Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 1 of 29
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MEDIA.NET ADVERTISING FZ-LLC,
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`Case No. 14-cv-03883-EMC
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`ORDER DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`AND GRANTING IN PART
`DEFENDANT’S MOTION TO DISMISS
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`Plaintiff,
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`v.
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`NETSEER, INC.,
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`Defendant.
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`Docket No. 36
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`I.
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` INTRODUCTION
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`Plaintiff Media.net Advertising FZ-LLC initiated this lawsuit against Defendant NetSeer,
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`Inc. The First Amended Complaint (―FAC‖) asserts two claims of copyright infringement, as well
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`as claims of intentional interference with business contract, intentional interference with
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`prospective business relationship, and violations of California‘s Unfair Competition Law
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`(―UCL‖), California Business and Professions Code section 17200 et seq. Docket No. 32.
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`Defendant moves for summary judgment on the copyright infringement claims and to
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`dismiss the state law claims. Docket No. 36. In the alternative, Defendant seeks dismissal of the
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`copyright claims or a more definite statement. Id. Having considered the parties‘ briefs and oral
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`argument, as well as the relevant legal authority, the Court hereby DENIES Defendant‘s Motion
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`for Summary Judgment and GRANTS IN PART Defendant‘s Motion to Dismiss.
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`II. BACKGROUND
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`Plaintiff is a leading provider of online contextual-advertising services and offers its
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`customers a website-based advertisement creation platform (the ―Platform‖) which allows its users
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`to create custom advertisements. Id. ¶¶ 1, 21, 24. Website publishers using the Platform can place
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`For the Northern District of California
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`United States District Court
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`Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 2 of 29
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`a Media.net ad unit on their websites so that when a website visitor clicks on the ad unit, the
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`visitor is taken to a ―search-results page‖ which displays relevant advertisements. Id. ¶ 26. For
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`example, if a website visitor clicked on a keyword relating to travel, the search results page could
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`show advertisements promoting deals on hotel rooms. See, e.g., Ex. C, FAC. Plaintiff published
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`the original version of its search results page (―Original Media.net Results Page‖) on February 1,
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`2014. Id. ¶ 28. On May 28, 2014, Plaintiff published a revised search results page (―Revised
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`Media.net Results Page‖), which is derivative of the Original. Id. ¶¶ 33-34.
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`Plaintiff obtained a copyright registration for its Original Media.net Results Page with
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`registration number TX 7-896-126 (the ―‘126 Registration‖) and for its Revised Media.net Results
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`Page with registration number TX 7-896-131 (the ―‘131 Registration‖). Id. ¶¶ 32, 37; Exs. A-B,
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`FAC. Both registrations became effective on August 16, 2014. ‘126 Reg.; ‘131 Reg. The
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`certificates list ―Media.Net Software Services (India) Private Limited‖ as the author, which
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`created ―HTML Code and text,‖ and list ―Media.net Advertising FZ-LLC‖ as the claimant. Id.
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`Defendant is a competing contextual-advertising provider. FAC ¶¶ 38-39. Defendant also
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`provides advertising units that its customers can place on their websites. Id. ¶ 39. Like Plaintiff‘s
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`Platform, when a user clicks on Defendant‘s advertising unit, the user is directed to a search-
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`results page that offers relevant advertisements. Id. ¶ 40. Plaintiff alleges Defendant directly
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`copied Plaintiff‘s hypertext markup language (―HTML‖) code, including arbitrarily-named
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`variables and portions of the code that have no function, and used it to create Defendant‘s own
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`search results page. Id. ¶¶ 42-46.
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`Plaintiff further alleges Defendant‘s unauthorized use of the HTML code allowed it to gain
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`an unfair competitive advantage. Id. ¶ 58. In particular, Plaintiff claims Defendant undermined
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`Plaintiff‘s relationship with Microsoft by representing that Defendant‘s products could work just
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`as well as Plaintiff but at a lower cost. Id. ¶¶ 60-61. Defendant‘s infringement improved its
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`position in the contextual-advertising market and allowed it to earn revenue from customers it
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`obtained as a result of using Plaintiff‘s product. Id. ¶ 67-69. Consequently, Plaintiff was forced to
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`lower the rates it charged its customers, causing it to lose millions of dollars in revenue. Id. ¶ 65.
