Whyte Monkee Productions LLC v. Netflix, Inc.

Opinion

WHYTE MONKEE PRODUCTIONS LLC, Case No. 23-cv-03438-PCP et al., Plaintiffs, ORDER DENYING MOTIONS FOR v. ATTORNEY'S FEES NETFLIX, INC., Re: Dkt. Nos. 64, 66 Defendant.

In this case, plaintiffs Whyte Monkee Productions LLC and Timothy Sepi sued defendant Netflix, Inc. for alleged copyright infringement arising from a series of events surrounding Netflix’s production of the documentary series Tiger King. The Court dismissed all of plaintiffs’ claims with prejudice and issued final judgment on November 22, 2024. Plaintiffs now ask the court to alter and grant relief from that final judgment under Federal Rules 59 and 60. These rules impose high burdens that plaintiffs have come nowhere near satisfying. For that reason, the motion is denied. As the prevailing party in this suit, Netflix separately moves for attorney’s fees. For the reasons set forth below, that motion is also denied. In late 2020, Mr. Sepi and Whyte Monkee filed an action against Netflix in the United States District Court for the Western District of Oklahoma asserting claims of copyright infringement as to eight cinematographic works. Plaintiffs claimed that over the prior ten years they had created a series of videos that Netflix, without authorization, appropriated and used in its reality series Tiger King, which it made available on its streaming platform. The claims in that granted summary judgment in favor of Netflix, concluding that plaintiffs did not own seven of the eight videos at issue and that the use of the eighth video constituted a fair use. Whyte Monkee Prods., LLC v. Netflix, Inc., 601 F. Supp. 3d 1117, 1123 (W.D. Okla. 2022). Nearly a year later in March 2023, plaintiffs filed this action in California state court alleging that Netflix publicly performed, displayed, and distributed unauthorized derivatives of their copyrighted works in Australia, Great Britain, Canada, France, Germany, Italy, Japan, South Korea, New Zealand, and Spain. Plaintiffs asserted copyright claims under the laws of these countries but did not assert any U.S. copyright claims. After Netflix removed the case to federal court, plaintiffs moved to remand. The Court ordered supplemental briefing on the question of “what law foreign courts in the asserted jurisdictions would apply to determine ownership of a copyright in the videos at issue[.]” Dkt. No. 33, at 3. The Court ultimately denied plaintiffs’ motion to remand, holding that “application of the Copyright Act’s work-for-hire doctrine is … a central federal issue raised by plaintiffs’ complaint that is sufficient to establish the Court’s federal question jurisdiction.” Whyte Monkee Prods., LLC v. Netflix, Inc., 730 F. Supp. 3d 947, 953 (N.D. Cal. 2024); see also JustMed, Inc. v. Byce, 600 F.3d 1118, 1124–25 (9th Cir. 2010) (holding that federal question jurisdiction exists if cases require application of the work-for-hire doctrine). In June 2024, Netflix moved to dismiss this case. The Court granted that motion, concluding that the “suit is barred by the doctrine of claim preclusion.” Whyte Monkee Prods. LLC v. Netflix, Inc., ––F. Supp. 3d––, 2024 WL 4876163, at *6 (N.D. Cal. Nov. 22, 2024). The Court concluded that plaintiffs’ claims arose from the same set of facts as their claims in the Oklahoma litigation. Contrary to plaintiffs’ position, the Court concluded that the separate accrual doctrine did not apply because “plaintiffs [did] not actually allege that Netflix distributed Tiger King in any new countries after the filing of their … [Oklahoma] complaint[,]” and because the central issue in the case “involves ownership, not republication.” Id. at *4. Finally, the Court held that the Oklahoma district court would have had specific personal jurisdiction over plaintiffs’ foreign copyright claims or alternatively could have asserted pendent personal jurisdiction over the claims. The Court dismissed plaintiffs’ case with prejudice and entered final judgment. dismissing the case and to alter judgment. Netflix moved for attorney’s fees shortly thereafter. A. Legal Standard Federal Rule of Civil Procedure 59(e) allows a party to move the Court to “alter or amend a judgment no later than 28 days after the entry of judgment.” This rule “offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal citations omitted). A Rule 59(e) motion “should not be granted, absent highly unusual circumstances[.]” Id. Such circumstances include “four basic grounds”: (1) “to correct manifest errors of law or fact upon which the judgment rests; (2) … to present newly discovered or previously unavailable evidence; (3) … to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). The “district court enjoys considerable discretion in granting or denying the motion.” Id. (citing McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999)). Federal Rule of Civil Procedure 60(b)(4) allows the court to “relieve a party from a final judgment” if “the judgment is void[.]” The rule “applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.” U.S. Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010). “[T]he scope of what constitutes a ‘void’ judgment is narrowly circumscribed[.]” Fed. Trade Comm’n v. Hewitt, 68 F.4th 461, 466 (9th Cir. 2023). Where a party attacks the Court’s jurisdiction over the case, a judgment is void only “where the [Court’s] assertion of jurisdiction is truly unsupported” or “lack[s] even a colorable basis.” Hoffman v. Pulido, 928 F.3d 1147, 1151 (9th Cir. 2019); see U.S. Aid Funds, 599 U.S. at 271 (“[A] judgment is void because of a jurisdictional defect [only in the] exceptional case in which the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.”). B. Analysis Plaintiffs raise five arguments in support of their motion. The Rule 59(e) motion argues: violated the principle of party presentation; (3) that the Court erred in denying plaintiffs’ leave to amend; and (4) that the Court misapplied the concept of pendent personal jurisdiction. The Rule 60 motion argues: (5) that the Court lacked subject matter jurisdiction and improperly denied Netflix’s motion to remand.1 Plaintiffs have not demonstrated a basis for relief. 1. Plaintiffs have failed to demonstrate the clear error necessary for relief under Rule 59(e). Plaintiffs claim the Court made four errors of law in dismissing this case. These arguments fail for many reasons, but most notably they fail to demonstrate the clear legal error necessary to warrant Rule 59(e)’s “extraordinary remedy.” Kona Enterprises, 229 F.3d at 890. Plaintiffs first argue that when applying the separate accrual doctrine, the Court erred in failing to distinguish the eighth video. See Whyte Monkee Prods., 2024 WL 4876163, at *4. Although the parties did not seriously dispute ownership of the eighth video, it was not clear error for the Court to dismiss claims related to all eight videos notwithstanding the separate accrual doctrine’s application to only seven of the videos. See id. (“Thus, under either Ninth or Tenth Circuit caselaw, plaintiffs’ foreign copyright claims accrued when Netflix repudiated plaintiffs’ ownership interest in seven of the videos at issue.”). Plaintiffs’ central error (across their motion) is that they take the Court’s prior order out of context. The Court analyzed the separate accrual doctrine only after having concluded a lengthy discussion of claim preclusion. The Court held that “nearly all of the alleged acts giving rise to Netflix’s purported liability are common across both suits.” Id. at *3. Indeed, that is the crux of claim preclusion: A subsequent suit alleging new legal claims related to facts already considered by a different court are barred by res judicata. See Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F,3d 1221, 1239 (10th Cir. 2017); Yapp v. Excel Corp., 186 F.3d 1222, 1227 (10th Cir. 1999). That aspect of the Court’s holding applied to all eight videos, and plaintiffs do not seriously quarrel with the Court’s conclusion that their claims relate to the same set of facts from which the Oklahoma suit arose. 1 Plaintiffs were not explicit in their briefing as to which argument falls under which Federal Rule. The Court has nonetheless done its best to decipher plaintiffs’ arguments. If the Court Further, the language of the Court’s order does not clearly embrace the idea that the separate accrual doctrine even applies. The Court addressed the Ninth Circuit’s decision in Media Rights Techs., Inc. v. Microsoft Corp., 922 F.3d 1014 (9th Cir. 2019), at plaintiffs’ behest. The Court expressed skepticism that this case applied because “plaintiffs [did] not actually allege that Netflix distributed Tiger King in any new countries after the filing of their second amended complaint in the Oklahoma suit.” Whyte Monkee Prods., 2024 WL 4876163, at *4. To properly invoke the separate accrual doctrine, plaintiffs needed to allege repeat violations of their copyright, such as distribution of Tiger King in new countries after the filing of the second amended Oklahoma complaint. Plaintiffs never made that argument in their complaint, in their response to Netflix’s motion to dismiss, or in their hearing before the Court, despite being aware since at least December 2020 that Netflix had distributed Tiger King to an international audience. Plaintiffs continuously fail to demonstrate how differential treatment of the eighth video would have changed the outcome of their claims. Their position here does not demonstrate clear legal error on the Court’s part. Plaintiffs next argue that the Court violated the principle of party presentation. Specifically, plaintiffs argue that it was error for the Court to raise ownership in its order dismissing the case because “[d]efendant has not raised any ownership issue here in this case.” Dkt. No. 64, at 10 (emphasis in original). This argument is patently frivolous and borders on bad faith. Plaintiffs both mischaracterize the Court’s order and entirely