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`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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` Case No. 2:20-cv-02907-JWH(JEMx)
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`ORDER ON MOTION OF
`DEFENDANTS TO DISMISS
`THIRD AMENDED COMPLAINT
`[ECF No. 91]
`
`EVOX PRODUCTIONS LLC, a
`Delaware limited liability company,
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`Plaintiff,
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`v.
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`AOL INC., a Delaware corporation;
`OATH INC., a Delaware corporation;
`VERIZON MEDIA INC., a Delaware
`corporation; and
`DOES 1-10,
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`
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`Defendants.
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`Case 2:20-cv-02907-MEMF-SSC Document 109 Filed 10/14/21 Page 2 of 10 Page ID
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`Before the Court is the motion of Defendants AOL Inc., Oath Inc., and
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`Verizon Media Inc. to dismiss the copyright infringement claim of Plaintiff Evox
`Productions LLC.1 The Court finds this matter appropriate for resolution
`without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the
`papers filed in support and in opposition,2 the Court orders that the Motion is
`DENIED, for the reasons set forth herein.
`I. BACKGROUND
`On March 15, 2021, Evox filed its Second Amended Complaint, which
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`included two claims for relief: (1) copyright infringement; and (2) trademark
`infringement.3 On June 25, 2021, this Court ruled on Defendants’ motion for
`judgment on the pleadings,4 dismissing the first claim for relief in Evox’s SAC
`with leave to amend and dismissing its trademark claim without leave to amend.5
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`In their Rule 12(c) Motion on the SAC, Defendants argued that Evox
`failed to state a claim for copyright infringement because Evox’s claim was based
`on a “making available” theory.6 Evox did not aver what “use” means, other
`than making the copyrighted works available.7 To plead a viable claim for
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`
`1
`Mot. of Defs. to Dismiss the Third Amended Complaint (the “Motion”)
`[ECF No. 91].
`2
`The Court considered the following papers: (1) Third Am. Compl. (the
`“TAC”) [ECF No. 87]; (2) the Motion; (3) Pl.’s Opp’n to the Motion (the
`“Opposition”) [ECF No. 92]; (4) Defs.’ Reply in Supp. of the Motion (the
`“Reply”) [ECF No. 94]; (5) Defs.’ Suppl. Authority in Supp. of Defs.’ Mot. to
`Dismiss Third Am. Compl. (and attachments) (the “Supplement”) [ECF
`No. 95]; (6) Pl.’s Response to Defs.’ Notice of Suppl. Authority in Support of
`their Mot. to Dismiss Third Am. Compl. (the “Response”) [ECF No. 96];
`(7) Pl.’s Notice of Suppl. Authority in Opp’n to the Motion [ECF No. 100]; and
`(8) Response of Defs. to Pl.’s Notice of Suppl. Authority [ECF No. 101].
`3
`Second Am. Compl. (the “SAC”) [ECF No. 53].
`4
`Mot. of Defs. for J. on the Pleadings (the “Rule 12(c) Motion”) [ECF
`No. 59].
`5
`Order on Mot. to Am. Scheduling Order (the “Minute Order”) [ECF
`No. 83].
`6
`Rule 12(c) Motion at 9:16-13:5.
`7
`Tr. of Mot. Proceedings (the “Hearing Transcript”) [ECF No. 89] at
`5:24-25.
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`Case 2:20-cv-02907-MEMF-SSC Document 109 Filed 10/14/21 Page 3 of 10 Page ID
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`copyright infringement, this Court held Evox was required to allege in a
`“nonconclusory fashion” that some individual “actually viewed or was served a
`copyrighted image.”8 However, the Court granted Evox leave to amend its SAC
`to correct that infirmity.9
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`Evox filed its TAC on July 9, 2021, in which it asserted only a copyright
`infringement claim.10 Defendants filed the instant Motion on July 23, 2021.
`Evox filed its Opposition on August 6, 2021, and 10 days later Defendants filed
`their Reply.