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`Plaintiff‘s reputation as the leader in contextual-advertising services has diminished. Id. ¶ 71.
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`Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 3 of 29
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`A. Motion for Summary Judgment
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`III. LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment if
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`the ―movant shows that there is no genuine dispute as to any material fact.‖ The movant bears the
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`burden of ―identifying those portions of the pleadings, depositions, answers to interrogatories, and
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`admissions on file, together with the affidavits, if any, which it believes demonstrate the absence
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`of a genuine issue of material fact.‖ Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation
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`marks omitted). A material fact is one that may affect the outcome of the case. George v. Morris,
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`736 F.3d 829, 834 (9th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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`(1986)). A genuine dispute as to material fact exists if there is sufficient evidence such that a
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`reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 248. This requires
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`more than a ―mere existence of a scintilla of evidence in support of the plaintiff‘s position[.]‖ Id.
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`at 252.
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`When determining whether there is a genuine issue of material fact, ―a court must view the
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`evidence ‗in the light most favorable to the opposing party.‘‖ Tolan v. Cotton, 134 S. Ct. 1861,
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`1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). Courts should also
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`draw reasonable inferences in favor of the non-moving party. Tolan, 134 S. Ct. at 1868. ―‗Where
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`the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
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`there is no genuine issue for trial.‘‖ City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049-
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`50 (9th Cir.) cert. denied sub nom. SQM N. Am. Corp. v. City of Pomona, Cal., 135 S. Ct. 870, 190
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`L. Ed. 2d 703 (2014) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
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`574, 587 (1986)).
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`If the moving party has ―the burden of proof on an issue at trial, the movant must
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`affirmatively demonstrate that no reasonable trier of fact could find other than for the moving
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`party.‖ Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If, on the other
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`hand, the burden of proof rests on the non-moving party, ―the movant can prevail merely by
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`pointing out that there is an absence of evidence to support the nonmoving party‘s case.‖ Id. ―A
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`party opposing a properly supported motion for summary judgment may not rest upon mere
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`Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 4 of 29
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`allegation or denials of his pleading, but must set forth specific facts showing there is a genuine
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`issue for trial.‖ Anderson, 477 U.S. at 256.
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`B.
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`Motion to Dismiss
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss
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`on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion tests the
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`sufficiency of a complaint by failing to allege ―enough facts to state a claim to relief that is
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`plausible on its face.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). ―A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.‖ Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009) (citing Twombly, 550 U.S. at 556). Although a complaint need not contain ―detailed
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`factual allegations,‖ a complaint that contains merely ―a formulaic recitation of the elements of a
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`cause of action will not do.‖ Twombly, 550 U.S. at 555. Rather, ―‗[f]actual allegations must be
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`enough to raise a right to relief above the speculative level.‘‖ Williams v. Gerber Prod. Co., 552
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`F.3d 934, 938 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 555). ―A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.‖ Iqbal, 556 U.S. at 678; see also
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`Twombly, 550 U.S. at 556. ―The plausibility standard is not akin to a ‗probability requirement,‘
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`but it asks for more than a sheer possibility that a defendant has acted unlawfully.‖ Id.
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`In ruling on a Rule 12(b)(6) motion, courts ―accept factual allegations in the complaint as
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`true and construe the pleadings in the light most favorable to the nonmoving party.‖ Manzarek v.
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`St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Courts may dismiss a claim
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`―only if it appears beyond doubt that the plaintiff could prove no set of facts in support of his
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`claim which would entitle him to relief.‖ Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011)
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`(quotation marks omitted). Courts should grant the plaintiff leave to amend ―‗if it appears at all
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`possible that the plaintiff can correct the defect.‘‖ Crowley v. Bannister, 734 F.3d 967, 977 (9th
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`Cir. 2013) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)).
