Case 2:20-cv-02852-CBM-JEM Document 45 Filed 04/06/21 Page 1 of 16 Page ID #:420
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`SCOTT A. EDELMAN, SBN 116927
`sedelman@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`2029 Century Park East
`Suite 4000
`Los Angeles, CA 90067-3026
`Telephone: 310.552.8500
`Facsimile: 310.551.8741
`
`PERLETTE MICHÈLE JURA, SBN 242332
`pjura@gibsondunn.com
`ILISSA SAMPLIN, SBN 314018
`isamplin@gibsondunn.com
`SHAUN A. MATHUR, SBN 311029
`smathur@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone: 213.229.7000
`Facsimile: 213.229.7520
`Attorneys for Defendant VERIZON MEDIA
`INC., YAHOO! INC., and OATH INC.
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DISTRICT
` CASE NO. 2:20-cv-2852-CBM-JEM
`EVOX PRODUCTIONS LLC, a
`Delaware limited liability company,
`DEFENDANTS’ REPLY IN SUPPORT
`OF MOTION FOR JUDGMENT ON
`Plaintiff,
`THE PLEADINGS
`HEARING:
`Date:
`April 20, 2021
`Time:
`10:00 a.m.
`Judge:
`Consuelo B. Marshall
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`v.
`VERIZON MEDIA INC., a Delaware
`corporation, YAHOO! INC., a Delaware
`corporation, OATH, INC., a Delaware
`corporation, and DOES 1 through 10,
`inclusive,
`
`Defendants.
`
`
`
`Gibson, Dunn &
`Crutcher LLP
`
`REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
`CASE NO. 2:20-CV-2852-CBM-JEM
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`Case 2:20-cv-02852-CBM-JEM Document 45 Filed 04/06/21 Page 2 of 16 Page ID #:421
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`TABLE OF CONTENTS
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`Page
`I. INTRODUCTION ....................................................................................................... 1
`II. ARGUMENT ............................................................................................................. 2
`A.
`Evox’s “Making Available” Theory Fails As A Matter Of Law ............... 2
`1.
`The Copyright Act And Ninth Circuit Precedent Foreclose
`The Theory ....................................................................................... 2
`The “Deemed Distributed” Rule Is Inapplicable In Any
`Event ................................................................................................ 5
`Evox Has Failed To Plausibly Allege Actual Display Or
`Distribution ................................................................................................. 6
`The Court Should Dismiss With Prejudice Without Leave To
`Amend ...................................................................................................... 10
`III. CONCLUSION ....................................................................................................... 10
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`
`
`B.
`
`C.
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`2.
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`Gibson, Dunn &
`Crutcher LLP
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`A&M Records, Inc. v. Napster, Inc.,
`239 F.3d 1004 (9th Cir. 2001) .................................................................................... 3
`Am. Broad. Cos. v. Aereo, Inc.,
`573 U.S. 431 (2014) .................................................................................................... 7
`Annabooks, LLC v. Issuu,
`2020 WL 6873646 (N.D. Cal. Sept. 24, 2020) ........................................................... 6
`Arista Records, Inc. v. Mp3Board, Inc.,
`2002 WL 1997918 (S.D.N.Y. Aug. 29, 2002) ........................................................... 5
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ............................................................................................ 2, 6, 8
`Atl. Recording Corp. v. Howell,
`554 F. Supp. 2d 976 (D. Ariz. 2008) .............................................................. 3, 4, 5, 6
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .......................................................................................... 6, 8, 10
`BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc.,
`149 F. Supp. 3d 634 (E.D. Va. 2015) ................................................................. 3, 4, 5
`Budway Enters., Inc. v. Fed. Ins. Co.,
`2009 WL 1014899 (C.D. Cal. Apr. 14, 2009) ............................................................ 6
`Capitol Records, Inc. v. Thomas,
`579 F. Supp. 2d 1210 (D. Minn. 2008) .................................................................. 3, 4
`Chavez v. United States,
`683 F.3d 1102 (9th Cir. 2012) .................................................................................... 7
