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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`DANIEL M. MILLER,
`Plaintiff,
`
` v.
`FACEBOOK, INC. and YAO WEI YEO,
`Defendants.
` /
`
`No. C 10-00264 WHA
`
`ORDER ON MOTION FOR
`LEAVE TO FILE SECOND
`AMENDED COMPLAINT
`
`INTRODUCTION
`This action illustrates the slipperiness of enforcing intellectual property rights in a world
`where creating and dispersing infringing material to the public via social networking websites has
`become all too easy. Plaintiff is software developer Daniel Miller, who owns a copyright to a
`video game called “Boomshine.” Played over the Internet using Adobe Flash (a multimedia
`platform for online gaming), Boomshine is a simple “chain-reaction” video game wherein the
`user is presented with a screen full of colorful swirling dots. When the user clicks near any one of
`these dots, a cascade of explosions begins whereby the explosion of the first dot causes other dots
`in the vicinity to themselves explode. Fun ensues.
`Defendants are software developer Yao Wei Yeo and social-networking website operator
`Facebook, Inc. Defendant Yeo stands accused of directly infringing plaintiff’s copyright in
`Boomshine by unlawfully reproducing the “look and feel” of plaintiff’s Boomshine video game
`and distributing the copy-cat game through Facebook under the moniker “ChainRxn.” Defendant
`Facebook is accused of contributorily infringing plaintiff’s copyright in Boomshine by providing
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`Yeo — via his Facebook user account and the Facebook Application Directory — with an easy
`platform to distribute the alleged infringing video game to other Facebook users around the globe.
`
`In the instant motion, plaintiff Miller seeks leave to file a second amended complaint
`against both Yeo and Facebook. Defendant Facebook — who is the only defendant who has been
`served and has appeared in this action — opposes the motion. For the following reasons,
`plaintiff’s motion for leave to amend is GRANTED IN PART and DENIED IN PART.
`STATEMENT
`The following factual allegations are taken from plaintiff’s proposed amended complaint
`and are accepted as true for the purposes of the instant motion.
`In early 2007, plaintiff Daniel Miller authored the video game Boomshine (Compl. ¶ 9).
`As noted earlier in this order, Boomshine is played over the Internet using Adobe Flash, and
`involves colorful swirling dots that the player tries to obliterate through a chain reaction of
`explosions (id. ¶ 10). On March 9, 2007, plaintiff published Boomshine on the website
`K2xL.com (id. ¶ 11). Plaintiff was thereafter granted a software copyright registration — but
`apparently not an “audiovideo” copyright registration — for the Boomshine computer program by
`the United States Copyright Office (id. ¶ 12).
`With respect to defendants, the proposed complaint alleges that defendant Yeo does
`business as Zwigglers Apps on the websites “www.facebook.com/zwigglers” and
`“www.zwigglers.com” (id. at ¶ 13). At least as early as April of 2009, defendant Yeo published a
`game called ChainRxn on a website hosted by Facebook (id. at ¶ 14).1 ChainRxn was supposedly
`created and published utilizing the Facebook Developer Platform and has the same “look and
`feel” of Boomshine, incorporating almost every visual element of the game (id. at ¶¶ 15, 23).
`From the date of its initial publication on Facebook until sometime after the initial filing of the
`instant action, users purportedly accessed ChainRxn by navigating from a link at
`“www.facebook.com/zwigglers.” This link would take the user to a Facebook webpage called the
`
`1 As explained herein, this does not mean that the alleged infringing video game
`itself was being stored on defendant Facebook’s servers. Rather, as explained at the hearing
`and in the proposed complaint, the ChainRxn game was allegedly presented by Facebook’s
`website to its users through the use of an inline frame (or an “iFrame”) so that the content
`appeared to be originating from Facebook’s website.
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`ChainRxn “canvas page” (id. at ¶ 16). The proposed complaint describes the ChainRxn “canvas
`page” as follows (id. at ¶ 17):
`The ChainRxn canvas page was a webpage sent from Facebook
`that provided information related to ChainRxn, advertisements
`from Facebook, and an embedded iFrame in the users browser.
`The Facebook canvas iFrame caused the users’ browser to retrieve
`information from a website designated by Defendant Yeo while
`making it appear to the user that the user was receiving
`information hosted on, or provided by, the Facebook website.
