Case 2:21-cv-06815-MEMF-MAR Document 90 Filed 05/22/23 Page 1 of 15 Page ID #:533
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
` Case No.: 2:21-cv-06815-MEMF(MARx)
`
`ORDER GRANTING DEFENDANTS
`NADYA TEYFUKOVA AND
`ENTERTAINMENT DATA ORACLE, INC.’S
`MOTION TO DISMISS [ECF NO. 75] AND
`DENYING PLAINTIFF ISPOT.TV, INC’S
`REQUEST FOR CERTIFICATION FOR
`INTERLOCTORY APPEAL [ECF NO. 79]
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`
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`ISPOT.TV, INC.,
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`Plaintiff,
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`v.
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`NADEZHDA TEYFUKOVA a/k/a NADYA
`TEYFUKOVA, AND ENTERTAINMENT
`DATA ORACLE, INC.,
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`Defendants.
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`
`Before the Court is the Motion to Dismiss Plaintiff’s Digital Millennium Copyright claim
`filed by Defendants Nadezhda Teyfukova and Entertainment Data Oracle, Inc. ECF No. 75. Also
`before the Court is the Request for Certification for Interlocutory Appeal, filed by Plaintiff iSpot.TV,
`Inc. ECF No. 79. For the reasons stated herein, the Motion to Dismiss is GRANTED. The Request
`for Certification for Interlocutory Appeal is DENIED.
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`Case 2:21-cv-06815-MEMF-MAR Document 90 Filed 05/22/23 Page 2 of 15 Page ID #:534
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`I.
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`Factual and Procedural Background1
`The Court previously summarized the case background in its Order Granting in Part and
`Denying in Part Defendants’ Motions to Dismiss. ECF No. 71 (“Order”). As such, the Court only
`recites the factual and procedural background as it is relevant to the instant Motion.
`A. Factual Background
`Plaintiff iSpot.tv, Inc. (“iSpot”) is a data and analytics company which provides its clients
`with real-time television advertising data and analytics. SAC ¶ 2. iSpot stores its data in a database
`(the “Database”) that is only accessible to customers that have entered into a subscription agreement
`(“Agreement”) and pay a subscription fee. Id. The Agreement binds all customers to iSpot’s terms of
`service. Id. Customers can only access the Database with a “unique account login and security
`credentials associated with a specific customer and that customer’s subscription.” Id.
`Defendant Entertainment Data Oracle, Inc. (“EDO”) is a “data, measurement, and analytics
`company that advances the success of marketing, research, and creative professionals.” Id. EDO
`provides companies with “insights” into the efficacy of TV ads, specifically as the data relates to
`consumer engagement and purchase activity. Id. ¶ 24.
`From 2014 to 2017, EDO and iSpot entered into three Agreements, granting EDO access to
`the Database. See id. ¶¶ 3–5. However, EDO—in violation of the Agreements—downloaded tens of
`thousands of iSpot’s ads and data. Id. ¶ 7. In 2018, upon expiration of iSpot and EDO’s final
`Agreement, EDO launched two new products: the “TV Ad Database” and the “TV Ad Engagement”
`platforms. Id. ¶ 8. Both products appear to compete with the Database. Id.
` Defendant Nadezhda Teyfukova a/k/a Nadya Teyfukova (“Teyfukova”), is an EDO
`employee. Id. ¶ 9. Prior to joining EDO in 2019, Teyfukova was an employee of Horizon Media
`(“Horizon”), a media services agency that provided services to an iSpot customer. Id. ¶¶ 51–52. As
`part of her role at Horizon, Teyfukova was granted login credentials (the “Horizon credentials”) to
`the Database, including a username linked specifically to her Horizon email address,
`nteyfukova@horizonmedia.com. Id. ¶¶ 51–52.
`
`1 Unless otherwise indicated, the following facts are derived from the Second Amended Complaint. ECF No.
`74 (“SAC”).
