`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEIJING MEISHE NETWORK
`TECHNOLOGY CO., LTD.,
`
`Plaintiff,
`
`v.
`
`TIKTOK INC., et al.,
`
`Defendants.
`
`
`
`Case No. 23-cv-06012-SI
`
`
`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANTS'
`RENEWED MOTION TO DISMISS
`PLAINTIFF'S THIRD AMENDED
`COMPLAINT WITH LEAVE TO
`AMEND
`
`Re: Dkt. No. 409
`
`
`
`Before the Court is defendants’ renewed motion to dismiss plaintiff’s third amended
`
`complaint. Dkt. No. 409. Plaintiff opposes. Dkt. No. 414. The Court heard oral argument on this
`
`motion on April 5, 2024. For the reasons set forth below, the Court GRANTS IN PART defendants’
`
`motion to dismiss with leave to amend and DENIES IN PART defendants’ motion. Plaintiff shall
`
`file its fourth amended complaint no later than May 14, 2024.
`
`
`
`
`
`Plaintiff Beijing Meishe Network Technology Co., Ltd. (“Meishe”) filed its third amended
`
`BACKGROUND1
`
`complaint on April 20, 2023 in the Western District of Texas. Dkt. No. 235 (“TAC”). The
`
`complaint alleges seven causes of action against defendants TikTok Inc., TikTok Pte. Ltd.,
`
`ByteDance Ltd., and ByteDance Inc. (collectively, “defendants”). Four causes of action remain:
`
`copyright infringement, misappropriation of trade secrets under the Defend Trade Secrets Act
`
`(“DTSA”), misappropriation of trade secrets under the Texas Uniform Trade Secrets Act
`
`
`1 For purposes of this motion to dismiss, the Court treats as true the factual allegations as
`stated in plaintiff’s complaint and draws all reasonable inferences in plaintiff’s favor. See Usher v.
`City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 2 of 27
`
`
`
`(“TUTSA”), and Lanham Act false advertising.2
`
`
`
`Meishe is a private company established in 2014 under the laws of the People’s Republic of
`
`China with a principal place of business in Beijing. Id. ¶¶ 3, 10. It is the owner of a copyright in
`
`Meishe software (the “Meishe app”), “a computer program that enables users to complete
`
`professional-level video and audio editing processing on the mobile side through simple operations,
`
`making high quality video and audio clips.” Id. ¶ 53. Meishe “developed the Meishe app and further
`
`developed the Meishe SDK and other software that provide users with video and audio editing
`
`functions.” Id. ¶ 54.
`
`TikTok Inc. is a California corporation with a “regular and established place of business in
`
`Austin, Texas.” Id. ¶ 11. TikTok Pte. Ltd. is a Singapore corporation with its principal place of
`
`business in Singapore. Id. ¶ 12. ByteDance Ltd. is a Cayman Islands corporation with offices in
`
`the United States and elsewhere. Id. ¶¶ 13, 16. ByteDance Inc. is a Delaware corporation. Id. ¶14.
`
`ByteDance Ltd. is the parent and owner of TikTok Inc., TikTok Pte. Ltd., and ByteDance Inc. Id.
`
`¶ 15. ByteDance Ltd. developed the TikTok app around May 2017 and operates and controls the
`
`app in the United States through its subsidiaries and affiliates, including the other defendants in this
`
`case. Id. ¶¶ 17, 55.3 The TikTok app “allows users to create short videos, which often feature music
`
`in the background and can be sped up, slowed down, or edited with a filter.” Id. ¶ 55. Defendants
`
`operate ByteDance Ltd.’s TikTok business in the United States as a joint enterprise. Id. ¶ 21.
`
`
`
`Meishe brings this action for copyright infringement of its registered and unregistered
`
`software, all of which is “subject to copyright protection.” Id. ¶ 1. Meishe registered portions of its
`
`software with the Copyright Protection Centre of China (“CPCC”), with Copyright Registration
`
`Nos. 2015SR227927, 2018SR037747, 2018SR037751, 2018SR038324, 2018SR218096,
`
`
`2 On February 26, 2024, the Court granted the parties’ joint stipulation dismissing the three
`state law tort claims, unfair competition by misappropriation under Texas law, unjust enrichment
`under Texas law, and aiding and abetting a breach of fiduciary duty under Texas law (Counts IV,
`VI and VII), with prejudice. Dkt. No. 405.