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`Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 5 of 29
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`A.
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`The Compendium
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`IV. DISCUSSION
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`The United States Copyright Office is ―‗the governmental agency that possesses special
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`expertise in determining the bounds of copyright protection.‘‖ Garcia v. Google, Inc., 786 F.3d
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`733, 741 n.7 (9th Cir. 2015) (quoting 2 Nimmer on Copyright § 7.16[B][3][b][vi]). In addition to
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`administering the system of copyright registration, the Copyright Office works closely with
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`Congress on matters relating to copyright laws. 17 U.S.C. § 701(a); 2 Nimmer on Copyright §
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`7.26; see 17 U.S.C. § 701(b)(2) (―[T]he Register of Copyrights shall . . . [a]dvise Congress on
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`national and international issues relating to copyright, other matters arising under this title, and
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`related matters‖); Feist Pub., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 354-55 (1991) (―When
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`Congress decided to overhaul the copyright statute and asked the Copyright Office to study
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`existing problems, . . . the Copyright Office promptly recommended that Congress clear up the
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`confusion in the lower courts as to the basic standards of copyrightability.‖ (citation omitted));
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`Mills Music v. Snyder, 469 U.S. 153, 159-61 (1985) (describing Copyright Office and Congress‘s
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`general revision of copyright law in 1955); S. Rep. No. 101-268, at 6 (1990) (―Congress relies
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`extensively on the Copyright Office to provide its technical expertise in the legislative process.‖).
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`The Copyright Office publishes an administrative manual that contains, inter alia, legal
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`interpretations and guidance regarding copyright registrations. See U.S. Copyright Office,
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`Compendium of Copyright Practices (3d ed. 2014) (―Compendium (Third)‖). The Compendium
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`―provides guidance to copyright applicants, practitioners, scholars, the courts, and members of the
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`general public regarding institutional practices and related principles of law.‖ Id. Intro. at 1. The
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`Copyright Office first published the Compendium in 1967 and released the second edition
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`(―Compendium II‖) in 1984. Id. Intro. at 4. It revised the Compendium II first in 1988 and again
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`in 1998. See U.S. Copyright Office, Compendium of Copyright Practices (2d ed. 1984).
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`The Copyright Office released a draft of third edition of the Compendium on August 19,
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`2014. U.S. Copyright Office, U.S. Copyright Office Announcement Regarding Release of a Draft
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`of the Compendium of U.S. Copyright Office Practices, Third Edition (Aug. 19, 2014),
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`http://copyright.gov/newsnet/2014/555.html. This draft was the first major revision of the
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`Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 6 of 29
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`Compendium in over twenty years, and it took the Copyright Office over two years to complete.
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`Id. The Compendium remained in draft form for approximately 120 days, during which time the
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`Copyright Office accepted feedback on the draft from the public. Id. The Copyright Office
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`released the final version of the third edition on December 22, 2014, and it became effective
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`immediately. Compendium (Third) Intro. at 1.
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`The Ninth Circuit has held that the Copyright Office‘s decisions and opinions are not
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`entitled to the level of deference afforded under Chevron U.S.A. Incorporated v. Natural
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`Resources Defense Council, Incorporated, 467 U.S. 837 (1984).1 Inhale, Inc. v. Starbuzz
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`Tobacco, Inc., 755 F.3d 1038, 1041 (9th Cir. 2014), as amended July 9, 2014, cert. denied, 135 S.
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`Ct. 758 (2014) (―Because Chevron deference does not apply to internal agency manuals or opinion
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`letters, we defer to the Copyright Office‘s views expressed in such materials ―only to the extent
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`that those interpretations have the ‗power to persuade.‘‖). Instead, the Ninth Circuit has long held
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`that the Copyright Office‘s interpretations of copyright law are entitled to the lower level of
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`deference applicable under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). See United States
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`v. Mead Corp., 533 U.S. 218, 227 (2001) (―[A]gencies charged with applying a statute necessarily
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`make all sorts of interpretive choices, and while not all of those choices bind judges to follow
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`them, they certainly may influence courts facing questions the agencies have already answered.‖).
