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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`San Francisco Division
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`SYNOPSYS, INC.,
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`Plaintiff,
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`v.
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`UBIQUITI NETWORKS, INC., et al.,
`
`Case No. 17-cv-00561-WHO (LB)
`
`
`ORDER THAT TAIWANESE
`COMPUTERS ARE NOT PER SE
`OUTSIDE THE SCOPE OF
`DISCOVERY
`
`Defendants.
`
`Re: ECF Nos. 99, 105, 109, 110
`
`
`
`INTRODUCTION
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`This lawsuit centers on allegations by plaintiff Synopsys, Inc. (“Synopsys”), a software
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`company, that the defendants (collectively, “Ubiquiti”) “pirated” its software by installing it on
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`Ubiquiti’s computers and then using counterfeit license keys to run the software without obtaining
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`a valid license. Among other claims, Synopsys alleges that Ubiquiti (1) circumvented
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`technological measures that control access to copyrighted software, in violation of the Digital
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`Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201(a)(1), and (2) committed fraud in
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`representing to Synopsys that it was interested in entering into a license agreement to obtain
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`Synopsys software when it in fact was planning to use counterfeit license keys. Synopsys issued
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`discovery requests to “forensically inspect” Ubiquiti’s computers for evidence to support its
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`claims. Ubiquiti objects to Synopsys’s requests.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`Case 3:17-cv-00561-WHO Document 123 Filed 01/29/18 Page 2 of 15
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`The parties’ discovery dispute involves two issues: (1) relevance and (2) burden. The parties’
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`briefs focus almost entirely on relevance. Ubiquiti’s main argument is that all but two of the
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`computers at issue are located outside the United States, the DMCA and U.S. copyright law do not
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`impose liability for activity that occurred outside the United States, and hence the computers
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`outside the United States are not relevant to Synopsys’s claims and should be excluded from
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`discovery. Synopsys disagrees with Ubiquiti’s factual and legal contentions. As for burden, the
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`court previously instructed the parties to meet and confer on the specifics of an appropriate
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`inspection protocol and, if they were unable to agree on a solution, to submit a joint letter brief
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`with their respective positions on how inspection would work, exactly what would be inspected,
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`and what burdens that inspection might impose.1 The parties have not reached an agreement or
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`submitted a joint letter brief with this information.2
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`The court held a hearing on January 25, 2018. Because the parties did not raise burden
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`arguments before the hearing, this order does not address burden issues and addresses only the
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`parties’ relevance arguments. The court holds that Ubiquiti computers are not per se outside the
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`scope of relevant discovery merely because they are located outside the United States.
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`
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`STATEMENT
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`1. Synopsys Claims That Its Data Shows That Ubiquiti Circumvented Its Software’s
`License-Key-Protection System Approximately 39,000 Times
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`Synopsys is a world leader in semiconductor design software.3 Ubiquiti develops networking
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`technology and, among other things, designs semiconductor chips for use in its products.4
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`Synopsys alleges that Ubiquiti downloaded Synopsys electronic design automation (“EDA”)
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`software onto Ubiquiti computers.5 Synopsys alleges that its software will not run without a
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`1 See Order – ECF No. 104 at 2, 5–6. Citations refer to material in the Electronic Case File (“ECF”);
`pinpoint citations are to the ECF-generated page numbers at the top of documents.
`2 See Letters – ECF Nos. 111, 114, 117–119.
`3 Joint Case Mgmt. Statement – ECF No. 98 at 2.
`4 Id.
`5 Id. at 3.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-00561-WHO Document 123 Filed 01/29/18 Page 3 of 15
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`license key and that Ubiquiti has been using counterfeit license keys since at least February 2014
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`to access and run Synopsys software on its computers without obtaining a valid license.6
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`This software has a built-in feature: according to Synopsys, its software transmits basic
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`information about computers that use counterfeit license keys, such as the computers’ MAC
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`addresses, IP addresses, and server host names, back to Synopsys.7 The parties refer to this
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`transmission as “call-home” or “phone-home” data. Synopsys claims that call-home data here
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`shows that Ubiquiti used counterfeit license keys over 39,000 times to access Synopsys software.8
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`2. Ubiquiti Installed Synopsys Software on Taiwanese Computer Servers, and U.S.