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`Case 2:21-cv-06815-MEMF-MAR Document 90 Filed 05/22/23 Page 3 of 15 Page ID #:535
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` Teyfukova was “only permitted to use these login credentials” for the explicit purpose of
`accessing iSpot’s database in the course of her work for Horizon’s customer. Id. ¶ 52. In September
`2019, Teyfukova left Horizon for her current role at EDO. Id. ¶ 54. At EDO, she continued to use the
`Horizon credentials during typical work hours, to access the iSpot database, doing so over 150 times
`including many times from EDO’s Culver City location and her personal home in Los Angeles. Id.
`¶¶ 9, 54–55. She accessed and downloaded over 40 reports related to the movie industry. Id. ¶¶ 55–
`56.
`
`B. Procedural Background
`On August 24, 2021, iSpot filed its initial complaint against Teyfukova pleading the
`
`following: (1) violation of the Defend Trade Secrets Act, 18 U.S.C. § 1836, et seq.; (2)
`misappropriation of trade secrets, CAL. CIV. CODE § 3426.1, et seq.; and (2) violation of the Digital
`Millennium Copyright Act, 17 U.S.C. § 1201, et seq. (“DMCA”) ECF No. 1. On February 7, 2022,
`see ECF Nos. 23, 28, Teyfukova filed a motion to dismiss. ECF No. 34.
`
`On April 15, 2022, the EDO Defendants filed a motion to dismiss all four claims for failure
`to state a claim. ECF No. 55. On October 3, 2022, EDO filed an additional motion to dismiss
`pursuant to Federal Rule of Civil Procedure 12(b)(1) seeking dismissal of iSpot’s breach of contract
`claim for lack of subject matter jurisdiction. ECF No. 62. On January 25, 2023, the Court issued an
`order granting in part and denying in part the EDO Defendants’ Motion to Dismiss for failure to
`state a claim, and denied EDO’s Motion to Dismiss for lack of subject matter jurisdiction. See
`generally Order. The Court granted the Motion to Dismiss as to iSpot’s DMCA claim with leave to
`amend. Id. at 17–22.
`On February 24, 2023, iSpot filed a timely SAC. See SAC. On March 20, 2023, the EDO
`Defendants filed a Motion to Dismiss the DMCA claim. ECF No. 75 (“Motion” or “Mot.”). The
`Motion was fully briefed as of April 14, 2023. ECF Nos. 79 (“Opposition” or “Opp’n”); 81
`(“Reply”). The Court heard oral argument on May 4, 2023.
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`II.
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`Applicable Law
`A. Motion to Dismiss pursuant to Rule 12(b)(6)
`Under Federal Rule of Civil Procedure Rule 12(b)(6), a party may file a motion to dismiss
`for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). The purpose
`of Rule 12(b)(6) is to “enable defendants to challenge the legal sufficiency of claims asserted in a
`complaint.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). A district
`court may properly dismiss a claim under Rule 12(b)(6) if the complaint fails to allege sufficient
`facts to support a cognizable legal theory. Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d
`1156, 1159 (9th Cir. 2016).
`“To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to
`‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard is not
`akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
`acted unlawfully.” Id. While a complaint does not need detailed factual allegations, a plaintiff’s
`obligation to provide the grounds of his entitlement to relief requires more than “threadbare recitals
`of the elements of a cause of action.” Id. at 678. “Determining whether a complaint states a plausible
`claim for relief is ‘a context-specific task that requires the reviewing court to draw on its judicial
`experience and common sense.’” Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (quoting
`Iqbal, 556 U.S. at 679).
`When evaluating a complaint under Rule 12(b)(6), the court “must accept all well-pleaded
`material facts as true and draw all reasonable inferences in favor of the plaintiff.” Caltex, 824 F.3d at
`1159; Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (“We
`accept factual allegations in the complaint as true and construe the pleadings in the light most
`favorable to the nonmoving party.”). This tenet, however, is “inapplicable to legal conclusions.”
`Iqbal, 556 U.S. at 678.