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`Under Skidmore, the degree to which a court defers to an agency‘s opinion or interpretation ―will
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`depend upon the thoroughness evident in its consideration, the validity of its reasoning, its
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`consistency with earlier and later pronouncements, and all those factors which give it power to
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`persuade, if lacking power to control.‖ Skidmore, 323 U.S. at 140; see Christensen v. Harris
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`1 Chevron deference is appropriate ―[w]hen Congress has explicitly left a gap for an agency to fill,
`[and] there is an express delegation of authority to the agency to elucidate a specific provision of
`the statute by regulation[.]‖ Mead Corp., 533 U.S. at 227 (quotations and citation omitted).
`Under those circumstances, ―any ensuing regulation is binding in the courts unless procedurally
`defective, arbitrary or capricious in substance, or manifestly contrary to the statute.‖ Id. An
`agency‘s interpretation of a statute ―certainly may influence courts facing questions the agencies
`have already answered.‖ Id. Courts may defer to an agency‘s interpretation in the absence of
`―express [congressional] delegation of specific interpretative authority‖ where the agency‘s
`authority and other circumstances otherwise make it apparent ―that Congress would expect the
`agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills
`a space in the enacted law, even one about which ‗Congress did not actually have an intent‘ as to a
`particular result.‖ Id. at 229 (quoting Chevron, 467 U.S. at 845).
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`Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 7 of 29
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`Cnty., 529 U.S. 576, 587 (2000) (holding agency manuals are entitled to Skidmore deference, ―but
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`only to the extent that those interpretations have the power to persuade.‖). See also Inhale, Inc.,
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`755 F.3d at 1041 (―When interpreting the Copyright Act, we defer to the Copyright Office‘s
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`interpretations in the appropriate circumstances‖ but ―only to the extent that those interpretations
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`have the power to persuade‖ (internal quotations omitted)); Batjac Prods. Inc. v. GoodTimes
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`Home Video Corp., 160 F.3d 1223, 1231 (9th Cir. 1998) (concluding interpretation set forth in
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`Compendium II was ―reasonable and consistent‖ and thus ―entitled to deference.‖); Marascalco v.
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`Fantasy, Inc., 953 F.2d 469, 473 (9th Cir. 1991) (―We agree with the D.C. Circuit that the Register
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`has the authority to interpret the copyright laws and that its interpretations are entitled to judicial
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`deference if reasonable.‖ (citing Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., Inc.,
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`836 F.2d 599, 607-10 (D.C. Cir. 1988)). In doing so, the Ninth Circuit notes ―[t]he Copyright
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`Office‘s well-reasoned position reflects a body of experience and informed judgment to which
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`courts and litigants may properly resort for guidance.‖ Garcia v. Google, Inc., 786 F.3d 733, 741-
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`42 (9th Cir. 2015) (quotation marks omitted).2
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`2 The Ninth Circuit‘s position is consistent with its sister courts. Other Courts of Appeal also
`defer to the Copyright Office‘s interpretations and practices, and while the degree of deference
`varies somewhat between the circuits, none have applied Chevron deference. The Second, Sixth,
`and Eleventh, and District of Columbia Circuits, like the Ninth, afford the Copyright Office‘s
`interpretations Skidmore deference. See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536
`F.3d 121, 129 (2d Cir. 2008) (―We assume, as the parties do, that the Copyright Office‘s
`pronouncement deserves only Skidmore deference, deference based on its ‗power to persuade.‘‖);
`Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 479-81 (6th Cir. 2015) (collecting cases
`and holding that Copyright Office‘s determination that work is protectable is entitled to Skidmore
`deference); Olem Shoe Corp. v. Wash. Shoe Corp., 591 F. App‘x 873, 882 (11th Cir. 2015) (giving
`Skidmore deference to Compendium‘s interpretation ―as the copyright law is ‗highly detailed‘ and
`it is apparent that the Copyright Office ‗can bring the benefit of specialized experience to bear on
`the subtle questions in this case.‘‖ (quoting Mead Corp., 533 U.S. at 235)); Cablevision Sys., 836
