Case 3:19-cv-04334-JSC Document 70 Filed 03/31/21 Page 1 of 13
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`HARRISON SNOW KINSLEY,
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`Plaintiff,
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`v.
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`UDEMY, INC.,
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`Case No. 19-cv-04334-JSC
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`ORDER RE: MOTION FOR
`SUMMARY JUDGMENT
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`Re: Dkt. No. 56
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`Defendant.
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`Harrison Kinsley, a computer programing educator, filed this action alleging that Udemy,
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`Inc. (“Udemy”) reproduced and distributed his copyrighted works in violation of the federal
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`Copyright Act and state law.1 Before the Court is Udemy’s summary judgment motion. (Dkt. No.
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`56.)2 Udemy contends that no triable issues of material fact exist and that it is protected from Mr.
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`Kinsley’s claims under the Copyright Act’s safe harbor. After carefully considering the parties’
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`briefing, the Court concludes that oral argument is not necessary, see N.D. Cal. Civ. L.R. 7-1(b),
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`vacates the April 1, 2021 hearing, and GRANTS Udemy’s motion. No reasonable trier of fact
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`could find for Mr. Kinsley on any claim.
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`FACTUAL BACKGROUND
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`Udemy is a technology company that provides third-party individuals, or “instructors,” the
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`ability to upload educational content for Udemy users. (Dkt. No. 57-1 at 4.) To limit copyright
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`infringement on its site, Udemy requires that instructors agree that their content does not
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`misappropriate or infringe upon another party’s intellectual property or impersonate another
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`1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
`636(c). (Dkt. Nos. 7 & 17.)
`2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
`ECF-generated page numbers placed at the top of the documents.
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`Case 3:19-cv-04334-JSC Document 70 Filed 03/31/21 Page 2 of 13
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`person, and verify that they have the right to publish or use the content published on Udemy’s
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`platform. (Dkt. No. 57-2 at 2.) Before permitting an instructor to post content, Udemy conducts a
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`quality review process, but does not investigate legal issues or possible infringements during this
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`process. (Dkt. No. 56-2 at 2 ¶¶ 7-9.) However, if a user identifies content posted on Udemy’s
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`platform as infringing on a third party’s copyright, Udemy has processes and procedures whereby
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`that user may report the infringement. (Dkt. No. 57-16.)
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`To help identify possible infringements, Udemy allows users to see “free previews” of
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`each course. (Dkt. No. 56-2 at 3 ¶ 15.) If after investigating a reported infringement Udemy
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`determines the content has infringed on another copyright, Udemy removes the course and makes
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`it unavailable to users, including those who previously purchased the course. (Dkt. Nos. 57-1 at
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`11, 56-2 at 3 ¶ 14.) Udemy also has a repeat infringer policy—if an instructor infringes on
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`copyrighted material or is a risk of multiple infringements, it may ban the instructor’s account—
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`but Udemy cannot automatically scan its platform for potential infringements. (Dkt. Nos. 57-5,
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`56-2 at 2 ¶ 11.) In light of this limitation, Udemy uses a vendor that runs searches to identify
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`potentially infringing material elsewhere on the internet. (Id. at 4 ¶ 26.)
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`Mr. Kinsley alleges that two of his courses, Mastery Python 3 Basics Tutorial Series +
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`SQLite with Python (“Mastery Python 3”) and OpenCV with Python for Image and Video
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`Analysis – Hands On! (“OpenCV”), were uploaded to Udemy’s platform and infringed upon his
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`copyrights. Mastery Python 3 was uploaded to Udemy on January 5, 2018. (Dkt. No. 57-8.) On
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`January 13, 2018, Mr. Kinsley notified Udemy that the uploaded Master Python 3 course was
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`infringing on his copyrights. (Dkt. No. 57-9 at 7.) Udemy removed the course material on
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`January 16, 2018 and banned the instructor’s account. (Dkt. Nos. 57-9 at 7, 56-2 at 4 ¶ 30.)
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`OpenCV course material was uploaded to Udemy on May 10, 2018. (Dkt. No. 57-10.) Mr.
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`Kinsley submitted a copyright complaint regarding the OpenCV material on June 20, 2018;
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`Udemy removed the material the same day, and subsequently banned the posting instructor. (Dkt.