`Employees Remotely Connected to Those Servers to Run Synopsys Software
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`Ubiquiti acknowledges that it installed Synopsys software on a “storage array” in Taiwan that
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`is accessed through three computer servers located in Taiwan.9 Ubiquiti employees can access and
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`run the software by using their local laptops or desktops and remotely connecting to the servers.10
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`Ubiquiti also acknowledges that when its employees remotely access its servers to run
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`Synopsys software, Synopsys’s call-home data reports the MAC address and host name of the
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`server (or virtual machines running on the server), not the MAC address or host name of the
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`employee’s local computer.11 Similarly, the call-home data reports the user name of the account
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`profile on the server that the employee uses to remotely log on, not the user name of the account
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`profile the employee has on his local computer.12 Additionally, Synopsys asserts that the call-
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`home data reports the IP address and the country location of the server, not the IP address or the
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`country location of the end user.13
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`6 Id. Ubiquiti disputes that a license key is necessary to run Synopsys software. Id.
`7 Joint Letter Br. – ECF No. 99 at 2.
`8 Joint Case Mgmt. Statement – ECF No. 98 at 3; Joint Letter Br. – ECF No. 99 at 4.
`9 Tsai Decl. – ECF No. 105-5 at 4 (¶ 12).
`10 Id. at 4–5 (¶ 13). Synopsys alleges that Ubiquiti installed Synopsys software on other computers in
`addition to these three servers as well. Jan. 25, 2018 Hr’g.
`11 See Nazarian Decl. – ECF No. 105-1 at 4 (¶¶ 9–11); Tsai Decl. – ECF No. 105-5 at 3–5 (¶¶ 7–13).
`12 See Tsai Decl. – ECF No. 105-5 at 5–6 (¶ 17).
`13 Jan. 25, 2018 Hr’g.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-00561-WHO Document 123 Filed 01/29/18 Page 4 of 15
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`Ubiquiti maintains that of the approximately 39,000 alleged circumventions identified in
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`Synopsys’s call-home data, only 626 correspond to an IP address originating in the United
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`States.14 The remaining 38,000 or so call-home entries show an IP address in Taiwan.15 Synopsys
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`does not dispute these statistics. Ubiquiti then argues that these IP addresses show that “all but 626
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`of the alleged acts of circumvention took place entirely outside the United States[.]”16 Synopsys
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`disputes this characterization and argues that if an end user located in the United States remotely
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`connects to a server in Taiwan and then accesses Synopsys software installed on the server, the
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`call-home data would report an IP address originating in Taiwan (the server’s IP address), despite
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`14 Ubiquiti Br. – ECF No. 105 at 3–4; Taylor Decl. – ECF No. 105-2 at 3 (¶ 6).
`15 Ubiquiti Br. – ECF No. 105 at 4; Taylor Decl. – ECF No. 105-2 at 3 (¶ 6).
`16 Ubiquiti Br. – ECF No. 105 at 2.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`Case 3:17-cv-00561-WHO Document 123 Filed 01/29/18 Page 5 of 15
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`the fact that the end user is located in the United States.17 It is undisputed that at least one U.S.-
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`based Ubiquiti employee, Ching-Han Tsai (who has also been named as an individual defendant),
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`used Synopsys software and that he did so on at least some occasions by logging in remotely from
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`the United States to Ubiquiti servers in Taiwan.18 According to Synopsys, on at least some of
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`these occasions, the call-home data reported a Taiwanese IP address, not a U.S. IP address.19
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`ANALYSIS
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`It is important to recall exactly what is before the court. This is a discovery motion. It is not a
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`dispositive motion on the merits of Synopsys’s claims. Synopsys is not limited to admissible
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`evidence and need not prove its claims at this juncture. It must only show that, given its claims,
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`the discovery it requests is (1) relevant and (2) proportional to the needs of this case. See Fed. R.
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`Civ. P. 26(b)(1). “Information . . . need not be admissible in evidence to be discoverable.” Id. In
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`deciding whether the plaintiff has made that showing, the court can consider even inadmissible
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`evidence. Cf. Fed. R. Evid. 104. See generally, e.g., Goes Int’l, AB v. Dodur, Ltd., No. 14-cv-
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`05666-LB, 2016 WL 427369, at *2 (N.D. Cal. Feb. 4, 2016).