`While the Court is required to “take all allegations of material fact as true and construe them
`in the light most favorable to the nonmoving party” on a Rule 12(b)(6) motion to dismiss, In re Nat’l
`Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1149 (9th Cir. 2019), the plaintiff
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`is required to plead sufficient facts showing “more than a sheer possibility that a defendant has acted
`unlawfully.” Iqbal, 556 U.S. at 678. However, when the plaintiff has met the possibility threshold
`and, in response, the defendant has advanced an alternative explanation that is also more than
`possible, the Ninth Circuit requires that the plaintiff’s complaint survive motion to dismiss. Starr v.
`Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Put differently, “[i]f there are two alternative
`explanations, one advanced by defendant and the other advanced by plaintiff, both of which are
`plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).” Id.
`Plausibility is more than mere possibility. Plausibility requires that the plaintiff “do more
`than allege facts that are merely consistent with both their explanation and defendants’ competing
`explanation.” In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013) (citing
`Iqbal, 556 U.S. at 678). Thus, when both parties have advanced “possible explanations,” where only
`one is true and “only one of which results in liability,” a plaintiff must offer allegations that are more
`than “merely consistent” with their advanced explanation. Id. Instead, “[s]omething more is needed,
`such as facts tending to exclude the possibility that the alternative explanation is true in order to
`render plaintiffs’ allegations plausible within the meaning of [Iqbal] and [Twombly].” Id. (internal
`citations omitted) (citing Iqbal, 556 U.S. at 678 and Twombly, 550 U.S. at 554).
`
`III. Discussion
`The EDO Defendants seek to dismiss the DMCA claim ag on the grounds that the SAC fails
`to cure the defects identified in the Court’s Order as it does not allege conduct that rises to
`circumvention under the meaning of DMCA. Mot. at 1, 4–8.
`
`A. Summary of new allegations
`The Court begins by recounting the new allegations raised in the SAC as to the DMCA
`claim. iSpot alleges as follows:
`
` Through her employment with Horizon, Ms. Teyfukova was provided confidential
`password and account login credentials allowing her to access iSpot’s secure
`database. Ms. Teyfukova’s user ID for access to iSpot’s database was
`“nteyfukova@horizonmedia.com”, an email address reflecting that she was
`employed at Horizon and was conducting work on behalf of Horizon’s specific
`iSpot customer. Ms. Teyfukova knew that she was only permitted to use these
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`
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`confidential login credentials and access iSpot’s database in the course and
`furtherance of her work at Horizon on behalf of that single iSpot customer. SAC ¶
`52;
`
`In September 2019, Ms. Teyfukova left Horizon and began working for EDO as a
`Media Analytics Manager servicing EDO’s movie studio clients. At the time, EDO
`had over 100 employees. Ms. Teyfukova reported to a direct supervisor at EDO and
`was also under the direction and control of other EDO employees and officers
`during her employment. Id. ¶ 54;
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` Even though she was only authorized to use the iSpot services while at Horizon and
`in the course of her work on behalf of the single iSpot client Horizon was assisting,
`Ms. Teyfukova took her confidential iSpot access credentials with her when she
`left Horizon and joined EDO in early September 2019. She then used those stolen
`credentials for the benefit of EDO, and at the knowing direction and control of EDO,
`with the purpose of evading and bypassing the technological security barriers that
`restricted access to the iSpot database and services to only authorized users in order
`to continue logging into the iSpot database and using the iSpot services after leaving
`Horizon when she was no longer authorized to do so. Ms. Teyfukova was aware of
`these technological security barriers from her prior work at Horizon and knew they
`were intended to prevent unauthorized access to the iSpot database and services,
`but she intentionally used the stolen Horizon credentials at EDO’s knowing
`direction and control to benefit EDO in violation of her duty of loyalty to Horizon
`and with the primary purpose of evading those barriers in order to gain access to
`iSpot’s system. Each time that Ms. Teyfukova logged into the iSpot database, she
`committed at least two separate wrongful acts. First, she intentionally and falsely
`misrepresented that she was still an employee of Horizon, acting within the course
`of scope of such employment and on the behalf of iSpot’s customer that Horizon
`was assisting, by entering the username nteyfukova@horizonmedia.com. Second,
`with knowledge that she was not authorized to do so, she utilized the password that
`had been authorized for her use solely for work in the course and scope of her
`employment at Horizon on behalf of the iSpot customer that Horizon was assisting.