`In maintaining his presence on Facebook, defendant Yeo allegedly agreed to the Facebook
`Statement of Rights and Responsibilities which provide Facebook with the right to (1) remove
`access to content through Facebook if that content infringes other people’s intellectual property
`rights and (2) disable defendant Yeo’s Facebook account for continued infringement of third-
`party intellectual property rights (id. at ¶¶ 18–19).
`Defendant Facebook, in turn, allegedly took the “affirmative step” to approve the
`ChainRxn game for publication in the Facebook Application Directory, which “allows every
`Facebook user to search and view the application from within the directory” (id. at ¶¶ 20–21).
`According to the proposed complaint, the publication of ChainRxn on Facebook’s website
`deceived the public regarding the origin of ChainRxn, and defendant Yeo was assisted in his
`ability to distribute infringing copies of ChainRxn to Facebook users across the United States and
`the world because of the ability to access ChainRxn through Facebook and the game’s inclusion
`in the Facebook Application Directory (id. at ¶¶ 24–25).
`On May 7, 2009, plaintiff sent a letter to Facebook demanding that the ChainRxn game be
`removed from the Facebook website due to its infringement of plaintiff’s Boomshine copyright
`(id. at ¶ 27). That same day, a similar letter was sent to defendant Yeo (id. at ¶ 29). Despite this
`demand that defendant Facebook remove ChainRxn from its website, Facebook allegedly refused
`to do so until sometime after the instant action was filed. Specifically, Facebook did not remove
`end-user access to the ChainRxn game through its website by either of the following two steps:
`(1) disabling defendant Yeo’s Facebook account or (2) removing ChainRxn from the Facebook
`Application Directory.
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`This litigation has followed a tortuous path. On October 9, 2009, plaintiff filed this action
`in the United States District Court for the Northern District of Georgia (Dkt. No. 1). Nearly two
`months later, the action was transferred to this court, after which Facebook filed a motion to
`dismiss (Dkt. Nos. 17, 25). The day before the hearing on the motion to dismiss, plaintiff filed a
`first amended complaint, throwing a wrench into many of Facebook’s arguments (Dkt. No. 37).
`At the hearing on the motion, the undersigned allowed Facebook and plaintiff Miller to file
`supplemental briefs in light of the revised allegations in the first amended complaint (Dkt. Nos.
`39, 40). After review of these additional briefs, the Court dismissed plaintiff’s claims of direct
`and indirect copyright infringement, but allowed plaintiff fourteen calendar days to file the instant
`motion (Dkt. No. 49).
`As mentioned earlier, defendant Yeo has still not been served with the summons and
`complaint, despite supposedly diligent efforts by plaintiff to ascertain his location (Compl. ¶ 3).
`ANALYSIS
`
`LEGAL STANDARD.
`1.
`Leave to amend a complaint should be freely given when justice so requires under FRCP
`15(a). Foman v. Davis, 371 U.S. 178, 182 (1962). The principal limiting factor to the liberal
`amendment standard is that “[l]eave to amend need not be granted when an amendment would be
`futile.” In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1097 (9th Cir. 2002). At this stage of the
`litigation, an amendment is not futile so long as the proposed amended complaint states a claim
`that would survive a motion to dismiss.
`A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations
`as true, it contains “enough facts to state a claim to relief that is plausible on its face.” Bell
`Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). That said, a court need not “necessarily
`assume the truth of legal conclusions merely because they are cast in the form of factual
`allegations.” Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). All allegations of
`material fact, however, are taken as true at the motion-to-dismiss stage and construed in the light
`most favorable to the non-moving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
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`THE PROPOSED COMPLAINT
`2.
`In the prior order dismissing plaintiff’s first amended complaint, the undersigned
`identified the following deficiencies (Dkt. No. 43 at 2):
`The complaint does not specify what exactly is published on
`defendant Facebook’s website with regard to ChainRxn. In other
`words, the complaint does not allege whether defendant
`Facebook’s website contains information about ChainRxn, a link
`to the ChainRxn game, the actual ChainRxn game, pictures of the
`ChainRxn game, or a combination of these and/or other things.
`The complaint also does not specify what Facebook users are
`allowed to “search and view” on the application directory.
`Furthermore, plaintiff does not explain how defendant Facebook
`“host[s]” the website on which the ChainRxn game is located. It is
`unclear how the website that contains the ChainRxn game is
`connected to defendant Facebook, and it is unclear how defendant
`Facebook manages the website, if at all.
`Due primarily to these failures, the undersigned dismissed claims of direct and indirect
`infringement asserted against Facebook.
