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

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`Case 3:23-cv-06012-SI Document 429 Filed 04/23/24 Page 11 of 27
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`copyrighted works are substantially similar to what parts of the TikTok app. Id. Regarding
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`Meishe’s allegation about its comparison of source code, defendants assert that Meishe does not
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`plead that the code in Meishe v2.5.4 is part of its copyright infringement claim, and that there is no
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`identification of what parts of the Meishe code is similar to the TikTok v8.5 code. Id. at 10.9
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`Defendants further contend that Meishe has failed to show the two works are “highly similar,” even
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`though Meishe has conducted “an extensive review of Defendants’ source code.” Id. Defendants
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`also contend that Meishe never identifies “what protectable aspect(s) of its asserted copyrights
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`Defendants have allegedly copied” and that Meishe has “only alleged that its code and the TikTok
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`app are similar in the functional sense.” Id. Lastly, defendants contend that Meishe’s “descriptions
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`of its code reflect nothing more than processes, concepts and ideas—not a detailed showing of an
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`original work.” Id. Meishe responds that its allegations of similarity are sufficient under the notice
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`pleading standard of Rule 8. See Dkt. No. 414 at 11-12.
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`Meishe alleges that defendants’ software, “including but not limited to TikTok includes
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`portions of [Meishe’s] code that are copyrighted and owned by plaintiff and never made public.”
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`TAC ¶ 74. Meishe alleges that it has exclusive rights to its copyrighted software listed in the first
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`paragraph of the TAC. See id. ¶ 72. Meishe further alleges:
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`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.
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`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.
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`Id. ¶¶ 56-57. Meishe also alleges that on or around April 2020 defendants “took steps to obfuscate
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`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.
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`its software code in order to conceal its infringement.” Id. ¶ 76.
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`“Substantial similarity in the literal elements of a computer program can be demonstrated
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`either by showing verbatim (or near verbatim) copying of the source code or that the ‘fundamental
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`essence’ of the code was duplicated.” Lilith Games (Shanghai) Co. v. uCool, Inc., No. 15-CV-
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`01267-SC, 2015 U.S. Dist. LEXIS 128619, at *6 (N.D. Cal. Sep. 23, 2015) (citing 4-13 Nimmer on
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`Copyright § 13.03). “Similarly, copying will be found where source code is translated from one
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`programming language to another or where insignificant changes are made, such as replacing certain
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`terms, reordering lines of code, or adding or removing comments.” Id.
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`As discussed in part A, it is unclear what software or source code was allegedly infringed.
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`However, once the complaint is amended to address this deficiency, the Court finds plaintiff’s
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`allegations of substantial similarly sufficient at this pleadings stage.
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`D. Whether Meishe Has Adequately Pled a Violation of 17 U.S.C. § 1202
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`Defendants contend that Meishe alleges a violation of 17 U.S.C. § 1202, the Digital
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`Millenium Copyright Act (“DMCA”), “through conclusory allegations that Defendants provided
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`copyright management information (‘CMI’) that is ‘false’ or ‘removed or altered Meishe’s’ CMI.”
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`Dkt. No. 404 (quoting TAC ¶ 77). Defendants contend that Meishe provides no identification of
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`the CMI allegedly “removed or altered” and that its “bare and conclusory allegations” are
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`insufficient. Id. Meishe responds that its allegations in ¶ 77 of the TAC are sufficient to allege a
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`violation of the DMCA. Dkt. No. 414 at 7-8.
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`Section 1202(a) of the DMCA provides that: “No person