gloss over the history of this case. As an initial matter, although plaintiffs are correct that ownership factored into the Court’s decision to dismiss the case, they are incorrect that the Court “act[ed] as though ownership has already been adjudicated in this case[.]” Dkt. No. 64, at 11 (emphasis in original). Defendants moved to dismiss this case as barred by res judicata. That principle that stands for the simple idea that one court—not two—should decide all legal questions that arise from the same set of facts. Far from ruling on the merits of ownership, the Court merely compared aspects of plaintiffs’ Oklahoma and California complaints to reason that the “central copyright issue [in this case] Ownership was also a central legal question in the Oklahoma litigation, and the presence of two identical legal questions arising from the same factual contentions revealed the impropriety of plaintiffs’ international copyright claims here. Plaintiffs’ argument misconstrues the Court’s identification of a legal question as a decision on that question’s merits. It was the presence of an ownership question, not its merit, that led the Court to conclude that “plaintiffs assert claims against Netflix … that they could and should have asserted in their prior lawsuit against Netflix.” Id. at *6. Further, the principle of party presentation is not implicated here. That principle states that “in both civil and criminal cases … we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (citing Greenlaw v. United States, 554 U.S. 237, 243 (2008)). But “a court is not hidebound by the precise arguments of counsel,” particularly where an issue arose throughout the litigation. Id. at 380. In this case, the Court ordered supplemental briefing regarding “what law foreign courts in the asserted jurisdictions would apply to determine ownership of a copyright in the videos at issue[.]” Dkt. No. 33, at 3; see Sineneng-Smith, 590 U.S. at 376 (“There are no doubt circumstances in which a modest initiating role for a court is appropriate”) (collecting cases in which the Supreme Court ordered supplemental briefing). Ownership was intertwined with plaintiffs’ foreign copyright claims and with the Court’s subject- matter jurisdiction. Given the Court’s independent obligation to consider its subject-matter jurisdiction, it was certainly appropriate for the Court to raise the ownership question sua sponte. Far from going outside of its discretionary bounds, this Court put that question to the parties before it and asked them to brief the question. Cf. Sineneng-Smith, 590 U.S. at 374 (holding that the circuit court violated the party presentation principle when it appointed “three [third-party] amici and invited them to brief and argue issues framed by the panel[.]”). Perhaps most problematic about Plaintiffs’ argument is that they ignore the frequency with which ownership came up throughout this litigation, almost as if this motion were their first encounter with the case. For example, the word “ownership” appears over thirty times in dismiss explicitly states that “[t]he Complaint also undoubtedly alleges … the same set of facts as the Oklahoma complaints as to the authorship and ownership of the Videos.” Dkt. No 44, at 19. And Netflix’s reply brief spends two pages discussing ownership in the context of the separate accrual doctrine. See Dkt. No. 54, at 13–14. Indeed, it is astounding how plaintiffs can seriously argue that “no party directly raised [ownership] in a motion/brief” when, not four pages later, they also state that in their own motion to remand, “[p]laintiffs argued it was foreign law that would govern ownership over foreign property. Defendant argued it was U.S. law that would govern ownership.” These are just a handful of the countless instances in which ownership arose in this case. See Dkt. No. 68, at 16 (collecting citations). Dkt. No. 64, at 11, 14 (emphasis). Plaintiffs’ argument lacks any basis in fact or law and thus fails to meet Rule 59(e)’s clear error threshold. Plaintiffs next argue that the Court erred in dismissing without leave to amend. Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). Courts may deny leave to amend in circumstances involving, “undue delay, bad faith … undue prejudice to the opposing party … [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); see Griggs v. PaceAm, Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999). Courts routinely decline leave to amend when dismissing a suit as barred by res judicata because amendment would be futile. See, e.g., Aquino v. Cal. Reconveyance Co., No. 14-cv-01818-WHO, 2014 WL 5494446, at *5 (N.D. Cal. Oct. 30, 2014) (“Amendment here would be futile because all five of Aquino’s causes of action are barred by res judicata.”); Geraldo v. Richland Holdings, Inc., No. 17-cv-15-JCM, 2017 WL 3174918, at *5 (D. Nev. July 26, 2017), aff’d, 716 F. App’x 728 (9th Cir. 2019) (“Leave to amend is futile because plaintiffs’ claims are precluded”); Geraldo, 