`The proposed complaint attempts to address these deficiencies. First, unlike the prior
`complaint where only a single claim of copyright infringement was leveled against both
`defendants, the claims now delineate between defendants Facebook and Yeo. As to defendant
`Facebook, plaintiff has abandoned his claim of direct copyright infringement and is proceeding
`solely on a theory of contributory copyright infringement, which is a specific species of indirect
`infringement. Only defendant Yeo remains accused of direct copyright infringement. Second,
`plaintiff has pleaded additional facts regarding the manner in which the ChainRxn game is (or
`was) accessed via the Facebook website, including details surrounding the aforementioned
`ChainRxn “canvas page.” As discussed below, these amendments are sufficient to state a claim of
`contributory copyright infringement against defendant Facebook.
`3.
`Contributory Copyright Infringement
`Facebook argues that plaintiff’s claim for contributory copyright infringement should be
`dismissed due to insufficient factual allegations (Opp. 7–9). In particular, Facebook argues that
`the proposed complaint fails to sufficiently state a claim of direct infringement by a third party,
`which is a prerequisite for a claim of indirect copyright infringement to lie (id. at 2–6). A&M
`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n.2 (9th Cir. 2001) (“Secondary liability for
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`copyright infringement does not exist in the absence of direct infringement by a third party.”).
`Separately, the opposition argues that the proposed complaint fails to sufficiently state a claim for
`contributory copyright infringement against Facebook. Finally, Facebook argues that the
`continued failure by plaintiff to locate and serve the summons and complaint on defendant Yeo
`should be treated as separate and independent grounds for dismissing the entire action. These
`arguments are addressed in turn.
`A.
`The Requirement of Direct Infringement
`The prior order already found that plaintiff sufficiently stated a claim of direct
`infringement against defendant Yeo (Dkt. No. 43 at 4–5). Nevertheless, Facebook raises new
`arguments in its opposition brief that direct infringement has not been shown. To state a claim for
`direct copyright infringement, plaintiff must satisfy two requirements: “(1) [plaintiff] must show
`ownership of the allegedly infringed material and (2) [plaintiff] must demonstrate that the alleged
`infringer(s) violated at least one exclusive right granted to copyright holders under 17 U.S.C. §
`106.” Napster, Inc., 239 F.3d at 1013. Facebook challenges only the latter requirement.
`According to Facebook, while the proposed complaint alleges that defendant Yeo “reproduced,
`distributed, and publicly displayed” the alleged infringing software program without plaintiff’s
`authorization (Compl. ¶ 42), the facts as pleaded do not support such allegations (Opp. 4–6).
`This order agrees with Facebook in one respect: the proposed complaint fails to state a
`claim for a violation of plaintiff’s public display rights in Boomshine. As defined by the
`Copyright Act, “[a] ‘computer program’ is a set of statements or instructions to be used directly
`or indirectly in a computer in order to bring about a certain result.” 17 U.S.C. 101 (defining
`terms). In other words, copyright protection of a computer program is principally derived from
`treating the underlying source code as a literary work. See ibid.2 While the public display right
`covers literary works, the proposed complaint contains no allegation that copies of the protected
`work were ever publicly displayed within the meaning of the statute. See 17 U.S.C. 106(5); see
`
`2 This order acknowledges that particular types of software — such as video games
`— may contain substantial creative and original pictorial or graphic authorship deserving of
`separate and independent protection under the Copyright Act. The copyright at issue here,
`however, appears limited to the underlying source code of the Boomshine video game. The
`scope of protection given to copyrighted software is still a developing area of law.
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`also 17 U.S.C. 101 (“To ‘display’ a work means to show a copy of it, either directly or by means
`of a film, slide, television image, or any other device or process.”); ibid. (defining “copies” as
`“material objects . . . in which a work is fixed . . . and from which the work can be perceived,
`reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”).
`Stated differently, the proposed complaint does not allege that the literary work itself — meaning
`the source or machine code for Boomshine — was ever displayed publicly.
`Moreover, this order emphasizes that plaintiff’s copyright appears to be limited to the
`source code rather than the audiovisual aspects of Boomshine. Even assuming, however, that
`plaintiff’s copyright encompassed the audio and visual elements of Boomshine (e.g., the swirling
`colorful dots and sound effects), the “public display” right set forth in 17 U.S.C. 106(5) would
`only protect the display of non-sequential images of an audiovisual work. See id. at 63–64; 17
`U.S.C. 106(5); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160–61 (9th Cir.