`F.2d at 610 (D.C. Cir. 1988) (Copyright Office‘s ―interpretations are therefore due the same
`deference given those of any other agency.‖). The Third Circuit has also deferred to the Copyright
`Office but did so without stating to what degree. See Southco, Inc. v. Kanebridge Corp., 390 F.3d
`276, 286 n.5 (3d Cir. 2004) (en banc) (noting ―the practice of the Copyright Office reflects a body
`of experience and informed judgment to which courts and litigants may properly resort for
`guidance‖ but declining to ―decide what degree of deference is warranted under the
`circumstances‖ (quotation omitted)). Cf. De Sylva v. Ballentine, 351 U.S. 570, 577-78 (1956),
`(while the Court ―would ordinarily give weight to the interpretation of an ambiguous statute by the
`agency charged with its administration, . . . [it thought] the Copyright Office‘s explanation of its
`practice deprives the practice of any force as an interpretation of the statute, and [it] therefore d[id]
`not rely on it in th[at] instance.‖) (citation omitted)).
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`Case 3:14-cv-03883-EMC Document 69 Filed 01/12/16 Page 8 of 29
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`Accordingly, the Court affords the Compendium Skidmore deference and adopts the
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`Copyright Office‘s interpretations of copyright law where it finds them reasonable and persuasive.
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`Here, neither party disputes the interpretations at issue contained in the most recent Compendium
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`and the Court finds those interpretations reasonable.
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`B.
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`Copyright Infringement Claims
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`1.
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`Motion for Summary Judgment
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`In order to prevail on its copyright infringement claims, Plaintiff must prove ―(1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original.‖ Feist Publ’n, 499 U.S. at 361. Defendant‘s Motion is based on the first element;
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`Defendant seeks summary judgment on the basis that Plaintiff‘s copyright registrations do not
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`contain copyrightable material.3 Mot. at 3-7. In part, Defendant argues it is entitled to summary
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`judgment because the look and feel of Plaintiff‘s webpages is not entitled to copyright protection.
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`Mot. at 13-17.
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`Plaintiff‘s FAC alleges Defendant infringed the look and feel of Plaintiff‘s webpages, as
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`well as other elements of those pages. See FAC ¶ 2 (―Net[S]eer . . . misappropriated Media.net‘s
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`copyrighted search-results pages‘ code, design, and look and feel in creating its own results
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`pages.‖); id. ¶ 57 (―Net[S]eer stole the look and feel of Media.net‘s advertisement creatives and
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`search-results pages. . . .‖); id. ¶ 98 (―Defendants intentionally induced a disruption of the business
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`relationship . . . by stealing the Media.net Results Pages‘ source code, design, and look and
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`feel . . . .‖). Plaintiff now acknowledges that the look and feel of its search results page is not
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`subject to copyright protection. Opp‘n at 9 (―Media.net did not seek a copyright in the content
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`For the Northern District of California
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`United States District Court
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`3 In an infringement action, the Court must address the threshold question of the ownership of a
`valid copyright. Topolos v. Caldewey, 698 F.2d 991, 994 (9th Cir. 1983) (holding ―district court
`erred in concluding it lacked jurisdiction over . . . actions for infringement because it was first
`required to resolve a threshold question of copyright ownership which in turn called for
`interpretation of a contract.‖); Jonathan Browning, Inc. v. Venetian Casino Resort LLC, 2009 WL
`1764652, at *1 (N.D. Cal. June 18, 2009) (―Determinations of copyrightability are indeed
`questions of law reserved for the judge, not the jury.‖); 2 Nimmer on Copyright § 12.10[B]
`(―[C]ertain . . . matters are reserved to the judge. Included are determinations of copyrightability
`in all instances.‖). Defendant does not contest ownership for purposes of this Motion, but it
`reserves the right to so challenge if the Court denies the motion. See Mot. at 4 n.4; pg. 17 of this
`Order.