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`Nos. 57-9 at 7, 56-2 at 4 ¶ 31.)
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`DISCUSSION
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`Udemy moves for summary judgment on Mr. Kinsley’s copyright claims because Udemy
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`Case 3:19-cv-04334-JSC Document 70 Filed 03/31/21 Page 3 of 13
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`falls within 17 U.S.C. § 512’s safe harbor. Udemy additionally argues that summary judgment is
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`appropriate on Mr. Kinsley’s non-copyright claims because they are preempted under the
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`Copyright Act and, even if they are not preempted, that undisputed evidence shows Udemy is
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`nonetheless entitled to summary judgment. Furthermore, Udemy’s argument goes, Mr. Kinsley
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`cannot survive summary judgment because he has no right to any damages.
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`I.
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`Copyright Claims
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`“Title II of the [Digital Millennium Copyright Act], set forth in 17 U.S.C. § 512, ‘protects
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`qualifying Internet service providers from liability for all monetary relief for direct, vicarious and
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`contributory infringement.’” Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1088 (C.D. Cal.
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`2001) (quoting S. Rep. 105–190, at 20 (105th Congress, 2d Session 1998)); see also Ellison v.
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`Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (“Congress opted to leave current law in its
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`evolving state and, instead, to create [with 17 U.S.C. § 512] series of safe harbors, for certain
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`common activities of service providers.”) (internal quotation marks and citations omitted). The
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`safe harbor set forth in § 512(c) applies where a plaintiff seeks to hold an internet service provider
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`liable for either: (1) infringing “material” stored and displayed on the service provider’s website or
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`(2) infringing “activity using the material on the [service provider’s computer] system.” See 17
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`U.S.C. § 512(c)(1)(A)(i). Udemy contends that it satisfies the safe harbor’s requirements and falls
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`within its ambit, and therefore summary judgment is appropriate on Mr. Kinsley’s copyright
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`claims. The Court agrees.
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`A. Safe Harbor Threshold Requirements
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`As a threshold matter, § 512(c) applies only to “service provider[s.]” 17 U.S.C. §
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`512(c)(1). A “service provider” is a “provider of online services or network access, or the
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`operator of facilities” for these services. 17 U.S.C. § 512(k)(1)(B). Every reasonable trier of fact
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`would find that Udemy is a service provider as defined under § 512(k)(1). It provides online
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`services to its users in the form of its courses and, moreover, Mr. Kinsley does not dispute that
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`Udemy is a service provider. See UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d
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`1006, 1015 n.4 (9th Cir. 2013) (determining that entity was a “service provider” in analysis of its
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`safe harbor eligibility because appellant “[did] not contend otherwise”). Udemy also has a
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`“designated agent” to receive notifications of claimed infringement as required under 17 U.S.C. §
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`512(c)(2). (Dkt. No. 57-4 at 6-7.)
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`“To be eligible for any [safe harbor] limitations of liability, a service provider must meet [§
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`512(i)’s] conditions[.]” Ellison, 357 F.3d at 1080 (citation omitted). Section 512(i)(1)(A) requires
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`that a service provider “adopt[] and reasonably implement[] and inform[] subscribers and account
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`holders of [its] policy that provides for” the termination of “subscribers and account holders . . .
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`who are repeat infringers[.]” See also Ellison, 357 F.3d at 1080. Udemy satisfies this
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`requirement. Its “Instructor Copyright Ban Policy” bans instructor accounts where an instructor
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`“represents a high risk of additional infringements,” and presumes a “high risk of additional
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`infringement . . . when there has either been a material violation [of the policy], cases of
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`impersonation, and repeated non-material violations.” (Dkt. No. 57-5 at 2.) The policy lays out
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`Udemy’s consequences for copyright infringement and its investigative processes regarding
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`possible infringements and has been in place since 2015. (Dkt. Nos. 57-5 at 2, 56-2 at 3 ¶ 24.)
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`Udemy’s “Intellectual Property Policy” also informs its users that any instructor deemed to be a
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`“repeat infringer” shall have their courses removed. (Dkt. No. 56-4 at 2.) These documents
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`clearly “inform subscribers of [Udemy’s] policy of terminating repeat infringers in appropriate
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`circumstances.” Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 615–16 (9th Cir. 2018)
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`(internal quotation marks omitted). Furthermore, Udemy terminated the accounts of the
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`instructors who posted the content infringing on Mr. Kinsley’s copyrights. (Dkt. No. 56-2 at 4 ¶¶
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`30-31.)