`2007). Since the proposed complaint does not allege such a display, plaintiff has failed to state a
`plausible claim for a violation of his public display rights. At best, defendant Yeo’s alleged
`publication of the ChainRxn video game for play by Facebook users constituted a public
`performance of plaintiff’s copyrighted work under 17 U.S.C. 106(4). Just as Congress considered
`the “reading a literary work aloud” as a performance rather than display of a literary work, the
`reading of Boomshine’s copyrighted source or machine code by a computer (resulting in the
`presentation of the video game to the user) could be seen as an analogous performance of the
`underlying work. See H.R. REP. NO. 94-1476, at 63 (1976). Admittedly, this area of the law is
`still developing.
`With respect to plaintiff’s exclusive distribution right in Boomshine, however, this order
`does not agree with Facebook that the proposed complaint fails to state a plausible claim of
`infringement by defendant Yeo (Opp. 5–6). Treating all factual allegations as true and drawing
`all reasonable inferences in plaintiff’s favor, the proposed complaint sufficiently alleges that
`defendant Yeo published ChainRxn to a publicly accessible website where it was distributed to
`members of the public. As explained by the Ninth Circuit in Perfect 10 v. Amazon.com, content
`accessed by a user over the Internet is routinely stored locally on the user’s computer in what is
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`called cache memory. See 508 F.3d at 712 n.3 (defining “cache” memory as “computer memory
`with very short access time used for storage of frequently or recently used instructions or data[]”
`and explaining that a user’s personal computer “has an internal cache that saves copies of
`webpages and images that the user has recently viewed so that the user can more rapidly revisit
`these webpages and images.”). It is a reasonable inference that the ChainRxn video game was
`distributed by defendant Yeo to members of the public through this routine “caching” process. In
`other words, it can be reasonably inferred that the ChainRxn video was downloaded from the
`computer where it was being hosted to the local cache memory of any Facebook user who played
`the ChainRxn video game.3 Counsel for plaintiff argued this very point at the hearing. Given this
`reasonable assumption, the proposed complaint states a plausible claim of direct infringement by
`defendant Yeo of plaintiff’s exclusive right to distribute the Boomshine video game to the public
`— assuming, of course, that ChainRxn is an unlawful “copy” of the protected Boomshine work.
`See 17 U.S.C. 106(3) (providing the copyright holder with the exclusive right to “distribute copies
`. . . to the public” of the protected work); N.Y. Times Co. v. Tasini, 533 U.S. 483, 498 (2001)
`(holding that under the Copyright Act, “copies” may be distributed electronically).
`Finally, defendant Facebook argues that because the proposed complaint fails to allege
`any direct infringement by defendant Yeo in the United States, it cannot be held contributorily
`liable (Opp. 6). This argument appears to be based on the currently unknown whereabouts of
`defendant Yeo and uncertainty behind where the ChainRxn video game is actually “hosted” (i.e.
`the physical location of the computer server from which it is distributed to the public). While it is
`true that the copyright laws “do not reach acts of infringement that take place entirely abroad,”
`see Subafilms v. MGM-Pathe Communications Co., 24 F.3d 1088, 1098 (9th Cir. 1994) (en banc),
`it would not be a reasonable inference at the pleading stage to conclude from the facts as alleged
`that the acts of unauthorized distribution of the ChainRxn video game to Facebook users occurred
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`3 Even if this “caching” inference turns out to be untrue, the details behind most (if
`not all) of these highly technical questions are best known to Facebook. Indeed, ChainRxn
`was allegedly developed by defendant Yeo using the Facebook Developer Platform (Compl.
`¶ 15). Plaintiff cannot be expected to know every last detail of whether copies of ChainRxn
`are cached locally on a user’s computer when they are used or played — at least not at the
`pleading stage.
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`entirely beyond our shores, even assuming defendant Yeo “reproduced” the game outside the
`United States. The importation of unauthorized copies of a copyrighted work constitutes an
`actionable violation of the copyright holder’s distribution rights. See 17 U.S.C. 602.
`Finally, on the issue of whether the proposed complaint plausibly alleges a violation of
`plaintiff’s exclusive reproduction rights in Boomshine under 17 U.S.C. 106(1), counsel for
`Facebook argued at the hearing that the alleged copying of the “look and feel” of Boomshine does
`not sufficiently allege a violation of plaintiff’s reproduction rights in Boomshine’s source code.