`
` 3
`
` The TikTok app is the international version of a Chinese application called Douyin. Id.
`¶ 5.
`
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 3 of 27
`
`
`
`2018SR218287, 2019SR0899912, and 2020SR0291426.4 Id. ¶¶ 1, 54. Meishe lists completion
`
`dates for the CPCC-registered copyrighted software. See id. ¶ 71. Meishe is also the “owner of
`
`copyrights in its source code and software, which have been fixed in tangible mediums before the
`
`filing date of this lawsuit regardless of registration, including but not limited to [a long list of
`
`software].” Id. ¶¶ 1, 54. Meishe “has the exclusive rights to reproduce, display, and distribute the
`
`copyrighted software,” including the registered copyrights listed above, “as well as its copyrighted
`
`source code and software regardless of registration.” Id. ¶ 72. Prior to filing the TAC, Meishe
`
`provided defendants with copies of the China copyright registrations and associated material and
`
`copies of other copyrighted works, and defendants’ experts “have spent several days reviewing that
`
`code.” Id. ¶ 1.
`
`
`
`In March 2021, Meishe discovered that a “series of apps belonging to ByteDance, Ltd. had
`
`infringed Meishe’s copyright since at least 2018.” Id. ¶ 56. “Meishe personnel conducted an
`
`analysis between code of Meishe app and that of TikTok app [which] shows that the code used to
`
`implement video and audio editing functions in the two apps is highly similar, proving that
`
`Defendants copied Meishe’s copyright work.” Id.5
`
`Defendants allegedly had access to Meishe’s source code through Meishe’s former
`
`employee, Mr. Jing Xie, who is currently working for defendants. Id. ¶ 58. Mr. Xie began his
`
`employment with a Meishe affiliate in 2007 and began his employment with Meishe in March 2015.
`
`Id. ¶ 60. As a C++ R&D engineer, Mr. Xie “directly participated in the development of Meishe’s
`
`software and the subsequent upgrades of various versions until his resignation on or around June 8,
`
`2015.” Id. Mr. Xie also “had access to and control over Meishe’s trade secrets, proprietary software
`
`code, and/or other confidential information” during his employment with Meishe and its affiliate.
`
`Id. ¶ 59. When Mr. Xie resigned on June 8, 2015, he “knowingly took copyrighted and trade secret
`
`
`4 Meishe’s TAC lists eighteen copyright registrations that defendants allegedly copied. See
`TAC ¶¶ 54, 71. In a September 29, 2023 letter to defendants, Meishe withdrew the following ten
`registered copyrights from the case: 2019SR0899799, 2019SR0899814, 2019SR0901166,
`2019SR0901175, 2019SR0901188, 2019SR0901198, 2019SR0901209, 2020SR0572704,
`2020SR0572713, 2020SR0575533. Dkt. No. 409 at 2 n.2; Dkt. No. 414 at 7 n.4.
`
` 5
`
` Meishe conducted a comparison between “TikTok v8.5.0” object code, obtained from
`public channels, and “Meishe v2.5.4” object code. Id. ¶¶ 56-57.
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 4 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Meishe code that was incorporated into subsequent software including software controlled and
`
`distributed by ByteDance and its subsidiaries.” Id. ¶ 97, see also ¶ 63. Mr. Xie began his
`
`employment at ByteDance as “multimedia audio and video director” around October 2017. Id.
`
`¶¶ 65, 98.
`
`Around March 2021, Meishe audited Mr. Xie’s activities and “discovered that on or around
`
`June 3, 2015, he downloaded [and copied] Meishe’s source code and/or other confidential
`
`information.” Id. ¶¶ 94, 101. Each time Mr. Xie modified Meishe software in the “SVN system,”
`
`he first had to check “the corresponding subtree of the repository to get a so-called ‘working copy.’”