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`Second, § 512(i)(1)(B) requires that a service provider “accommodate[] and [] not interfere
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`with standard technical measures.” “Standard technical measures” are defined as “technical
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`measures that are used by copyright owners to identify or protect copyrighted works[.]” 17 U.S.C.
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`§ 512(i)(2). There is nothing in the record to indicate that Udemy interfered with any measures
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`that its customers or instructors could use to identify or protect copyrighted works; in fact, their
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`policies accommodated protective measures to stop infringing activity, and permitted users to see
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`“free previews” of courses and report potentially infringing courses and works. (Dkt. No. 56-2 at
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`3 ¶¶ 15-18, 20-22.) In opposition, Mr. Kinsley argues that Udemy does not meet § 512(i)’s
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`requirements because it waited until after he filed this lawsuit to ban the infringing instructors.
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`(Dkt. No. 66 at 3.) This alleged delay, however, does not change that Udemy had policies in
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`place—and informed its instructors of these policies—that complied with § 512(i)(1)(A) before
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`Mr. Kinsley notified Udemy of the infringing courses or filed this action. Accordingly, Udemy
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`satisfies § 512(i)’s conditions to be eligible for “safe harbor limitations of liability.” Ellison, 357
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`F.3d at 1080.
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`B. Safe Harbor & 17 U.S.C. § 512(c)
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`After satisfying § 512(i)’s requirements, a service provider must satisfy the requirements
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`of § 512(c) to enjoy its safe harbor’s protections.
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`Under § 512(c)(1), a service provider must have no “actual knowledge that the material” or
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`activity using the material on its system is infringing, or “in the absence of actual knowledge” it
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`must be “unaware of facts or circumstances from which infringing activity is apparent[.]” If the
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`service provider does not acquire actual or apparent knowledge, “upon obtaining such knowledge
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`or awareness” the service provider must act “expeditiously to remove” or disable access to the
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`material. 17 U.S.C. § 512(c)(1)(A)(iii). Second, “in a case in which the service provider has the
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`right and ability to control” infringing activity it must “not receive a financial benefit directly
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`attributable to the infringing activity[.]” Id. at § 512(c)(1)(B). Finally, pursuant to § 512(c)(1)(C),
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`“upon notification of claimed infringement[,]” a service provider must “respond[] expeditiously to
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`remove[] or disable access to” the allegedly infringing material.
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`1. 17 U.S.C. § 512(c)(1)(A)
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`Regarding the requirements set forth in § 512(c)(1)(A), “actual knowledge” means
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`“knowledge that is actual, not merely a possible inference from ambiguous circumstances.”
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`Ventura Content, 885 F.3d at 609. Udemy received Mr. Kinsley’s copyright complaints
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`concerning the Mastery Python 3 class on January 13, 2018, and the OpenCV class on June 20,
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`2018. (Dkt. No. 57-9 at 7.) There is nothing in the record to indicate—and Mr. Kinsley proffers
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`no evidence to suggest—that Udemy had actual knowledge regarding the alleged infringements
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`prior to these dates. See Ventura Content, 885 F.3d at 609; see also UMG Recordings, 718 F.3d at
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`1021 (“[I]f merely hosting material that falls within a category of content capable of copyright
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`protection, with the general knowledge that one’s services could be used to share unauthorized
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`copies of copyrighted material, was sufficient to impute knowledge to service providers, the §
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`512(c) safe harbor would be rendered a dead letter[.]”).
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`Regarding a service provider’s “red flag” knowledge, § 512(c)(1)(A)(ii) “turns on whether
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`the provider was subjectively aware of facts that would have made the specific infringement
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`objectively obvious to a reasonable person.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d
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`1020, 1043 (9th Cir. 2013) (internal quotation marks and citation omitted); see also Ventura
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`Content, 885 F.3d at 610 (“And for red flag knowledge, infringement must be apparent, not
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`merely suspicious.”). Nothing in the record supports a finding that Udemy was aware of facts that
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`would have made the infringements at issue “objectively obvious to a reasonable person.” Fung,
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`710 F.3d at 1043.