`While this argument properly highlights an important distinction between a copyright over source
`code and a copyright over the original audiovisual aspects of a video game, this order finds that
`unlawful copying of plaintiff’s copyright has been sufficiently alleged. Under these facts, it is a
`reasonable inference at the pleading stage that plaintiff’s reproduction rights in Boomshine’s
`source code have been violated due to the alleged similarities between the Boomshine and
`ChainRxn video games. One reason for this finding is because a plaintiff can rarely examine the
`underlying source code of an accused infringing software program without resorting to discovery.
`In sum, direct infringement of plaintiff’s copyright by defendant Yeo within the United
`States has been plausibly alleged in the proposed complaint.
`Contributory Infringement Under Napster
`B.
`With the predicate act of direct infringement sufficiently pleaded, this order now turns to
`the allegations of contributory copyright infringement. As explained in the prior order, a claim of
`indirect copyright infringement may proceed under two different theories: (1) contributory
`infringement and/or (2) vicarious infringement. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d
`1146, 1169 (9th Cir. 2007). In the proposed complaint, plaintiff’s claim against defendant
`Facebook proceeds only under the former theory.
`“One infringes contributorily by intentionally inducing or encouraging direct
`infringement.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).4
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`4 The Supreme Court also set forth a second test for contributory copyright
`infringement involving the distribution of a product not capable of “substantial” or
`“commercially significant” non-infringing uses. See Grokster, 545 U.S. at 942. The facts as
`alleged do not suggest or support a finding of liability under this alternative test.
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`The Ninth Circuit interpreted this test to mean that “one contributorily infringes when he (1) has
`knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces
`that infringement. Perfect 10, Inc., v. Visa Int’l Service, Ass’n, 494 F.3d 788, 795 (9th Cir. 2007).
`For “providers of Internet services,” however, a more refined test applies. Citing its earlier
`holding in Napster, 239 F.3d at 1021, the Ninth Circuit in Perfect 10 v. Amazon.com explained
`that “if a computer system operator learns of specific infringing material available on his system
`and fails to purge such material from the system, the operator knows of and contributes to direct
`infringement.” 487 F.3d at 728.
`This special test was formulated due to the concern that “services or products that
`facilitate access to websites throughout the world can significantly magnify the effects of
`otherwise immaterial infringing activities.” Ibid. (citing Napster, 239 F.3d at 1022); see also
`Grokster, 545 U.S. at 929 (observing that “[t]he argument for imposing indirect liability” is
`particularly “powerful” when individuals using the defendant’s software could make a huge
`number of infringing downloads every day). In other words, these decisions found that copyright
`holders could not adequately protect their rights in a meaningful way unless they could hold
`providers of such Internet-based services or products accountable for their actions pursuant to a
`test like the one set forth in Napster. As such, the Ninth Circuit in Perfect 10 v. Amazon.com
`concluded that “a computer system operator can be held contributorily liable if it ‘has actual
`knowledge that specific infringing material is available using its system[]’ . . . and can ‘take
`simple measures to prevent further damage’ to copyrighted works, . . . yet continues to provide
`access to infringing works.” 487 F.3d at 729 (internal citations omitted). Note well that whether
`or not the accused material is actually hosted by the computer system operator is immaterial —
`merely “facilitat[ing] access to websites” with infringing material is sufficient for liability under
`this test.