`De La Vega v. USAA Real Estate Co.,
`2019 WL 5847853 (W.D. Tex. Nov. 7, 2019) ........................................................... 9
`Dietz Int’l Pub. Adjusters of Cal., Inc. v. Evanston Ins. Co.,
`2009 WL 10673937 (C.D. Cal. Dec. 14, 2009) .......................................................... 8
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`TABLE OF AUTHORITIES
`(continued)
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`Page(s)
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`Elektra Entm’t Grp., Inc. v. Baker,
`551 F. Supp. 2d 234 (S.D.N.Y. 2008) .................................................................... 3, 4
`Free Speech Sys., LLC v. Menzel,
`390 F. Supp. 3d 1162 (N.D. Cal. 2019) ...................................................................... 7
`Holloway v. Best Buy Co.,
`2009 WL 1533668 (N.D. Cal. May 28, 2009) ............................................................ 7
`Hotaling v. Church of Jesus Christ of Latter-Day Saints,
`118 F.3d 199 (4th Cir. 1997) .............................................................................. 1, 2, 3
`Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
`701 F.2d 1276 (9th Cir. 1983) .................................................................................. 10
`Menzel v. Scholastic, Inc.,
`2018 WL 1400386 (N.D. Cal. Mar. 19, 2018) ........................................................... 9
`In re Napster, Inc. Copyright Litig.,
`377 F. Supp. 2d 796 (N.D. Cal. 2005) ........................................................................ 1
`In re Outlaw Lab., LLP,
`2020 WL 3840559 (S.D. Cal. July 8, 2020) ............................................................... 7
`Perfect 10, Inc. v. Amazon.com, Inc.,
`508 F.3d 1146 (9th Cir. 2007) ............................................................................ 4, 5, 7
`Perfect 10, Inc. v. Cybernet Ventures, Inc.,
`167 F. Supp. 2d 1114 (C.D. Cal. 2001) ...................................................................... 8
`Rassamni v. Fresno Auto Spa, Inc.,
`2018 WL 4616388 (E.D. Cal. Sept. 25, 2018) ..................................................... 9, 10
`SA Music, LLC v. Amazon.com, Inc.,
`2020 WL 3128534 (W.D. Wash. June 12, 2020) ............................................... 3, 4, 7
`Sony Corp. of Am. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984) .................................................................................................... 1
`VHT, Inc. v Zillow Grp., Inc.,
`918 F.3d 723 (9th Cir. 2019) ................................................................ 1, 2, 5, 6, 7, 10
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`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
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`In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods Liab.
`Litig.,
`467 F. Supp. 3d 849 (N.D. Cal. 2020) ........................................................................ 9
`STATUTES
`17 U.S.C. § 106 ................................................................................................................ 2
`
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`
`I. INTRODUCTION
`Evox does not dispute that it failed to allege that a single member of the public
`actually accessed and viewed copies of its images on Yahoo’s Tumblr page after the
`parties’ license terminated and the 90-day grace period expired on August 5, 2016. Nor
`does Evox dispute that it failed to allege that Yahoo actually served a copy of an Evox
`image to a large number of people after that date. In fact, Evox concedes that it does not
`know whether Yahoo actually served a copy of an Evox image to a single member of
`the public even once after August 5, 2016. Dkt. 42 at 2, 7, 12, 15, 22.
`Instead, Evox contends that Yahoo committed copyright infringement when it
`made copies of Evox’s images available to the public after August 5, 2016. Dkt. 42 at
`12–15. Relying primarily on Hotaling v. Church of Jesus Christ of Latter-Day Saints,
`118 F.3d 199 (4th Cir. 1997), Evox argues that “[p]olicy considerations support a
`making available theory because it prevents a defendant like Yahoo from profiting from
`its own failure to keep records.” Dkt. 42 at 13 (emphasis added). But “the protection
`given to copyrights is wholly statutory,” Sony Corp. of Am. v. Universal City Studios,
`Inc., 464 U.S. 417, 431 (1984), and nothing in Section 106 of the Copyright Act grants
`copyright owners the exclusive right to make copyrighted works available to the public.