`
`Id. ¶ 61. The “SVN system recorded all relevant information in its logs,” and “[t]hese logs prove
`
`that Mr. Jing Xie accessed Meishe’s source code and downloaded the source code.” Id. Around
`
`May 14, 2021, Meishe “notarized the SVN log and checked the committed log of Jing Xie on SVN.”
`
`Id. ¶ 101.
`
`
`
`In addition to the allegations already detailed, Meishe alleges the following with respect to
`
`its copyright infringement claim. “On information and belief, the TikTok app consists of Plaintiff’s
`
`proprietary information, trade secrets, and/or reproduced software code” registered with the CPCC,
`
`“as well as its copyrighted source code and software regardless of registration.” Id. ¶ 73. More
`
`specifically, defendants’ software, including TikTok, “includes portions of code that are copyrighted
`
`and owned by TikTok” and subjected to copyright registrations and portions of plaintiff’s software
`
`code that were never made public. Id. ¶ 74. Defendants infringed on plaintiff’s copyright in its
`
`software by reproducing Meishe’s copyrighted works, preparing derivative works based on
`
`Meishe’s copyrighted works, and distributing the copyrighted works. Id. ¶ 75. Defendants also
`
`profited by inducing users to download and use the TikTok app. Id. Additionally, “[u]pon
`
`information and belief, on or around April 2020, Defendants took steps to obfuscate its software
`
`code in order to conceal its infringement.” Id. ¶ 76.
`
`
`
`Defendants were aware of the incorporation of Meishe’s copyrighted source code into at
`
`least the TikTok app and were aware of the use of Meishe’s copyrighted source code by users of at
`
`least the TikTok app. Id. ¶ 77. Defendants also knowingly provided false copyright management
`
`information and/or distributed or imported false copyright information for distribution, and/or
`
`4
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 5 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`“intentionally removed or altered Meishe’s copyright management information from the software []
`
`copied and distributed for importation.” Id. ¶¶ 77, 160. Meishe previously filed lawsuits against
`
`ByteDance and other defendants in China, including an April 30, 2021 lawsuit, where, according to
`
`a National Law Review article, Meishe alleged that “version 3.0 and later of Douyin released on
`
`November 1, 2018, copied video and audio editing and processing software code from Meishe
`
`Technology’s copyrighted beauty photo software. Further, six other apps by Bytedance have traces
`
`of code plagiarism, many of which have the same function names and even misspelled code copied
`
`from Meishe source code.” Id. ¶ 79.
`
`
`
`Plaintiff further alleges the following with respect to its misappropriation of trade secrets
`
`claims under the DTSA and TUTSA. “Plaintiff is the owner of trade secrets that include, but are
`
`not limited to proprietary, independently-developed software code that allows for video and audio
`
`editing, video and audio processing, video and audio release, personalized audio and video
`
`recommendations, webcasting, and other confidential business information.” Id. ¶¶ 87, 119.
`
`“Plaintiff’s trade secrets are not generally known or readily ascertainable nor could they be properly
`
`acquired or duplicated by others,” and plaintiff’s copyrighted source code has never been made
`
`publicly available. Id. ¶¶ 88-89, 120-121. Meishe “has taken reasonable and extensive efforts to
`
`maintain the secrecy of its source code through the use of employment agreements and other
`
`measures. All of Plaintiff’s trade secrets are stored on secure servers and are password-protected.”
`
`Id. ¶¶ 89, 121. Defendants wrongfully acquired Meishe’s proprietary software code from Mr. Xie
`
`and knew or had reason to know that the software code was improperly acquired. Id. ¶¶ 102, 131.
`
`Defendants also obtained other trade secret information from Mr. Xie, including “information about
`
`which portions of Meishe’s software were most likely to be popular if incorporated into video
`
`editing features in smart phone applications.” Id. ¶ 103. Defendants induce users to download and
`
`use its products and services that include Meishe’s software code. Id. ¶¶ 105, 133.
`
`
`
`Meishe further alleges the following with respect to the Lanham Act claim. TikTok “informs
`
`users that it owns and has proper rights to the code it uses in its applications.” Id. ¶¶ 158-159.
