following facts are alleged in the FAC. Pilkin is a citizen of Russia. FAC ¶ 1. On 20 August 26, 2013, Pilkin “created a nondramatic literary original work,” which he titled “Map in the 21

22 1 Pilkin argues that Google’s motion is an inappropriate motion for reconsideration, pointing out that the court already denied Google’s first motion to dismiss. Opp. at 19. This is incorrect. The 23 court denied the first motion as moot because Pilkin filed an amended complaint after the motion was filed. See Docket Nos. 14, 15. The court never reached the merits of Google’s first motion to 24 dismiss.

25 Pilkin also filed objections to Google’s reply brief, arguing that it inappropriately contained new evidence. See Docket No. 29; see Civil L.R. 7-3(b) (“If new evidence has been submitted in the 26 reply, the opposing party may file within 7 days after the reply is filed . . . stating its objections to the new evidence . . . .”). The objections are overruled. Google did not submit any evidence on 27 reply, much less new evidence. It merely cited additional cases in support of its existing arguments. 1 Information and Telecommunications Network.” Id. ¶ 8; see Mot., Ex. A (the “Work”).2 The work 2 describes various features of a hypothetical interactive map, including: 3 (a) On a virtual map, symbols designating cities, settlements, state boundaries, boundaries of administrative territories are animated images. 4 (b) Symbols or names used on the interactive map in text and / or graphic 5 form are highlighted on the interactive map by changing color (s) or 6 decreasing and increasing. 7 (c) Denoted on the interactive map objects such as outlines of houses and buildings are active links. When clicking by the cursor or finger or stylus 8 on the outline of a house or building (which is an active link), at least one photo of the facade and / or central part and / or end part of the specified 9 house / building are shown. 10 (d) In certain places of the panoramic images of the interactive map, active 11 links are placed in the form of icons, for example, on the image of the facade or window of a store or bar or cafe or bank or office or other institution, on 12 a house (building), on a balcony, on a window of a house (building). When clicking on the specified active link, the user of the interactive map has the 13 opportunity to get to the website of that person or institution, which is 14 designated by the indicated active link. Id. 15 On September 2, 2013, Pilkin sent a description of the Work to Google’s Moscow office, 16 along with a proposal that the company buy exclusive rights in the work. Id. ¶ 10. The Moscow 17 office did not respond to Pilkin. Id. On November 22, 2013, Pilkin sent a description of the proposal 18 to Google’s offices in Mountain View, CA, along with the same proposal for exclusive rights. Id. 19 ¶ 13. Google again did not respond. Id. Pilkin tried to pitch his proposal to other companies— 20 including Yandex LLC, Microsoft, and Nokia—but no one responded to him. Id. ¶ 12. On 21 September 18, 2020, Pilkin once again contacted Google’s Moscow office with the proposal; the 22 company again did not respond. Id. ¶ 13. 23 On September 30, 2020, Pilkin discovered that Google uses the features described in the 24 Work in its online mapping platform, Google Maps. FAC ¶¶ 14, 21. For example, Google Maps 25