`For this reason, numerous courts have held that Hotaling is “inconsistent with the text
`and legislative history of the Copyright Act,” and declined to recognize a “making
`available” theory of copyright infringement. In re Napster, Inc. Copyright Litig., 377 F.
`Supp. 2d 796, 803 (N.D. Cal. 2005). In fact, the Ninth Circuit recently recognized in
`analogous circumstances that the Copyright Act does not “support[],” and that the Ninth
`Circuit has never “embraced,” the “mak[ing] available” theory of infringement that Evox
`relies on in this case. VHT, Inc. v Zillow Grp., Inc., 918 F.3d 723, 736 (9th Cir. 2019).
`Fully aware that its “making available” theory is foreclosed by the Copyright Act
`and Ninth Circuit precedent, Evox tries to make up for the deficiencies in its pleading
`by insisting that it adequately alleged violations of its “display” and “distribution” rights
`by reciting those two Section 106 terms in passing in its Complaint. But Evox’s
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`Complaint contains only “[t]hreadbare recitals of the elements” of its claim, and it is
`black-letter law that “a plaintiff armed with nothing more than conclusions” may not
`“unlock the doors of discovery.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). And
`while Evox contends that it should be granted leave to amend, none of the unpled facts
`in Evox’s opposition brief plausibly show that Defendants served a copy of an Evox
`image to a large number of people after August 5, 2016, which is what Evox must allege
`to state a claim for infringement. The Complaint should be dismissed with prejudice.
`II. ARGUMENT
`A. Evox’s “Making Available” Theory Fails As A Matter Of Law
`Evox argues that it adequately alleged a violation of its “make available” right, as
`recognized in Hotaling, and that, at minimum, it is entitled to a presumption that Yahoo
`actually disseminated Evox images without authorization because Yahoo made the
`images available after August 5, 2016. Dkt. 42 at 12, 18. Both arguments lack merit.
`1.
`The Copyright Act And Ninth Circuit Precedent Foreclose The Theory
`Evox’s “making available” theory of copyright infringement rests on the Fourth
`Circuit’s decision in Hotaling, but Hotaling is contrary to the text of the Copyright Act
`and Ninth Circuit precedent—neither of which recognizes a standalone right to make
`copyrighted works available to the public. See 17 U.S.C. § 106; Zillow, 918 F.3d at 736.
`In Hotaling, the church obtained an authorized copy of the plaintiffs’ works for
`its main library, and then made and sent unauthorized copies to its branch libraries. 118
`F.3d at 201. Upon finding an unauthorized copy in a branch, the plaintiffs sued the
`church for violating their distribution right. Id. at 202. The church moved for summary
`judgment, arguing that there was no evidence that it had loaned unauthorized copies to
`members of the public. Id. at 203. The Fourth Circuit disagreed, holding that “[w]hen
`a public library adds a work to its collection, lists the work in its index or catalog system,
`and makes the work available to the borrowing or browsing public, it has completed all
`the steps necessary for distribution to the public.” Id. Were it otherwise, the court
`reasoned, “a copyright holder would be prejudiced by a library that does not keep records
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`of public use, and the library would unjustly profit by its own omission.” Id.1
`“The Fourth Circuit has never returned to its holding in Hotaling.” BMG Rights
`Mgmt. (US) LLC v. Cox Commc’ns, Inc., 149 F. Supp. 3d 634, 665–66 (E.D. Va. 2015),
`rev’d in part on other grounds, 881 F.3d 293 (4th Cir. 2018). And “[t]he great majority
`of courts to have considered the question” since Hotaling have declined to recognize a
`“making available” theory, Elektra Entm’t Grp., Inc. v. Baker, 551 F. Supp. 2d 234, 244
`(S.D.N.Y. 2008), “because Hotaling is inconsistent with the Copyright Act,” Atl.
`Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D. Ariz. 2008).