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`The parties are already familiar with the alleged facts with respect to
`Evox’s automobile Images, the License Agreement it entered into with
`Defendant AOL Inc., and the subsequent termination of that Agreement in
`2017.11 As relevant to the Motion, the TAC alleges that two months after AOL
`terminated the Agreement, Evox personnel discovered that AOL was still
`displaying Evox Images on the Autoblog.12 As a result, Evox engaged a third-
`party consultant to visit a random sample of pages on the Autoblog website, and
`the consultant confirmed that Evox Images “were still being served and
`displayed well after the Agreement was terminated.”13 The consultant then
`conducted an automatic scan and confirmed that “links to 299,507 EVOX
`Images were still active across 14,907 pages” of the Autoblog website.14
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`In its TAC, Evox further alleges that the Autoblog self-reports that it has
`six million visitors to its website per month and that the “compare feature”—an
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`Id. at 6: 11-12.
`8
`Minute Order at 1; see also Knappenberger v. City of Phoenix, 566 F.3d 936,
`9
`942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.
`2000)).
`10
`Third Am. Compl. (the “TAC”) [ECF No. 87].
`11
`TAC at ¶¶ 32, 34-37, 46, 52, & 56.
`Id. at ¶ 36.
`12
`Id. at ¶ 63.
`13
`Id. at ¶ 64.
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`Case 2:20-cv-02907-MEMF-SSC Document 109 Filed 10/14/21 Page 4 of 10 Page ID
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`online tool that allows users to view multiple interior and exterior Images of
`vehicles, and, crucially, where Evox’s Images are allegedly displayed—accounts
`for 3% of web traffic, or about 150,000 visitors per month.15 Therefore, because
`Defendants continue “to display EVOX Images on 14,907 pages of the Autoblog
`website after the license for Images was terminated,” upon Evox’s “information
`and belief, the Defendants’ infringement of EVOX’s copyrights was willful.”16
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`Furthermore, Evox alleges that Defendants allowed to be destroyed some
`of the records (i.e., server logs) that would have demonstrated the number of
`times that the Images were displayed.17 The TAC states that an alternative
`record source—page view analytics—would quantify how many times users
`visited the Autoblog’s “compare feature.”18 It is Evox’s belief that the
`Autoblog’s page view analytics will show that there were approximately 900,000
`visits to the “compare feature,” where Evox’s Images were displayed after the
`Agreement was terminated.19
`II. LEGAL STANDARD
`Defendants move to dismiss Evox’s copyright infringement allegation for
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`failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil
`Procedure. A claim should be dismissed under Rule 12(b)(6) where the plaintiff
`fails to assert a “cognizable legal theory” or the complaint contains
`“[in]sufficient facts . . . to support a cognizable legal theory.” Navarro v. Block,
`250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss, the
`complaint must allege “more than labels and conclusions, and a formulaic
`recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550
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`Id. at ¶¶ 53 & 78.
`15
`Id. at ¶¶ 90 & 91.
`16
`Id. at ¶ 92.
`17
`Id. at ¶¶ 74-77; see also Hearing Transcript at 21:1 (described as a “two-
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`page document”).
`Id. at ¶ 79.
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`Case 2:20-cv-02907-MEMF-SSC Document 109 Filed 10/14/21 Page 5 of 10 Page ID
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`U.S. 544, 555 (2007). The claim must be pleaded with “sufficient factual
`matter, accepted as true, to state a claim to relief that is plausible on its face,”
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and that rises “above the speculative
`level,” Twombly, 550 U.S. at 555. “A claim has facial plausibility when the
`plaintiff pleads 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.
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`Importantly, the Court must construe all factual allegations and “draw all
`reasonable inferences from them in favor of the nonmoving party.” Tinoco v.
`San Diego Gas & Elec. Co., 327 F.R.D. 651, 656 (S.D. Cal. 2018) (emphasis
`added) (quoting Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir.
`1996)); see also Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).
`III. DISCUSSION
`Defendants argue that Evox’s copyright infringement claim fails as a
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`matter of law because Evox failed to allege that Defendants served even a single
`Evox Image to a substantial number of people after February 2017.20 To state a
`claim for infringement under the Copyright Act, a copyright owner must
`“demonstrate that the alleged infringers violated at least one exclusive right
`granted to copyright holders under 17 U.S.C. § 106” and “show causation (also
`referred to as ‘volitional conduct’) by the defendant[s].” Perfect 10, Inc. v.