`Ms. Teyfukova repeated these separate wrongful acts over 150 times to access
`iSpot’s database after joining EDO, viewing thousands of pages of information in
`iSpot’s database and generating and downloading hundreds of reports that
`contained proprietary information from iSpot’s database. Id. ¶ 55;
`
` Ms. Teyfukova accessed iSpot’s database and stole its data in the course of her
`employment with EDO, at the knowing direction and control of her direct
`supervisor and others at EDO, and for EDO’s benefit, using the confidential login
`credentials provided to her by Horizon and in violation of her duty of loyalty to
`Horizon. Once Ms. Teyfukova joined EDO, the IP addresses used to login to iSpot’s
`database with her credentials almost immediately shifted to Culver City, where
`EDO is headquartered. When COVID shelter-in-place orders were issued and Ms.
`Teyfukova began working from home full time for EDO, the IP addresses used for
`many logins with her credentials shifted to the zip code where she resides. For
`example, during a two-day stretch in November 2019, the Teyfukova credentials
`were used to access the iSpot database multiple times from both Culver City and
`from Ms. Teyfukova’s home zip code, and nearly 40 detailed data reports generated
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`and downloaded related to the movie industry (EDO’s and Ms. Teyfukova’s focus)
`taken during those logins. The majority of logins using the Teyfukova credentials
`also occurred during normal business hours on weekdays, at times when Ms.
`Teyfukova would be at work for EDO. Id. ¶ 56;
`
` Additionally, iSpot is informed and believes, and based on such information and
`belief alleges, that EDO knowingly and intentionally induced Ms. Teyfukova, as a
`condition of her employment at EDO, to further violate her duty of loyalty to
`Horizon, her former employer, by also turning over to EDO the sensitive and
`confidential iSpot password and username given to her solely for her use as an
`employee of Horizon to enable other employees of EDO, including Ms.
`Teyfukova’s direct supervisor at EDO and other additional employees of EDO, as
`well as automated software and information technology systems of EDO under
`EDO’s control, to access iSpot’s proprietary database by bypassing its password
`protection gating system to view and download valuable information under the
`knowingly false pretext of supposedly being “nteyfukova@horizonmedia.com” –
`an employee of Horizon. The primary purpose of the actions of Ms. Teyfukova,
`EDO, and other EDO employees, including Ms. Teyfukova’s supervisor, was to
`knowingly evade iSpot’s technological database protections and break into its
`database by bypassing the iSpot’s credential gating system restricting access to the
`database to only properly authorized users, including certain employees of Horizon.
`Id. ¶ 57.
`
`
`B. iSpot fails to state a claim under the Digital Millennium Copyright Act.
`iSpot brings a claim against the EDO Defendants under the anticircumvention provision of
`the DMCA on two grounds: (1) Teyfukova’s use of the Horizon credentials during her time at EDO
`and (2) the use of the Horizon credentials by EDO employees other than Teyfukova. See SAC ¶¶ 54,
`56–57.
`To state a claim under the anticircumvention provision of the DMCA, iSpot must allege that
`(i) the work at issue was protected under the Copyright Act, (ii) the copyrighted work was protected
`by a “technological measure,” and (iii) the technological measure was “circumvented” in order to
`obtain access to the copyrighted work.” 17 U.S.C. § 1201(a)(1)(A); see also MDY Indus., LLC v.
`Blizzard Ent., Inc., 629 F.3d 928, 944 (9th Cir. 2010) (noting that 17 U.S.C. § 1201(a) “prohibits the
`circumvention of any technological measure that effectively controls access to a protected work and
`grants copyright owners the right to enforce that prohibition.”).