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`that one perceives on [its search results] pages. As a result, Plaintiff‘s copyrights do not grant it
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`the exclusive right to the layout, format, or look and feel of its search results pages. [ ] Anyone –
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`including NetSeer – is free to make pages that look like Media.net‘s.‖); id. at 13 (―The Media.net
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`Registrations only claim protection in HTML code and accompanying text – they do not claim
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`copyright protection in the resulting webpage. NetSeer‘s arguments about website look and feel
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`are irrelevant.‖). Plaintiff‘s current position reflects the views of the Copyright Office: the
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`Compendium makes it clear that a website‘s look and feel is not copyrightable subject matter.
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`Compendium (Third) § 1007 (―Examples of uncopyrightable material include . . . [t]he layout,
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`format, or ‗look and feel‘ of a website.‖); id. § 1007.4 (―The copyright law does not protect the
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`overall look and feel of a website.‖).
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`Instead, Plaintiff has now clarified that its copyright claim is based on its hypertext markup
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`language (―HTML‖) code that underlies its websites, contending that the HTML‘s code, not the
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`look and feel of the website itself, is copyrightable subject matter.
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`a.
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`Presumption of Validity
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`The Copyright Act, 17 U.S.C. §§ 100-810, protects ―original works of authorship fixed in
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`any tangible medium of expression, now known or later developed, from which they can be
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`perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or
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`device.‖ 17 U.S.C. § 102(a). The Copyright Act charges the Register of Copyrights to determine
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`if a submission ―constitutes copyrightable subject matter and [to ensure] that the other legal and
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`formal requirements of this title have been met.‖ Id. at § 410(a). This process is more than a
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`―mere clerical function of recording application. Instead, the Register makes a judgment after
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`examining an application.‖ Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d
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`673, 683 (9th Cir. 2014). If the Register determines a submission is copyrightable and the other
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`requirements are fulfilled, ―the Register shall register the claim and issue to the applicant a
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`certificate of registration under the seal of the Copyright Office.‖ 17 U.S.C. § 410(a). If,
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`however, a submission ―does not constitute copyrightable subject matter or . . . the claim is invalid
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`for any other reason, the Register shall refuse registration and shall notify the applicant in writing
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`of the reasons for such refusal.‖ Id. § 410(b).
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`For the Northern District of California
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`United States District Court
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`

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`―A copyright registration is ‗prima facie evidence of the validity of the copyright and the
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`facts stated in the certificate‘‖ and creates a rebuttable presumption of validity. United Fabrics
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`Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011) (quoting 17 U.S.C. § 410(c)).
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`The party disputing validity ―must simply offer some evidence or proof to dispute or deny the
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`plaintiff‘s prima facie case of infringement.‖ Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345
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`F.3d 1140, 1144 (9th Cir. 2003) (quotation omitted). If that party successfully rebuts the
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`presumption, the burden shifts back to the plaintiff to demonstrate a valid copyright. See Entm’t
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`Research Grp. v. Genesis Creative Grp., 122 F.3d 1211, 1218 (9th Cir. 1997) (finding, where
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`defendant ―had rebutted the statutory presumption, . . . the district court properly shifted the
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`burden of proving validity—the threshold issue for copyright infringement lawsuits—back to [the
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`plaintiff].‖).