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`Mr. Kinsley’s declaration—the only evidence he offers in opposition to Udemy’s motion
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`for summary judgment—does not create a genuine dispute of material fact on these elements.
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`First, he asserts that Udemy “had red flag knowledge of [his] specific courses but failed to act
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`upon” this knowledge. (Dkt. No. 66-1 at 2 ¶ 8.) “When the nonmoving party relies only on its
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`own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported
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`by factual data to create an issue of material fact.” Hansen v. United States, 7 F.3d 137, 138 (9th
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`Cir. 1993) (per curiam) (citations omitted); see also United States v. 1 Parcel of Real Prop., Lot 4,
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`Block 5 of Eaton Acres, 904 F.2d 487, 492 n.4 (9th Cir. 1990) (“Conclusory allegations
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`unsupported by factual data will not create a triable issue of fact.”); Lujan v. Nat’l Wildlife Fed’n,
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`497 U.S. 871, 888 (1990) (determining that “conclusory allegations of an affidavit” are
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`insufficient under Rule 56 to create a “genuine issue” for trial) (citing Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 249 (1986)); King v. Ford Motor Co., 872 F.3d 833, 840 (7th Cir. 2017)
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`(“Summary judgment is not a time to be coy: conclusory statements not grounded in specific facts
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`are not enough to stave off summary judgment.”) (internal quotation marks and citation omitted).
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`Accordingly, Mr. Kinsley’s statement regarding Udemy’s “red flag” knowledge is insufficient to
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`create a triable issue of material fact in opposition to Udemy’s motion and evidence supporting the
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`motion.
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`Second, Mr. Kinsley declares that the infringing content was still available in Udemy’s
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`marketplace “as of March 2020.” (Dkt. No. 66-1 at ¶¶ 5, 9.) He thus implies that Udemy, having
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`obtained actual knowledge of the infringement, failed to act “expeditiously to remove” or disable
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`access to the material. 17 U.S.C. § 512(c)(1)(A)(iii). The admissible summary judgment record
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`does not support that finding. Federal Rule of Civil Procedure 56(c)(4) states the “affidavit or
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`declaration used to support or oppose a motion must be made on personal knowledge, set out facts
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`that would be admissible in evidence, and show that the affiant or declarant is competent to testify
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`on the matters stated.” Fed. R. Civ. P. 56(c)(4). While “Rule 56(e)’s requirements of personal
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`knowledge and competence to testify” may be inferred from a declaration itself, Barthelemy v. Air
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`Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990), there is nothing in his declaration that
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`satisfies those requirements. How does Mr. Kinsley have personal knowledge that his courses
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`were for sale on Udemy’s website until March 2020? Did he observe them himself, obtain
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`discovery from Udemy (although none is submitted in opposition to summary judgment), or learn
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`of it from his counsel or someone else? Without some factual showing of his personal knowledge
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`of the website’s content during that period his declaration statement is inadmissible. See Block v.
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`City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001). Accordingly, nothing admissible in the
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`record disputes Udemy’s evidence that it removed the infringing content and that the courses’
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`material was made unavailable to those users who had already purchased the material. (Dkt. Nos.
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`57-9 at 6-7.)
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`Third, Mr. Kinsley asserts that Udemy’s document production shows that it did not ban the
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`instructors who uploaded the infringing material from its website until September 2019. (Dkt. No.
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`66-1 at 2 ¶ 7.) Mr. Kinsley, however, does not identify the documents, what they say, or attach
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`them to his opposition. Udemy, however, also does not offer any evidence as to exactly when it
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`banned the infringing instructors. Nonetheless, assuming Udemy did not ban them until
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`September 2019, such a fact is immaterial to Udemy’s safe harbor defense given that the record is
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`undisputed that the material infringing Mr. Kinsley’s copyright was removed within days of Mr.
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`Kinsley notifying Udemy of its use and there is no evidence that the infringing instructors
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`subsequently uploaded any additional infringing material.