`A technological measure “effectively controls access to a work if the measure, in the
`ordinary course of its operation, requires the application of information, or a process or a treatment,
`with the authority of the copyright owner, to gain access to the work.” Id. (a)(3)(B) (internal
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`quotation marks omitted). “Circumvention” is “to descramble a scrambled work, to decrypt an
`encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological
`measure, without the authority of the copyright owner.” 17 U.S.C. § 1201(a)(3)(A).
`
`1. Teyfukova’s use of the Horizon credentials does not qualify as circumvention.
`The EDO Defendants argue that the SAC “presents no new allegations” as to whether
`Teyfukova’s individual use of the Horizon credentials qualifies as circumvention. Mot. at 5. iSpot’s
`DMCA claim now appears to proceed on three theories: (1) that Teyfukova’s use of the Horizon
`credentials after the end of her tenure at Horizon qualifies as a violation of the DMCA; (2) that
`Teyfukova engaged in circumvention by sharing the Horizon credentials with other EDO employees;
`and (3) that the other EDO employees’ use of the Horizon credentials qualifies as circumvention. See
`Opp’n at 7–16; SAC ¶¶ 51–52, 55–57.
`However, before the Court turns to its substantive analysis, it reiterates2 that as the Ninth
`Circuit has yet to rule on circumvention in this particular context, the Court’s analysis must begin
`with the text of the DMCA. See Texaco Inc. v. United States, 528 F.3d 703, 707 (9th Cir. 2008)
`(“The first step in interpreting a statute ‘is to determine whether the language at issue has a plain and
`unambiguous meaning with regard to the particular dispute in the case.’” (citing Robinson v. Shell
`Oil Co., 519 U.S. 337, 340 (1997))).3 The statute provides the following definition of circumvention:
`“to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass,
`remove, deactivate, or impair a technological measure, without the authority of the copyright
`owner.” 17 U.S.C. § 1201(a)(3)(A). To determine whether iSpot has properly pleaded
`circumvention, therefore, this Court must consider whether iSpot has properly alleged that
`Teyfukova “avoid[ed], bypass[ed], remove[d], deactivate[d], or impair[ed]” the technological
`measure at issue—namely the password and username system. Id.
`/ / /
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`2 See Order at 19–21.
`3 See also Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“In statutory interpretation
`disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of
`the law itself.”).
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`a. Teyfukova’s individual use of the Horizon credentials does not qualify as circumvention.
`
`The Court previously found that “[t]he allegations in the FAC indicate that, rather than
`avoiding or bypassing the system, Teyfukova simply used the Horizon credentials as they were
`intended to be used.” Order at 19. The new allegations in the SAC do not lead the Court to a
`different conclusion.
`The SAC now appears to advance the theory that EDO utilized Teyfukova—as the possessor
`of the Horizon credentials—as a tool by which EDO gained access to the system. SAC ¶¶ 55
`(Teyfukova used the “stolen credentials for the benefit of EDO, and at the knowing direction and
`control of EDO, with the purpose of evading and bypassing the technological security barriers that
`restricted access to the iSpot database and services to only authorized users in order to continue
`logging into the iSpot database and using the iSpot services after leaving Horizon when she was no
`longer authorized to do so”); 56 (“at the knowing direction and control of her direct supervisor and
`others at EDO, and for EDO’s benefit, using the confidential login credentials provided to her by
`Horizon and in violation of her duty of loyalty to Horizon.”); 57 (“EDO knowingly and intentionally
`induced Ms. Teyfukova, as a condition of her employment at EDO, to further violate her duty of
`loyalty to Horizon, her former employer, by also turning over to EDO the sensitive and confidential
`iSpot password and username given to her solely for her use as an employee of Horizon.”).