716 F. App’x at 729 (holding that “the district court did not abuse its discretion by denying leave to file an amended complaint because amendment would be futile.”). The Court’s decision to dismiss with prejudice does not meet Rule 59(e)’s clear error standard given that plaintiffs failed to allege any facts that might have saved their complaint despite knowing since as early as December 2020 that Netflix had distributed Tiger King abroad. See Music v. Bank of Am., N.A., 717 Fed. Appx. 658, 661 (9th Cir. 2017) (“We have held that not abuse its discretion by dismissing with prejudice.”) (citing Halkin v. VeriFone, Inc., 11 F.3d 865, 872 (9th Cir. 1993)). Finally, Plaintiffs argue that the Court erred in its application of pendent personal jurisdiction. This argument is flawed for three reasons. First, plaintiffs latch onto the specific facts of United States v. Botefuhr, 309 F.3d 1263 (10th Cir. 2002), to claim that the Court cited that case in error. In Botefuhr, the lower court dismissed the jurisdictional anchor claim before trial but “retain[ed] jurisdiction” over a second claim for which it did not have an independent jurisdictional basis. Id. at 1274. The Tenth Circuit held that this was an abuse of discretion. But this aspect of Botefuhr is inapposite because the question in this case was not whether the Oklahoma court could have retained jurisdiction after it dismissed plaintiffs’ domestic copyright claims. Rather, the question was whether the Oklahoma court could have asserted pendent personal jurisdiction over the foreign copyright claims in the first instance. Plaintiffs confuse the temporal nature of this analysis by asserting that the Oklahoma court’s subsequent dismissal of the domestic copyright claims rendered any initial assertion of pendent personal jurisdiction improper. But see id. at 1272 (“[O]nce a district court has personal jurisdiction over a defendant for one claim, it may piggyback onto that claim other claims over which it lacks independent personal jurisdiction[.]”). Indeed, as this Court concluded, “the domestic and foreign copyright claims both arise from the same common nucleus of fact … [so,] once the district court acquired personal jurisdiction over plaintiffs’ domestic copyright claims it had the power to exercise personal pendant jurisdiction” over the foreign claims. Dkt. No. 51, at 58 (emphasis added). At that time, the Oklahoma court could have made merits decisions about all claims in tandem. Second, plaintiffs misapply the Supreme Court’s holding in Bristol-Meyers Squibb Co. v. Superior Court of Cal., 582 U.S. 255 (2017). In that case, a set of 600 plaintiffs sued Bristol Meyers in California state court. Most of the plaintiffs resided outside of California and had not alleged any facts that tied their injury to the forum in which they sued. The only connection between the out-of-state plaintiffs and California were the claims of the California plaintiffs, who were different parties altogether. The Court concluded that the California courts lacked personal claims.” Id. at 264. Bristol-Meyers, however, was a case about specific personal jurisdiction, not the distinct concept of pendent personal jurisdiction. In Bristol-Meyers, non-resident plaintiffs attempted to piggyback their own claims onto the claims of different parties without alleging any relation between their specific injury and California. Pendent personal jurisdiction addresses a different situation altogether, in which a court already has jurisdiction over a claim between a plaintiff and a defendant and the same plaintiff seeks to “piggyback” additional claims against the same defendant that arise from the same set of facts as the underlying claim. Unlike the claims of the non-resident plaintiffs who attempted to piggyback their claims onto the claims of the California residents in Bristol-Meyers, plaintiffs’ domestic and foreign copyright claims all arose from the same common nucleus of facts. Third, even if plaintiffs are correct that the Court erred in its application of pendent personal jurisdiction, that would not change the outcome. Plaintiffs once again gloss over the context of the Court’s holding. The paragraph preceding the Court’s discussion of pendent personal jurisdiction stated that “the Oklahoma district court likely would have had specific personal jurisdiction over the foreign copyright claims[.]” Whyte Monkee Prods., 2024 WL 4876163, at *5. The Court then qualified its discussion of pendent personal jurisdiction by stating that “even if Netflix’s contacts with Oklahoma alone were insufficient for the Oklahoma court to exercise” personal jurisdiction, that court could have exercised pendent personal jurisdiction. Id. The Court’s opinion, read in context, makes clear that the Oklahoma district court likely would have had an independent basis for exercising specific personal jurisdiction over plaintiffs’ foreign copyright claims given that both the domestic and foreign copyright claims arose from events surrounding the production of Tiger King in Oklahoma. 