`Giganews, Inc., 847 F.3d 647, 666 (9th Cir. 2017). In the TAC, Evox alleges that
`Defendants displayed Evox Images on 14,907 pages of the Autoblog website
`after the license for the Images was terminated.21 However, under the “server
`test” adopted by the Ninth Circuit, a digital image is displayed only when a
`“computer owner . . . uses the computer to fill [another person’s] computer
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`20 Motion at 1: 8-10
`21
`TAC at ¶¶ 89 & 90.
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`Case 2:20-cv-02907-MEMF-SSC Document 109 Filed 10/14/21 Page 6 of 10 Page ID
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`screen with the photographic image stored on that computer, or by
`communicating the stored image electronically to another person’s computer.”
`Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 (9th Cir. 2007). That is,
`a “display” of an image occurs only when “a computer owner . . . stores an
`image as electronic information and serves that electronic information directly to
`[a] user.” Id. at 1159.
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`While Defendants do not contest that Evox’s Images were saved to
`AOL’s server, they do argue that Evox failed to show that those Images were
`“actually served” to a substantial number of users.22 Defendants contend that
`Evox’s claim fails because it is predicated only on the fact that the “images
`continued to reside on a server . . . and that users ‘could’ access the images.”23
`However, the TAC makes clear that Evox’s personnel and its third-party
`consultant did in fact access the Images.24
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`In response to this point, Defendants argue that neither Evox’s personnel
`nor their third-party consultant constitutes “the public.” To this end,
`Defendants cite Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431 (2014). In
`Aereo, the Supreme Court held that the “public” does not refer to isolated
`individuals who access works “in their capacities as owners or possessors” of
`the works. Id. at 449. Rather, the “public” refers to “a substantial number of
`people” who access works “as ordinary members of the public.” Id. at 450. To
`clarify, the Court provided an illustration in dicta:
`When, for example, a valet parking attendant returns cars to their
`drivers, we would not say that the parking service provides cars “to
`the public.” We would say that it provides the cars to their owners.
`We would say that a car dealership, on the other hand, does provide
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`22 Motion at 11:11-20.
`Id. at 15:27-16:1 (quoting the TAC at ¶¶ 66, 82, & 86).
`23
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`TAC at ¶¶ 60-64.
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`cars to the public, for it sells cars to individuals who lack a pre-
`existing relationship to the cars.
`Id. at 448-49. In this same vein, Defendants cite Yesh Music, LLC v.
`Amazon.com, Inc., 249 F. Supp. 3d 645 (E.D.N.Y. 2017). That case applied
`Aereo to find that users who downloaded the plaintiffs’ songs from their personal
`lockers did not count as a distribution to the public because the users “received
`the songs in their capacities as owners.” Id. at 660.
`Defendants’ reliance on Aereo and Yesh is misplaced. Here, Evox alleges
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`that it retained a third-party consultant to confirm the scope of the
`infringement.25 Construing the facts most favorably for the nonmoving party,
`the Court may reasonably infer that members of the public would have had
`Evox’s Images displayed on their computer screens when utilizing the compare
`feature, given that the consultant encountered Evox’s Images in that manner.
`Furthermore, although the exact identities of these alleged millions of visitors to
`the Autoblog are presently unknown, it would be reasonable to infer that a
`substantial number of these visits were due neither to the consultant nor to
`Evox’s personnel.26
`Unlike Yesh, where users downloaded files that they themselves had
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`uploaded to a personal cloud storage “music locker,” id. at 659, or Aereo’s
`illustration of a valet returning a car to its owner, Aero, 573 U.S. at 448-49,
`Defendants do not argue that the consultant’s relationship with Evox affected
`how the Images were served or displayed.27 Defendants do not suggest that the
`Images were accessed via a personal “locker” as in Yesh, or in a manner similar
`to a valet, where the retrieval of the automobile is contingent on its ownership.
`Indeed, the plain reading of the TAC—particularly when read holistically with
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`Id. at ¶¶ 62-68.
`See Opposition at 1:22-2:1.
`See generally the Motion.
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`its Exhibit E (i.e., screenshots of the Autoblog website)—suggests that these
`Images were accessed in a manner similar to any member of the public.28
`The recent Ninth Circuit decision in Bell v. Wilmott Storage Services, LLC,
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`2021 WL 4097499 (9th Cir. Sept. 9, 2021), also provides helpful guidance here.