`
`Meishe provides examples of this in the TAC. See id. Through the described conduct, defendants
`
`misrepresented to their consumers “the nature, characteristics of their product and commercial
`
`5
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 6 of 27
`
`
`
`activities.” Id. ¶ 161. Defendants “have willfully continued to represent the software as their own,
`
`not credited Meishe with being the owners or author of portions of Defendants’ products or code,
`
`and not stopped distributing the infringing and misappropriated code.” Id. Defendants’
`
`misrepresentations were intended to, and did influence purchasing decisions by its consumers. Id.
`
`¶¶ 163-164.
`
`
`
`LEGAL STANDARD
`
`Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if
`
`it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to
`
`dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”
`
`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires
`
`the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted
`
`unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened
`
`fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the
`
`speculative level.” Twombly, 550 U.S. at 555, 570.
`
`In deciding whether the plaintiff has stated a claim upon which relief can be granted, the
`
`court must assume that the plaintiff’s allegations are true and must draw all reasonable inferences
`
`in the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However,
`
`the court is not required to accept as true “allegations that are merely conclusory, unwarranted
`
`deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055
`
`(9th Cir. 2008). A pleading must contain allegations that have “factual content that allows the court
`
`to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
`
`U.S. at 678. Dismissal under Rule 12(b)(6) is proper when the complaint “lacks a cognizable legal
`
`theory” or “fails to allege sufficient facts to support a cognizable legal theory.” Somers v. Apple,
`
`Inc., 729 F.3d 953, 959 (9th Cir. 2013).
`
`If the Court dismisses the complaint, it must then decide whether to grant leave to amend.
`
`The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no
`
`request to amend the pleading was made, unless it determines that the pleading could not possibly
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 7 of 27
`
`
`
`be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)
`
`(citations and internal quotation marks omitted).
`
`
`
`I.
`
`Copyright Infringement Claim (Count I)
`
`DISCUSSION
`
`The Copyright Act grants copyright owners the exclusive rights, among others, to copy,
`
`prepare derivative works based on, and distribute copyrighted works. See 17 U.S.C. § 106(1)-(3).
`
`To establish copyright infringement, a plaintiff must prove “(1) ownership of a valid copyright, and
`
`(2) copying of constituent elements of the work that are original.” Feist Publ'ns, Inc. v. Rural Tel.
`
`Serv. Co., 499 U.S. 340, 361 (1991). Where there is no direct evidence of copying, “copying may
`
`be established by showing that the infringer had access to plaintiff's copyrighted work and that the
`
`works at issue are substantially similar in their protected elements.” Cavalier v. Random House,
`
`Inc., 297 F.3d 815, 822 (9th Cir. 2002). Copying may also be established by pleading facts plausibly
`
`showing “that the two works in question are strikingly similar.” Malibu Textiles, Inc. v. Label Lane
`
`International, Inc., 922 F.3d 946, 952 (9th Cir. 2019). “Where two works are strikingly similar,
`
`access may be inferred.” Id. (citing Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 987-88
`
`(9th Cir. 2017)).
`
`
`
`A. Whether Meishe’s Unregistered Copyright Infringement Allegations Are
`
`Sufficiently Specific
`
`Defendants first argue that Meishe’s copyright infringement claim for “copyrighted code
`
`and software regardless of registration” should be dismissed because Meishe’s allegations are
`
`“conclusory and vague and provide no notice to Defendants on what Meishe has allegedly
`
`infringed.” Dkt. No. 409 at 4. Meishe contends that it has identified its copyrighted works with
`
`sufficient particularity. Dkt. No. 414 at 3.