2. Plaintiffs fail to demonstrate that the Court lacked even a colorable basis for jurisdiction. Plaintiffs argue under Rule 60 that the Court “made manifest error contrary to” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 810 (1988). Plaintiffs’ argument is quite muddled, but the Court’s best reading is that plaintiffs believe the Court violated the well- claim supported by alternative theories in the complaint may not form the basis for § 1338(a) jurisdiction unless patent law is essential to each of those theories.”).2 Their argument seems to be that the Court violated this rule because plaintiffs’ complaint asserted foreign claims, whereas Netflix argued (and this Court concluded) that plaintiffs’ claims necessarily contained an embedded federal question sufficient to give rise to federal jurisdiction. Once again, plaintiffs confuse the issue. The well-pleaded complaint precludes a court from basing its jurisdiction on a defendant’s defenses to a complaint, but the federal question here arose from plaintiffs’ claims, at least some of which require application of the federal Copyright Act’s work-for-hire doctrine because the relevant foreign jurisdiction determines copyright ownership by applying the law of the place of creation. As the Court noted in its order denying plaintiffs’ motion to remand, binding Ninth Circuit precedent holds that federal question jurisdiction exists where a plaintiffs’ complaint requires application of the Copyright Act in this manner. See JustMed, 600 F.3d at 1124. Plaintiffs offer no support for their contention that a state court must first decide whether federal law applies before a federal court can assert jurisdiction over a removed case, and the Court is aware of no caselaw supporting that position. But see Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984) (“Federal courts have jurisdiction to determine jurisdiction[.]”). Accordingly, plaintiffs have not demonstrated that the Court lacked “even a colorable basis” for jurisdiction as required by Rule 60. Hoffman, 928 F.3d at 1151. As the prevailing party in this suit, Netflix moves for attorney’s fees under 17 U.S.C. § 505. The Court does not believe that the copyright statue provides a basis for such an award because this case did not turn on the existence of a valid domestic copyright, but even if the statute did provide such a basis, the Court would exercise its discretion to decline to award fees here. 2 Properly stated, the well-pleaded complaint rule requires a federal court to base its jurisdiction upon the complaint, not defenses raised in response to a complaint. See Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27–28 (1982) (Federal-question jurisdiction extends to “only those cases in which a well-pleaded complaint establishes either that A. Legal Standard The Copyright Act’s fee shifting provision allows an award of fees “[i]n any civil action under” the Copyright Act. 17 U.S.C. § 505. This provision gives district courts “broad leeway” to award attorney’s fees. Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197, 202 (2016). “[A]ny action that turns on the existence of a valid copyright and whether that copyright has been infringed sufficiently invokes the Copyright Act as to allow for the discretionary award of attorney’s fees.” Doc’s Dreams, LLC v. Dolores Press, Inc., 959 F.3d 357, 363 (9th Cir. 2020). Several “nonexclusive factors” inform a Court’s award of attorney’s fees: “frivolousness, motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.” Kirtsaeng, 579 U.S. at 202 (citations omitted and cleaned up). A district court must give “substantial weight to the [objective] reasonableness [or unreasonableness] of [the losing party’s] litigating position[.]” Id. at 209. B. 17 U.S.C. § 505 does not allow for an award of fees in this case. As noted already, 17 U.S.C. § 505 provides a basis for awarding fees in any action that “turns on the existence of a valid copyright” and thus “sufficiently invokes the Copyright Act.” Doc’s Dreams, 959 F.3d at 363. This case, however, did not depend upon the existence of a valid federal copyright or otherwise “invoke” the Copyright Act. It was instead brought under the laws of various foreign countries. To be certain, in declining to remand the case to state court the Court concluded that questions of domestic copyright ownership, as determined by the work-for-hire doctrine, were embedded within plaintiffs’ foreign copyright claims. But a complaint that merely requires interpretation of the Copyright Act is different from one pursued under that Act. Although the Court would have eventually applied the work-for-hire doctrine to determine plaintiffs’ ownership over the videos at issue, foreign copyright law provided the basis for the copyrights purportedly infringed in this case. The precedents upon which Netflix relies in arguing to the contrary all