`In light of the Napster rule, the proposed complaint sufficiently states a claim of
`contributory copyright infringement against defendant Facebook. First, there is no question that
`Facebook provides Internet services to the public as a social networking website. Second, the
`proposed complaint clearly alleges that Facebook had actual knowledge that specific infringing
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`material was available using its system. Plaintiff sent Facebook a letter on May 7, 2009,
`demanding that Facebook remove ChainRxn from its website because it violated plaintiff’s
`copyright in Boomshine (Compl. ¶ 27). Third, plaintiff makes clear that Facebook could have
`taken one or two simple measures to prevent further harm to his intellectual property rights after
`this notice was provided — namely, by either disabling defendant Yeo’s Facebook account or by
`removing ChainRxn from the Facebook Application Directory (id. at ¶ 32). Fourth, the proposed
`complaint alleges that despite this actual knowledge by Facebook and the availability of two
`simple measures to prevent further harm, Facebook continued to allow its users to search for and
`access the allegedly infringing work for some period of time thereafter (id. at ¶ 31). Fifth, given
`the immense popularity of the Facebook website, it is a reasonable inference that the continued
`listing of ChainRxn in the Facebook Application Directory and the access provided to ChainRxn
`through the Facebook website had the effect of significantly magnifying what might otherwise
`have been immaterial infringing activities had the ChainRxn game not been part of the Facebook
`social network. Given these allegations and inferences, the test set forth in Napster is appropriate
`under these circumstances, and plaintiff has sufficiently stated a claim of contributory
`infringement against defendant Facebook under this test.5
`None of Facebook’s arguments warrants a contrary conclusion. In its opposition,
`Facebook concentrates its fire on whether the proposed complaint sufficiently remedied particular
`pleading deficiencies identified by the prior order. Specifically, Facebook argues that the
`proposed complaint fails to plead any new facts regarding “what Facebook users are allowed to
`‘search and view’ on the application directory” and “how the website that contains the ChainRxn
`game is connected to . . . Facebook” (Opp. 8–9). While it is true that the undersigned identified
`these allegations as deficient in the prior order, counsel must keep in mind that these criticisms
`were made in response to sweeping claims of direct infringement and induced infringement that
`had been leveled against both Yeo and Facebook. Both of these theories — which hinged upon
`whether Facebook “hosted” the infringing video game on its servers or had the right to control the
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`5 Facebook, of course, may have a strong shield to this claim under the “safe harbor”
`provisions of the Digital Millennium Copyright Act. As an affirmative defense, however,
`this is immaterial to whether plaintiff has sufficiently stated a claim.
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`website upon which ChainRxn was stored — have been excised from the proposed complaint.
`The sole remaining claim against Facebook is contributory copyright infringement. As such, the
`proper inquiry is simply whether sufficient facts have been alleged to state a plausible claim for
`contributory infringement under the Napster test. This threshold has been met.
`C.
`DEFENDANT YEO
`Separate and aside from any alleged pleading deficiencies, Facebook asks the Court to
`dismiss the complaint due to plaintiff’s failure to locate and serve defendant Yeo within 120 days
`after the complaint was filed (Opp. 9). FRCP 4(m). No extension of time to serve defendant Yeo
`has been sought by plaintiff.
`While the absence of defendant Yeo from this action is not procedurally fatal to plaintiff’s
`claims of contributory infringement against defendant Facebook moving forward, see 3-12
`NIMMER ON COPYRIGHT § 12.04 (2010) (“[I]t is permissible for a plaintiff to name as a defendant
`solely a contributory infringer or one vicariously liable, such as in circumstances where the direct
`infringer is not subject to service of process or is unknown.”), the lengthy delay in locating Mr.
`Yeo is troubling. The undersigned emphasized this point at the hearing.
`Indeed, locating defendant Yeo appears essential to plaintiff’s case, since a prerequisite to
`plaintiff’s indirect infringement claim against Facebook is proof of direct infringement of
`plaintiff’s copyright by a third party — in this case, Mr. Yeo. This will necessarily require proof
`that Mr. Yeo unlawfully “reproduced” the protected elements of Boomshine’s source code to
`create the accused ChainRxn video game. Without Mr. Yeo in the case to provide testimony and
`the ChainRxn source code, however, it is unclear how plaintiff would be able to prove such
`unlawful copying.6 Without such proof that ChainRxn is an unlawful “reproduction” of
`Boomshine, plaintiff’s remaining claims all crumble.
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`6 Even if Boomshine and ChainRxn appear visually identical, this does not mean that
`the underlying source code must also be identical. Moreover, even if portions of source code
`appear strikingly similar, this does not necessarily imply unlawful copying — two
`experienced software developers seeking to write elegant and efficient source code for a
`particular function might independently craft very similar work.
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`For these reasons, if plaintiff fails to locate Mr. Yeo and file proof of service of the
`summons and complaint on him BY JULY 30, 2010, the Court will take immediate action to
`dismiss the case.
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`CONCLUSION
`For the reasons set forth above, plaintiff’s motion is GRANTED IN PART and DENIED IN
`PART. While the proposed complaint fails to state a plausible claim of direct infringement of
`plaintiff’s public display right pertaining to the Boomshine video game, the remaining claims
`against defendants Yeo and Facebook meet the minimum pleading requirements set forth in Iqbal.
`Plaintiff shall file the amended complaint in conformity with the rulings herein BY NOON