`In dicta, the Bell court noted that a public display under 17 U.S.C. § 106(5)
`occurs when a copyrighted photo is publicly accessible to anyone with an
`Internet connection “regardless of whether or not any particular person actually
`found and viewed it.” Id. at *6. Evox “[would] not need to prove there was
`some minimum number of users who in fact accessed the [copyrighted] photo to
`make out a prima facie case of infringement.” Id. Crucially, “[t]he Copyright
`Act does not require proof that the protected work was actually viewed by
`anyone.” Id.
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`Even so, Evox supplies a reasonable basis to infer that many members of
`the public viewed Evox’s Images on the Autoblog. Evox alleges that over
`six million visitors visit Autoblog each month, and it believes that the page view
`analytics will reflect that there were approximately 900,000 visits to the
`“compare feature” where Evox Images were displayed.29 Under Iqbal, those
`allegations allow the Court to draw a reasonable inference that Defendants
`displayed Evox’s Images to a substantial number of people, even if the precise
`number is not presently known.30 Whether Evox can support this allegation
`factually is, of course, an issue to be decided at a later stage of this case.
`Finally, Defendants point to the recent decision in Evox Productions, LLC
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`v. Verizon Media Inc., 2021 WL 3746318 (C.D. Cal. Aug. 23, 2021) (“Verizon
`Media”), to support their instant Motion.31 Despite facial similarities between
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`Id. at ¶¶ 60-63; Ex. E [ECF No. 87-5].
`Id. at ¶¶ 78 & 79.
`See Opposition at 12:25-13:5.
`See Supplement.
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`that case and the one at bar here, key differences in the underlying allegations
`and pleadings lead this Court to a different conclusion.
`First, the court in Verizon Media ruled against Evox because its copyright
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`claim was still premised on the “making available” theory, id. at *3, a theory
`previously rejected by this Court32 and expressly rejected in VHT, Inc. v. Zillow
`Group, Inc., 918 F.3d 723 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019). In that
`case, plaintiff VHT, a professional real estate photography studio, contended
`that the jury could have reasonably inferred that defendant Zillow made 22,109
`of VHT’s images available for public display. Id. at 736. But prior to trial, VHT
`stipulated that those images had never been actually displayed, leaving VHT
`with only the copyright infringement theory that the images may have been
`“made available” circumstantially—a theory that the Ninth Circuit flatly
`rejected. Id. In contrast, the TAC here provides more than what was alleged in
`either VHT or Verizon Media. Specifically, the TAC alleges that “on most of the
`Autoblog website, EVOX Images were still being displayed as the interior and
`exterior images on the compare feature” with each image “emblazoned with the
`EVOX IMAGES trademark in the lower right corner.”33 Furthermore, “[f]or
`each vehicle selected for comparison, dozens of EVOX Images were
`displayed.”34
`Second, the court in Verizon Media rejected Evox’s argument that its
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`allegations concerning “likes” and “re-blogs” on Yahoo’s Tumblr page gave
`“rise to a reasonable inference that [Yahoo] displayed and distributed
`copyrighted photographs.” Id. at *4. Defendants attempt to leverage this
`argument against Evox’s complaint here, but their efforts fall short. The
`allegations in Verizon Media concerned the conduct of third parties, whereas
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`See Minute Order.
`TAC at ¶¶ 57 & 58 (internal quotations omitted).
`Id. at ¶ 59; see also id., Ex. E.
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`here, Evox alleges that Defendants themselves hosted, served, and displayed
`Evox’s images.35 This allegation attributes “volitional conduct” to Defendants
`rather than mere “user actions.” VHT, 918 F.3d at 737. Again, whether Evox
`can support this allegation factually is an issue to be decided later. For now, the
`TAC avers enough to survive Defendants’ Rule 12(b)(6) challenge.
`IV. CONCLUSION
`For the foregoing reasons, the Court hereby ORDERS as follows:
`Defendants’ Motion is DENIED.
`1.
`Defendants are DIRECTED to file their Answer to the TAC on or
`2.
`before October 29, 2021.
`IT IS SO ORDERED.
`
`Dated: October 14, 2021
`
`John W. Holcomb
`UNITED STATES DISTRICT JUDGE
`
`35
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`Id. at ¶¶ 64, 66, & 82; Response at 3:1-8.
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