`As those courts have explained, Hotaling “was driven by equitable concerns
`rather than an analysis of the statute,” BMG Rights, 149 F. Supp. 3d at 666, and “did not
`cite any precedent in holding that making copyrighted works available to the public
`constitutes infringement,” Elektra Entm’t, 551 F. Supp. 2d at 243; see Capitol Records,
`Inc. v. Thomas, 579 F. Supp. 2d 1210, 1224 (D. Minn. 2008) (“the Fourth Circuit did
`not analyze any case law to support its conclusion”). And regardless whether it is good
`policy to impose liability where the defendant has “completed all the steps necessary for
`distribution,” Hotaling, 118 F.3d at 203, “there is no basis for attempt liability in the
`statute,” Howell, 554 F. Supp. 2d at 984; see also SA Music, LLC v. Amazon.com, Inc.,
`2020 WL 3128534, at *4 & n.4 (W.D. Wash. June 12, 2020) (“[m]erely because the
`defendant has ‘completed all the steps necessary for distribution’ does not necessarily
`mean that a distribution has actually occurred”); Elektra Entm’t, 551 F. Supp. 2d at 243
`(stating that “even if sound public policy, [Hotaling] is not grounded in the statute”).
`Even though “[the Ninth] circuit has not applied Hotaling to impose direct[]
`liability,” Howell, 554 F. Supp. 2d at 982, Evox argues that the Circuit “embrace[d]” a
`“make available” right in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th
`Cir. 2001). Dkt. 42 at 13. But Napster “did not analyze the ‘making available’ theory
`
`1 Judge Hall dissented because the church “did not sell or give an infringing copy to
`anyone,” the plaintiff did not “have any evidence that anyone used or looked at an
`infringing copy during the limitations period,” and “current law does not deem” making
`a copyrighted work available “an infringing ‘distribution’” under the Copyright Act.
`Hotaling, 118 F.3d at 205 (Hall, J., dissenting).
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`as the theory was not advanced,” SA Music, 2020 WL 3128534, at *5; “neither party
`disputed that Napster users were using the system to disseminate actual, unauthorized
`copies of copyrighted works”; and “[t]he central issue in the case was secondary liability
`for the creators of the Napster file-sharing system,” Howell, 554 F. Supp. 2d at 982.
`Evox next argues that the Ninth Circuit recognized the viability of the “making
`available” right in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir.
`2007), but concluded that “the plaintiff could not otherwise satisfy the elements of the
`claim.” Dkt. 42 at 14. That, too, is incorrect. Amazon’s “holding [actually] contradicts
`Hotaling.” Howell, 554 F. Supp. 2d at 982. Amazon held that a “display” under the
`Copyright Act occurs when a computer owner “stores an image as electronic
`information” and “communicat[es] the stored image electronically to another person’s
`computer”; that a “distribution” under the Act occurs only when there has been “an
`‘actual dissemination’ of a copy” of the image; and that the plaintiff “incorrectly relie[d]
`on Hotaling” because the defendant did “not communicate [the plaintiff’s] images to the
`computers of people using [the defendant’s] search engine.” 508 F.3d at 1159–60, 1162.
`In other words, Amazon held that Hotaling was inapposite because the defendant did not
`“display” or “distribute” the images as those terms are defined in the Ninth Circuit.
`None of the secondary sources Evox cites supports its position either. First, Evox
`cites a letter from the former Register of Copyrights endorsing a “make available” right.
`Dkt. 42 at 14. But “[t]he opinions expressed in the letter have no controlling weight,”
`and Evox does not cite a single case adopting them. BMG Rights, 149 F. Supp. 3d at
`669. On the contrary, courts have repeatedly rejected them. See id.; Elektra Entm’t,
`551 F. Supp. 2d at 242 n.7; Thomas, 579 F. Supp. 2d at 1217. Second, Evox contends
`the World Intellectual Property Organization Internet Treaties recognize a “making
`available” right, Dkt. 42 at 15, but the “treaties are not self-executing and lack any
`binding legal authority separate from their implementation through the Copyright Act,”
`Thomas, 579 F. Supp. 2d at 1226; BMG Rights, 149 F. Supp. 3d at 668; Elektra Entm’t,
`551 F. Supp. 2d at 242 n.7. Third, Evox argues that the “leading Nimmer on Copyright
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`treatise” agrees with its position, Dkt. 42 at 15, but “[t]here is a split in the academic
`debate,” BMG Rights, 149 F. Supp. 3d at 668, that this Court need not wade into because
`the Ninth Circuit has already done so—explaining that a right to “make available” is
`“neither supported by the statute nor embraced by this court.” Zillow, 918 F.3d at 736.