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`The parties have not presented specifics as to exactly what a forensic inspection would cover,
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`and hence the court does not rule on the relevance (much less on the proportionality or burden) of
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`any particular forensic artifact that may be on Ubiquiti’s computers. The court is not issuing a
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`blanket approval of a forensic inspection. But nor may Ubiquiti assert a blanket claim that its
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`Taiwanese computers are not relevant to Synopsys’s claims. As discussed below, Ubiquiti’s
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`Taiwanese computers and the forensic artifacts on them may be relevant to the case.
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`17 Jan. 25, 2018 Hr’g.
`18 Tsai Decl. – ECF No. 105-5 at 5 (¶¶ 14, 16).
`19 Jan. 25, 2018 Hr’g.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`Case 3:17-cv-00561-WHO Document 123 Filed 01/29/18 Page 6 of 15
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`1. Ubiquiti’s Taiwanese Computers May Be Relevant to Synopsys’s DMCA Claims
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`Among other things, the DMCA provides that “[n]o person shall circumvent a technological
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`measure that effectively controls access to a work protected under this title” (i.e., a copyrighted
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`work). 17 U.S.C. § 1201(a)(1)(A).20 At least for the purposes of this discovery motion, the parties
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`do not dispute that (1) Synopsys’s software is a copyrighted work, (2) Synopsys’s license-key
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`system is a technological measure that controls access to its software, and (3) the use of
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`counterfeit license keys to access and run Synopsys software would be circumventing a
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`technological measure that controls access to a copyrighted work. Instead, the central dispute
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`between the parties is this: when an end user connects to a remote server and, through that remote
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`server, circumvents a technological measure that controls access to a copyrighted work, where is
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`that circumvention deemed to have taken place, and how (if at all) does that affect whether the
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`circumvention gives rise to DMCA liability?
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`Ubiquiti asserts that the DMCA does not cover circumventions that take place entirely outside
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`the United States, citing Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088 (9th
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`Cir. 1994) (en banc). There, the Ninth Circuit held that “United States copyright laws do not reach
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`acts of infringement that take place entirely abroad.” Id. at 1098. Synopsys does not seriously
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`contest that proposition.21 Ubiquiti also asserts that the DMCA does not cover circumventions that
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`are “initiated” in the United States but are “completed” in a foreign country. Synopsys disputes
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`that proposition.
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`The parties have not identified (and the court is not aware of) any case that has addressed the
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`question of cross-border circumventions under the DMCA. The parties have therefore drawn
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`20 “[T]o ‘circumvent a technological measure’ means 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,” and “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.” 17 U.S.C. § 1201(a)(3).
`21 Synopsys notes in passing that traditional copyright law might not apply to a DMCA
`extraterritoriality analysis, Synopsys Opp’n – ECF No. 109 at 12 n.8, but its primary argument is that
`“[a]ssuming arguendo for the purposes of this motion that traditional copyright jurisprudence provides
`the appropriate rubric for analysis of extraterritoriality of the DMCA, Defendants’ argument fails on
`its own terms,” id. at 12.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`Northern District of California
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`Case 3:17-cv-00561-WHO Document 123 Filed 01/29/18 Page 7 of 15
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`analogies to, and have cited cases addressing, cross-border violations of the exclusive rights
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`granted under the general Copyright Act of 1976. As a threshold matter, it is not clear that cases
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`addressing violations of the general Copyright Act control how a court should address violations
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`of the DMCA. See generally MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 944–45 (9th
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`Cir. 2016) (“[17 U.S.C.] § 1201(a) prohibits the circumvention of any technological measure that
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`effectively controls access to a protected work and grants copyright owners the right to enforce
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`that prohibition. . . . Historically speaking, preventing ‘access’ to a protected work in itself has not
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`been a right of a copyright owner arising from the Copyright Act. . . . Accordingly, we read this
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`term as extending a new form of protection[.]”).22 But even assuming that cases addressing
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`violations of the general Copyright Act provide guidance for assessing violations of the DMCA,
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`Synopsys can make a plausible argument under those cases that Ubiquiti’s alleged activities are
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`sufficiently related to the United States to give rise to DMCA liability.
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`The parties dispute exactly how Ubiquiti allegedly circumvented Synopsys’s license-key-
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`protection system. Synopsys maintains that Ubiquiti had to pass a license-key check every time it
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`wanted to access and run Synopsys software.23 The parties have not provided more detail as to
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`what exactly Ubiquiti might have done (and may not know at this juncture). It thus may be helpful
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`to consider a hypothetical set of facts for the purpose of addressing Ubiquiti’s legal arguments.