` iSpot relies heavily on section 2860 of the California Labor Code, which provides that
`“[e]verything which an employee acquires by virtue of his employment, except the compensation
`which is due to him from his employer, belongs to the employer, whether acquired lawfully or
`unlawfully, or during or after the expiration of the term of his employment.” CAL. LAB. CODE §
`2860. iSpot argues that this provision indicates that Horizon retained ownership of the credentials
`upon Teyfukova’s departure from Horizon, and that Teyfukova “violated her duty of loyalty to
`Horizon” when she knowingly used the credentials outside the scope of her employment at Horizon.
`Opp’n at 13. The EDO Defendants argue that the legitimacy of the login credentials is the
`dispositive factor because it forecloses the possibility that Teyfukova personally took any steps to
`qualify as circumvention under the plain meaning of the statute. Mot. at 4–7.
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`The Court finds iSpot’s argument unavailing. Even if EDO directed Teyfukova to utilize the
`Horizon credentials to access the Database, it does not change the fact that Teyfukova did not take
`any steps that qualify as circumvention within the plain meaning of the statute. The SAC still only
`alleges that Teyfukova individually used the credentials in the technological manner by which she
`was authorized to do so—albeit without authorization. Indeed, the SAC still does not allege that
`Teyfukova took any steps to avoid, bypass, remove, deactivate, or impair the Horizon credentials.
`Adding that the purpose of her actions was to bypass the technological security barriers is not
`enough given what is alleged to be “bypassing.” Put another way, she simply did not evade the
`protections of the database in the means prohibited by the statute. Accordingly, the SAC has not
`addressed the flaw identified in the Court’s Order.4
`Similarly, whether Horizon maintained ownership over the credentials has no bearing on
`whether Teyfukova’s use of the credentials qualifies as circumvention. The SAC still only indicates
`that “Teyfukova utilized a username and password that was duly provided to her long after she was
`authorized to use it.” Order at 20. Whether Teyfukova violated any loyalty to Horizon or whether
`Horizon retained ownership of the credentials is irrelevant to the question of whether she
`“avoid[ed],” “bypass[ed],” or “impair[ed]” the Horizon credentials. See Order at 19–20.
`As such, Teyfukova’s individual use of the Horizon credentials does not constitute
`circumvention within the meaning of the DMCA.
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`b. That Teyfukova shared the Horizon credentials with other EDO employees, or that other
`EDO employees used the credentials to access the Database, does not qualify as
`circumvention.
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`The SAC is not any more successful with respect to Teyfukova’s sharing of the Horizon
`credentials with other EDO employees. The SAC alleges that
`
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`4 iSpot makes much of this Court’s prior statement that “There are no allegations that the primary
`purpose of Teyfukova’s actions was to evade iSpot’s database protections. In the absence of such
`allegations, the Court finds that Teyfukova’s actions—as alleged in the FAC—do not qualify as
`circumvention within the meaning of the DMCA.” Order at 21. Taken in context, it is clear that the
`Court did not hold that pleading such a purpose would be sufficient. The purpose obviously cannot
`change the act itself—which in this instance, does not qualify as circumvention.
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`that EDO . . . induced Ms. Teyfukova . . . to further violate her duty of loyalty to
`Horizon, her former employer, by also turning over to EDO the sensitive and
`confidential iSpot password and username given to her solely for her use as an
`employee of Horizon to enable other employees of EDO, including Ms.
`Teyfukova’s direct supervisor at EDO and other additional employees of EDO,
`as well as automated software and information technology systems of EDO under
`EDO’s control, to access iSpot’s proprietary database by bypassing its password
`protection gating system to view and download valuable information under the
`knowingly false pretext of supposedly being “nteyfukova@horizonmedia.com” –
`an employee of Horizon.
`
`SAC ¶ 57 (emphasis added).
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`iSpot argues that these allegations are sufficient as they indicate that individuals other than
`
`Teyfukova, used the Horizon credentials to access the Database. Opp’n at 15–16. The EDO
`Defendants, however, contend these allegations are insufficient as they incorrectly focus on the
`individuals who used the technological measure rather than the “manner” by which the measure was
`used. Reply at 6. Thus, according to the EDO Defendants, iSpot has failed to state a claim as the
`SAC fails to “differentiat[e] the means by which other EDO employees allegedly accessed iSpot’s
`database from the means by which Ms. Teyfukova allegedly accessed iSpot’s database.” Mot. at 7.