`
`In the complaint, Meishe includes a long list of included but not limited to “source code and
`
`software, which have been fixed in tangible mediums before the filing date of this regardless of
`
`registration.” TAC ¶ 1. Plaintiff explains how the infringement allegedly occurred: defendants
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 8 of 27
`
`
`
`incorporated portions of Meishe’s copyrighted source code into their software, specifically the
`
`TikTok app. However, the TAC fails to allege sufficient facts that show copying of the unregistered
`
`works because it is not clear what source code or software listed in the first paragraph of the
`
`complaint was allegedly infringed. See Media.net Adver. FZ-LLC v. Netseer, Inc., 156 F. Supp. 3d
`
`1052, 1068 (N.D. Cal. 2016) (dismissing a copyright infringement claim with leave to amend where
`
`the plaintiff failed to identify which sections of HTML code the defendant allegedly copied). The
`
`Court thus dismisses Meishe’s copyright infringement claims as to the unregistered works with leave
`
`to amend to add more specificity about what source code or software was allegedly copied.6 Meishe
`
`need not specify each and every instance of infringement; alleging representative acts of
`
`infringement is sufficient. See Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co. Ltd., 149 F.
`
`Supp. 3d 1167, 1175 (N.D. Cal. 2016).
`
`The Court directs Meishe to be specific with its language. The terms “source code” and
`
`“software” are used interchangeably in the TAC. However, Meishe’s counsel clarified at the April
`
`5, 2024 hearing that “software” refers to products that are the result of compiling “source code,”
`
`such as an app or SDK (software developer kit). Hence the two terms refer to different things and
`
`should not be used interchangeably.
`
`
`
`B. Whether Meishe Has Adequately Pled Access
`
`Defendants next argue that Meishe has not properly pled access to both the unregistered
`
`copyrighted source code as well as material registered in 2017 – 2019. Dkt. No. 409 at 5.
`
`Defendants argue that Meishe has failed to assert, and factually cannot assert, defendants’ “access”
`
`to these works. Id.
`
`A plaintiff must separately plead access only when alleging substantial similarity, not when
`
`
`6 Defendants contend that Meishe should not be granted leave to amend because it has
`already amended its complaint three times and despite “over a year of discovery, including multiple
`chances to review Defendants’ source code, Meishe has not cured the deficiencies in the Second
`Amended Complaint.” Dkt. No. 409 at 15. However, the court in Texas never issued an order on
`defendants’ motion to dismiss. Furthermore, the Court does not believe “that the pleading could not
`possibly be cured by the allegation of other facts,” which means leave to amend should be granted
`under Ninth Circuit law. See Lopez, 203 F.3d at 1130.
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 9 of 27
`
`
`
`alleging striking similarity. See Baxter v. MCA, Inc., 812 F.2d 421, 423-24, n.2 (9th Cir. 1987);
`
`Astor-White v. Strong, 733 Fed. Appx 407, 407 (9th Cir. 2018). This is because access may be
`
`inferred when two works are strikingly similar. Malibu Textiles, 922 F.3d at 952. Here, Meishe
`
`alleges that its “personnel conducted an analysis between code of Meishe app and that of TikTok
`
`app [which] shows that the code used to implement video and audio editing functions in the two
`
`apps is highly similar.” TAC ¶ 56. The Court does not find this allegation alone sufficient to allege
`
`striking similarity.7
`
`“Access is proven when the plaintiff shows that the defendant had an opportunity to view or
`
`to copy the plaintiff’s work.” Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp.,
`
`562 F.2d 1157, 1172 (9th Cir. 1977). “This is often described as providing a ‘reasonable
`
`opportunity’ or ‘reasonable possibility’ of viewing the plaintiff's work.” Three Boys Music Corp.
`
`v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) (citing 4 Melville B. Nimmer & David Nimmer,
`
`Nimmer on Copyright, § 13.02[A], at 13–19 (1999)). Reasonable access is “more than a bare
`
`possibility.” Three Boys Music Corp., 212 F.3d at 482 (citations and internal quotation marks
`
`omitted).