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`2. 17 U.S.C. § 512(c)(1)(B)
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`Where a “service provider has the right and ability to control” infringing activity it must
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`“not receive a financial benefit directly attributable to the infringing activity” in order to qualify
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`for safe harbor protection. 17 U.S.C. § 512(c)(1)(B). The “right and ability to control” involves
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`“something more than merely having the general ability to locate infringing material and terminate
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`users’ access.” Fung, 710 F.3d at 1045 (internal quotation marks and citation omitted). Instead, a
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`service provider must “exert[] substantial influence over its users’ activities.” Id. (citation
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`omitted). For instance, a service provider has the “right and ability to control infringing activity”
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`where it “t[ells] its users what to upload . . . or curate[s] uploaded content in any meaningful
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`way[.]” Ventura Content, 885 F.3d at 613.
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`Here, Udemy has over 50,000 courses on its marketplace, and its ability to remove
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`infringing content once notified does not create the “right and ability to control” that § 512
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`contemplates. (Dkt. Nos. 57-4, 57-16 at 2.) See Fung, 710 F.3d at 1045. In this case,
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`instructors—not Udemy—uploaded the content at issue, and Udemy did not control the
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`instructors’ actions or have any prior knowledge that the content infringed on Mr. Kinsley’s
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`copyrights. (Dkt. No. 57-9 at 6.) Udemy automatically uploads content at instructors’ requests.
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`(Id.) As such, the record shows that Udemy had only the “general ability to locate infringing
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`material,” Fung, 710 F.3d at 1045, and did not exert the type of control over its instructors’
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`conduct that rises to the level of a “substantial influence,” Ventura Content, 885 F.3d at 613.
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`Mr. Kinsley’s argument that Udemy had the “right to control the infringing activity”
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`because it used a software program called Link Busters to “detect other instances of the same
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`material” and that therefore it had “the practical ability to prevent this infringing material from
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`going live on its website” is unavailing. (Dkt. No. 66 at 5.) The admissible summary judgment
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`record shows that Udemy did not have the “technological ability to automatedly scan” its platform
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`for potentially infringing content, and that Link Busters “[did] not run against Udemy’s platform.”
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`(Dkt. No. 56-2 at 4 ¶¶ 26, 28.) Mr. Kinsley’s declaration statement that it is his “understanding”
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`that Pirashield provides exactly that service for Udemy (Dkt. No. 66-1 at ¶ 6), does not create a
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`genuine dispute of material fact as there is nothing in his declaration that demonstrates he has
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`competent, personal knowledge of what Pirashield does for Udemy. As such, based on the
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`admissible record nothing shows that Udemy exercised a “substantial influence” over its
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`instructors’ conduct. See Ventura Content, 885 F.3d at 613.
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`Accordingly, Udemy did not have the “right and ability” to control the infringing conduct,
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`and the Court need not address whether Udemy received a direct financial benefit. See Ellison,
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`357 F.3d at 1079 n.10; CCBill, 488 F.3d at 1117 (noting that a service provider does not qualify
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`for § 512(c)’s safe harbor where it receives a direct financial benefit “from the infringing activity
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`if the service provider also has the right and ability to control [the activity]”) (emphasis added).
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`3. 17 U.S.C. § 512(c)(1)(C)
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`Finally, there is no genuine dispute that, once notified, Udemy expeditiously removed the
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`allegedly infringing material. See 17 U.S.C. § 512(c)(1)(C). Udemy received Mr. Kinsley’s
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`copyright complaints concerning the Mastery Python 3 class on January 13, 2018, and the
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`OpenCV class on June 20, 2018. (Dkt. No. 57-9 at 7.) It removed the Master Python 3 class
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`materials on January 16, 2018, three days following Mr. Kinsley’s complaint, and the OpenCV
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`class materials on June 20, 2018—the same day that Mr. Kinsley notified Udemy and registered
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`his complaint. (Id.) Mr. Kinsley’s argument to the contrary is supported solely by his declaration
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`lacking personal knowledge, and as discussed supra his declaration does not create a triable issue
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`of material fact regarding the timeliness of Udemy’s response to his copyright complaints. See,
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`e.g., Hansen, 7 F.3d at 138.
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`Courts have determined that response times to remove infringing material from entities’
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`websites or systems ranging from 5 to 14 days are expeditious. See Seide v. Level-(1) Glob. Sols.,
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`LLC, No. 16 C 2975, 2016 WL 4206076, at *5 n.5 (N.D. Ill. Aug. 10, 2016) (collecting cases).