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`22 For example, one case cited by the parties, Allarcom Pay Television, Ltd. v. General Instrument
`Corp., 69 F.3d 381 (9th Cir. 1993), addressed a defendant located in the United States that allegedly
`broadcast copyrighted television programs via satellite to viewers in Canada. See id. at 387. The Ninth
`Circuit held there that “the potential infringement was only completed in Canada once the signal was
`received and viewed. Accordingly, U.S. copyright law did not apply[.]” Id. But the right at issue in that
`case was the performance of a copyrighted work, which is not a violation of the Copyright Act unless
`the performance is public. See 17 U.S.C. § 106 (“Subject to sections 107 through 122, the owner of
`copyright under this title has the exclusive rights to do and to authorize any of the following: . . . in the
`case of . . . motion pictures and other audiovisual works, to perform the copyrighted work publicly[.]”)
`(emphasis added). “To perform or display a work ‘publicly’ means,” among other things, “to transmit
`or otherwise communicate a performance or display of the work . . . to the public,” and “[t]o ‘transmit’
`a performance or display is to communicate it by any device or process whereby images or sounds are
`received beyond the place from which they are sent.” 17 U.S.C. § 101. Consequently, the potential
`copyright infringement in that case arising from the broadcast of television signals (in the United
`States) was “completed” only when the signal was transmitted and received by the public (in Canada).
`But it is not a given that the reasoning of that case can be extended to an act of circumvention as
`defined in the DMCA, which has no analogous “publicly,” “transmit,” or “received” requirement. See
`17 U.S.C. § 1201(a)(1).
`23 Jan. 25, 2018 Hr’g.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`Northern District of California
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`Case 3:17-cv-00561-WHO Document 123 Filed 01/29/18 Page 8 of 15
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`Suppose that to circumvent Synopsys’s license-key-protection system, Ubiquiti downloaded a
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`“key generator” program from a “hacker website” onto a Taiwanese computer server.24 Then,
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`when Ubiquiti employees located in the United States (like Mr. Tsai) wanted to use Synopsys
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`software, they logged onto that remote server and ran the key-generator program, which generated
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`counterfeit license keys that the employees then used to access the software. In this hypothetical,
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`the counterfeit-license-key generator and the use of a counterfeit key to access Synopsys’s
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`software run from a remote server in Taiwan, but they run only when an end user in the United
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`States inputs computer commands from his local computer (by typing on his keyboard or moving
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`his mouse), and those commands then are transmitted to the remote server and instruct the server
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`to run the key generator and access Synopsys software.
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`24 See Second Amend. Compl. – ECF No. 73 at 7 (¶ 28) (“Since at least February 2014, Tsai, Ubiquiti,
`and UNIL have been secretly using counterfeit keys obtained and/or created with tools obtained
`through hacker websites to circumvent the Synopsys License Key system and access and use
`Synopsys’ EDA software . . . without a valid license.”).
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`ORDER – No. 17-cv-00561-WHO (LB)
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`As noted above, the parties have not identified any cases where a court has addressed whether
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`a remote act of circumvention, like the one in the hypothetical above, is an act by the remote
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`server in Taiwan outside of the United States, or an act by the end user within the United States.
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`At least one court has addressed the analogous situation, however, of whether a remote act of
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`copying (as opposed to circumvention) is an act by the remote server or by the end user. In
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`Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), the Second
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`Circuit examined a system involving a remote server for digital video recorders (“DVRs”),
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`analogous to the remote servers at issue here. The system there allowed end users to record
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`television programs by pressing a button on their remote controls. See id. at 125. A signal then
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`was sent from the end user’s remote control in the user’s home to the cable company’s server in
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`the company’s central facility. See id. The server then made a copy of the television program and
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`saved it on a hard drive that the cable company maintained at a remote location. See id. at 124.