`
`Meishe alleges that Mr. Xie had access to its proprietary software code and explains how it
`
`learned that Mr. Xie downloaded and copied the source code. See TAC ¶¶ 59, 61, 94, 101. Given
`
`these allegations, coupled with the allegation about the similarity of the code in Meishe and
`
`defendants’ products, it is reasonable to infer that defendants had access to Meishe’s source code
`
`
`7 Plaintiff asserts that the complaint “alleges striking similarity, including even at least one
`copied typographical error.” Dkt. No. 414 at 6. However, the allegation about the typographical
`error is not specific to this case. Meishe alleges that it has “previously filed multiple lawsuits against
`ByteDance alleging that ByteDance incorporated Meishe’s protected code in its products. These
`cases include, for example, a lawsuit filed on or about April 30, 2021 by Meishe against ByteDance
`and other Defendants. As noted in the National Law Review on May 1, 2021, for example, ‘Meishe
`alleges that version 3.0 and later of Douyin released on November 1, 2018, copied video and audio
`editing and processing software code from Meishe Technology’s copyrighted beauty photo
`software. Further, six other apps by Bytedance have traces of code plagiarism, many of which have
`the same function names and even misspelled code copied from Meishe source code.’” TAC ¶ 79.
`If Meishe had alleged that there are copied typographical errors involving the source code at issue
`in this case, the Court may be able to reasonably infer striking similarity. However, the Court cannot
`attribute this pleading quoted in an online article from a separate case to this case.
`
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 10 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`that was created before Mr. Xie departed Meishe through Mr. Xie.8
`
`Regarding the seven works registered with the CPCC post-June 8, 2015 when Mr. Xie left
`
`Meishe, defendants contend that “it is impossible for Meishe to demonstrate access” because its
`
`“only allegation of ‘access to Meishe’s source code’ is through” Mr. Xie. Dkt. No. 409 at 6; see
`
`TAC ¶ 71 for registration completion dates. Consequently, according to defendants, any copyright
`
`registrations for works created after June 8, 2015 “cannot support a copyright claim, because Mr.
`
`Xie could not have had access to those works.” Id. Meishe responds that this is a defense that
`
`assumes the works registered in 2017-2019 did not exist until after Mr. Xie departed Meishe. Dkt.
`
`No. 414 at 6. Meishe contends that it did not plead that Mr. Xie was only able to access Meishe’s
`
`copyright protected materials after they were registered; rather, it alleged that Mr. Xie “had access
`
`to and control over Meishe’s trade secrets, proprietary software code, and/or confidential
`
`information” from 2007 until his departure on June 8, 2015. Id. (quoting TAC ¶ 93).
`
`In their reply, defendants contend that a “bare assertion that these software versions existed
`
`in their entirety two to four years before Meishe represented to the copyright office in China that
`
`they were ‘completed’ is not plausible without further facts.” Dkt. No. 416 at 3. The Court agrees
`
`with defendants that Meishe has pled insufficient facts to plausibly allege access to copyrighted
`
`works completed after Mr. Xie’s departure from Meishe. The motion to dismiss as to the copyright
`
`infringement claims is thus granted as to the copyrighted works created after Mr. Xie’s departure
`
`from Meishe, with leave to amend to plead additional facts regarding access.
`
`
`
`
`
`
`
`C. Whether Meishe Has Adequately Pled Substantial Similarity
`
`Defendants next argue that Meishe’s substantial similarity allegations do not provide fair
`
`notice of how defendants’ works are substantially similar to Meishe’s copyrighted works. Dkt. No.
`
`404 at 9. Defendants contend that Meishe’s “conclusory statements” do not identify what
`
`
`8 Defendants argue that the TAC is silent on whether Mr. Xie had access to the “copyrighted
`code and software regardless of registration.” Dkt. No. 409 at 6. While the complaint could be
`more specific about what Mr. Xie had access to, the Court interprets the allegation that Mr. Xie had
`access to Meishe’s proprietary software code to encompass the software and code listed in ¶ 1 of
`the complaint. See TAC ¶¶ 1, 59.
`
`10
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 11 of 27
`
`
`
`copyrighted works are substantially similar to what parts of the TikTok app. Id. Regarding
`
`Meishe’s allegation about its comparison of source code, defendants assert that Meishe does not
`
`plead that the code in Meishe v2.5.4 is part of its copyright infringement claim, and that there is no
`
`identification of what parts of the Meishe code is similar to the TikTok v8.5 code. Id. at 10.9
`
`Defendants further contend that Meishe has failed to show the two works are “highly similar,” even
`
`though Meishe has conducted “an extensive review of Defendants’ source code.” Id. Defendants
`
`also contend that Meishe never identifies “what protectable aspect(s) of its asserted copyrights
`
`Defendants have allegedly copied” and that Meishe has “only alleged that its code and the TikTok
`
`app are similar in the functional sense.” Id. Lastly, defendants contend that Meishe’s “descriptions
`
`of its code reflect nothing more than processes, concepts and ideas—not a detailed showing of an
`
`original work.” Id. Meishe responds that its allegations of similarity are sufficient under the notice
`
`pleading standard of Rule 8. See Dkt. No. 414 at 11-12.