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`While the Ninth Circuit has set no rule or standard governing what constitutes expeditiousness in
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`this context, the Court has no difficulty concluding that Udemy’s responses to Mr. Kinsey’s
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`copyrights complaints—one within 3 days, the other on the same day—were expeditious.
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`* * *
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`For the reasons stated above, Udemy satisfies the requirements necessary to qualify for 17
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`U.S.C. § 512(c)’s safe harbor protections as a matter of law. As such, it is not “liable for
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`Case 3:19-cv-04334-JSC Document 70 Filed 03/31/21 Page 10 of 13
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`monetary relief.” 17 U.S.C. § 512(c)(1). Moreover, because Udemy has removed the infringing
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`content from its marketplace, there is no injunctive relief to which Mr. Kinsley is entitled—
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`fundamentally, there is no content Udemy can be enjoined to remove because it has already
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`removed the infringing content and banned the account of the infringing instructors. (Dkt. No. 56-
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`2 at 4 ¶¶ 30-31.) Accordingly, any relief available under 17 U.S.C. § 512(j) is moot. Furthermore,
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`because Udemy is protected under § 512(c)’s safe harbor, it cannot be held liable for Mr.
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`Kinsley’s claims for contributory and vicarious copyright infringement. See Perfect 10, Inc. v.
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`Amazon.com, Inc., 508 F.3d 1146, 1175 (9th Cir. 2007) (“[T]he limitations on liability contained
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`in 17 U.S.C. § 512 protect secondary infringers as well as direct infringers.”) (citation omitted).
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`For these reasons, even drawing all inferences in Mr. Kinsley’s favor, see Tolan v. Cotton, 572
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`U.S. 650, 657 (2014), no reasonable trier of fact could find in favor of Mr. Kinsley, see Anderson,
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`477 U.S. at 248.
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`II.
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`Non-Copyright Claims
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`Mr. Kinsley brings additional claims for misappropriation of the right of publicity, unfair
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`competition and false advertising under California’s Unfair Competition Law (“UCL”), receipt of
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`stolen property, unjust enrichment, unfair and unlawful business practices, aiding and abetting,
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`accounting, and declaratory relief. (See Dkt. No. 1.) Udemy argues that—because it is protected
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`under § 512(c)’s safe harbor—that Mr. Kinsley’s non-copyright claims are preempted by the
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`Copyright Act, and therefore summary judgment on those claims is appropriate. The Court
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`agrees.
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`Mr. Kinsley brings his first claim for copyright infringement under the Copyright Act.
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`(Dkt. No. 1 at 18 ¶ 51.) A state law claim is preempted under the Copyright Act where the claim’s
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`“subject matter . . . falls within the subject matter of [the Copyright Act],” and “the rights asserted
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`under state law are equivalent to the rights contained in 17 U.S.C. § 106[.]” Laws v. Sony Music
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`Ent., Inc., 448 F.3d 1134, 1137–38 (9th Cir. 2006) (internal quotation marks and citations
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`omitted); see also Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212 (9th Cir. 1998). “To
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`survive preemption, the state cause of action must protect rights which are qualitatively different
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`from the copyright rights,” and the state claim “must have an extra element which changes the
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`nature of the action.” Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973, 977 (9th
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`Cir. 1987), abrogated on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (internal
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`quotation marks and citations omitted). This inquiry requires a court to “examine the nature” of a
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`plaintiff’s state law claim “to discern what rights [the plaintiff] seeks to enforce with state law,”
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`and whether a complaint “expressly bases” its state law claims on “rights granted by the Copyright
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`Act.” Kodadek, 152 F.3d at 1212; see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129,
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`1190 (C.D. Cal. 2001) (“[A court] should engage in a fact-specific inquiry into the actual
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`allegations underlying the claims at issue in the case” in order to determine whether the
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`“gravamen of the state law claim is the same as the rights protected by the Copyright Act.”)
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`(original emphasis).