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`ORDER – No. 17-cv-00561-WHO (LB)
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`The question that the Cartoon Network court confronted was “who made this copy”: the end
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`user or the remote server? Id. at 130 (emphasis in original). The court answered by holding that
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`“copies produced by the [remote storage]-DVR system are ‘made’ by the RS-DVR customer,” not
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`the remote server, id. at 133, because “the person who actually presses the button to make the
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`recording, supplies the necessary element of volition,” id. at 131.25
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`By analogy, just as an end user who presses a button and thereby inputs the command to
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`record a television program is making a copy of the program under the Copyright Act (even if that
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`television program is saved on a remote server), an end user who inputs commands to use a
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`counterfeit license key to bypass a software-protection system may be engaging in an act of
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`circumvention under the DMCA (even if that counterfeit key and software are installed on a
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`remote server). If that end user is located in the United States, his circumvention might give rise to
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`DMCA liability despite its cross-border nature. See generally Automattic Inc. v. Steiner, 82 F.
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`Supp. 3d 1011, 1028 (N.D. Cal. 2015) (holding in the context of a different DMCA provision that
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`“the application of the [DMCA] is not extraterritorial” when “key elements of the cause of action
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`were performed in [the United States]”).26
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`Ubiquiti, for its part, proposes an alternative hypothetical where, instead of using a license-
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`key-generator program, some person or persons outside the United States “hacked” the Synopsys
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`software to remove the license-key-protection system entirely, so that after that one act of
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`25 The Ninth Circuit cited Cartoon Network with approval in Fox Broadcasting Company, Inc. v. Dish
`Network L.L.C., 747 F.3d 1060 (9th Cir. 2014), another copyright case involving DVRs. Unlike the
`DVRs in Cartoon Network, the DVRs in Fox made copies of television programs on local hard drives
`in set-top boxes in the users’ homes, not on remote hard drives on a central server, see id. at 1065, and
`hence the issue of remote connections was not present in that case in the same way it was in Cartoon
`Network. Regarding the underlying question of “who made the copies,” however, the Ninth Circuit
`cited Cartoon Network and held that because the DVR system “creates the copy only in response to the
`user’s command. . . . the district court did not err in concluding that the user, not [the DVR system],
`makes the copy.” Id. at 1067; accord Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 670 (9th Cir.
`2017) (“Operating a system used to make copies at the user’s command does not mean that the system
`operator, rather than the user, caused copies to made.”) (internal brackets omitted) (quoting Fox, 747
`F.3d at 1067).
`26 Whether the remote server, in addition to the end user, also is engaging in circumvention is a
`question the court need not answer here. Additionally, the court need not answer whether the owner of
`the remote server, by allowing users to connect and run key-generator programs on its server, might be
`violating other DMCA provisions, such as the DMCA’s prohibition on trafficking in services that are
`primarily designed or produced for the purpose of circumvention, 17 U.S.C. §§ 1201(a)(2), 1201(b)(1).
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`circumvention, the software never again checked any license keys.27 Ubiquiti users located in the
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`United States then ran Synopsys software only after this hacking was completed, so those U.S.
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`users were never prompted for a license key and never generated a counterfeit license key
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`themselves. Ubiquiti argues that in that case, no DMCA liability would attach because in this
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`second hypothetical (unlike the first), the act of circumvention took place entirely outside the
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`United States, and the U.S. users’ subsequent access to the Synopsys software, separate and apart
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`from the acts of circumvention, does not violate the DMCA.28
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`The court need not decide at this juncture whether Ubiquiti would have no DMCA liability in
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`that particular fact scenario. In the context of the current discovery dispute, it is enough to say that
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`there are at least some fact scenarios (such as the first hypothetical) in which Ubiquiti may have
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`potential DMCA liability, and hence discovery is necessary to determine what the actual facts are.
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`Certainly, the factual record is too embryonic to rule that Ubiquiti’s Taiwanese computers cannot
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`be relevant to a valid DMCA claim as a matter of law. Cf. Goes, 2016 WL 427369, at *2. What
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`exactly Ubiquiti did and did not do vis-à-vis Synopsys’s license-key-protection system may
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`matter, and discovery into Ubiquiti’s Taiwanese computers is thus relevant to determine exactly
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`what Ubiquiti did and did not do.
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`2. The “Server Test” That Ubiquiti Cites Is Inapposite
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`Ubiquiti argues that in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), the
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`Ninth Circuit established a “server test,” and that under this test, “it is clear that the site of the
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`violative act (the alleged use of ‘counterfeit’ license keys to circumvent Synopsys’ license-key
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`system) are the servers that actually hosted Synopsys software — because that is the only place
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`where the act could be completed — and not an employee computer that remotely initiated the act
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`27 Jan. 25, 2018 Hr’g.