`
`
`
`Meishe alleges that defendants’ software, “including but not limited to TikTok includes
`
`portions of [Meishe’s] code that are copyrighted and owned by plaintiff and never made public.”
`
`TAC ¶ 74. Meishe alleges that it has exclusive rights to its copyrighted software listed in the first
`
`paragraph of the TAC. See id. ¶ 72. Meishe further alleges:
`
`In March 2021, Meishe discovered that a series of apps belonging to ByteDance, Ltd.
`had infringed Meishe’s copyright since at least 2018. These apps include, but are
`not limited to, TikTok, Douyin, Jianying, and CapCut. Meishe personnel conducted
`an analysis between code of Meishe app and that of TikTok app [that] shows that the
`code used to implement video and audio editing functions in the two apps is highly
`similar, proving that Defendants copied Meishe’s copyright work.
`
`Though Meishe cannot obtain the source code of TikTok app, Meishe was able to
`conduct a comparison between “TikTok v8.5.0” object code and “Meishe v2.5.4”
`object code. On the Android platform, object code of an app is in the form of Android
`application package (“APK”) file. The release version refers to the APK file.
`“TikTok v8.5.0” APK file can be obtained from public channels. In March 2021,
`Meishe downloaded “TikTok v8.5.0” APK file from a third-party android app store.
`
`Id. ¶¶ 56-57. Meishe also alleges that on or around April 2020 defendants “took steps to obfuscate
`
`
`9 Meishe v.2.5.4 is listed in ¶ 1 of the TAC. However, as discussed in subsection A, it is
`unclear if Meishe alleges that all of the source code and software listed in ¶ 1 of the TAC was
`allegedly infringed.
`
`11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 12 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`its software code in order to conceal its infringement.” Id. ¶ 76.
`
`
`
`“Substantial similarity in the literal elements of a computer program can be demonstrated
`
`either by showing verbatim (or near verbatim) copying of the source code or that the ‘fundamental
`
`essence’ of the code was duplicated.” Lilith Games (Shanghai) Co. v. uCool, Inc., No. 15-CV-
`
`01267-SC, 2015 U.S. Dist. LEXIS 128619, at *6 (N.D. Cal. Sep. 23, 2015) (citing 4-13 Nimmer on
`
`Copyright § 13.03). “Similarly, copying will be found where source code is translated from one
`
`programming language to another or where insignificant changes are made, such as replacing certain
`
`terms, reordering lines of code, or adding or removing comments.” Id.
`
`
`
`As discussed in part A, it is unclear what software or source code was allegedly infringed.
`
`However, once the complaint is amended to address this deficiency, the Court finds plaintiff’s
`
`allegations of substantial similarly sufficient at this pleadings stage.
`
`
`
`
`
`
`
`D. Whether Meishe Has Adequately Pled a Violation of 17 U.S.C. § 1202
`
`Defendants contend that Meishe alleges a violation of 17 U.S.C. § 1202, the Digital
`
`Millenium Copyright Act (“DMCA”), “through conclusory allegations that Defendants provided
`
`copyright management information (‘CMI’) that is ‘false’ or ‘removed or altered Meishe’s’ CMI.”
`
`Dkt. No. 404 (quoting TAC ¶ 77). Defendants contend that Meishe provides no identification of
`
`the CMI allegedly “removed or altered” and that its “bare and conclusory allegations” are
`
`insufficient. Id. Meishe responds that its allegations in ¶ 77 of the TAC are sufficient to allege a
`
`violation of the DMCA. Dkt. No. 414 at 7-8.
`
`
`
`Section 1202(a) of the DMCA provides that: “No person