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`The FAC alleges Plaintiff holds copyright registrations for the Original and Revised
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`Media.net Results Pages, and the two registration certificates are attached as exhibits. FAC ¶¶ 31-
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`37; see ‘126 Reg.; ‘136 Reg. These certificates create a presumption that Plaintiff‘s ‘126 and ‘131
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`copyright registrations are valid. Compendium II, which was first published in 1984 and was
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`effective at the time Plaintiff submitted its copyright applications, is silent as to the question of the
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`copyrightability of HTML code. Nevertheless, the Copyright Office had likely contemplated the
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`issue when it evaluated Plaintiff‘s applications and decided to issue the registrations. The Court
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`notes that the Copyright Office spent two and a half years revising the Compendium and released
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`the final version on December 22, 2014, approximately four months after Plaintiff‘s ‘126 and ‘131
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`copyright registrations became effective. See Compendium (Third) Acknowledgments, Intro. In
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`addition, on August 19, 2014, the Copyright Office released a public draft of the Compendium, a
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`mere three days after Plaintiff‘s copyright registrations went into effect. Given the Copyright
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`Office‘s decision to issue Plaintiff copyright registrations and also the proximity between the
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`Compendium‘s release and Plaintiff‘s registrations, Plaintiff‘s copyright registrations are clearly
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`entitled to a presumption of validity. It is fair to infer that the Copyright Office‘s decision to issue
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`to registrations were consistent with its views expressed in Compendium (Third) issued shortly
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`thereafter.
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`For the Northern District of California
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`United States District Court
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`

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`b.
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`Copyrightable Subject Matter
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`Defendant argues Plaintiff‘s copyright registrations are invalid because they do not contain
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`copyrightable subject matter. Specifically, Defendant asserts Plaintiff‘s HTML code consists
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`solely of uncopyrightable Cascading Style Sheets (―CSS‖), which renders Plaintiff‘s copyright
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`registrations invalid. Mot. at 3-4, 15-17. Defendant presents as support the Declaration of
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`Edward R. Tittel, a business and computing technology author and consultant. Tittel Decl. ¶ 2,
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`Ex. 2, Mot. Having examined the HTML code at issue, Mr. Tittel opines that ―[t]he accused
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`markup occurs in the context of [a] pair of . . . HTML[] documents.‖ Id. ¶ 7. However, ―that
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`accused markup consists almost entirely of Cascading Style Sheet markup, enclosed between a
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`pair of HTML elements that denote an embedded style sheet within an HTML document[.]‖ Id.
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`In response, Plaintiff argues its copyright registrations are valid because its HTML code is
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`a ―literary work‖ under section 102(a) of the Copyright Act. Opp‘n at 11; see 17 U.S.C. §
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`102(a)(1) (―Copyright protection subsists . . . in original works of authorship fixed in any tangible
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`medium of expression . . . . Works of authorship include . . . literary works[.]‖). Plaintiff offers
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`the declaration of Dr. John C. Mitchell, 4 a professor of computer science at Stanford University,
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`who examined Plaintiff‘s HTML code. Mitchell Decl., Docket No. 53. Dr. Mitchell opines that
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`the code ―contain a substantial amount of expressive conduct.‖ Id. ¶ 41. In particular, he points to
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`names of class styles in CSS; a programmer can name a class style however he so desires. Id. ¶
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`43. Plaintiff essentially argues that this infuses the HTML code with creativity sufficient to
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`establish copyrightability.
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`2.
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`HTML & CSS
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`HTML ―is the standard markup language used in the design of websites‖ and ―establishes
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`the format and layout of text and graphics when a user views a website by instructing the user‘s
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`4 Defendant objects to Dr. Mitchell‘s testimony and alleges Dr. Mitchell examined materials not
`made available to Defendant. Docket No. 57. In his Declaration, Dr. Mitchell refers to ―deposit
`materials.‖ Id. at 1. Defendant contends it requested the deposit materials and that counsel for
`Plaintiff assured Defendant those materials had been produced. Id. However, because Dr. Mitchel
`does not refer to Exhibits C or D, Defendant argues it cannot be certain what Dr. Mitchell
`reviewed. Id. At the December 7 hearing, Plaintiff‘s counsel represented that it is simply a matter
`of terminology – the deposit materials are in fact Exhibits C and D, which were available to
`Defendant. There is no evidence to the contrary. Defendant‘s objection is overruled.
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`browser to present material in a specified manner.‖ Compendium (Third) § 1002.4. HTM