26 2 Although the Work is not attached to the FAC, the court may consider it on a motion to dismiss under the incorporation by reference doctrine. See Steinle v. City & Cty. of San Francisco, 919 F.3d 27 1154, 1162–63 (9th Cir. 2019) (stating that a court can consider a document on a motion to dismiss 1 uses “animated images” to “designat[e] state boundaries and boundaries of administrative areas,” 2 which is a feature identified in the Work. Id. ¶ 21. On October 1, 2020, Pilkin reported to Google 3 that its use of his Work constitutes copyright infringement. Id. ¶ 15. Google confirmed receipt of 4 the report. Id. Pilkin submitted at least two more complaints to Google about the alleged copyright 5 infringement. Id. ¶¶ 16-17. Allegedly, Google’s unlawful use of the Work is ongoing. Id. ¶ 19. 6 Pilkin alleges a single claim for copyright infringement. 7 II. LEGAL STANDARD FOR RULE 12(B)(6) MOTIONS 8 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 9 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). When 10 reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all of the 11 factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 12 curiam) (citation omitted), and may dismiss a claim “only where there is no cognizable legal theory” 13 or there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” 14 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft 15 v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) 16 (quotation marks omitted). A claim has facial plausibility when a plaintiff “pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 18 alleged.” Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must 19 demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of a cause 20 of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing Papasan v. 21 Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001), 22 overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 23 Although pro se pleadings are liberally construed and held to a less stringent standard than 24 those drafted by lawyers, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or 25 portion thereof, should be dismissed for failure to state a claim if it fails to set forth “enough facts 26 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 27 554 (2007); see also Fed. R. Civ. P. 12(b)(6). “[A] district court should not dismiss a pro se 1 complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2 2012) (quotations omitted). 3 III. DISCUSSION 4 “[T]he owner of copyright . . . has the exclusive rights to do and to authorize . . . distribut[ing] 5 copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, 6 or by rental, lease, or lending . . . .” 17 U.S.C. § 106. To establish copyright infringement, a plaintiff 7 must prove two elements: “(1) ownership of a valid copyright, and (2) copying of constituent 8 elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 9 340, 361 (1991). In ruling on a motion to dismiss a copyright infringement claim, a court must 10 determine whether the plaintiff has sufficiently alleged that the work at issue is entitled to copyright 11 protection. See Daniels v. Walt Disney Co., 958 F.3d 767, 771 (9th Cir. 2020) (affirming a district court’s dismissal of a complaint that failed to adequately plead the existence of copyrightable 12 material). Copyright protection does not extend to “any idea, procedure, process, system, method 13 of operation, concept, principle, or discovery, regardless of the form in which it is described, 14 explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b); see also Feist Publications, 15 Inc., 499 U.S. at 344-45 (“The most fundamental axiom of copyright law is that no author may 16 copyright his ideas or the facts he narrates.” (cleaned up)). Only “a particular expression of an idea 17 may be copyrighted.” Signo Trading Int’l Ltd. v. Gordon, 535 F. Supp. 362, 365 (N.D. Cal. 1981). 18 In this case, Pilkin asserts that the Work is a “nondramatic literary original work.” FAC ¶ 19 8. “Literary works” are an enumerated copyrightable subject matter under the Copyright Act. 17 20 U.S.C. § 102(a)(1). They are defined as “works, other than audiovisual works, expressed in words, 21 numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material 22 objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which 23 they are embodied.” 17 U.S.C. § 101. Google moves to dismiss the FAC on the basis that Pilkin is 24 improperly seeking copyright protection for ideas and functional concepts. Mot. at 5-6. It argues 25 that Pilkin has at most pleaded a protectable interest in the three-page essay constituting the Work, 26 but has not adequately alleged that Google copied any protected portion of that Work in creating 27 Google Maps. See Reply at 1. 1 Works that have “strong functional elements” receive less protection than works of fiction. 2 Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1524 (9th Cir. 1992), as amended (Jan. 6, 3 1993). For example, a written work describing a system (either existing systems or entirely new 4 ones) does not convey to the author “the exclusive right to the art or manufacture described therein.” 5 Baker v. Selden, 101 U.S. 99, 102 (1879) (holding that a book describing a peculiar system of 6 bookkeeping was not subject to copyright protection). While the book explaining a process or 7 design is itself copyrightable, “[t]he use of the art is a totally different thing from a publication of 8 the book explaining it.” Advanz Behavorial Mgmt. Res., Inc. v. Miraflor, 21 F. Supp. 2d 1179, 1183 9 (C.D. Cal. 1998); see Sega Enterprises Ltd., 977 F.2d at 1525 (citing “the basic structural concepts embodied in architectural plans” as an example of a system that is not protected under copyright 10 law). “[C]ourts have routinely held that the copyright for a work describing how to perform a 11 process does not extend to the process itself.” Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, 12 LLC, 803 F.3d 1032, 1037–38 (9th Cir. 2015) (citing cases). To the extent that such processes are 13 protected at all, it must be under patent law. See id. at 1039 (citing Baker, 101 U.S. at 105); see also 14 Sega Enters. Ltd., 977 F.2d at 1526 (“In order to enjoy a lawful monopoly over the idea or functional 15 principle underlying a work, the creator of the work must satisfy the more stringent standards 16 imposed by the patent laws.”). 17 Here, Pilkin seeks copyright protection for a written Work describing various alternative 18 processes of implementing an interactive map. For example, the Work explains that “[s]ymbols or 19 names used on an interactive map” may be displayed “in a text and/or graphic form(s),” 20 “permanently or temporarily highlighted” such that they “change . . . color(s) or font, or they blink 21 or fluctuate, or decrease and increase.” Work at 2 (emphasis added). Other potential features are 22 described as “optional.” See id. at 3. Essentially, the Work describes a wide range of possible 23 expressions of the features described in it but does not actually convey any particular expression of 24 those features. Thus, contrary to Pilkin’s assertions, the Work only contains unprotectable ideas. 25 The authorities cited above make clear that, while a written essay itself may be protected, the ideas 26 and processes it describes cannot. 27 The authority relied on by Pilkin does not change this outcome. He cites Mason v. 1 Montgomery Data, Inc. for the general proposition that a particular expression of an idea is protected 2 || by copyright law if it is not the only way to express that idea. See 967 F.2d 135, 139 (Sth Cir. 1992). 3 || Mason examined the “merger doctrine,” which provides that if an expression cannot be separated 4 || from its underlying idea, the expression is not protected. Jd. at 138-39. In that case, for example, 5 || the plaintiff created a series of real estate ownership maps that pictorially portrayed the “location, 6 size, and shape of surveys, land grants, tracts, and various topographical features within the 7 || country.” Jd. at 136. The Fifth Circuit determined that the ideas embodied in the maps could be g || expressed in a variety of ways and so the merger doctrine did not apply. Jd. at 141. Mason is does g || not apply here because the merger doctrine is not at issue in this case. The problem with Pilkin’s 10 position is not that his expression of certain ideas merges with the underlying ideas; instead, as ll explained above, the problem is that the Work does not convey any particular expression at all. It 2 only describes many ways in which the ideas contained in it could be expressed.

5 13 In sum, Pilkin has not adequately pleaded that he created any copyrightable expression of

14 the ideas contained in the Work. Accordingly, the FAC fails to state a claim for copyright

= 15 infringement. The Work is not subject to copyright protection, and Pilkin cannot fix this 5 16 fundamental problem. Therefore, amendment is futile. The case is dismissed with prejudice. IV. CONCLUSION 17 18 For the reasons stated above, Google’s motion to dismiss is granted with prejudice. The

19 Clerk shall enter judgment for Google and against Pilkin and close this case.

20 KES PRES ES £O é IT ISSO ORDERED. &y MERED | 22 >If is sO ORDER Dated: August 13, 2021 DQ < 23 LA 30 £ Si = 7 A □□ CN area ESIC 25 United States Magistrate Judg4y, LR © 26 □ 27 28