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`The first preemption prong is satisfied for all of Mr. Kinsley’s non-copyright claims: his
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`course material and videos fall within the subject matter of the Copyright Act. See 17 U.S.C. §
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`102(a)(6)-(7). The remainder of Mr. Kinsley’s non-copyright claims “repeat[] and incorporate[]
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`by reference” all preceding allegations in the complaint. (Dkt. No. 1 ¶¶ 66, 72, 77, 88, 92, 102,
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`104.) Mr. Kinsley’s misappropriation claim’s allegation that his “copyrighted works embody
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`images of himself,” that he is the “exclusive proprietor of his rights of publicity” in his creative
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`works, and that Udemy used his “name and likeness . . . to their commercial advantage” also
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`mirror the allegations in his copyright claim: Mr. Kinsley is the producer and owner of the
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`copyrighted audiovisual and textual works sold by Udemy, and Udemy produced and distributed
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`his copyrighted works from which it derives “direct monetary gain.” (Id. at ¶¶ 46-47, 52, 67.)
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`The Copyright Act grants an owner the exclusive rights to reproduce and copy the
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`copyrighted work; prepare derivative works based on the copyrighted work; and to distribute and
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`sell copies of the work. See 17 U.S.C. § 106. Mr. Kinsley’s misappropriation claim is based on
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`his right to exclusively own and control the reproduction and publication of his works. (Dkt. No.
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`1 at 20 ¶¶ 66-67.) Where a party’s complaint allegations for a state law claim incorporate the
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`same allegations in the party’s Copyright Act claim and are based on rights granted by the
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`Copyright Act, the claim is preempted. See Kodadek, 152 F.3d at 1209. Here, Mr. Kinsley’s
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`misappropriation allegations incorporate and mirror his Copyright Act allegations and are “based
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`Case 3:19-cv-04334-JSC Document 70 Filed 03/31/21 Page 12 of 13
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`solely on rights granted by the Copyright Act.” (Dkt. No. 1 at 20 ¶ 66-67.) Kodadek, 152 F.3d at
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`1209; see also Del Madera Properties, 820 F.2d at 977 (finding that an unfair competition law
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`claim was preempted under the Copyright Act where the plaintiff’s “ownership of th[e] material,
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`and the alleged misappropriation by the defendants, [was] part and parcel of the copyright claim”
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`because the claims both concerned “documents [that] belonged to [the plaintiff] and were
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`misappropriated by the defendants”). Accordingly, Mr. Kinsley’s misappropriation claim is
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`preempted, and the Court need not analyze any evidence in the record concerning specific
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`elements of common law misappropriation or misappropriation under Cal. Civ. Code § 3344. See
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`Laws, 448 F.3d at 1144 (“Although the elements of [the plaintiff’s] state law claims may not be
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`identical to the elements in a copyright action, the underlying nature of [the] state law claims is
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`part and parcel of a copyright claim.”) (citation omitted).
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`Mr. Kinsley’s remaining claims fare no better. As with Mr. Kinsley’s misappropriation
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`claim, they incorporate all previous allegations in the complaint. (Dkt. No. 1 ¶¶ 72, 77, 88, 92,
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`102, 104.) The bases for the UCL claims are rights granted by the Copyright Act, see Kodadek,
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`152 F.3d at 1212, and additional allegations that Udemy “refus[ed] to remit revenues” earned from
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`the infringing content do not make this claim “qualitatively different” from Mr. Kinsley’s
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`copyright claims—in fact, Mr. Kinsley alleges that Udemy’s conduct springs from its sale of his
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`copyrighted material. (Dkt. No. 1 at 21 ¶ 73.) See, e.g., Maloney v. T3Media, Inc., 853 F.3d 1004,
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`1020 (9th Cir. 2017) (finding that the plaintiff’s UCL claim was “derivative” from the Copyright
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`Act claim and preempted because it was not “qualitatively different”). For this reason Mr.
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`Kinsley’s UCL claim is preempted. See Laws, 448 F.3d at 1144.3 So too with Mr. Kinsley’s
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`stolen property and unjust enrichment claims: while they contain new allegations regarding
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`Udemy’s sale of stolen copyrighted material, these allegations do not change the fundamental
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`rights on which Mr. Kinsely’s claims are based. (Dkt. No. 1 at 22-24 ¶¶ 79-80, 89.) See Laws,
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`448 F.3d at 1144; Kodadek, 152 F.3d at 1212.
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`3 As explained supra, any injunctive relief otherwise available under the statute for Mr. Kinsley’s
`UCL claim and eighth claim for unfair and unlawful business