`28 See Ubiquiti Reply Br. – ECF No. 110 at 4 & n.3 (arguing that “the act of accessing a copyrighted
`work after a technological measure has been circumvented, as opposed to the circumvention itself,”
`does not violate 17 U.S.C. § 1201(a)(1)) (emphasis in original) (citing MGE UPS Sys., Inc. v. GE
`Consumer & Indus., Inc., 622 F.3d 361, 366 (5th Cir. 2010)).
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`or where the displayed results could be viewed.”29 The “server test” in Perfect 10, however, does
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`not address the question of distinguishing between end users and remote servers. Rather, the
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`situation in Perfect 10 involved connections between three parties — end users, third-party servers
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`hosting copyrighted material, and search engines that did not themselves host copyrighted material
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`but that linked end users to the third-party servers that did host copyrighted material — and the
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`“server test” was a test to distinguish between the hosting third-party servers and the non-hosting
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`search engines. The test did not address activities by end users and therefore is inapposite here.
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`The plaintiff in Perfect 10 was a copyright holder of photographic images that brought a
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`copyright-infringement claim against the internet search engine Google, alleging (among other
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`things) that copies of its photographs appeared in Google search results, see id. at 1155–56, and
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`that Google was thereby violating its exclusive right to publicly display and distribute its
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`photographs, see id. at 1159. Google responded that while the photographs in question appeared
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`on users’ screens in Google search results, the photographs actually were being transmitted
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`directly from third-party servers to end users, without ever going through Google, and hence
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`Google was not the party that was displaying or distributing the images. See id. at 1156 (“Google
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`. . . does not communicate the images to the user; Google simply provides [computer] instructions
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`directing a user’s browser to access a third-party website. . . . Thus, the user’s window appears to
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`be filled with a single integrated presentation of the full-size image, but it is actually an image
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`from a third-party website framed by information from Google’s website.”).
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`The district court and the Ninth Circuit applied a “server test” to determine which party — the
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`remote server or Google (not the remote server or the end user) — was violating the plaintiff’s
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`copyright. Id. at 1159. The courts held that under the “server test,” only a server that actually
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`stored the photographs as electronic information and “serves that electronic information directly to
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`the user (‘i.e., physically sending ones and zeroes over the Internet to the user’s browser’)” could
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`infringe the copyright holder’s rights, whereas a search engine like Google “that does not store and
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`29 Ubiquiti Br. – ECF No. 105 at 10 (emphasis in original).
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`ORDER – No. 17-cv-00561-WHO (LB)
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`serve the electronic information to a user” did not infringe on the copyright owner’s rights. Id. at
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`1159 (citations and internal brackets omitted).
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`Contrary to Ubiquiti’s claims, nothing in the “server test” holds that when an end user initiates
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`a copyright violation through the use of a remote server, the violation occurs only at the site of the
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`server and does not, as a matter of law, occur at the site of the end user. Consequently, the “server
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`test” does not address the legal questions presented here, and nothing in the test alters the
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`conclusion that Ubiquiti’s Taiwanese servers may be relevant to Synopsys’s DMCA claims, as
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`discussed above.30
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`30 Elsewhere in the Perfect 10 opinion — outside of the context of the “server test” — the Ninth
`Circuit considered whether end users might be engaging in a separate act of copyright infringement if
`they downloaded the images and saved copies of them on their computers. It noted, however, that there
`was no evidence in the record to support this claim. Id. at 1169. The Ninth Circuit also considered —
`again, outside the context of the “server test” — whether end users’ web browsers made “cache”
`copies of the images and whether that might constitute a separate act of copyright infringement by the
`end users, but then held that caching constituted a fair use. Id. at 1169–70. These discussions of
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`3. Ubiquiti’s Taiwanese Computers May Be Relevant to Synopsys’s Other Claims
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`In addition to DMCA claims, Synopsys brings other claims, including claims for fraud.
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`Among other things, Synopsys alleges that Ubiquiti represented that it wanted to legitimately
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`license Synopsys software, that Ubiquiti made these representations to induce Synopsys to provide
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`Ubiquiti with copies of its software and temporary license-key files31 and to induce Synopsys to
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`show Ubiquiti how to configure license-key files,32 and that these representations were false when
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`they were made.33 Ubiquiti’s Taiwanese computers may be relevant to these claims. For example,
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`if there were forensic evidence on Ubiquiti’s computers t