`The Court agrees.
`Even upon amendment, the SAC solely relies on the EDO Defendants’ “intent” and “primary
`purpose” of utilizing the Horizon credentials. Opp’n at 15–16. iSpot argues that Teyfukova acted as
`a “housekeeper who [did] not return the door key of her former employer and then [was] induced to
`give the key to a burglar,” and thus used the key outside of the scope of its intended use. Id. at 11.
`But this argument still fails to show that Teyfukova, or any other EDO employee, made any material
`changes to the proverbial key itself—or the lock or the door.
`To reiterate, “circumvention” is “to descramble a scrambled work, to decrypt an encrypted
`work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without
`the authority of the copyright owner.” 17 U.S.C. § 1201(a)(3)(A) (emphasis added). Most relevant
`here is the statute’s relationship between “circumvention” and “technological measure.” The
`wording of the statute indicates that “circumvention” requires some manipulation of the
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`technological measure at hand and certainly more than that a username and password was simply
`transferred into the hands of another.
`As such, the accessing of the Database with unaltered Horizon credentials by EDO
`employees, see SAC ¶ 57, does not constitute circumvention. 5
`
`The SAC appears to suffer from the same deficiencies that existed in the previous complaint.
`iSpot still fails to allege that the Horizon credentials were “descramble[d] . . . decrypt[ed] . . . or
`otherwise to avoid[ed], bypass[ed], remove[d], deactivate[d], or impair[ed].” Absent such
`allegations, the SAC again fails to plausibly allege a violation the DMCA. Thus, the Court GRANTS
`Motion to Dismiss with respect to iSpot’s third cause of action for violation of the DMCA.
`As a general rule, leave to amend a dismissed complaint should be freely granted unless it is
`clear the complaint could not be saved by any amendment.  Fed. R. Civ. P. 15(a); Manzarek v. St.
`Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). In this instance, in light of the
`theory advanced by iSpot to date, it appears that iSpot cannot save this claim by amendment. It is
`therefore dismissed WITHOUT LEAVE TO AMEND.
`C. The Court grants iSpot’s request for certification for interlocutory appeal.
`
`Finally, iSpot requests that, in the event the Court grants the instant Motion to Dismiss, the
`Court certify the instant order for interlocutory appeal. Opp’n at 16. This request is premised on the
`“split of authority in the case law” and lack of circuit authority “as to whether the unauthorized use
`of a password and username qualify as circumvention under the DMCA.” Id.6
`
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`5 iSpot focuses heavily on the Court’s statement that “In the absence of facts indicating that an EDO
`employee other than Teyfukova used the Horizon credentials, the Court finds that its analysis as to
`Teyfukova’s use of the credentials stands.” Order at 22. But merely alleging that others used the credentials in
`the manner they were designed and intended to and with permission of Teyfukova—as opposed to a
`hypothetical scenario where a third-party managed to steal the credentials—does not transform these actions
`into circumvention. (To be clear, this hypothetical scenario is not considered here and itself might not
`constitute circumvention.)
`6 The EDO Defendants contend that the request is premature and thus must be denied. Reply at 7. But as this
`Order includes a final determination on the EDO Defendants’ Motion to Dismiss, and as iSpot’s request is
`contingent on the Court having granted the Motion, the Court finds the request’s timing appropriate.
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`A district judge may certify for immediate appeal an otherwise unappealable interlocutory
`order if (1) “such order involves a controlling question of law”; (2) “there is substantial ground for
`difference of opinion” on the issue; and (3) “an immediate appeal from the order may materially
`advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
`Because Section 1292(b) “is a departure from the normal rule that only final judgments are
`appealable,” it “must be construed narrowly” and invoked only in “rare circumstances.” James v.
`Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002)