`The Court should follow the majority of courts and Ninth Circuit precedent, all of
`which have declined to recognize a “making available” theory of infringement.
`2.
`The “Deemed Distributed” Rule Is Inapplicable In Any Event
`Relying again on Hotaling, Evox argues that, at minimum, it is “entitled to a
`presumption of dissemination” because “evidence that a copyrighted work is ‘made
`available’ is relevant and admissible evidence of actual distribution” where “a defendant
`fails to keep the kinds of records that could prove the actual infringement.” Dkt. 42 at
`18. Evox’s reliance on the so-called “deemed distributed” rule fails for three reasons.
`First, the Ninth Circuit implicitly rejected the “deemed distributed” rule in
`Amazon when it declined to rely on the rule because the plaintiff could not show that a
`“distribution” occurred under the “actual dissemination” standard. 508 F.3d at 1162.
`The court held that the defendant “did not distribute” the plaintiff’s images “[b]ecause
`[the defendant] did not communicate the [plaintiff’s] full-size images to the user’s
`computer.” Id. The court then declined to rely on the “deemed distributed” rule for the
`same reason: the defendant did “not communicate the[] images to the computers of
`people using [the defendant’s] search engine.” Id. Thus, the Ninth Circuit held that a
`work is not “deemed distributed” unless it is actually distributed—i.e., unless the
`defendant actually disseminates or communicates a copy of the work to the public.
`Second, Evox does not cite a single case denying a Rule 12 motion based on the
`“deemed distributed” rule. Instead, Evox cites summary judgment cases stating that “a
`defendant made a copy of a work available to the public might, in conjunction with other
`circumstantial evidence, support an inference that a copy was likely transferred to a
`member of the public.” Howell, 554 F. Supp. 2d at 983; see BMG Rights, 149 F. Supp.
`3d at 670; Arista Records, Inc. v. Mp3Board, Inc., 2002 WL 1997918, at *4 (S.D.N.Y.
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`Aug. 29, 2002). None of these cases invoked the “deemed distributed” rule at the
`pleading stage. That is because the question at that stage is whether “the plaintiff [has]
`plead[ed] factual content that allows the court to draw the reasonable inference that the
`defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678—not whether the
`plaintiff has presented sufficient evidence to prove its claim, see Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 556 (2007) (contrasting whether a pleading alleges “plausible
`grounds to infer” illegality with whether “discovery will reveal evidence of illegal[ity]”);
`Budway Enters., Inc. v. Fed. Ins. Co., 2009 WL 1014899, at *1 n.3 (C.D. Cal. Apr. 14,
`2009) (“[t]he scope of review on a Rule 12(b)(6) Motion is limited to the four corners
`of the Complaint”). In any event, Evox does not identify any “other circumstantial
`evidence,” Howell, 554 F. Supp. 2d at 983, aside from its allegation that its images were
`available after August 5, 2016—meaning that its claim is based only on the “potential
`for future display” and distribution, which “is purely speculative” and insufficient as a
`matter of law, Zillow, 918 F.3d at 737; see Annabooks, LLC v. Issuu, 2020 WL 6873646,
`at *4 (N.D. Cal. Sept. 24, 2020) (dismissing copyright claim where plaintiff failed to
`allege facts showing “actual dissemination” “beyond making available a digital copy”).
`Third, Evox argues that “the ‘deemed distributed’ rule applies when a defendant
`makes [an] infringing work available but fails to monitor actual display or distribution.”
`Dkt. 42 at 21. But Evox does not allege in its Complaint or argue in its opposition brief
`that Yahoo failed to create such records. The only question is whether those records
`still exist given Evox’s failure to inform Defendants of its purported investigatory
`findings (i.e., triggering any preservation obligation) for approximately 18 months. See
`Dkt. 4-5 at 2. Evox cites no authority for application of the “deemed distributed” rule
`where the plaintiff’s own delay is the reason certain evidence may or may not exist.