involved rights provided by the federal Copyright Act. In Doc’s Dreams, for example, the district court concluded rather than the Copyright Act. The Ninth Circuit reversed, holding that an action proceeds under the Copyright Act when it “turns on the existence of a valid copyright and whether that copyright has been infringed[.]” Doc’s Dreams, 959 F.3d at 363. The Ninth Circuit cited favorably an example of a claim for which fees are appropriate: [I]magine that C sues D for a declaration regarding copyright—for instance, that D performed her services on a for-hire basis, meaning that she has no interest in the copyright. In reply, D counterclaims for a declaration that she worked outside of employment, and accordingly owns the copyright in the subject work, either outright or as an equal co-owner with C. In that instance, jurisdiction in federal court arises under the Declaratory Relief Act as well as being premised on the need to construe the provisions of the Copyright Act. So, the Copyright Act allows courts, in their discretion, to grant attorney's fees to the prevailing party under those circumstances. Id. at 361 (citing Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.10[B][1][b]). Netflix claims that this example is sufficiently analogous to plaintiffs’ claims to warrant an award of fees. But in both the district court decision on appeal in Doc’s Dreams and the example provided by the circuit court, the copyrights at issue would not have existed but for the Copyright Act.3 In that sense, the entire case was “a civil action under” the Copyright Act. 17 U.S.C. § 505. By contrast, Sepi and Whyte Monkee’s claims exist by virtue of foreign copyright law. Although some of those claims require interpreting and applying the Copyright Act, their claims did not depend upon the Court finding a “valid [federal] copyright” under the Copyright Act or a finding that such a federal “copyright has been infringed.” Doc’s Dreams, 959 F.3d at 363. Because plaintiffs’ claims did not involve a “civil action under” the Copyright Act, 17 U.S.C. § 505 does not allow the Court to award fees. C. The Court would decline to award attorney’s fees even if it could do so. Even if 17 U.S.C. § 505 applied, the Court would nevertheless decline to award fees. The Court’s decision is guided by the “nonexclusive” Kirtsaeng factors: “frivolousness, motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of

3 Indeed, because the Copyright Act preempts state copyright law, see 17 U.S.C. § 301(a), most compensation and deterrence.” Kirtsaeng, 579 U.S. at 202 (citations omitted and cleaned up). Plaintiffs’ position in this case was not objectively unreasonable or frivolous. Although the Court concluded that the Oklahoma litigation precluded plaintiffs’ claims, the complaint raised novel questions about the application of foreign copyright law. In light of plaintiffs’ arguments about the separate accrual doctrine, it was not unreasonable to believe that those claims remained viable notwithstanding the prior final judgment. Plaintiffs failed to plead any facts that might allow their separate accrual theory to prevail, but it was not objectively unreasonable for them to believe republication abroad might give rise to new claims in a subsequent suit. This gave the claims at least an “arguable basis … in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). And the intersection of foreign copyright claims, domestic copyright principles, and foreign publication of allegedly infringing content “presented … complex or novel questions of copyright law.” Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 (9th Cir. 1996). Nor is there any clear indication of improper motive on plaintiffs’ part. The simple fact that plaintiffs’ chose to file their case in California state court does not itself give rise to improper motive, particularly given that court’s personal jurisdiction over Netflix. Although claims precluded by res judicata are the sorts of claims that may warrant deterrent measures, the complex questions involved in this case do not so squarely put plaintiffs’ claims into that camp. And even if fees were warranted to deter a future suit, a fees award in this case would go much further than necessary. Netflix seeks $254,942.98 in fees, while plaintiffs have submitted documentation demonstrating that Mr. Sepi is of limited means. His monthly income is limited as are the assets at his disposal. An award for Netflix, even in a sum significantly smaller than requested, could be financially ruinous to Mr. Sepi, transforming deterrence into punishment. For all of these reasons, the Court would therefore decline to award attorney’s fees in this matter even if the Copyright Act provided a basis for doing so. For the foregoing reasons, the Court denies plaintiffs’ motion for reconsideration and 2 Dated: April 1, 2025 3 LA Ze 4 P. Casey Pitts 5 United States District Judge 6 7 8 9 10 11 a 12

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