`Evox is not entitled to an evidentiary presumption that has never been endorsed
`by the Ninth Circuit and that is inapplicable at this stage of the case in any event.
`B.
`Evox Has Failed To Plausibly Allege Actual Display Or Distribution
`Recognizing that its “making available” theory is not viable, Evox urges the Court
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`6
`REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
`CASE NO. 2:20-CV-2852-CBM-JEM
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`

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`Case 2:20-cv-02852-CBM-JEM Document 45 Filed 04/06/21 Page 12 of 16 Page ID #:431
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`not to address the issue because, in its view, it has adequately alleged that Yahoo publicly
`displayed and distributed Evox’s images after August 5, 2016. Dkt. 42 at 12.
`For starters, this Court should decide the viability of Evox’s “making available”
`theory now, regardless of whether Evox has adequately alleged infringement of its
`display and distribution rights. “[A] Rule 12(c) motion can be used as a means to parse
`claims for relief and strike less than an entire count.” Holloway v. Best Buy Co., 2009
`WL 1533668, at *4 (N.D. Cal. May 28, 2009); see also In re Outlaw Lab., LLP, 2020
`WL 3840559, at *4 n.2 (S.D. Cal. July 8, 2020) (same). That is appropriate here on the
`purely legal question of whether “making available” is a viable theory of infringement.
`In SA Music, for example, the court dismissed on the pleadings the plaintiff’s “making
`available” theory, see 2020 WL 3128534, at *7, even though the complaint contained
`only one count for copyright infringement that asserted several different theories of
`infringement, see SA Music, 2:20-cv-00105-BAT, Dkt. 1 (W.D. Wash. Jan. 23, 2020).
`As for Evox’s Complaint, Evox asserts infringement by “distribution” and “public
`display” of its images without authorization, Compl. ¶ 39, but fails to support that
`conclusory assertion with any alleged facts—and thus the assertion is “not entitled to the
`presumption of truth,” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012).
`Evox does not allege that Yahoo stored Evox images on its server and actually served
`the images to a large number of users by causing the images to fill their computer screens
`after August 5, 2016. See Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 448–50 (2014);
`Amazon, 508 F.3d at 1159–62. Nor does Evox allege that a substantial number of people
`accessed and viewed an Evox image on Yahoo’s Tumblr page after that date. See id.2
`Citing Perfect 10, Inc. v. Cybernet Ventures, Inc., 167 F. Supp. 2d 1114 (C.D.
`Cal. 2001), Evox argues that its conclusory assertions are sufficient under Rule 8 “to put
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`2 Evox contends that the court in Free Speech Sys., LLC v. Menzel, 390 F. Supp. 3d
`1162, 1172 (N.D. Cal. 2019), “questioned the applicability of the ‘server test’ outside
`the context of search engines.” Dkt. 42 at 20. But the Ninth Circuit resolved that
`question in Zillow, when it cited the server test in support of is conclusion “that the
`Copyright Act’s display right [does not] encompass[] an exclusive right to ‘make
`available for display.’” Zillow, 918 F.3d at 737 (citing Amazon, 508 F.3d at 1160).
`7
`REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
`CASE NO. 2:20-CV-2852-CBM-JEM
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`Gibson, Dunn &
`Crutcher LLP
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`Case 2:20-cv-02852-CBM-JEM Document 45 Filed 04/06/21 Page 13 of 16 Page ID #:432
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`[Defendants] on notice of its claim” because it has alleged that “Yahoo impermissibly
`distributed and displayed Evox’s Copyrighted Photographs to the public via its Tumblr
`webpage after” the license terminated. Dkt. 42 at 9–10. According to Evox, it “need
`not identify specifically to whom [its images] were distributed,” especially “[w]ithout
`the benefit of discovery.” Id. at 9, 11. Evox’s argument fails for three reasons.
`First, Cybernet Ventures predates Iqbal and Twombly, in which the Supreme
`Court held that “[t]hreadbare recitals of the elements of a cause of action, supported by
`mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. To be sure, Rule 8
`“accounts for [the] information imbalance” at the pleadings stage, Dkt. 42 at 2, but
`“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing
`more than conclusions,” Iqbal, 556 U.S. at 678–79. And “[w]here a complaint pleads
`facts that are merely consistent with a defendant’s liability, it stops short of the line
`between possibility and plausibility of entitlement to relief.” Id. at 678. Evox contends
`that it met its burden by alleging that Yahoo stored Evox images on its server and
`displayed and distributed the images on its Tumblr page without authorization. Dkt. 42
`at 10 (citing Compl. ¶¶ 30, 34–35, 39). But the cited paragraphs of the Complaint merely
`recite the exclusive rights in Section 106 without any “further factual enhancement,”
`Iqbal, 556 U.S. at 678—namely, any allegation, even on information and belief, that
`Defendants actually served Evox images to a large number of users after August 5, 2016.
`Second, Defendants do not contend that Evox must identify “specifically to whom
`the images were distributed or displayed.” Dkt. 42 at 9 (emphasis added). Rather, Evox
`must allege, at minimum, that “Defendant[s] stored Evox images on [their] servers and
`actually served the images to a large number of users by causing the images to fill those
`users’ computer screens” after August 5, 2016. Dkt. 40 at 12. Evox has not done so.3
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`3 Evox’s assertions that third parties viewed Yahoo’s Tumblr page and “liked” Evox’s
`images, Dkt. 42 at 5, are not actually alleged anywhere in the Complaint and thus cannot
`be considered on this Motion, see Dietz Int’l Pub. Adjusters of Cal., Inc. v. Evanston Ins.
`Co., 2009 WL 10673937, at *3 n.27 (C.D. Cal. Dec. 14, 2009) (“[a] plaintiff cannot cure
`deficiencies in a complaint through allegations provided in its opposition to a motion to
`dismiss”)—nor are they sufficient to satisfy Evox’s pleading burden in any event, see
`Dkt. 40 at 12 (collecting cases explaining the display and distribution pleading burdens).
`8
`REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
`CASE NO. 2:20-CV-2852-CBM-JEM
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`Third, Evox may not file a conclusory complaint devoid of factual content and
`then conduct a “fishing expedition” for discovery to fill the gaps in its pleading. See In
`re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods Liab. Litig., 467 F.
`Supp. 3d 849, 856 (N.D. Cal. 2020) (“Rule 12(b)(6) . . . prevents unwarranted fishing
`expeditions premised on baseless claims”); De La Vega v. USAA Real Estate Co., 2019
`WL 5847853, at *4 (W.D. Tex. Nov. 7, 2019) (plaintiff “can’t file a conclusory
`complaint not well-grounded in fact, conduct a fishing expedition for discovery, and
`only then amend [its] complaint in order finally to set forth well-pleaded allegations”).
`In Menzel v. Scholastic, Inc., 2018 WL 1400386, at *1 (N.D. Cal. Mar. 19, 2018),
`the plaintiff alleged that the defendant “print[ed],” “distribut[ed],” and “publish[ed]”
`copies of photographs without authorization. The defendant argued that the plaintiff
`“failed to meet the plausibility standard” because the plaintiff’s “case is a fishing
`expedition—i.e., to determine whether there has, in fact, been any . . . copyright
`infringement.” Id. at *2. The plaintiff insisted that he could not “allege more . . . because
`how [the defendant] used his photographs is peculiarly within the [defendant’s]
`possession and control.” Id. at *3. But the court concluded that “this does not excuse
`the requirement that the plaintiff allege something more than bare conclusions.” Id.
`Similarly, in Rassamni v. Fresno Auto Spa, Inc., 2018 WL 4616388, at *3 (E.D.
`Cal. Sept. 25, 2018), the court dismissed a copyright claim where the complaint
`contained nothing more “than a formulaic recitation of the elements of infringement.”
`The plaintiff argued that he “hope[d] to use discovery” to ascertain facts necessary to
`support his claim. The court disagreed: “What Plaintiff proposes appears to be no more
`than a fishing expedition without a reasonable basis. Filing a complaint does not unlock
`the doors of discovery for a plaintiff armed with nothing more t